Updated with news of court injunction. See below.

In a decision that shocks only the people who haven’t been paying attention, the CRTC today decided to revoke all the licences of Aboriginal Voices Radio, a network of FM stations in major markets that were designed to provide programming to aboriginal Canadians living off-reserve. In a press release, it said it was doing so “to help improve radio service for urban Aboriginal listeners”, which sounds a bit like Orwellian doublespeak but is actually more true than false.

The decision requires AVR to cease broadcasting within a month (July 25), and will open up FM frequencies in the very competitive markets of Toronto, Ottawa, Edmonton, Calgary and Vancouver. (AVR also had stations in Montreal and Kitchener that they later dropped, and authorizations for stations in Regina and Saskatoon that never went on the air.) The commission says it will call for new applications for those cities, but “will give priority to proposals for services that will serve Aboriginal communities.”

To understand the decision, I could point to licence renewal decisions in which the CRTC got promises from AVR that it would come into compliance with its obligations, and then fail to do so. I could point to the programming on the air, of which none is local and little seems specifically targeted at aboriginals.

But instead, I’ll just point you to the transcript of the CRTC hearing of May 13 that AVR was asked to attend to explain itself.

AVR brought in external consultants from Bray & Partners who promised to bring the stations into compliance with their licenses. (It included a news team led by Steve Kowch, former CJAD and CFRB program director.) Bray representatives and AVR president Jamie Hill made the usual we’re-so-sorry and we-take-this-very-seriously statements as everyone does when they’re called to a CRTC hearing for non-compliance.

But every time a CRTC commissioner would ask about their coming into compliance, the answer wasn’t “we’ve fixed it” but “we’ll fix it”. And this clearly annoyed the commissioners, because AVR had been making promises to fix it for years.

A few excerpts from the transcript, with key points highlighted by me, are below. It’s long, but in short, AVR has spent a decade failing to meet its licence obligations, it came to the hearing with a half-baked, improvised and incomplete business plan, almost none of which had yet been implemented. The stations were providing no local programming and had no on-air staff, and as a last resort AVR tried to claim CRTC policies are discriminatory.

This wasn’t just about being delayed in filing a form, or being a few percentage points under on Canadian content. The stations were zombies — the Ottawa one had even been off the air since last fall — and there was no real plan to bring them back.

In short, it was all far too little, and far too late. The Canadian Association of Aboriginal Broadcasters also came to the hearing asking the CRTC to call for new applications to serve the communities, and that’s what the commission will do.

On maintaining proper logs and audio recordings:

186   THE CHAIRPERSON: Without proper logs, you understand that — the logs and logger tapes — that it’s impossible for the Commission to verify many of your other obligations?

187   MR. HILL: Yes, we understand that.

188   THE CHAIRPERSON: What due diligence have you put in place to ensure flawless execution of your obligations pursuant to subsections 8(4) and 8(6) of the Radio Regulations?

189   MR. HILL: Mr. Chairman, the diligence that we are putting in place is consistent with our procuring the services of Bray and Partners. There is a Regulatory Affairs official as part of the team and we have the technical capabilities and will come into the financial capabilities of making sure that we comply with all of those.

190   MR. BRAY: And may I add, we have now one of the top people in the country, our Operations Manager, putting together the software, the logs. Everything you have discussed is now going to be in the best possible shape. You can rest assured that again our people have decades and decades of experience with this sort of compliance and you can rest assured that from this time forward that won’t be a problem.

191   THE CHAIRPERSON: So you’re saying that currently those measures are not in place?

192   MR. BRAY: Forgive me.

193   They are currently in the process, as per the business plan, of being put into place. Yes, some of them are —

194   THE CHAIRPERSON: So currently they are not in place?

195   MR. BRAY: Some are not, but for the most part, the logging issues, they are in place.

196   THE CHAIRPERSON: Despite the fact that these logging issues have been raised with you for a number of months, you are saying that they are still — due diligence is still not in place?

197   MR. BRAY: The team wasn’t on the job at the time that you have specified. In May we were not on the job. This is a relatively new business plan and a relatively new team, so certainly once we came into the picture, yes, we have been quickly bringing everything into compliance but, no, we were not there in May.

On filing annual financial returns:

206   THE CHAIRPERSON: When do you plan to submit your 2013-14 annual returns for each of the five stations?

207   MR. HILL: I believe we can do that within 30 days, Mr. Chairman.

208   THE CHAIRPERSON: Do you agree with me that that is not consistent with the regulatory obligation?

209   MR. HILL: Yes, I agree with you that it is consistent.

210   The only thing that I have to put a caveat on is we have not put together the financing to do an audit in 30 days on the broadcast year. That would take us a bit longer to ensure that it’s not the fiscal year and you may be familiar that we did an engagement review for the rest of the broadcast year after the audited financial statement for the fiscal year. So the nature of that problem was it is quite expensive to convert all our systems as we had started out doing the fiscal year and to convert it to five separate stations and convert all of our financial management systems to the broadcast year was an expense issue.

