TRANSCRIPT
OF PROCEEDINGS BEFORE
THE
CANADIAN RADIO‑TELEVISION AND
TELECOMMUNICATIONS
COMMISSION
TRANSCRIPTION
DES AUDIENCES DEVANT
LE
CONSEIL DE LA RADIODIFFUSION
ET
DES TÉLÉCOMMUNICATIONS CANADIENNES
SUBJECT:
Harmony Broadcasting Corporation
HELD AT: TENUE À:
Radisson Hotel Winnipeg Downtown Hotel Radisson Winnipeg
Manitoba Ballroom, 11th Floor Centre-Ville
288 Portage Avenue Salle Manitoba Ballroom
Winnipeg, Manitoba 11e étage
288,
avenue Portage
Winnipeg
(Manitoba)
29 September 2006 Le 29 septembre 2006
Transcripts
In order to meet the requirements of the
Official Languages
Act, transcripts of proceedings before the
Commission will be
bilingual as to their covers, the listing of
the CRTC members
and staff attending the public hearings, and
the Table of
Contents.
However, the aforementioned publication is the
recorded
verbatim transcript and, as such, is taped and
transcribed in
either of the official languages, depending on
the language
spoken by the participant at the public
hearing.
Transcription
Afin de rencontrer les exigences de la Loi sur
les langues
officielles, les procès‑verbaux pour le
Conseil seront
bilingues en ce qui a trait à la page
couverture, la liste des
membres et du personnel du CRTC participant à
l'audience
publique ainsi que la table des matières.
Toutefois, la publication susmentionnée est un
compte rendu
textuel des délibérations et, en tant que tel,
est enregistrée
et transcrite dans l'une ou l'autre des deux
langues
officielles, compte tenu de la langue utilisée
par le
participant à l'audience publique.
Canadian
Radio‑television and
Telecommunications
Commission
Conseil
de la radiodiffusion et des
télécommunications
canadiennes
Transcript
/ Transcription
Harmony Broadcasting Corporation
BEFORE / DEVANT:
Barbara Cram Chairperson / Présidente
Helen del Val Commissioner / Conseillère
Ronald Williams Commissioner / Conseiller
ALSO PRESENT / AUSSI PRÉSENTS:
Gary Krushen Secretary / Secrétaire
William Howard Legal Counsel /
Conseil
juridique
Joe Aguiar Hearing Manager / Gérant
de
l'audience
HELD AT: TENUE À:
Radisson Hotel Winnipeg Downtown Hotel Radisson Winnipeg
Manitoba Ballroom, 11th Floor Centre-Ville
288 Portage Avenue Salle Manitoba Ballroom
Winnipeg, Manitoba 11e étage
288,
avenue Portage
Winnipeg
(Manitoba)
29 September 2006 Le 29 septembre 2006
TABLE
DES MATIÈRES / TABLE OF CONTENTS
PAGE
/ PARA
PHASE I
PRESENTATION BY / PRÉSENTATION PAR:
Harmony Broadcasting Corporation 7 / 36
PHASE II
INTERVENTION BY / INTERVENTION PAR:
Martin Boroditsky 93 / 799
PHASE III
REPLY BY / RÉPLIQUE PAR:
Harmony Broadcasting Corporation 112 / 900
Winnipeg,
Manitoba / Winnipeg (Manitoba)
‑‑‑ Upon
commencing on Friday, September 29, 2006
at 0930 / L'audience débute le vendredi
29 septembre 2006 à 0930
1 THE
CHAIRPERSON: Good morning, ladies and
gentlemen and welcome to this public hearing.
2 My
name is Barbara Cram, and I am the Regional Commissioner for Manitoba and
Saskatchewan. I will be presiding over
this hearing.
3 Joining
me on the Panel are my colleagues: Helen
del Val, Regional Commissioner for British Columbia and the Yukon; and Ronald
Williams, Regional Commissioner for Alberta and the Northwest Territories.
4 The
Commission team assisting us includes:
Manager of English Radio Operations, Joe Aguiar, in the middle, also
acting as the Hearing Manager; William Howard, Senior Legal Counsel, on the
left closest to our table; and Gary Krushen, Director of the Western and
Northern Regions, who is also acting as Hearing Secretary.
5 Please
speak with Mr. Krushen if you have any questions regarding procedure.
6 At
this hearing the Commission will examine the apparent failure of Harmony
Broadcasting, the licensee of the instructional campus radio station CJWV‑FM
Winnipeg, to comply with certain sections of the Radio Regulations, 1986 and
conditions of licence.
7 Au
cours de cette audience, le conseil examinera le non‑conformité apparente
de la titulaire de la station de radio de campus d'enseignement, CJWV‑FM
Winnipeg, Harmony Broadcasting, relative à certains articles des Règlements de
1986 sur le radio et à certaines de ses conditions de licence.
8 Following
the receipt of complaints alleging CJWV‑FM's non‑compliance with
its conditions of licence and elements of the Campus Radio Policy, our staff
requested that Harmony Broadcasting provide logger tapes for the week of April
17‑23, 2005.
9 However,
the licensee failed to submit the requested material. Harmony Broadcasting was then notified by
staff that its failure to respond to the request constituted a violation of
sections 8(4), 8(5) and 8(6) of the Radio Regulations.
10 The
Commission staff made further requests to obtain the logger tapes for the week
in question, which were finally produced on 20 June 2005.
11 The
examination conducted by staff revealed an apparent non‑compliance with
section 2.2(8) of the Regulations as the level of Canadian content broadcast by
the licensee was 31 percent instead of the regulatory minimum of 35.
12 The
examination also revealed shortfalls relating to the following three conditions
of licence:
13 (1)
the licensee broadcast a level of 4.73 percent category 3 music instead of the
weekly minimum of 5 percent;
14 (2)
the licensee broadcast a weekly level of .83 percent news instead of the weekly
minimum of 4 percent;
15 (3)
and the absence of any formal education programming, despite its condition of
licence to broadcast a minimum of two hours of such programming.
16 In
an attempt to conduct a second review of the station's programming, Commission
staff requested broadcasting material for the week of January 29 to February 4,
2006. This material was never received,
which again constitutes a violation of sections 8 and 9 of the Radio Regulations.
17 Additionally,
the Commission notes issues relating to Harmony Broadcasting's operation as an
instructional campus radio station, as set out in the Campus Radio Policy.
18 Consequently,
as stated in Broadcasting Notice of Public Hearing CRTC 2006‑8, and
pursuant to section 12 of the Broadcasting Act, Harmony Broadcasting must show
cause as to why a mandatory order should not be issued by the Commission. Such an order would require the licensee to
conform with the Regulations relating to Canadian content and its conditions of
licence regarding the broadcasting of Category 3 music, news and formal
education programming.
19 I
will now invite the Secretary, Mr. Krushen, to explain the procedures we
will be following.
20 Mr.
Krushen.
21 THE
SECRETARY: Thank you, Madam Chair.
22 Before
beginning, I would like to go over a few housekeeping matters to ensure the
proper conduct of the hearing.
23 When
you are in the hearing room, we would ask that you please turn off your cell
phones, pagers, Blackberries and other electronic devices as they can cause an
unwelcome distraction for participants and Commissioners and they cause
interference on the internal communication system used by the translators. We would appreciate your co‑operation
in this regard throughout the hearing.
24 We
expect the hearing to take approximately half a day, with a break in the
morning. We will let you know of any
scheduled changes that may occur.
25 The
Prairie Room will serve as examination room where you can examine the public
files pertaining to the proceedings being considered at this hearing. The Prairie Room is located one floor above
us, on the 12th floor. As indicated in
the agenda, the telephone number of the examination room is 984‑8078.
26 There
is a verbatim transcript of this hearing being taken by the court reporter at
the table in front of me. If you have
any questions on how to obtain all or part of the transcript, please approach
the court reporter during the break.
Please note the full transcript will be made available on the
Commission's website shortly after the conclusion of the hearing.
27 Finally,
simultaneous translation is available during the hearing. You can obtain a translation receiver through
the technician at the back of the room.
The English interpretation is on Channel 1 and the French is on Channel
2.
28 The
Commission will proceed with the hearing of these matters as follows.
29 First
we will hear from the licensee, who will be granted 20 minutes to make his
presentation. Questions from the
Commission will follow each presentation.
30 In
Phase II the only intervenor to appear at this hearing will present his
intervention, and ten minutes will be allowed for his presentation. Again questions from the Commission may
follow.
31 Phase
III provides an opportunity for the licensee to reply to all the interventions
submitted on these matters. Ten minutes
are allowed for this reply and again questions may follow.
32 Now,
Madam Chair, we will now examine the complaints regarding Harmony Broadcasting
Corporation, licensee of the instructional campus radio programming undertaking
CJWV‑FM Winnipeg, concerning its non‑compliance with the station's
conditions of licence included in CJWV‑FM Winnipeg‑Licence renewal,
Broadcasting Decision CRTC 2004‑340 and elements of the Campus Radio
Policy as set out in Public Notice CRTC 2001‑12.
33 Appearing
for the licensee is Mr. Franc Capozzolo.
You will have 20 minutes to make your presentation
34 Mr.
Capozzolo, please introduce the gentlemen with you.
35 Thank
you.
PRESENTATION / PRÉSENTATION
36 MR.
CAPOZZOLO: Thank you, Mr. Krushen.
37 To
my left is my legal counsel today. His
name is William Tweed, of Abrams & Tweed.
38 MR.
TWEED: Commissioners, Madam Chair, I
would like to make a very brief overview of the licensee's response to the
inquiry in this hearing.
39 First
off, there is no doubt that the licensee was not in compliance with the
regulations during the times in question.
40 The
licensee has now brought themselves into compliance and they are fully in
compliance with the Regulations and, in particular, the Public Notice CRTC 2000‑12
dealing with campus stations instructional.
41 This
organization began as a very small organization that was perhaps under‑funded
and under‑staffed. Mr. Capozzolo,
the CEO, wore a multitude of hats. He
was the CEO, the office manager, the broadcaster, the programmer, the teacher‑mentor,
the janitor. He had all of the roles
with little help. He had some
volunteers. He had people that were
inexperienced in assisting him.
42 The
regulatory non‑compliance came as a result of him not giving the
Regulations the attention that they are due.
He had assistants helping him with that, and he didn't provide adequate
supervision to ensure that they were interpreting the Regulations correctly and
following them as they are required to do.
43 Those
issues have been addressed and he is now and will undertake to make sure that
he stays in compliance with the Regulations.
