Published in The National Post, September 3, 2004, p. A-11.

 

CHOI Should Ditch the Eight-second Delay
by
Pierre Lemieux

 

In an order issued last week, the Federal Court of Appeal agreed to hear CHOI-FM's appeal against the CRTC and reinstate the station's licence during the process. Both the CRTC and the Attorney-General of Canada agreed to the order, which was actually based on a lawyer-brokered agreement with CHOI. It was also revealed that an eight-second tape delay had been imposed upon controversial host Jean-Francois "Jeff" Fillion. The tape delay could be the tip of the iceberg in a scenario where, in order to keep its licence, worth many millions of dollars, CHOI gently self-censors. Such a compromise would be in the interest of the government and the CRTC, whose cultural inquisition has not been well-received. The compromise could be extended so as to stop the judicial proceedings and justify a new CRTC hearing where CHOI would humbly beg for -- and be granted -- a new licence. According to CHOI, though, that's not what is happening. A tape-delay of eight seconds to eight minutes had been "strongly suggested" by the CRTC during hearings last February, and more or less accepted by CHOI at the time. CHOI's in-house lawyer, Rene Dion, suggests that it just coincidentally happened that the device became technically operational in early August. Moreover, the order itself does not mention the tape delay, although it does compel CHOI to abide by the regulatory conditions of its licence. Fillion himself is not worried. He believes that the CRTC has backed off -- and that the support CHOI received from English Canada was a critical factor in this victory. He argues that a tape delay is not unusual in the industry. "I would be surprised if it were ever used," he says. "It's there to please certain people." In fact, this sort of self-censorship is also used in the U.S. to keep "shock jocks" like Howard Stern in check -- and, on TV, to keep nipples in bras. The Federal Communications Commission, which is the American equivalent of the CRTC, has started imposing heavy fines on radio and TV stations that go astray. Here, the feds have invoked convoluted "Canadian values" -- a mantra in the CRTC decision against CHOI -- to describe their politically-correct preferences. I personally don't agree with many of the populist flares for which Mr. Fillion has been blamed. But who are the CRTC bureaucrats to coercively silence iconoclastic Canadians who don't share their values? Who are the politicians to draft us at the service of their so-called "Canadian values?" Patrice Demers, the owner of CHOI, is a tough young businessman who is said to be incensed at what happened, and willing to take this fight all the way to the Supreme Court. "It's the fight of his life," explains Fillion, a personal friend of his. Perhaps, this time, Leviathan has picked the wrong victim and the wrong fight. Yet, another unpleasant scenario is possible. It is likely that the Federal Court of Appeal won't render its judgement until mid- 2005. An appeal to the Supreme Court could take another year. By the time an unfavourable judgment is rendered and the judicial process has run its course, the enthusiasm of CHOI's supporters will have dampened, journalists will have lost interest, and legitimacy will have moved to the camp of the state. Moreover, the company's bankers will have gradually tightened the screw, its suppliers will have become nervous and its advertisers will have started to look elsewhere. To keep a business running requires the blessing of the state at every corner. The state will have the last word, and everybody knows it. Should such a scenario unfold, we will regret that CHOI did not simply defy the "law" and continue broadcasting after Aug. 31. Am I being too pessimistic? The judicial process may reveal some interesting facts. Why did Cogeco, a competitor of CHOI, so ferociously request the CRTC to revoke the station's licence? Has Corus, another large broadcaster, applied for CHOI's licence, as persistent rumours suggest? And what in heavens are the CRTC's "Canadian values?" Perhaps Ottawa will chicken out and beg the CRTC to drop out of the present proceedings, and give back a licence to CHOI with no condition attached. Better, perhaps the court will vindicate free speech and throw the CRTC-imposed "Canadian values" in the garbage cans of history. And why not the CRTC with them? However, any optimism assumes that CHOI itself will not chicken out. This is an important battle for the future of Canadian liberty. As a sign of its continued commitment to freedom of speech, CHOI should immediately remove Jeff Fillion's tape delay, and announce it publicly. Hang on, brothers!