On how many people actually work at AVR:

235   THE CHAIRPERSON: How many employees currently work for AVR?

236   MR. HILL: One fulltime contractor, a part-time bookkeeper, and we have used a couple of contractors to do short term tasks that we needed. This is over the past several months.

237   MR. BRAY: And I should add that Bray and Partners now have approximately 14 people working on the project.

238   THE CHAIRPERSON: But they are your employees?

239   MR. BRAY: That’s correct, and we are contracted to AVR.

…

258   THE CHAIRPERSON: How can you do any of your work without employees in the five stations? This is astounding.

…

267   THE CHAIRPERSON: So, how many on-air staff do you have in each station currently?

268   MR. BRAY: We have not got the local presence right now because we’re just in the process of conversion. Right now we just have a couple of announcers working across the board.

269   But that having been said, that’s our — again, we’re relatively new to this operation and we are in the process of hiring local people in each of the markets.

270   THE CHAIRPERSON: How are you able to meet your current obligations with so few on-air staff?

271   MR. BRAY: We are not currently — if I can say we, if you don’t mind —

272   THE CHAIRPERSON: I assume that whether it’s legal counsel or yourself, if you’re at this table, it binds AVR?

273   MR. BRAY: Yes, correct.

274   We are not currently in compliance on all issues as Jamie has noted, but we have set out a plan and a timetable to bring the remaining issues into compliance, specifically, the local content and the news content.

275   Again, we’ve just brought Steve Kowch on board, I think I mentioned that. Steve was — he’s going to head up our news operation and the hiring of news people in each market. Again, he has extensive experience.

276   I want to reinforce that I strongly believe that you can put your faith in the Bray & Partners team, or at least the individuals noted in the Bray & Partners team because they have extensive experience. We will not run — in the future, run into these sorts of compliance issues, things as simple as logger tapes and logger information. Our peoples have done that for decades. I really don’t see a future in — a problem of that sort in the future.

277   That doesn’t forgive for the moment that it’s currently out of compliance. I’m not making excuses, I’m simply saying, we have a plan to remedy it.

On providing local, aboriginal-focused programming:

303   THE CHAIRPERSON: Thank you. Condition of Licence No. 2 states as follows, and I quote:

“The licensee shall broadcast regular daily local newscast on each station which must include at least five distinct local news stories for each market served by Aboriginal Voices Radio Inc. per broadcast day. For the purpose of this condition, distinct local news stories are those that incorporate spoken word material of direct and particular relevance to the Aboriginal community within the market served; therefore, the event discussed in the story must occur in, or be directly linked to the station’s market …

…

311   So in light of this, you would appreciate my astonishment in this proceeding when I read your response to our concerns of news stories aired on 27 May, 2014. Basically you were saying that any news or other programming of interest to any Canadian is of direct and relevance to Aboriginal community.

312   You went on to write:

“The Commission ought not to attempt to define what is and what is not relevant to the Aboriginal community as this runs the risk of supporting and perpetuating stereotype regarding what it means in Canada to identify as an Aboriginal person.” (As read)

313   I put it to you that it is not the CRTC which is at fault here; I put it to you that it is you who have lost your way as to what your service is about.

314   MR. HILL: I respectfully disagree, Mr. Chairman, that we have lost our way about what our service is about. What we tried to communicate was that Aboriginal culture was more expansive than what may be out — the ideas and concepts that may be out in the greater Canadian society. And we did not mean for it to be interpreted that anything at all that AVR talks about was relevant to what AVR should be programming.

315   What we tried to explain — and we did our best. Maybe it has been misinterpreted somewhat, but we did our best.

316   We tried to explain that the culture — the cultural experiences and life in a contemporary and historical manner of Aboriginal people are more than what may be generally thought of.

317   So we do believe that in our editorial policy and approach to delivering news and spoken word programming that we wanted to be able to expand the concept of what is culturally relevant to Aboriginal people. It wasn’t just anything at all.

318   If someone was talking — if there was a news item reported about something that a General in Europe — military General in Europe was engaged in, that is not the type of thing that we would pick as culturally relevant to our communities. It was more news items that are local in nature, that are directly occurring in the communities and that are occurring in Canada, things that affect Aboriginal people in a number of ways, and especially those Aboriginal people who are residents in major urban cities of our markets.