44 The
question of the school and the instructional aspect of the school proved to be
a much greater challenge than he originally anticipated. The road to accreditation in getting into a
position where he can actually take on the classes and get an accredited course
presented for students proved to be a much bigger challenge than was originally
anticipated.
45 As
the Commission is aware and with documents that have been filed, he now has an
association with Robertson College of Winnipeg.
Finally, in July of this year, he received accreditation and approval
from Manitoba's regulator of private vocational institutes and he is now fully
accredited and able to present the course that he is planning.
46 We
are now in a position to go out and solicit students to commence the first full
formal class, which is scheduled to commence in January.
47 They
have from the outset intended to be a training institution. They originally set up the facility. They built training labs, studio simulators
and worked at writing the curriculum that has subsequently been approved.
48 During
the period of time between the beginning and now, they have carried out
mentorship programs with other people, people who had an interest in becoming
broadcasters or working in the broadcast industry.
49 Those
people started as volunteers. Some of
them continued to get partially paid at an entry level as entry level
employees, and some of them have gone on into commercial careers with
broadcasters. They received mentorship
and training in announcing, promoting, marketing, advertising, sales and
various other things that people in the industry would be expected to require.
50 As
I indicated earlier, the programming that is required, requiring the various
levels of Canadian content and the types of music, the station is now in full
compliance.
51 There
has been some question about the board of directors. The list of directors was filed with the
Commission on June 24, 2005. It is in
the public record. That list is current
and it is the same people that are on the board of directors, with the exception
of one Mr. Dryden, who was one of the people that was being mentored and is no
longer associated with the school. So he
is no longer a director.
52 Other
than that, the directorship of the corporation is as per that submission that
was done a little over a year ago.
53 In
summation, the challenges of setting up the instructional campus radio proved
to be a little bit more daunting than was originally anticipated, and the
shortage of resources, both in money and time, have caused a slipping through
the cracks, if you will, of the lack of supervision that should have taken
place to ensure the compliance with the Regulations was maintained. It wasn't.
The system had problems. They have
been corrected and we do not expect to have the station receiving any further
concerns from the CRTC for non‑compliance.
54 I
have raised some of the issues that I think have been addressed in the
submissions. If you would like any more
detailed information about any of those, I would defer to Mr. Capozzolo who
would be familiar and be able to answer your questions.
55 Thank
you.
THE CHAIRPERSON: Thank you, Mr. Tweed.
56 This
is now the time for questions by the Panel.
57 I
will be asking questions regarding breaches of the Regs and conditions of
licence. My colleague Commissioner del
Val will be asking questions about formal education, alternative programming,
the board and the educational affiliation.
My colleague Commissioner Williams will be discussing the issue of what
you have done and intend to do in the future to remedy the alleged breaches.
58 I
wanted to start first ‑‑ and we can shorten things up fairly
quickly, Mr. Tweed and Mr. Capozzolo, although I don't know who to address
this to.
59 Your
response to the CAB intervention, dated September 15, 2006, at the penultimate
paragraph on page 3, states:
"Harmony Broadcasting admits it
was not in compliance with the Radio Regulations."
60 I
want to be specific about that.
61 The
issue is there are two breaches in relation to logger tapes, and that is
section 8(4)(3)(6) and section 9 of the Radio Regulations.
62 Then
there is a further breach in relation to Canadian content, and that is section
2.2(8), in that the Canadian content was 31 percent as opposed to 35.
63 Are
you admitting to all three of those breaches?
64 MR.
CAPOZZOLO: Can you give them to me one
more time, please.
65 THE
CHAIRPERSON: Give them to you again?
66 MR.
CAPOZZOLO: Yes, the three breaches.
67 THE
CHAIRPERSON: The first one was failure
to supply logger tapes, and that is the demand for 17‑23 April 2005. That is a breach of section 8(4) through (6):
that upon request and within the time limit required, you shall supply the
logger tapes.
68 Do
you agree that you have breached that section in relation to that request?
69 MR.
CAPOZZOLO: Yes.
70 THE
CHAIRPERSON: The second one was a
further request for logger tapes for the period of 29 January 2006 through 4
February 2006.
71 Do
you agree that you violated that and that it was never supplied?
72 MR.
CAPOZZOLO: Yes.
73 THE
CHAIRPERSON: The third violation of the
Regs is upon monitoring the tapes that were received for the period of 17‑23
April 2005, the Canadian content was 31 percent instead of the regulatory
minimum of 35 percent.
74 MR.
CAPOZZOLO: Yes, they were.
75 THE
CHAIRPERSON: You admit to that.
76 MR.
CAPOZZOLO: Yes.
77 THE
CHAIRPERSON: I want to then go into your
COLs, your conditions of licence.
78 This
again is in terms of the monitoring of the tapes that we did receive from you for
the period of 17‑23 April 2005, the staff assessment referred to news
being at a rate of .83 percent.
79 Do
you agree with that?
80 MR.
CAPOZZOLO: Yes, they were.
81 THE
CHAIRPERSON: And there was a condition
of licence that you would provide 5 percent of news.
82 MR.
CAPOZZOLO: That is correct.
83 THE
CHAIRPERSON: And you agree that you are
in breach.
84 MR.
CAPOZZOLO: Yes.
85 THE
CHAIRPERSON: The second one is in
relation ‑‑ and again this is in reference to the staff
monitoring ‑‑ to the category 3 music. You agree that the monitoring assessment
found that you had 4.73 percent of category 3 music.
86 MR.
CAPOZZOLO: Yes.
87 THE
CHAIRPERSON: And you agree that the
condition of licence required of you is 5 percent.
88 MR.
CAPOZZOLO: Correct.
89 THE
CHAIRPERSON: And the same with your
category ‑‑ well, we have talked about your category 2 music.
90 That
seems to be all of my questions. I now
turn it over to Commissioner del Val.
91 Thank
you, Mr. Capozzolo and Mr. Tweed.
92 MR.
CAPOZZOLO: Thank you.
93 COMMISSIONER
del VAL: Mr. Capozzolo and Mr. Tweed, as
the Chair indicated, I will be talking to you about elements of the Campus
Radio Policy and your exchange this morning has clarified some issues. Thank you.
94 On
your opening statement, Mr. Tweed, you said that it was very difficult getting
the accreditation and finally it was July of this year that you have now become
accredited.
95 Is
that right?
96 MR.
CAPOZZOLO: Actually, the curriculum was
approved this past July. I am involved
with an accredited institution, and the curriculum which I put together was
submitted by that institution, Robertson College.
97 COMMISSIONER
del VAL: Who submitted the application
for accreditation then?
98 MR.
CAPOZZOLO: I think that was just a
misunderstanding. We submitted the
curriculum, the broadcast curriculum, through Robertson College. It had to be approved by the Private
Vocational Institutions Branch of the Board of Education.
99 It
was finally approved this past July.
100 COMMISSIONER
del VAL: So what is the name of the
entity that became accredited?
101 MR.
CAPOZZOLO: Robertson College. They have accreditation. It is just that the course was approved.
102 COMMISSIONER
del VAL: All right.
103 So
that is as of July of 2006. Right?
104 MR.
CAPOZZOLO: Correct.
105 COMMISSIONER
del VAL: This means that prior to July
of 2006 there was no such accreditation.
106 Is
that correct?
107 MR.
CAPOZZOLO: Correct.
108 COMMISSIONER
del VAL: Am I jumping too far to say
that the issue of whether you did comply up to July of 2006 is still alive?
109 I
will simplify the question.
110 Did
you then comply with the requirement under the campus policy of needing to be
associated with a post secondary education institution prior to July of 2006?
111 MR.
CAPOZZOLO: Yes, I was associated with
Robertson College prior to that date.
112 COMMISSIONER
del VAL: At the time of licence renewal,
which was September 1, 2004 until now, were there any periods of non‑compliance
with the requirement that you be associated with a post secondary institution?
113 MR.
CAPOZZOLO: No. I was actually associated with another post
secondary, Winnipeg South Technical College.
Unfortunately, that relationship had to come to a close in September of
2004 based on a bad business relationship that affected the relationship with
the school.
114 Then
I had to find a new school to be associated with and that took some time, a few
months. Then Robertson College came on
board.
115 COMMISSIONER
del VAL: During those few months when
you were looking for a college, you didn't have an association with a post
secondary education institution. Right?
116 MR.
CAPOZZOLO: No. There would have been a three‑month
period where I did not.
117 COMMISSIONER
del VAL: So for three months, then,
there was not any compliance with the requirement that the station be
associated with a post secondary education institute.
118 Is
that right?
119 MR.
CAPOZZOLO: I did make the Commission
aware that I was in search of such a relationship.
120 COMMISSIONER
del VAL: Yes. But during the search, for those three months
there was no association in place.
121 MR.
CAPOZZOLO: That is correct.
122 COMMISSIONER
del VAL: I would like to talk about the
formal education programming that provides some academic instruction, which is
a requirement under the campus policy.
123 MR.
CAPOZZOLO: Yes.
124 COMMISSIONER
del VAL: You are aware that that was in
Decision 2004‑340, I think, where your licence was renewed. That referred to the conditions in Public
Notice 2000‑156, which is the new licence form for campus radio stations,
of November 16, 2000.
125 Is
that right?
126 MR.
CAPOZZOLO: Correct.
127 COMMISSIONER
del VAL: In there one of the conditions
of licence, No. 13, is that there be two hours per broadcast week to provide
formal educational programming that provides academic instruction.
128 Do
you agree with that?
129 MR.
CAPOZZOLO: Yes, I do.
130 COMMISSIONER
del VAL: The logger tapes that you
provided of the station's broadcasts from April 17‑23, 2005, that is an
exact copy of the station's broadcasts during that week.
131 Is
that correct?
132 MR.
CAPOZZOLO: Yes, it is.
133 COMMISSIONER
del VAL: What formal educational
programming that provides academic instruction during that week will be
contained in that logger tape that you have submitted.
134 Is
that correct?
135 MR.
CAPOZZOLO: Can you repeat that, please.
136 COMMISSIONER
del VAL: The logger tapes will contain
all of the broadcasts for that week.
137 MR.
CAPOZZOLO: Yes.
138 COMMISSIONER
del VAL: And therefore would contain all
of the formal educational programming that provides educational instruction
during that week.
139 Is
that correct?
140 MR.
CAPOZZOLO: What I believe at the time
was educational.
141 COMMISSIONER
del VAL: I think there is some
correspondence where staff has indicated to you that according to our analysis,
there is no such programming disclosed by the logger tapes that would qualify
as formal educational programming that provides academic instruction. Right?
142 MR.
CAPOZZOLO: Yes.