319   So if we did not explain that very well, I apologize, and we will attempt to explain it, you know, the best we can.

320   But I don’t want to give the idea that it was just anything at all. We were trying to say that it’s more expansive than is generally thought of.

321   THE CHAIRPERSON: So would a —

322   MS HENSEL: If I might add, Mr. Chairman, in a moment, that —

323   THE CHAIRPERSON: Please.

324   MS HENSEL: Just to clarify, the markets that AVR serves are indigenous people living in urban communities. Everything that happens within their urban communities affects them, regardless of whether it’s specific to the Aboriginal community, Edmonton, Toronto, Vancouver or Ottawa, and indigenous people have a particular perspective and may be differentially impacted by those events or by the — the — what’s occurred, and they may have a different perspective. And AVR has communicated to us that they intend and have attempted to deliver and reflect that perspective.

325   So the fact that the event, the news, the information is not confined in its effect to the Aboriginal people in the community or Aboriginal issues does not mean that it is not up to AVR and beholden to AVR to deliver a distinct — that it doesn’t fall within the particular interests of the urban Aboriginal community they serve.

326   THE CHAIRPERSON: So I take it from your perspective — correct me if I’m wrong — that if you were to do, in your daily local newscasts, a story on the health of former Mayor Ford, three sports stories about the local teams in Toronto and on weather update, you think that that constitutes spoken word material of direct and particular relevance to the Aboriginal community within that Toronto market?

327   MR. HILL: We do, Mr. Chairman, and if I could explain why.

328   The effect of the Mayor of Toronto could have a great effect on the experiences and what people are required to do under by-laws and so forth of Toronto, and I think they should be aware if — and I think many Aboriginal people would agree that they should be aware of what’s happening on what could directly affect them.

329   Aboriginal people are keenly interested in professional sports. As far as news, providing information and entertainment, that is something that they are interested in in the same way that they would be interested in listening to music so I think that —

330   THE CHAIRPERSON: How would they not get that from other mainstream services available in the Toronto market?

331   MR. HILL: Mr. Chairman —

332   THE CHAIRPERSON: And I remind you that you obtained some of these licences through competitive hearings saying that —

333   MR. HILL: Yes.

334   THE CHAIRPERSON: — you were going to serve the Aboriginal community in a distinctive way.

335   MR. HILL: Yes. We still contend, Mr. Chairman, that this does serve in a distinctive way across the entire radio service, all the differences that are in place that really do make AVR distinct from other radio licences. But we still contend that that does serve Aboriginal people in a very distinct way that is relevant and important and germane to their culture and their experience and what they’re interested in.

336   If we were to not report that news, we would be in a position of not being able to hold our Aboriginal listeners and, in effect, forcing them to switch to a different radio station to hear what’s happening in the City of Toronto that could affect them.

337   So we need to hold our listeners and we need to be relevant to their experience so we do need to report these things as a cultural matter.

338   We did try to explain that it’s a matter of culture that we interact with all peoples around us. This is a very, if I could use the word, ancient cultural precept that we do this respectfully. We interact with them and embrace other people around us, that we become aware of what is happening around us that could affect Aboriginal people.

339   So if — I think — hopefully, that explains that we don’t want to lose our listeners to change to other stations. We have to, you know, gain revenues, improve listenership, and having them switch over to other news that could affect them from our news, so we attempted to give them the news that we thought is direct — of direct relevance to the people that are in our Aboriginal urban markets.

340   MR. BRAY: And part of it’s about perspective, so it’s a question of looking at contemporary news and events from a distinctly indigenous perspective.

341   It’s not all just simply about content, but it’s about the way you interpret the content.

On consulting with the community:

368   THE CHAIRPERSON: Do you have an advisory or programming committee to help you define what is of direct or particular relevance to the Aboriginal community?

369   MR. HILL: We do not have a committee in place at this time, but it is our intention to expand that. And once again, I would say that was a cost issue.

370   We have had discussions about it. We’ve had discussions about putting together a council of Aboriginal Elders across this country that goes back a long way. We have been asked about outreach into the community. And our explanation is, unfortunately, we did not have the financial resources to be able to put that together.

…

384   MR. HILL: We can submit a plan to you relatively quickly, Mr. Chairman. We do not have the detail of that yet. We’ve only talked about that we want to do that and intend to do that, but we have not gotten to the point in light of these other things that we are trying to deal with right now as far as the licence renewal. And just putting together the Bray plan and planning out the overall viability of AVR, we have not gotten into the detail yet.