143 COMMISSIONER
del VAL: You have replied in your letter
of November 17th with your interpretation.
144 Do
you still take the position that you did provide formal educational
programming?
145 MR.
CAPOZZOLO: What I believed to be formal
educational programming at the time. At
this time I would like to take this opportunity to say a few things.
146 First
and foremost, I would like to apologize to the Commission if my failure to
submit these logger tapes was seen as a signal of disrespect or arrogance. Nothing of the kind was ever intended.
147 Mr.
Tweed basically summed it up when he said too few people, too few resources. Although I have been in the radio industry
and have worked for the biggest companies in the country for 30 years, I have
no reason or desire to break conditions of licence.
148 I
have worked at the programming end of this business for 20 years, and during
that time I made sure that we were in compliance as required by regular
commercial radio.
149 However,
this is a different beast. I didn't have
the necessary resources to have regulatory counsel, and therefore I interpreted
some of these regulations as this would count, this would count.
150 For
example, with news, I was never aware that news about sports or news about
entertainment didn't count as news.
151 COMMISSIONER
del VAL: Thank you.
152 We
appreciate your candour because it shortens the hearing.
153 MR.
CAPOZZOLO: Yes.
154 COMMISSIONER
del VAL: Is it your admission now that
then you did not provide formal educational programming, as required by the
Campus Radio Policy?
155 MR.
CAPOZZOLO: That is correct.
156 COMMISSIONER
del VAL: I will jump to the directors
and officers and then perhaps after that come back to try and learn a bit more
about the association that you now have with Robertson College.
157 MR.
CAPOZZOLO: All right.
158 COMMISSIONER
del VAL: I am looking at your current
list of directors and officers as you have kindly provided in your letter of
June 24, 2006, and you made the correction today that Mr. Dryden, the student,
has now resigned.
159 Is
that correct?
160 MR.
CAPOZZOLO: Yes, he is no longer with us.
161 COMMISSIONER
del VAL: So that is the only change to
the list.
162 MR.
CAPOZZOLO: Yes. This is actually quite recent, I believe two
or three weeks ago.
163 COMMISSIONER
del VAL: I just want to confirm that on
my list you have Mr. Trevor Hawkes, who is a community representative appointed
as of January 22, 2005, for a three‑year term.
164 MR.
CAPOZZOLO: Yes.
165 COMMISSIONER
del VAL: Then Angela Cieslak, a
volunteer appointed as of January 22, 2005, for a three‑year term.
166 MR.
CAPOZZOLO: Right.
167 COMMISSIONER
del VAL: Ronald Taylor, College of
Faculty representative appointed as of January 22, 2005, for a three‑year
term.
168 Kenneth
Penner, a college representative, appointed as of June 1, 2005, for 1.66 years.
169 MR.
CAPOZZOLO: Yes.
170 COMMISSIONER
del VAL: Devol Dryden, student, who has
now left you.
171 MR.
CAPOZZOLO: Yes.
172 COMMISSIONER
del VAL: Roxanne Taylore, who is a
volunteer. January 22, 2005 was the date
of her appointment, for a two‑year term.
173 Myles
Shatsky, community representative. June
22, 2005 was the date of appointment, for a one‑year term.
174 Then
Warren Kowalson, student, appointed as of June 1, 2005, for .66 years.
175 And
yourself, appointed as of January 22, 2005.
176 Is
that correct?
177 MR.
CAPOZZOLO: That is correct.
178 COMMISSIONER
del VAL: Mr. Warren Kowalson, appointed
as of June 1, 2005, for .66 years, or eight months, from June 1, 2005, would
have expired as of March 2006.
179 Is
that correct?
180 MR.
CAPOZZOLO: I believe that might be the
case, yes.
181 COMMISSIONER
del VAL: So now with the departure of
Mr. Dryden, you will again have no student representatives on the board. Is that correct?
182 MR.
CAPOZZOLO: Mr. Kowalson is still on the
board. We just haven't gone through the
formalities of doing it through the minutes.
183 He
is still with us, Mr. Kowalson, but he is now part of the staff.
184 COMMISSIONER
del VAL: So is Mr. Kowalson a
student?
185 MR.
CAPOZZOLO: He was a student. He was a student for a year.
186 COMMISSIONER
del VAL: All right.
187 So
then you don't have any representative from the student body again.
188 MR.
CAPOZZOLO: Not at this time. We are scheduled for our first intake for
January 9, 2007.
189 COMMISSIONER
del VAL: What is the first intake? Is it the first enrolment of students?
190 MR.
CAPOZZOLO: Yes.
191 COMMISSIONER
del VAL: And when is that happening?
192 MR.
CAPOZZOLO: January 9th.
193 COMMISSIONER
del VAL: So how did you comply with the
requirement that there be a student representative on the board prior to your
first intake?
194 MR.
CAPOZZOLO: I tried to live up to the
spirit of the Regulations until I could get de facto in compliance with the
school. Therefore, there were people
that we mentored and when they became proficient enough, they became part of
the staff.
195 COMMISSIONER
del VAL: Who of the current list of
directors are employees?
196 MR.
CAPOZZOLO: Mr. Kowalson, myself and that
is it on this list.
197 COMMISSIONER
del VAL: Going back to Mr. Dryden, is he
still with the board?
198 MR.
CAPOZZOLO: No, he is not. His position was terminated.
199 COMMISSIONER
del VAL: Would you admit that there is
currently, as we speak, non‑compliance with the expectation that there be
a balanced board, including representation from the student body?
200 MR.
CAPOZZOLO: Well, until we get a student
body I don't know how that would be possible.
Right now we are waiting to ‑‑ we could look at this
period of time as a summer period maybe.
We do intend to have a representative of the student body once we get a
student body to be able to select from.
201 COMMISSIONER
del VAL: At this moment you don't have a
student representative.
202 MR.
CAPOZZOLO: That would be
Mr. Kowalson. He is not actually a
student at this time, but he represents having been a student.
203 COMMISSIONER
del VAL: But he is not a student right
now.
204 MR.
CAPOZZOLO: No.
205 COMMISSIONER
del VAL: So right now you don't have a
student representative.
206 MR.
CAPOZZOLO: Right now we don't, no.
207 COMMISSIONER
del VAL: At the time you applied for
renewal ‑‑ and the application was, I think, dated October 23
of 2003.
208 MR.
CAPOZZOLO: Yes.
209 COMMISSIONER
del VAL: The board that you had
submitted then consisted of Mr. Hawkes, Mr. Doug Kurtz, Ms Janet Capozzolo, Ms
Roxanne Taylore, Mr. Myles Shatsky, Mr. Ron Taylor and yourself.
210 Is
that correct?
211 MR.
CAPOZZOLO: I do believe, yes.
212 COMMISSIONER
del VAL: And that was October 23, 2003.
213 MR.
CAPOZZOLO: Yes. At that time we had an association with
Winnipeg South Technical. Mr. Kurtz
was a representative of that school at the time.
214 COMMISSIONER
del VAL: I am looking at the corporate
returns that you filed with the Manitoba Companies Office, where you notified
them of the directors and officers of the company.
215 MR.
CAPOZZOLO: Right.
216 COMMISSIONER
del VAL: The 2004 return certifying the
information to be correct as of January 30, 2004, disclosed three
directors: Mr. Peter Bjorklund, Paula
Bjorklund, Manjit Blakr. And it also
showed that they were appointed as of January 29, 2004.
217 I
know that a year later, with the amended 2004 return that was signed on January
14, 2005, certifying the information to be correct as of January 14, 2005, a
year later, there were three directors:
yourself, Trevor Hawkes and Janet Capozzolo, and that those basically
replaced Peter and Paula Bjorklund and Manjit Blakr as of the same day.
218 That
is part of the sale of the station?
219 MR.
CAPOZZOLO: Mr. Tweed will answer that
question.
220 MR.
TWEED: At that time in the history there
was the disagreement over what the agreement was between the parties. That registration with the Corporations
Branch was made without the knowledge or consent of the corporation, and it was
subsequently withdrawn.
221 Those
three people were never officially directors.
222 COMMISSIONER
del VAL: Okay. That makes sense because the 2004 amended
return, which was filed as of January 14, 2005, corrected the information that
was filed with the original 2004 return.
223 MR.
TWEED: Yes. There was no authority for that filing.
224 COMMISSIONER
del VAL: The correct return is the 2004
amended return that Mr. Capozzolo filed as of January 14, 2005.
225 Is
that right?
226 MR.
TWEED: Yes. And I believe in the circumstances we weren't
aware of the incorrect filing.
227 COMMISSIONER
del VAL: That is right.
228 On
January 14, 2005, Mr. Capozzolo said that as of January 29, 2004 there are
three directors: Mr. Franc Capozzolo,
Trevor Hawkes and Janet Capozzolo.
229 Is
that correct?
230 MR.
CAPOZZOLO: Correct.
231 COMMISSIONER
del VAL: That was four months after you
filed your application with the CRTC naming, I think, seven as directors.
232 MR.
CAPOZZOLO: Yes. These particular individuals tampered with
and interfered with the existing board members.
Therefore, I took it down to the three officers of the board because
people were intimidated and threatened.
233 COMMISSIONER
del VAL: So you took it down to three.
234 The
Campus Radio Policy requires balanced representation amongst: (1) student body;
(2) associated college; (3) station volunteers; and (4) community at large.
235 So
if I do a body count, I think you would need four to meet the Campus Radio
Policy requirement. Right?
236 MR.
CAPOZZOLO: My understanding at the time,
because there was some legal haggling involved, is that you need three board
members to actually be legal.
237 COMMISSIONER
del VAL: I think the three is a
requirement under your Manitoba Corporations Act. I am talking about the CRTC regulation of the
Campus Radio Policy requiring a board that has balanced representation amongst
those four groups.
238 To
comply with the Manitoba Corporations Act you would need three, but to then
additionally comply with the Campus Radio Policy you would need a body count of
four.
239 Is
that correct?
240 MR.
CAPOZZOLO: Correct. However, the other members of the board were
frightened away by the behaviour of those particular individuals.
241 COMMISSIONER
del VAL: It is a fact that there were
only three directors.
242 MR.
CAPOZZOLO: Yes, it is.
243 COMMISSIONER
del VAL: How did the three meet the
requirements of balanced representation as amongst student body, the college,
station volunteers and community at large as expected by the campus policy?
244 MR.
CAPOZZOLO: Once again, that was during
the period of time when I was looking to establish an association with an
accredited college. It wasn't a period
of time that we purposely decided to run with three members. We had to re‑establish a board.
245 COMMISSIONER
del VAL: So there was a period, unfortunately,
of non‑compliance.
246 MR.
CAPOZZOLO: Unfortunately, yes.
247 COMMISSIONER
del VAL: I will go back to the
association with Robertson College right now.
248 I
know, Mr. Tweed, you referred in your letter of September 15th to us that there
was a filed copy of the association agreement.
249 MR.
CAPOZZOLO: Yes, there is. I filed it with the director, Mr. Krushen.
250 COMMISSIONER
del VAL: Do you have a copy with you
now?
251 MR.
CAPOZZOLO: I'm sorry, I didn't bring
one. I thought because it had been
filed, it was already here.
252 COMMISSIONER
del VAL: Could you file it again,
please.
253 MR.
CAPOZZOLO: Okay.
254 COMMISSIONER
del VAL: What is the date of that
agreement?
255 MR.
CAPOZZOLO: I don't recall; I'm sorry.
256 COMMISSIONER
del VAL: Maybe more importantly what is
the effective term of that agreement?
257 MR.
CAPOZZOLO: The effective term, the
approval to the curriculum was given on a one‑year basis and will be
reviewed by the Private Vocational Institutions Branch of the Board of
Education.
258 The
agreement with the college I believe is three years.
259 COMMISSIONER
del VAL: Mr. Tweed, do you think your
client could file the agreement to evidence the association with the college,
if there is one?
260 MR.
CAPOZZOLO: We prefer that be kept
confidential. We have submitted it to
the Commission, but there is proprietary information that we prefer to keep
private in the document.
261 COMMISSIONER
del VAL: You can file on a confidential
basis.
262 MR.
CAPOZZOLO: Yes.
263 COMMISSIONER
del VAL: And request confidentiality at
the time of filing.
264 MR.
CAPOZZOLO: May I ask Mr. Krushen if it
is still on file?
265 THE
SECRETARY: I believe that we do have
that on file, but because it was submitted to me on a confidential basis it is
not part of the record of this proceeding.
266 MR.
CAPOZZOLO: Okay.
267 COMMISSIONER
del VAL: I am turning to your letter of
June 24, 2005 to the Commission, Mr. Capozzolo, and I am not clear on what
and who is the Winnipeg Broadcast Training Centre and the association between
the radio station and the Robertson College.
268 Could
you explain the whole relationship, please.
269 MR.
CAPOZZOLO: Until we got into compliance
with an accredited institution, as I mentioned earlier I tried to live up to
the spirit of the Regulations. We did
provide some short‑term courses under the Private Vocational Institutions
Act. You are allowed to provide courses
that are $250 or less for a period of six to eight weeks.
270 COMMISSIONER
del VAL: When you say "we"
here, what entity are you referring to?
Is it the radio station, the Winnipeg Broadcast ‑‑
271 MR.
CAPOZZOLO: The whole thing. I am involved with all aspects of Harmony
Broadcasting, as well as the Broadcast Training Centre is what we refer to as
the radio/labs that house the labs portion of the curriculum with Robertson
College.
272 So
we just refer to it as the Broadcast Training Centre.
273 COMMISSIONER
del VAL: So is Robertson College part of
the Winnipeg Broadcast Training Centre?
274 MR.
CAPOZZOLO: How do you mean that?
275 There
is a numbered company that is the go‑between between Harmony Broadcasting
and Robertson College.
276 COMMISSIONER
del VAL: Mr. Capozzolo, I don't know who
Winnipeg Broadcast Training Centre is.
That is my problem.
277 MR.
CAPOZZOLO: That would be me.
278 COMMISSIONER
del VAL: Okay. Is it a different entity from the station,
from our licensee?
279 MR.
CAPOZZOLO: Yes. It is a for profit.
280 COMMISSIONER
del VAL: Then the association agreement
is not directly between the radio station, our licensee, and Robertson College.
281 MR.
CAPOZZOLO: That is correct.
282 COMMISSIONER
del VAL: What role does ‑‑
I will back up.
283 The
entity that is accredited is Robertson College ‑‑
284 MR.
CAPOZZOLO: Yes. The Broadcast Training Centre owns the
curriculum.
285 COMMISSIONER
del VAL: Okay. Is there any formal agreement between the
licensee and the Winnipeg Broadcast Training Centre?
286 MR.
CAPOZZOLO: Yes, there is a long‑term
agreement. And the training centre has
subcontracted to Robertson College.
287 COMMISSIONER
del VAL: Who provides the radio station
with educational programming? Which
entity does that?
288 MR.
CAPOZZOLO: I'm not quite sure.
289 COMMISSIONER
del VAL: I'm sorry.
290 MR.
CAPOZZOLO: It is just programming.
291 COMMISSIONER
del VAL: I am going to be asking you two
questions.
292 MR.
CAPOZZOLO: Okay.
293 COMMISSIONER
del VAL: The first question is: What role does the Winnipeg Broadcast
Training Centre play in helping Harmony, the radio station, provide formal
educational programming?
294 The
second question is the same question but what role does Robertson College play?
295 MR.
CAPOZZOLO: The numbered company ‑‑
296 COMMISSIONER
del VAL: Which is the numbered company?
297 MR.
CAPOZZOLO: We will call it the Broadcast
Training Centre.
298 That
is a go‑between, if you will, or is a contractor to Robertson
College. That training centre provides
the labs and facilities where students will record their homework or their
assignments and work with the equipment and that will then be provided to Harmony
Broadcasting for other use.
299 COMMISSIONER
del VAL: When you say the numbered
company, what is the legal name of that company?
300 MR.
CAPOZZOLO: At this time it is just a
numbered company.
301 COMMISSIONER
del VAL: I know. What is the number?
302 You
could provide that.
303 Could
you please provide that as an undertaking?
304 MR.
CAPOZZOLO: Yes.
305 COMMISSIONER
del VAL: Thank you.
306 By
the end of the day? Is that doable?
307 MR.
CAPOZZOLO: Yes, that is doable.
308 COMMISSIONER
del VAL: That numbered company has been
incorporated?
309 MR.
CAPOZZOLO: Yes.
310 COMMISSIONER
del VAL: Could you provide the
incorporation document with the directors and officers, please?
311 MR.
CAPOZZOLO: Okay.
312 COMMISSIONER
del VAL: Again by the end of the
day. Is that doable?
313 MR.
CAPOZZOLO: Yes.
314 COMMISSIONER
del VAL: Thank you.
315 MR.
TWEED: I am not sure that we can get it
by the end of the day, but we can certainly undertake to file it.
316 COMMISSIONER
del VAL: Okay, great.
317 Just
give me a date that is reasonable for you.
318 MR.
CAPOZZOLO: A photocopy would be
fine. Right?
319 I
could get that this afternoon. The
offices are very close.
320 COMMISSIONER
del VAL: Who are the directors and
officers of the numbered company right now?
321 MR.
CAPOZZOLO: I am.
322 COMMISSIONER
del VAL: I know that you said that you
have a first intake coming up for the program with Robertson College.
323 MR.
CAPOZZOLO: Yes.
324 COMMISSIONER
del VAL: What will be the number of
students that you will take?
325 MR.
CAPOZZOLO: As many as humanly
possible. Ideally, 12 or better.
326 COMMISSIONER
del VAL: But the class size is about 12?
327 MR.
CAPOZZOLO: No. The class size would preferably be 24, but
you need a minimum of 12 to make it feasible.
328 COMMISSIONER
del VAL: What duties will the students
be assigned at the station?
329 MR.
CAPOZZOLO: We ran into an issue with the
Private Vocational Institutions people because somehow they have the perception
that I was going to use the students as cheap labour to provide services to the
station.
330 They
will provide whatever it is that they can provide. The more they can do, the more they will do.
331 COMMISSIONER
del VAL: Is there a part of the
curriculum that is formal structured involvement at the station that will count
toward their curriculum?
332 MR.
CAPOZZOLO: There will be assignments
that could potentially be used on the air covering new stories, recording
commercials, writing commercials. We do
have to be careful, according to the Private Vocationals people, that any work
that generates revenue, that it be recompensed in some way.
333 COMMISSIONER
del VAL: Going back to the board, how
are decisions concerning the radio station made? Who makes those decisions?
334 MR.
CAPOZZOLO: Those decisions for the most
part, up until this point, until we established a firm agreement with Robertson
College, were made superficially in terms of informal meetings and just
bringing the board up to date on what was going on.
335 There
was very little to discuss other than maintaining economic viability.
336 COMMISSIONER
del VAL: And made amongst all of the
individuals who were appointed to the board?
337 MR.
CAPOZZOLO: Yes.
338 COMMISSIONER
del VAL: Are the decisions carried? Is it a majority vote? How else are decisions carried?
339 MR.
CAPOZZOLO: Usually they are deferred to
the Executive Director.
340 COMMISSIONER
del VAL: Who is the Executive Director?
341 MR.
CAPOZZOLO: That would be me as well.
342 COMMISSIONER
del VAL: Then you as the Executive
Director, Mr. Capozzolo, you really have control over the station.
343 MR.
CAPOZZOLO: Well, control of the station
in the sense that there are expenses that need to be met and I am entirely and
wholly responsible for coming up with the revenue.
344 Therefore,
we will vote on things that might require some assistance of the board members,
that type of thing.
345 COMMISSIONER
del VAL: What about programming
decisions? Does that apply also to programming
decisions?
346 MR.
CAPOZZOLO: Programming decisions are
made and finalized. The programming
decision basically was to run the radio station as if it were a commercial
entity, simply because we are training people to go work in the commercial
radio environment. Therefore, it
wouldn't make sense to do anything other.
347 And
this is something that was voted upon by the board.
348 COMMISSIONER
del VAL: Who made the decision, as you
described, to run the radio station as a commercial entity?
349 MR.
CAPOZZOLO: The decision was made by the
board.
350 COMMISSIONER
del VAL: In that case, did the board
also defer to you as the Executive Director?
351 MR.
CAPOZZOLO: Yes.
352 COMMISSIONER
del VAL: So that is on the commercial
station.
353 The
Campus Radio Policy also has a requirement that the programming of the station
be alternative and complementary programming.
354 MR.
CAPOZZOLO: Yes.
355 COMMISSIONER
del VAL: I note from Mr. Tweed's
letter of September 15th that an overview of the programming is provided.
356 How
do you fulfil that requirement? How do
you feel that the station meets the requirement of providing alternative and
complementary programming given that alternative programming is defined under
the policy as alternative music ‑‑ and the Chair has talked
about the levels of requirement ‑‑ then educational
programming, which I think you have just earlier also said that you don't meet
that requirement?