385   But we can submit that within five days if the — if the Commission — we believe that’s a reasonable time for us to put that together and we would submit a plan for that.

386   THE CHAIRPERSON: I’m not proposing this. You’re the ones that are proposing that you would have this advisory committee or function. And when I delve into it, it’s — there’s nothing behind that statement. You haven’t actually thought about it. It’s half-baked.

387   MR. HILL: I would say — I wouldn’t say that it was half-baked, Mr. Commissioner. I would say that we’ve done conceptual work on that but have not put in actual people and the functioning of the committee because we haven’t gotten to the point yet to be able to do that. But we certainly can do that relatively quickly, and our intention is to do it relatively quickly, but we are focused on coming into compliance as a priority as soon as possible.

 On who is running AVR:

537   COMMISSIONER MENZIES: Who is in charge of the day-to-day operations of the stations?

538   MR. BRAY: AVR.

539   COMMISSIONER MENZIES: That’s the ownership. Who is directing operations on a day-to-day basis in your stations?

540   MR. HILL: Well, it’s shared, Commissioner. I mean I think it’s what the phrase “directing and managing” refers to, but it is shared. We will provide direction of what has to be achieved on a daily basis and, as you know, in many corporations certain tasks are delegated through management hierarchies to contractors and so forth.

541   COMMISSIONER MENZIES: If I want to buy an ad, who do I talk to?

542   MR. BRAY: Sales Manager.

543   COMMISSIONER MENZIES: And who is that?

544   MR. BRAY: Gary Murphy is the Sales Manager. George Grant is —

545   COMMISSIONER MENZIES: And who is he employed by?

546   MR. BRAY: It is — effectively, that’s part of the Bray & Partners team.

547   COMMISSIONER MENZIES: So in terms of on the revenue side, the Bray & Partners team is in charge?

548   MR. BRAY: I would never put it that way because everything we do, and that’s written into the agreement, everything is answerable to AVR and the AVR Board. Yes, the individual salespeople go out and do their jobs, but at the end of the day, everything must be approved by Jamie and the team.

 On AVR’s plan to bring in revenue:

575   COMMISSIONER MENZIES: Okay. So let’s talk about your business plan.

576   You have spoken for the most part about the qualifications of the people you have, which is nice, but what exactly are they going to do? You have been in the — to the extent that you have sources of revenue they have a best before date on them that’s coming to an end. There is little evidence of any advertising revenue. You have some numbers that anticipate advertising revenue but, really, why should I believe you at all, right? So tell me what it is that’s going to make these numbers become anything other than a fantasy?

On AVR’s local news reporting:

662   COMMISSIONER MENZIES: Okay. I understand that, which makes it somewhat all the more surprising that you haven’t been able to feature those significant issues, whether it’s Northern Gateway or land claims in British Columbia for the people you are licensed to serve, right. I mean these are not trivial matters. This is land claims, right? And it’s an issue that’s of interest to a broader audience as well, right. And it’s one about which people have strong and passionate feelings.

663   So when you have — you are going to have one reporter at each of the stations. Who assigns their work under your business plan?

664   MR. HILL: Aboriginal Voices Radio will direct those personnel and we would, of course, consult —

665   COMMISSIONER MENZIES: Somebody in Toronto will be telling the people in Vancouver what they will be covering that day?

666   MR. BRAY: No. Steve Kowch is the General Manager of news for the country, but no, their job is to report locally on local matters.

667   COMMISSIONER MENZIES: And what would be the nature of those local matters?

668   MR. HILL: I would say that it would span the gamut of what affects Aboriginal people and has a direct relevance to them. I mean there are a number of —

669   COMMISSIONER MENZIES: So is the reporter self-assigning then? What they pick up on is — I mean what will be their marching orders? What will be their direction?

670   MR. BRAY: Well, Steve gives them coaching as far as manner, presentation, that kind of thing, because he is one of the experts in the country. But, no, as far as content is concerned, that’s up to the news writer. Steve is not going to say, “Cover land claims today”. Their job — because these are responsible professional news people, their job is to come up with the appropriate story in the market. I suppose from a managerial standpoint if he felt that they were getting off track or, more to the point, if the AVR consultancy felt that they were getting off track they would be brought back in line. But that having been said, they are responsible professionals and they are responsible for their own stories.

671   COMMISSIONER MENZIES: So what will be their marching orders in terms of what audience are they trying to reach and what types of stories do we want to see?