357 MR.
CAPOZZOLO: We do now.
358 COMMISSIONER
del VAL: You do now.
359 MR.
CAPOZZOLO: Yes.
360 COMMISSIONER
del VAL: But up until ‑‑
361 MR.
CAPOZZOLO: Up until February when I was
informed that the programming was in fact out of compliance.
362 COMMISSIONER
del VAL: Okay, great.
363 The
news didn't either. I guess the other
one is spoken word.
364 MR.
CAPOZZOLO: With spoken word we were
always in compliance.
365 COMMISSIONER
del VAL: Okay.
366 How
do you comply now?
367 MR.
CAPOZZOLO: In terms of offering
alternative programming, there is no radio station that I am aware of in the
marketplace, or within the vicinity of this marketplace, that is a 100 percent
Urban Music format.
368 We
feel that is something that lacks in this marketplace. It is something that is not financially
viable in this marketplace, simply because of the smaller population of people
of colour in Winnipeg, and Manitoba for that matter.
369 We
felt that this would not infringe heavily on the existing or traditional
broadcasters.
370 We
also felt that this would be a format that would be appealing to those people
that we hoped would take the course.
371 COMMISSIONER
del VAL: Thank you.
372 Is
there any duplication of your format with any of the commercial FM stations in
the same market?
373 MR.
CAPOZZOLO: There would be a percentage
of the format. A percentage of all
formats is similar to other formats, simply by the nature of crossover heads.
374 COMMISSIONER
del VAL: Yes.
375 MR.
CAPOZZOLO: There are Country songs that
appear on traditionally Rhythmic stations.
There is going to be Urban music or songs from the Urban world that will
appear on Top 40 and Rhythmic based radio stations.
376 COMMISSIONER
del VAL: What percentage of overlap
would you estimate there to be?
377 MR.
CAPOZZOLO: Roughly somewhere in the
neighbourhood of 20 to 25 percent.
378 COMMISSIONER
del VAL: Going back to the board, how do
you elect or appoint the members to the board?
379 MR.
CAPOZZOLO: Through a membership and the
typical procedures governing boards, rules of order, et cetera.
380 COMMISSIONER
del VAL: But how do you find the
individuals? How do they come forward?
381 MR.
CAPOZZOLO: Through memberships, through
invitation.
382 COMMISSIONER
del VAL: Memberships in what?
383 MR.
CAPOZZOLO: The board is elected through
membership. There have been a few
elections. Generally the board up until
this time has gone through these various evolutions based on outside
interference for the most part. But that
is certainly part of the process.
384 COMMISSIONER
del VAL: The members who elect the
board, of what organization are they members?
385 They
are members of which organization?
386 MR.
CAPOZZOLO: Harmony Broadcasting.
387 COMMISSIONER
del VAL: So Harmony Broadcasting is a
non‑profit organization.
388 MR.
CAPOZZOLO: Correct.
389 COMMISSIONER
del VAL: How many members does it have?
390 MR.
CAPOZZOLO: Forty or so.
391 COMMISSIONER
del VAL: Pardon me?
392 MR.
CAPOZZOLO: Forty.
393 COMMISSIONER
del VAL: Forty.
394 MR.
CAPOZZOLO: Thereabouts. It could be a little more or a little less;
just enough to get that basis established.
Once we are in full swing with the school, then we have a more proper
path to follow. Right now we just
followed ‑‑
395 COMMISSIONER
del VAL: But Harmony Broadcasting, the
company, has only one shareholder.
Right?
396 MR.
CAPOZZOLO: Correct. Well, there are no shareholders but I
established the appropriation.
397 COMMISSIONER
del VAL: I can't figure out where the
members came in.
398 MR.
CAPOZZOLO: I was told that I needed
members, so I solicited friends and that type of thing to become members, to
get the process moving as it should.
‑‑‑ Pause
399 THE
CHAIRPERSON: I think we will take our
morning break now. By my watch it is
10:35, so we will break for 15 minutes, until ten to 11:00.
400 MR.
CAPOZZOLO: Thank you.
‑‑‑ Upon recessing
at 1035 / Suspension à 1035
‑‑‑ Upon resuming
at 1055 / Reprise à 1055
401 THE
CHAIRPERSON: Thank you. We will come back to the session.
402 Commissioner
del Val.
403 COMMISSIONER
del VAL: Thank you.
404 I
just want to find out a little bit more about your association with Robertson
College.
405 MR.
CAPOZZOLO: Yes.
406 COMMISSIONER
del VAL: If I were a student interested
in the broadcasting program, I know that I have looked on the Robertson College
website and they are advertising a broadcasting program. So I would approach Robertson College.
407 Then
who do I pay if I want ‑‑
408 MR.
CAPOZZOLO: You would pay Robertson
College.
409 COMMISSIONER
del VAL: I would get the credit from
Robertson College.
410 MR.
CAPOZZOLO: Yes.
411 COMMISSIONER
del VAL: Where does Winnipeg Broadcast
Training Centre come in?
412 MR.
CAPOZZOLO: It is just an entity to
facilitate the relationship.
413 COMMISSIONER
del VAL: Does Robertson College pay the
Winnipeg Broadcast Training Centre certain ‑‑
414 MR.
CAPOZZOLO: A portion of the students'
fees help pay for the expenses associated with running a radio station.
415 COMMISSIONER
del VAL: These students would work or
have some experience from the Harmony Broadcasting station?
416 MR.
CAPOZZOLO: Yes. You could almost look at it as a campus per
se.
417 Robertson
College is in fact about a two‑to‑three minute walk from the radio
station, where the radio station is located, and half of the floor ‑‑
Commissioner Cram, you have visited us.
418 Half
of the floor is allocated to the educational aspect and the other half is the
actual physical radio station.
419 COMMISSIONER
del VAL: To date, between the time of
renewal on September 1, 2004 and now, there has not been any graduate yet from
that.
420 MR.
CAPOZZOLO: No.
421 COMMISSIONER
del VAL: I think those are my questions;
thank you very much.
422 Thank
you, Madam Chair.
423 MR.
CAPOZZOLO: Thank you.
424 THE
CHAIRPERSON: I have a few little clean‑up
questions.
425 So
since there have been no students from, as my colleague said, September 2004 to
now, and presumably until January 2007, you are in non‑compliance right
now.
426 MR.
CAPOZZOLO: Right now, I believe that we
are in compliance ‑‑ right now, yes. We are associated with a school, and we are
waiting for our first or next intake.
427 THE
CHAIRPERSON: Effective July of this year
when you got approval from the Government of Manitoba ‑‑
428 MR.
CAPOZZOLO: Right.
429 THE
CHAIRPERSON: ‑‑ you consider that you are in compliance.
430 MR.
CAPOZZOLO: Yes.
431 THE
CHAIRPERSON: Even though there are no
students doing any of the programming.
432 MR.
CAPOZZOLO: One follows the other,
doesn't it? I can't have students do my
programming until I get some students.
433 THE
CHAIRPERSON: Well, if there are no
students doing any programming, are you a campus station?
434 MR.
CAPOZZOLO: Yes, we are. I do believe we are.
435 THE
CHAIRPERSON: Your assertion is because
of this agreement with Robertson. Is
that right?
436 MR.
CAPOZZOLO: Yes.
437 THE
CHAIRPERSON: I wanted to go into that
agreement.
438 You
filed the agreement, you claim, in confidence.
439 MR.
CAPOZZOLO: Yes.
440 THE
CHAIRPERSON: Clearly you know our rules
on confidentiality.
441 MR.
CAPOZZOLO: Yes.
442 THE
CHAIRPERSON: You have seen the relevant
circular, I am sure, Circular 429. The
onus is on you to show that you have an agreement.
443 MR.
CAPOZZOLO: Right.
444 THE
CHAIRPERSON: So you must seek it. We can't see anything that isn't on the
public file.
445 So
number one, you must provide us with your reasons for confidentiality.
446 Number
two, you must tell us which portions of the agreement are subject to that
confidentiality.
447 We
will make a ruling whether or not it goes on the file and which portions of the
agreement go on the file.
448 You
will be informed in advance whether or not we have accepted your argument as to
confidentiality. You will be entitled to
withdraw the whole agreement should we not accept your request for
confidentiality.
449 MR.
CAPOZZOLO: Madam Chair, if it would
simplify the process, the confidentiality is not a supreme issue.
450 THE
CHAIRPERSON: So you are withdrawing your
claim to confidentiality?
451 MR.
CAPOZZOLO: I thought it was a simple
process; I'm sorry.
452 Yes,
I will withdraw it.
453 THE
CHAIRPERSON: You will withdraw your
claim for confidentiality.
454 MR.
CAPOZZOLO: Yes.
455 THE
CHAIRPERSON: Thank you.
456 The
other thing you were talking about is that your curriculum had to be approved
by the Board of Education.
457 Could
you file that approval with us within ten days of this hearing?
458 MR.
CAPOZZOLO: Yes.
459 THE
CHAIRPERSON: So I have your undertaking?
460 I
do? You have to say yes.
461 MR.
CAPOZZOLO: I'm sorry.
462 THE
CHAIRPERSON: I have your
undertaking? You have to say yes for the
record.
463 MR.
CAPOZZOLO: Yes, you do.
464 THE
CHAIRPERSON: In your renewal, you
referred to an agreement with Winnipeg Technical College, dated October 23,
2003: affiliation agreement finalized with post secondary institute, Winnipeg
Technical College, October 23, 2003.
465 You
will file a copy of that within ten days of this hearing?
466 MR.
CAPOZZOLO: Okay.
467 THE
CHAIRPERSON: You undertake to do so?
468 MR.
CAPOZZOLO: I undertake to do so.
469 THE
CHAIRPERSON: Commissioner del Val went
through very well the issue of formal education. However, I was left at the end wondering what
you believe formal education now consists of.
And what are you doing now?
470 MR.
CAPOZZOLO: With regard to formal
education, to be honest, I don't have a very clear‑cut idea what that
is. I researched what educational
programming is to the rest of the world and try to deliver similar.
471 These
would be educational subjects, geologists, naturalists, discussions about the
environment, that type of thing.
472 THE
CHAIRPERSON: So you bring in people to
talk about those issues. Is that it?
473 MR.
CAPOZZOLO: Yes.
474 THE
CHAIRPERSON: Where are they placed
during the day?
475 MR.
CAPOZZOLO: In the morning show.
476 THE
CHAIRPERSON: I forget, you have three
hours in the morning show. So it is part
of that. Is that the idea?
477 MR.
CAPOZZOLO: It is actually four hours.
478 THE
CHAIRPERSON: All right.
479 Can
you also provide us with a copy of the agreement between Harmony and the
Winnipeg Broadcast College; in other words, the numbered company?
480 MR.
CAPOZZOLO: All right.
481 THE
CHAIRPERSON: The arrangements between
those.
482 You
will do that within ten days from the hearing?
483 MR.
CAPOZZOLO: I will.
484 THE
CHAIRPERSON: Thank you.
485 You
were to provide the numbered company incorporating documents, directors and
officers. Again there was no timing in
that.
486 You
will do that within ten days?
487 MR.
CAPOZZOLO: Yes.
488 THE
CHAIRPERSON: I wanted to get into
Alternative programming.
489 What
constitutes Alternative programming clearly would be category 3 music, because
everybody likes category 2, the formal education, the news.
490 MR.
CAPOZZOLO: Okay.
491 THE
CHAIRPERSON: And of course the music.
492 Do
you honestly think with a duplication rate of 20 to 25 percent with the
Standard stations that that is Alternative?
493 MR.
CAPOZZOLO: Once again, I believe if we
are training students to go out and work in the commercial radio environment,
there are rules and regulations in every commercial radio station. Some of the reasons why I was out of
compliance was because the individuals or the students or volunteers who had
previous college radio experience ‑‑ and substantial for some
of them ‑‑ they were dropping Canadian music. They were dropping category 3 music.
494 That
is part of what is part of the commercial radio environment. You have to follow format. Commercial radio is about formatted radio.
495 THE
CHAIRPERSON: But you are not a
commercial radio.
496 MR.
CAPOZZOLO: I am not.
497 THE
CHAIRPERSON: You are a campus
instructional radio.
498 MR.
CAPOZZOLO: That is correct.
499 THE
CHAIRPERSON: You are supposed to have an
Alternative format.
500 My
question was: Do you honestly believe
with an overlap of 20 to 25 percent with an existing station in the market that
that constitutes Alternative programming under the policy?
501 MR.
CAPOZZOLO: Do I personally believe
that? Yes, I do.
502 THE
CHAIRPERSON: Thank you.
503 Commissioner
Williams.
504 COMMISSIONER
WILLIAMS: Good morning, Mr. Capozzolo
and counsel.
505 MR.
CAPOZZOLO: Good morning.
506 COMMISSIONER
WILLIAMS: You stated earlier this
morning that you have 30 years' experience as a broadcaster.
507 What
roles did you perform during this long career in the broadcasting industry?
508 MR.
CAPOZZOLO: I have been an on‑air
person. I have been a music
director. I have been a program
director. I have been an operations
manager and I have done commercial writing along the way. I have worked in the promotions
department. Just about everything there
is to do in a radio station, I have done it somewhere along the line.
509 COMMISSIONER
WILLIAMS: How would you reconcile that
vast experience that you have just outlined with the comment from your lawyer
that these errors were due to business inexperience?
510 MR.
CAPOZZOLO: These were the people that
were working with me.
511 COMMISSIONER
WILLIAMS: People that you were training?
512 MR.
CAPOZZOLO: Yes.
513 COMMISSIONER
WILLIAMS: In your many years in the
broadcasting industry you must have come across the concept of maintaining
logger tapes before?
514 MR.
CAPOZZOLO: Yes, I have.
515 COMMISSIONER
WILLIAMS: Since these non‑compliance
issues, that have been covered well earlier this morning by my colleagues and
your admission that there is not a doubt that you were not in compliance, you
state that you are now compliant or have been compliant since July.
516 Since
these ‑‑
517 MR.
CAPOZZOLO: No. I believe I was in compliance since February.
518 COMMISSIONER
WILLIAMS: Since February?
519 MR.
CAPOZZOLO: Yes.
520 COMMISSIONER
WILLIAMS: All right.
521 Since
these occurrences, what have you done to ensure that logger tapes are
maintained and will be available to furnish to the Commission upon request?
522 MR.
CAPOZZOLO: The fact of the matter is the
logger tapes were always there. I do
have the logger tapes today. The fact of
the matter is I had to file accompanying paper work, and I just didn't have
the ‑‑ excuse me.
‑‑‑ Pause
523 COMMISSIONER
WILLIAMS: I guess you are one of the few
that didn't turn your Blackberry off.
524 MR.
CAPOZZOLO: I turned it off, but I turned
it on during the break. I will just turn
it off again.
525 I'm
sorry. Could you repeat the question.
526 COMMISSIONER
WILLIAMS: Tell me what your process is
now. You said you had the logger tapes
available.
527 MR.
CAPOZZOLO: I had the logger tapes.
528 COMMISSIONER
WILLIAMS: Have you made any changes
since these occurrences?
529 MR.
CAPOZZOLO: I have made changes. I have made changes to the way we do
things. I have instituted voice
tracking, which will eliminate people dropping music that shouldn't be dropped.
530 I
have instituted programming into the on‑air system that allows us to
track news and spoken word without having to physically sit there and listen to
a week's worth of programming to come up with these songs and times of how much
we spend talking.
531 The
fact of the matter is with regard to the February logger tapes, I received a
letter on February 6th saying that I was in fact out of compliance. That letter for some reason I thought might
have been an error, and I had hoped that at some time along the way we could
talk about it.
532 Basically
on February 6th I was told I was out of compliance, and then it asked me to
provide logger tapes previous to that date.
533 I
do in fact have those logger tapes today.
They are on disc and available to the Commission, if you would wish.
534 COMMISSIONER
WILLIAMS: I will ask my colleague,
Commissioner Cram, to deal with the issues from the past. I am more interested in getting your
information on what is happening from today forward or from the time you became
compliant forward and policies and procedures and methods that you have in
place to assure us that you in fact have the ability to be compliant in the
future.
535 MR.
CAPOZZOLO: I simplified processes. I have eliminated freedoms. Turntablism was something that I was not
familiar with in my vast years of experience.
This is a new process and a new thing for me, and I didn't know what it
actually meant.
536 The
individual who was in charge of that area assured me that we were compliant and
I took his word for it. Unfortunately,
it was only his word and not based on reality.
Therefore, we ended up being out of compliance on the Canadian content,
partly because what he believed to be Canadian content was in fact not Canadian
content.
537 Therefore,
those turntablism shows are now more monitored.
They are submitted in advance. We
only have one live such show per week and I compensate with increasing the
Canadian content previous to that show.
538 With
regard to the school, it is now in place.
Documents are signed, the curriculum approved, and we are just waiting
to be able to execute.
539 Everything
leading up to this, as far back as September 2004 ‑‑ I
unwittingly got involved with some unseemly characters and that led to bad
publicity in the newspaper, which caused Winnipeg South Technical, when we were
going to sign off on the deal, to withdraw, which caused me to have to go out
and look for another partner.
540 Basically
everything up until now has been trying to get that school together. It has been suggested that perhaps there is
no interest in the school, which is ridiculous.
But it is a difficult process to sit down with a school organization and
have them buy into what it is that you are selling them.
541 They
just don't get into bed with anybody.
They have reputations to protect, et cetera.
542 Therefore,
it has been a long process, a difficult process, to convince and to move this
process along.
543 COMMISSIONER
WILLIAMS: Thank you.
544 I
would like to move you back to the area of logger tapes.
545 You
mentioned you have some programs and I guess some software to record and manage
the logger tape issue more carefully.
546 Do
you have any contingency plan to deal with any possible machine or software
failures?
547 MR.
CAPOZZOLO: Actually, we are dealing with
one right now as we speak. Over night
the on‑air system computer crashed, and we do have discs with the
appropriate amount of Canadian content and whatever other category 3 songs or
music that is required.
548 COMMISSIONER
WILLIAMS: Who in your organization is
responsible for ensuring that logger tape equipment is functioning?
549 MR.
CAPOZZOLO: I am ultimately.
550 COMMISSIONER
WILLIAMS: So who is responsible right
now? You seem to be otherwise occupied
today.
551 MR.
CAPOZZOLO: The people back at the radio
station.
552 COMMISSIONER
WILLIAMS: Who in your organization is
responsible for ensuring that regulatory Canadian content level is broadcast?
553 MR.
CAPOZZOLO: I am. I am a big proponent of exposing Canadian
talent. It is my favourite thing to
do. I can't believe that this is even an
issue for me.
554 I
build the format clocks to a 40 percent Cancon level. Unfortunately, due to some individuals'
behaviour, if they are telling you they are playing the music, at this stage of
the game I didn't have the resources to be able to have back‑up
administrators to double‑check that this stuff was being in fact done.
555 I
was told it was being done. I took it on
face value.
556 COMMISSIONER
WILLIAMS: So on a going forward basis,
how are you going to manage that?
557 MR.
CAPOZZOLO: I have dismissed those people
who repeatedly were responsible for that behaviour. I have made it clear that that will not be
tolerated.
558 I
have built the clocks so that if there is music to be dropped, it doesn't end
up being the Canadian content.
559 COMMISSIONER
WILLIAMS: The broadcasting of category 3
music is an important element in ensuring a range of music styles is offered,
and it also ensures a level of diversity.
560 Can
you tell us the measures that have been put into place to ensure future
compliance in that area?
561 MR.
CAPOZZOLO: Once again, that is a
category that I have over‑built, knowing that there would be complaints
in the marketplace. It sounds like a
contemporary radio station. I make no
apologies. But I don't believe it is of
hindrance to anyone's ratings or ability to generate revenue in the
marketplace.
562 Typically,
we play somewhere between 7 and 10 percent category 3. It is built into the clock. It is not relegated to a night‑time
category. It plays through the course of
the entire day.
563 Unfortunately,
when you have inexperience and people who don't understand the meaning of
"no", they will drop the songs that they found least appealing to
them.
564 Unfortunately,
it turns out to be those things that put us out of compliance.
565 COMMISSIONER
WILLIAMS: The station was found to have
broadcast a weekly level of .83 percent news instead of a condition of licence
level of 4 percent.
566 what
specifically have you done to address this shortfall? Tell me about who is responsible for the
gathering, writing and announcing of the news.
567 MR.
CAPOZZOLO: Mr. Kowalson is responsible
for the gathering of the news. I along
with Mr. Kowalson and another individual deliver the news.
568 We
have a half‑hour newscast that is broadcast between 6:30 and 7 o'clock every
day of the week, Monday to Friday. We
have eight minutes of previously recorded news that runs between 6:00 and 6:30
every day. And we have three‑minute
newscasts at 7:00, 7:30, 8:00, 8:30 and at 10:00.