672   MR. HILL: Their marching orders would come from an editorial policy specifically written for that situation. When we come to prior to procuring their services to deliver news services they would have a very specific editorial policy which would determine their marches, or as far as determining that. This has been articulated to personnel in the past regarding —

673   COMMISSIONER MENZIES: And you have one of those?

674   MR. HILL: We can provide one that we will use based upon one that we have used in the past. We would have to go away and think, not because — because we want to get in compliance first.

675   COMMISSIONER MENZIES: Does it exist now?

676   MR. HILL: We have one from the past that exists, but we haven’t written one for the new situation. But we can do that very quickly because we have

…

684   COMMISSIONER MENZIES: I’m confused by that. When they start their day, what is the first thing they do?

685   MR. BRAY: The first, if I may, they are given the editorial policy. They are told the sort of things that the AVR Board wants them to look for, as per our conditions of licence. So their job —

686   COMMISSIONER MENZIES: I’m having trouble expressing myself. When they start the day what is the first thing they do?

687   MR. BRAY: They look for stories from a variety of sources, from the wire, from community outreach, going out in the field, et cetera, et cetera. They start their day just like any news person and they look for this sort of story.

688   COMMISSIONER MENZIES: And then how do they — who do they inform as to what they are going to be doing that day?

689   MR. HILL: We had a process in place of find the stories, write the stories, it would go to an editor, it would be approved or re-worked by an editor in consultation with the writer and then it would move — once it was approved it would go to voicing and then the recording would be made and then it would be put on the air.

690   COMMISSIONER MENZIES: Where is the editor located?

691   MR. HILL: Pardon me?

692   COMMISSIONER MENZIES: Where is the editor located?

693   MR. HILL: We haven’t determined where the editor will be located yet, but we would of course aspire to have editors in local markets. But it depends on the skills of the editor, because we might want to have two editors look at it.

694   COMMISSIONER MENZIES: So you have some ideas, but you actually don’t — there isn’t really a plan, right, like a news written-down plan that’s gone through an internal approval process agreed to by the board, and that sort of stuff? This is an idea that you hope to turn into a plan?

…

703   COMMISSIONER MENZIES: I don’t even see an editor on your business plan. I see five morning anchors, five news anchors, two VO people, one Program Director.

704   MR. BRAY: That’s correct. There would be five news people, one in each of the markets, you are correct. There will be a news manager, which you will also find in the — and it’s perhaps the news manager who will also suffice as the editor. But I want to suggest this is — the editor is not as critical as the individual news parties. I don’t see rewriting —

705   COMMISSIONER MENZIES: That’s okay, because you actually don’t have an editor, right, on your business plan.

…

965   THE CHAIRPERSON: I just have a few more questions.

966   So how many newscasts are currently broadcast daily on each of the stations, of the four stations that are currently on-air?

967   MR. BRAY: Oh sorry, I wasn’t sure it was I that was answering. Currently there are no newscasts on the air. We’re in the process of putting that together and will be on very shortly.

968   MR. HILL: And I would like to add, that is one of the most expensive items for AVR to undertake.

969   THE CHAIRPERSON: We are well aware of the cost of news gathering and broadcast.

 

 More on revenue:

712   COMMISSIONER MENZIES: Did you ever have any contingency plans for when your CCD [Canadian content development] funding ran out?

713   MR. HILL: Funding has been something that we have always been concerned about, understanding where we stand in relation to the average revenue and expense streams in the radio stations in our market.

714   We know that we are a lot lower. We have been much lower for years and we have gone through several strategies on how to gain funding that would include looking at gaming, bingo. We are aware some of the stations are aware of that. Some of the other stations gain revenues from their band council for instance.

715   We have looked at frequency exchanges a number of times. We have approached the Commission with AM/FM frequency exchanges when Chairman von Finckenstein was in his position.

716   We have looked at FM to FM frequency exchanges as a means to gain revenues.

717   We have looked at government grants provincially and federally over several years to see if that was an avenue open to us.

718   So it is always — including the revenues and market-based revenues. So we have always tried to figure out ways to increase our revenues so that we can improve the delivery of our services, understanding it is contingent upon how much revenues you have.

719   So in the more recent term we began working as soon as we get our renewal to try to figure out ways, knowing the CCD was going to sunset and how can we survive financially. So we have spent a lot of time over the last period trying to figure out what we could possibly do.

720   MR. BRAY: And the key to this plan is taking control of your own destiny and that’s where we get to the street with boots on the street and raise the revenues that are necessary.

721   COMMISSIONER MENZIES: Yes. Renewals always tend to focus the mind.

On whether AVR needs to be replaced:

744   COMMISSIONER MENZIES: Okay. Some people might argue, and some have, that the goal of serving Aboriginal people might best be achieved through others, that your organization has taken a run at it for a decade and there is little evidence to suggest it’s been successful and that the main idea of serving Aboriginal Canadians, maybe it’s time somebody else carried that torch and took a run at it. What is your response to that?