569 That
is over what we require. I have over‑built
in all things so that this doesn't become an issue.
570 COMMISSIONER
WILLIAMS: What are the typical sources
for your news?
571 MR.
CAPOZZOLO: Newspapers, the Internet and
television. And those news items that
are within range of the radio station, he will in fact go out and cover
personally.
572 COMMISSIONER
WILLIAMS: What arrangements have you
made to ensure that your weekly condition of licence to broadcast two hours of
formal educational programming is met?
And what do you see as the topics of the formal educational programming
that provides academic instruction?
573 MR.
CAPOZZOLO: With regard to academic
instruction, I really don't know what that means, to be honest. I know educational in the sense of social
issues, conscious issues in the community, in the life group that we hope to
attract. They are educational in the
sense that we speak to experts in those fields and ask questions that educate
and instruct.
574 In
terms of formal education programming on the radio, I don't know that that
works in the 21st century. There might
have been a time when there are smaller communities and you can broadcast
lessons over the radio. I don't know
that that is something that necessarily works today.
575 I
really don't know if I have ever even heard educational programming on the
radio in terms of formal academic instruction.
I wouldn't even know what that sounds like, to be honest.
576 I
have visited PBS and talked to different people across the country and in the
United States, and educational programming generally works out to mean issues
that concern your community or the public at large.
577 COMMISSIONER
WILLIAMS: You covered the area of the
board of directors quite thoroughly with Commission del Val earlier this
morning, so I only have one question in that area.
578 How
is each member chosen and appointed and for how long?
579 MR.
CAPOZZOLO: How is each member...
580 COMMISSIONER
WILLIAMS: When you select a member for
your board, how is that member chosen, appointed and what is the duration of
that appointment?
581 MR.
CAPOZZOLO: We have a nominating
committee. We generally try to follow
the guidelines set out by the Regulations.
582 COMMISSIONER
WILLIAMS: Can you specifically tell us
how this board would meet the campus policy; i.e., a requirement that the board
include balanced representation?
583 I
just need a bit information on that.
584 MR.
CAPOZZOLO: Well, balanced
representation, the only shortfall or shortcoming would be the student until
January 9th.
585 COMMISSIONER
WILLIAMS: I guess your answer is the
same; okay.
586 In
January when you are proceeding along with your plan, what duties will students
have at the station? Would it be part of
their curriculum?
587 MR.
CAPOZZOLO: There seems to be a conflict
between the province or the Regulations.
One of the issues that was raised was if students were used to generate
revenue or used as a resource with the radio station. So I plan to take that slowly so that I don't
offend either body.
588 There
are numerous things, news stories that can be gathered. There is certainly editing with regard to
music that can be done, interviews that can be done, hosting that will be done,
all the things that a student can bring to the table.
589 COMMISSIONER
WILLIAMS: How about non‑students. Do you currently offer opportunities for
other members of the community to participate in the radio station?
590 MR.
CAPOZZOLO: Constantly.
591 COMMISSIONER
WILLIAMS: Can you provide an example?
592 MR.
CAPOZZOLO: We are not a community‑based
campus, but we do have all manner of community‑based organizations,
ranging from Jewish organizations to wildlife organizations to ‑‑
if it exists, we try to get it on the air.
593 COMMISSIONER
WILLIAMS: Madam Chair, that concludes my
questioning for now.
594 THE
CHAIRPERSON: Thank you.
595 It
would appear that we are now moving into Phase II, unless counsel has any
questions at this point. I'm sorry.
596 MR.
HOWARD: Perhaps just a couple.
597 THE
CHAIRPERSON: Sure. Go ahead, counsel.
598 MR.
HOWARD: Excuse me for a second while I
check my notes.
‑‑‑ Pause
599 MR.
HOWARD: When we say students, are we
talking about students of the Winnipeg Training Centre or are we talking of
students from Robertson College?
600 And
by that, I mean can students from Robertson College who are not associated with
the Winnipeg Training Centre ‑‑ or Winnipeg Broadcasting
Training Centre; sorry ‑‑ be eligible for membership on the
board of directors?
601 MR.
CAPOZZOLO: Oh, absolutely. The Winnipeg Broadcast Training Centre exists
in name only, if you will. The
organization that is the educational component of this entity is Robertson
College, and all of Robertson College takes ‑‑ the lab portion
of the curriculum takes place at what we call the Winnipeg Broadcast Training
Centre, which is a different entity than Robertson College.
602 Does
that make sense?
603 MR.
HOWARD: The on‑air personalities,
I get the impression that some are permanent; namely yourself.
604 MR.
CAPOZZOLO: Right.
605 MR.
HOWARD: You are the major news
reader. And obviously when this thing
gets up and running the students are not going to be permanent. They will be there for a period of time and
then I assume they will move on.
606 What
percentage of on‑air personalities will be paid personalities, or paid
persons, if I can put it that way, employees, and what percentage will be
students when this thing is ‑‑ let's say you have your 12‑to‑24
students enrolled in the training college?
607 MR.
CAPOZZOLO: For the most part, the entire
Harmony Broadcasting, the radio station, that is Flava 107.9, is a marketing
tool for the school. It was designed to
garner the attention of those people who might consider a career in
broadcasting.
608 Therefore,
it is designed to be appealing to those people so that they might want to take
a course at Robertson College, which also partly happens at the radio station.
609 Does
that make sense?
610 MR.
HOWARD: It makes sense, but I am trying
to get at how many people would be sort of permanent on‑air.
611 MR.
CAPOZZOLO: Well, the on‑air people
for the most part are instructors.
612 MR.
HOWARD: Just give me a ballpark figure.
613 What
I am interested in trying to figure out is you are running sort of a fine line
here. I think what you are telling us is
you have to have a commercial sound because that is what you are trying to
instill in the students.
614 The
students obviously are not going to come in with a sufficient amount of
experience to be able to give you a commercial sound.
615 MR.
CAPOZZOLO: Right.
616 MR.
HOWARD: So you have to have a body of
people that are going to be sort of professionals who are going to give that
station the sound, and then you are going to, I would think, orbit around that
the student on‑air ‑‑
617 MR.
CAPOZZOLO: Correct.
618 MR.
HOWARD: I am trying to get some idea of
the balance between the two.
619 MR.
CAPOZZOLO: I can't give you an answer to
that right now, outside of the fact that I am just about all things there.
620 MR.
HOWARD: Is there anybody else who is
fulltime on‑air?
621 MR.
CAPOZZOLO: Fulltime on‑air
exclusively?
622 MR.
HOWARD: Not exclusively but as a
fulltime person ‑‑ well, they are all, I guess, right
now. But we are talking about when you
get up and running, you envisage what core group? How much will they do and how much will the
students do?
623 MR.
CAPOZZOLO: The students? I wouldn't know how to measure that. I could say 20 percent, I could say 40
percent. What counts as a percentage
point? Does editing music count as a
percentage point? Music has a lot of
profanity involved in it and it takes hours of work.
624 MR.
HOWARD: No. I was talking about on‑air.
625 MR.
CAPOZZOLO: But the on‑air? There will be students doing on‑air but
I don't want to run into the same problem that Red River College seems to be
running into, and that is having people show up to do their shifts. When you have volunteer people, it is very
hard to make sure they adhere to the rules because they stand nothing to lose.
626 Therefore,
those students who become proficient enough will be invited to participate in
the actual on‑air execution of the format.
627 MR.
HOWARD: Going with that problem for a
second ‑‑ I don't want to worry this thing to death because I
think I've got my answers.
628 If
a student doesn't show up for a shift, surely there are marks taken off the
student in his or her course and that student will start failing. Sort of a primary responsibility of radio is
to have no dead air and somebody there.
629 MR.
CAPOZZOLO: Absolutely. But I wouldn't ‑‑ someone
would have to prove themselves before they get on the air.
630 MR.
HOWARD: I'm sorry to get back to this,
but with regard to the relationship between the three entities, I take it from
what you have told us so far is the student that signs up with Robertson
becomes a student of Robertson.
631 MR.
CAPOZZOLO: Correct.
632 MR.
HOWARD: Robertson then has a contract
with the training centre.
633 MR.
CAPOZZOLO: Right.
634 MR.
HOWARD: And the training centre's
function is to sub some of the instruction on behalf of Robertson.
635 Is
that correct?
636 MR.
CAPOZZOLO: All of the instruction.
637 MR.
HOWARD: Well, I thought Robertson was
going to do some in‑classroom work or something.
638 MR.
CAPOZZOLO: The theory happens at
Robertson College.
639 MR.
HOWARD: Okay.
640 MR.
CAPOZZOLO: The lab work happens at the
training centre.
641 MR.
HOWARD: So every dollar that the student
pays to Robertson is then flowed through to the training centre. Is that the way it goes?
642 MR.
CAPOZZOLO: Not every dollar; a portion
of every dollar.
643 MR.
HOWARD: What does Robertson retain? The administrative overhead? What do they retain?
644 MR.
CAPOZZOLO: Well, there are instructors
to be paid. There is classroom time to
be addressed.
645 MR.
HOWARD: So Robertson does have some
instructors and does have some classroom time.
Is that correct?
646 MR.
CAPOZZOLO: Yes, absolutely.
647 MR.
HOWARD: So then a portion of the funds
given to Robertson flows through to the training centre.
648 MR.
CAPOZZOLO: Yes.
649 MR.
HOWARD: What percentage would that be?
650 MR.
CAPOZZOLO: I believe once the
instructors are paid, it is 35 percent.
651 MR.
HOWARD: So you get 35 percent of the
total.
652 MR.
CAPOZZOLO: Right.
653 MR.
HOWARD: Is there a relationship between
the training centre and Harmony?
654 Harmony
has to get some money to carry on if it is going to have on‑air people,
et cetera.
655 How
does the money flow through to Harmony?
656 MR.
CAPOZZOLO: Harmony helps pay the
expenses associated with running the station.
657 MR.
HOWARD: Okay. What percentage of the 35 flows through to
Harmony?
658 MR.
CAPOZZOLO: Hopefully very little.
659 MR.
HOWARD: Let's go through the expenses.
660 MR.
CAPOZZOLO: I get to keep that
money. I get to keep the money that goes
to the training centre, unless it is required for operating expenses.
661 MR.
HOWARD: Then you pay out of your own
pocket Harmony.
662 MR.
CAPOZZOLO: Right.
663 MR.
HOWARD: And you augment that slightly
with advertising, if you can.
664 MR.
CAPOZZOLO: Exactly.
665 MR.
HOWARD: Who owns the equipment running
the radio station? Is that the training
centre?