— Pause

745   MR. HILL: Excuse me, Vice Chairman.

746   The first thing I would like to say is Aboriginal Voices Radio has been licensed for a number of years in five cities and I would say that at this point in time no other broadcaster has the level of experience, even given our challenges and difficulties, that we have in actually for a 10-year period, over a 10-year period serving those markets and understanding those markets and understanding the challenges of operating radio stations in those markets. So no one else has that type of experience that we do, so I would like to say that first.

747   AVR can serve those markets from a very informed point of view from the team that we have had over the years, including community members, board members, staff, the networking; the people that we interact with in trying to get Aboriginal voices out into the marketplace. We have had financial difficulties in trying to do this and a very challenging business model. It is more expensive and there is certainly much more competition in AVR’s markets, especially if you add up five markets, that other broadcasters have had to contend with and we now have come forward, after years of experience, with a plan that we think is going to allow us to do that in a much improved way, in a financially viable way.

…

977   THE CHAIRPERSON: But this is the fourth consecutive licence term you’ve been found either in non-compliance or in apparent non-compliance. Why should the Commission not revoke your licence?

978   MR. HILL: I guess, Commissioner, the summary answer for us, that we have never been able to work with such a large talented team as we have now and I think this is the turning point. I believe now is the time to hit the reset button as far as AVR being able to finally move into total compliance, stay in compliance and deliver a much improved service to the Aboriginal communities for which we are licensed to serve.

979   We are confident our plan will bring AVR back into compliance and shorter — by September, 2015 for sure.

 

On how this has been a recurring issue:

752   Does the discourse you have put forward this morning seem somewhat familiar?

753   MR. HILL: Yes, Mr. Vice Chairman, we did acknowledge that in the opening presentation, the familiarity of the discourse.

754   COMMISSIONER PENTEFOUNTAS: Did you not come before the Commission a couple of years back to mention that you would be increasing your advertising revenue?

755   MR. HILL: Yes, we did and, as you are aware it was not successful at that point. But I might add that we certainly did not have a large scheme of this calibre then.

756   COMMISSIONER PENTEFOUNTAS: And over the last 10 years, have you endeavoured to sell advertising on the AVR stations?

757   MR. HILL: I can say that we did not do that over a 10-year period. That is relatively new in terms of years.

…

773   COMMISSIONER PENTEFOUNTAS: Yes. Ten years in and you are still incapable by yourselves within your management team to program, manage, finance, advertise for your stations.

774   MR. HILL: I would not say that we were incapable. I would say we have had financial difficulties and these have led to some compliance issues.

775   But I would like to contend with the Commission that we have served our community in a variety of ways. We have had Board Members with business and cultural and financial expertise. We have engaged a number of consultants with expertise right from the beginning. And if I could use the example —

776   COMMISSIONER PENTEFOUNTAS: All of whom have failed, with no assurance that this new outside counsel, if you will permit me to express myself that way, will succeed.

777   MR. HILL: Well, this is a better team, but I would not say that they failed. I mean if you look back in the record over a 10-year period we have had some very talented radio broadcasters advising and working with us, and if I could use the example —

778   COMMISSIONER PENTEFOUNTAS: But you have been in non compliance almost from day one. You have had programming challenges from day one, financing challenges from day one, serving your community from day one.

779   If you can’t qualify that as failure, I don’t know what it is going to take for you to admit that you have failed. You at the head of this project and your team have failed.

…

1048   THE CHAIRPERSON: I put it to you that a neutral observer looking at this could fairly conclude that you seem to only care about your regulatory obligations at licence renewal when we have to do these sorts of show cause regulatory hearings, and that neutral observer might also come to the conclusion that you have actually no intention of properly serving your brothers and sisters and that such an observer might also conclude that your only intent is to make financial gain from selling these stations to third parties because you certainly seem to have done a good job of running them into the ground.

1049   Comments.

1050   MR. HILL: I respectfully disagree that we’ve done a good job of running them into the ground. As I said, relative to the statistical —

1051   THE CHAIRPERSON: You’re off air in one of the five markets and you’ve been off air for a period of time.

 

 On excuses:

790   MR. HILL: The non profit business model is challenging without some type of access to —

791   COMMISSIONER PENTEFOUNTAS: You are not the only people in that business and other people are doing quite well.

792   MR. HILL: We are the only people in these markets where it is more expensive and with our particular set of conditions and licence, especially the amount of spoken word that we have to deliver.

793   COMMISSIONER PENTEFOUNTAS: But you haven’t respected — you have hardly respected any of the conditions of licence so that can be used as a crutch.

794   MR. HILL: We have respected them and tried to deliver them to the best of our ability within the level of financing that we had. And we still respect them and we believe with the current plan, as you will note, it is double to triple the level of financing and we have never been able to work with such a talented team as today.

On the consultants’ competencies:

800   COMMISSIONER PENTEFOUNTAS: How many successes do you have in your resume, sir, as it regards Aboriginal communities?

801   MR. BRAY: Not — you are absolutely right.

802   COMMISSIONER PENTEFOUNTAS: None whatsoever; is that correct?

803   MR. BRAY: Well, other than our work with Aboriginal Voices Radio, no, just our work with —

804   COMMISSIONER PENTEFOUNTAS: And how successful has that been thus far?

805   MR. BRAY: Well, it’s relatively new. We have —

806   COMMISSIONER PENTEFOUNTAS: So you have no experience in the field?

807   MR. BRAY: In the field of Aboriginal broadcasting, no, but in the field of certainly broadcast sales we have extensive experience, and niche broadcast sales, extensive experience.

808   COMMISSIONER PENTEFOUNTAS: So how are you going to — if no one is listening, how are you going to sell this product?

809   MR. BRAY: Why would you say no one is listening? I have done projections in terms of audience share and I am quite — we are quite confident that we will —

810   COMMISSIONER PENTEFOUNTAS: Projections based on what, sir?

811   MR. BRAY: Based on the analysis of the marketplace. And, as you are probably aware, I have been —

812   COMMISSIONER PENTEFOUNTAS: Did you hire a firm to do a market analysis, Mr. Bray?

813   MR. BRAY: Not as yet. We have done — I have done much, call it —

814   COMMISSIONER PENTEFOUNTAS: So how can you claim that you have any kind of data to support your claims?

815   MR. BRAY: Well, first of all, I think my work is fairly well known. I have been doing this kind of analysis and these kind of projections successfully for well over —

816   COMMISSIONER PENTEFOUNTAS: With no data whatsoever? With no market study whatsoever?

817   MR. BRAY: First of all, we have done and I have done in the past certainly — call it research — but in terms of research, I was Vice Chair for a number of years of the BBM Radio Executive, now Numeris. I was Chair of the committee that developed product usage information. I have done —

818   COMMISSIONER PENTEFOUNTAS: I understand that, sir, but you used data to arrive at conclusions.

819   MR. BRAY: That’s the difference. That’s correct.

820   COMMISSIONER PENTEFOUNTAS: What data are you using to arrive at the projections you are putting forward today?

821   MR. BRAY: I have examined all of the numbers as far as the competitive atmosphere, what everybody is doing, what they will deliver in the future with a revised station in the marketplace; that is to say a revised format in the marketplace.

822   I look at the history of what has transpired over the last 10 years, I look at the current complexion, I look at a variety of factors that lead to my projection, not only of AVR, but I look on an ongoing basis and report on this for a variety of publications.

…

958   COMMISSIONER MENZIES: Yes. I had one question that I had forgotten to ask.

959   You said, Mr. Bray, that you had 14 people working on this?

960   MR. BRAY: Approximately.

961   COMMISSIONER MENZIES: How many of those people are representative of the Aboriginal community?

962   MR. BRAY: None.

963   COMMISSIONER MENZIES: Thank you.

964   MR. BRAY: But all sympathetic to it.

On whether CRTC policy is discriminatory:

989   THE CHAIRPERSON: Well, I guess we’ll have to judge that based on the record and what was occurring, not only in this licence term, but over a number of years.

990   In the written record before today’s oral hearing, you seem to be making allegations that the Native — or the CRTC’s Native policy is discriminatory and you seem to be wanting in that written record to propose that as a defence for your non-compliance of the Radio Regulations and the conditions of licence.

991   This seems a rather convenient argument and I would suggest to you rather inflammatory argument when you have been found in apparent non-compliance.

992   Is the position in the written record still your position?

993   MS HENSEL: Yes, certainly. And I would take —

994   THE CHAIRPERSON: If that was the case —

995   MS HENSEL: Yes.

996   THE CHAIRPERSON: — when we adopted and renewed the various licences of AVR over a number of years, if you thought it was discriminatory, why did you not seek leave to appeal to the Federal Court where you can petition your renewals before the Cabinet?

997   MS HENSEL: AVR was trying to make it work under a distinct, and we do say, discriminatory licensing regime and regulatory policy framework.

998   THE CHAIRPERSON: So when you applied originally for the licence and you made and pleaded that you should not be licensed under the community radio policy but under the Native policy, you yourself were saying that you wanted to be licensed under what you now claim to be a discriminatory policy.

999   MS HENSEL: It was in a different marketplace, one that involved significant —

1000   THE CHAIRPERSON: Give us —

1001   MS HENSEL: And if I may finish, Mr. Chairman, it also was all that was available to Native broadcasters.

1002   We were seeking, and AVR is grateful that the CRTC has recognized that there may be issues, and I agree that the CRTC has not conceded that there are issues or that it is discriminatory, we do maintain that allegation and connect it to AVR’s current circumstances, but those problems cannot be solved here today.

1003   AVR cannot be the only voice representing Aboriginal interests before the CRTC with respect to a policy that applies across the board to Aboriginal Canadians and Aboriginal broadcasters across the country, so it needs a broader and more informed and, frankly, this is a show cause hearing, there is some — I don’t want to say adversarial quality to it, but it needs a more measured, balanced and it’s going to be time consuming.

1004   AVR is doing what it can with the existing policy, that’s the plan you have before you, in light of the CRTC’s admission that the Native broadcasting policy needs an examination; it does.

1005   THE CHAIRPERSON: Are there any conditions — you’ve applied to be renewed under your existing terms and conditions. Is it your view today that there are terms and conditions that you have applied for renewal that are discriminatory?

1006   MS HENSEL: Yes.

1007   THE CHAIRPERSON: Which ones?

1008   MS HENSEL: Particularly with —

1009   THE CHAIRPERSON: Why did you apply for them then?

1010   MS HENSEL: Because —

1011   THE CHAIRPERSON: You have filled in the form saying, we want to renew under these and now you’re saying that they’re discriminatory?

1012   MS HENSEL: I’m sorry, there were —

1013   THE CHAIRPERSON: That’s ridiculous.

1014   MS HENSEL: — several questions — there’s several questions there, Mr. Chairman. Would you like me to answer any of them and I will, I’m prepared to —

1015   THE CHAIRPERSON: This is a show cause hearing.

1016   MS HENSEL: Sure.

1017   THE CHAIRPERSON: You know how serious this is.

1018   MS HENSEL: Absolutely.

1019   THE CHAIRPERSON: So which part of the conditions of licence you have applied for you now believe are discriminatory? I’d like to know that.

1020   MS HENSEL: It’s the Native broadcasting policy that informed the interpretation in the application of the conditions —

1021   THE CHAIRPERSON: Which conditions of licence? I don’t want to hear about the Native policy; we’ve dealt with that. Which specific conditions of licence do you now say are discriminatory?

1022   MS HENSEL: With respect, Commissioner — or, Mr. Chairman, you’re going to be dealing with the policy in 2016 and ’17, the Commission is not dealing with it here today.

1023   The policies as they are interpreted through the conditions of licence are and as the conditions of licence are applied.

1024   THE CHAIRPERSON: You just said earlier that some conditions of licences that you have applied for are discriminatory. I want to know which ones and why.

1025   MS HENSEL: I was actually referring to the policy itself. My apologies, My Honour.

1026   THE CHAIRPERSON: So do you agree with me that none of the conditions of —

1027   MS HENSEL: — Mr. Cchairman.

1028   THE CHAIRPERSON: — licence you’ve applied for are discriminatory?

1029   MS HENSEL: No, except insofar as they’re informed in their interpretation by the policy.

1030   THE CHAIRPERSON: NBut you know perfectly well, you’re a lawyer —

1031   MS HENSEL: Yes.

1032   THE CHAIRPERSON: Article 6 of the Broadcasting Act says the policies of the Commission are not self-implementing, in fact, they cannot be binding; it would be a legal error; so what binds you is the conditions of licence or the regulations.

1033   MS HENSEL: And I believe you’ve heard from AVR today that it is committed to and does not challenge its obligation to comply with any conditions of licence — or the existing conditions of licence, particularly the ones it’s applied for and it intends to, pursuant to, you know, any term that the CRTC may choose to impose today.

UPDATE (July 27): A federal court has ordered part of the CRTC’s decision stayed until it can review it. The decision establishes that there would be irreparable harm if the stations were forced off the air incorrectly, but it doesn’t deal with whether the commission’s determination was correct. The order does not stay the decision to revoke the Ottawa station’s licence, since that station was already off the air for quite some time.

Coverage of this, as well as a piece in the Ottawa Citizen, continue to downplay AVR’s serious and repeated compliance failures. The latter actually includes a quote equating 15 years of non-compliance with even the most basic of conditions of licence to “jaywalking”