666 MR.
CAPOZZOLO: The training centre owns the
equipment associated with the labs.
667 MR.
HOWARD: What about the logger tapes or
logging machines, computers for the station, the transmitter, the studio area,
who owns that stuff?
668 MR.
CAPOZZOLO: Harmony Broadcasting.
669 MR.
HOWARD: Harmony does.
670 MR.
CAPOZZOLO: Yes.
671 MR.
HOWARD: I would like to turn to something,
perhaps a little more formal, with regard to the mandatory orders.
672 We
have gone through the situation that caused breaches and I think we have gone
through pretty much your plans to ensure those breaches don't occur.
673 MR.
CAPOZZOLO: Yes.
674 MR.
HOWARD: What I would like to put to you
now is an idea, in sort of general terms, of what those orders will contain and
be like.
675 I
think I will put through each of them to you and at the end ‑‑
because I think you will have the same comment, if any comment ‑‑
I will ask you if there are any reasons why if the Commission thinks it is
appropriate, the order shouldn't be in that form.
676 MR.
CAPOZZOLO: Okay.
677 MR.
HOWARD: Have I sort of, in a complicated
way, made myself understandable?
678 MR.
CAPOZZOLO: Sort of, yes.
679 MR.
HOWARD: Thank you.
680 So
the first one is with regard to the breach of the Regulations. Here we have 2.2(8).
681 That
is the 35 percent of cat. 2.
682 MR.
CAPOZZOLO: Right.
683 MR.
HOWARD: So the order will read:
"The Commission hereby orders
that the licensee adhere to section 2.2(8) of the Radio Regulations."
684 The
next one will be sections 8 and 9 of the Radio Regulations, and the order would
read something along the lines of:
"The licensee will adhere to
sections 8 and 9 of the Radio Regulations."
685 With
regard to the COLs, there would be three of those.
686 The
first would be that the licensee adhere to condition of licence, and we would
have:
687 (1)
broadcast level of 5 percent of category 3 music; repeat that condition of
licence.
688 And
then for the second we would have the 4 percent news; repeat the current
condition of licence.
689 And
for the last one we would have broadcast weekly two hours of formal educational
broadcasting and repeat the condition of licence that is there.
690 Any
comment on the appropriateness of that?
691 MR.
CAPOZZOLO: I really don't think it is
necessary. I at no time attempted to or
desired or wished to circumvent any rules.
In fact, I designed the format of the radio station to over‑deliver
on those demands.
692 With
regard to Canadian music, I have people across the country coming to Winnipeg
hoping to get their music played, having heard that there is a station that
will do that; that is perceived across the country as one of the few stations
that actually plays this format exclusively.
693 That
is why I said to you, Madam Chair, that I do believe that this is in this
marketplace an Alternative radio station.
694 There
is very little in this country that will expose artists in this genre. The majority of our Canadian category is made
up of local artists. We have artists
calling us up asking us to work out promotional devices where they can come to
Winnipeg, bring their music and get it added to our on‑air line of
Canadian talent.
695 I
really have no qualms with Cancon at all.
If anything, I am a promoter of Canadian talent and playing Canadian
music. Playing local music is something
that is seriously lacking across the country.
696 With
regard to the spoken word, we over‑delivered on the spoken word in terms
of the ‑‑ you know, if there was ever an issue with regard to
whether we were trying to be a commercial radio station, I think everybody in
this room understands that that is entirely based on your hit/non‑hit
quotient.
697 We
play 30 percent. That is what we are
allowed to play. We are down around 22‑23
percent non‑hit.
698 Therefore,
with regard to the news, candidly I didn't understand that certain things
didn't qualify as news. I didn't know
that weather didn't qualify as news.
699 Therefore,
once I understood that that was the case, we over‑deliver on the amount
of news that we are required to deliver each week.
700 MR.
HOWARD: Thank you.
701 Thank
you, Madam Chairman.
702 THE
CHAIRPERSON: Thank you.
703 I
propose to take another 15‑minute break.
I have 25 to 12:00. At ten to
12:00 we will reconvene with Mr. Boroditsky.
704 There
is one other technical issue, and that is the agreement between Robertson and
the numbered company, if I am correct, Mr. Capozzolo, that you have said can be
filed on the public file.
705 MR.
CAPOZZOLO: If you wish, yes.
706 THE
CHAIRPERSON: I am wondering,
Mr. Secretary, if we could have it arranged that that will be put on the
public file say some time after the break?
707 THE
SECRETARY: I don't know that we have a
copy of it at the hotel here. That is
the problem.
708 We
could probably arrange to have somebody run over to the office.
709 THE
CHAIRPERSON: That is what I was
thinking. I was hoping by the time of
reply to interventions that we could deal with that issue, if we could perhaps
have it on the file by then.
710 Is
that possible?
711 THE
SECRETARY: Yes, we will endeavour to do
that.
712 THE
CHAIRPERSON: Thank you.
713 We
will adjourn until ten to 12:00.
714 MR.
CAPOZZOLO: Thank you.
‑‑‑ Upon recessing
at 1137 / Suspension à 1137
‑‑‑ Upon resuming
at 1204 / Reprise à 1204
715 THE
CHAIRPERSON: Order, please.
716 Mr.
Secretary.
717 THE
SECRETARY: Thank you, Madam Chair.
718 Mr.
Boroditsky has sought to file certain information which is not on the public
record at this time. Copies of this
material have been provided to Mr. Capozzolo and his counsel.
719 Specifically
the five documents are as follows:
720 The
first one's title is: "For CRTC
Public Hearing Re Harmony Flava 107.9".
721 The
next one, the top line says: "To
the CRTC".
722 The
third document, the top line says:
"Outside of the Public Complaint File".
723 The
fourth document, the top line says:
"Morning Show Clock".
724 The
fifth document starts with a cover sheet from Fillmore and Riley.
725 I
now invite Mr. Capozzolo and Mr. Tweed to apprise us as to their position
on this new information.
726 THE
CHAIRPERSON: If I could just interject,
Mr. Secretary, the one document entitled "Outside of the Public Complaint
File", being a letter to myself, dated October 10, 2004, is on the public
file.
727 It
is document No. 400306.
728 So
that is already on the public record.
729 Go
ahead, Mr. Tweed.
730 MR.
TWEED: Yes, we are aware that that one
is on the public record.
731 None
of these other four are on the public record and we would object to their being
admitted into the public record.
Admitting them at this stage is inconsistent with the rules of this
Commission. It is inconsistent with
procedural fairness as it doesn't give the licensee an opportunity and the time
to address what is alleged in the documents and then provide a proper response
to the Commission.
732 Third,
the Notice of Public Hearing provides for times within which things must be
filed, provided for times within which we were entitled to respond, and
indicated who was going to be the intervenor.
733 At
the beginning of the hearing the only intervenor that was on the record was the
one gentleman who is I believe here. I
don't have any idea who the other two gentlemen are.
734 As
a result, we object to any other intervention and to the admission of any other
documents that are not already part of the public record.
735 Thank
you for your consideration.
736 THE
CHAIRPERSON: Mr. Boroditsky, do you have
any reply comment to the argument of Mr. Tweed?
737 MR.
BORODITSKY: Yes. I just want to clarify why this has been what
seems to be an irregular procedure.
738 In
my intervention, actually prior to my filing the formal intervention, my
response to Notice of Public Hearing, I had contacted the CRTC with regard to
my desire to provide information on a confidential basis, as I am sure the
Chairman is aware. This became the
subject of a lengthy e‑mail exchange between myself and officials in
Ottawa, as well as a phone conversation with Mr. Howard at one point.
739 Because
of not being able to get hold of Mr. Howard prior to the deadline, I was put in
a position where I didn't know whether I could file it or not. I was concerned about conducting those
filings out of order in terms of being granted confidentiality. It was sort of like closing the barn door
after things were out.
740 This
didn't transpire in a way that was trying to circumvent the rules. I was trying to work within the rules, but I
didn't get a ruling on the confidentiality aspect until last week.
741 Once
I was not granted confidentiality, I then referred back to the Notice of Public
Hearing that you required ten copies of graphs, documents, everything else, and
I presumed that this kind of material fell within that parameter and made the
required ten copies for the Commission.
742 I
don't want anybody to suggest that I am trying to back‑door or do
anything inappropriate. I felt I was
observing what I believed was how you people proceeded with these things.
743 In
a couple of cases the material existed for quite some time, but the CRTC never
contacted myself with regard to any documentation or information I may have
been able to provide in the course of the prior investigation that led to this
hearing.
744 You
know what your rules are and what your rules aren't and what you can and can't
accept. I think if I went and referred
to some of this material in the course of my speech, you could very well turn
around and, as you have for the licensee, ask me if I could provide an
undertaking to provide such documentation.
745 I
understand why there is an objection and I respect it, but the attempt to bring
this material forward was honest. This
material is germane as it is statements from people who, as you heard in the
prior testimony, are being blamed in some cases for the lack of compliance.
746 I
had no contact with these individuals until they read my material. It was posted on the Internet on the CRTC
Website. They contacted me, expressed
their concerns, reviewed some of the material I had compiled and felt that
there was a bigger story to tell. They
were concerned that blame was going to be shifted rather than left where it
belonged.
747 So
that is why they asked to come forward.
They asked me to ask for confidentiality because there is a fear of
reprisal, and this has been expressed.
748 I
did it not only on my own behalf but on their behalf as well. In the absence of rules in the federal system
or in the legislation that provide for whistle‑blower protection, they
have bravely chosen to appear with me this morning.
749 THE
CHAIRPERSON: Mr. Boroditsky, you are
aware that when you provide a document ‑‑ and we have sent you
how to find Circular 429 ‑‑ you are to say "these are
confidential and I wish these portions to be confidential and please make a
ruling".
750 MR.
BORODITSKY: I don't believe that any
reference to 429 was sent to me until I was sent the ‑‑ I'm
not even sure it was in the ruling against my request for confidentiality. I think it might have been sent to me by Mr.
Ramsay in a subsequent exchange.
751 I
was not aware of that circular until very late in the day. As I said, I'm not even sure that I was made
aware of it before the ruling was made.
752 It
was only in the last week and a half.
753 If
I had known about that circular, I would have been more than happy to click on
the link and read up on it and ask questions.
754 THE
CHAIRPERSON: There was the refusal for
the request for confidentiality because nothing was submitted to us and we
couldn't figure out what could be confidential.
755 MR.
BORODITSKY: I am sorry to interrupt, but
I want to make the point that I was not told at any point by the bureaucrats in
Ottawa that I had to submit anything to be evaluated.
756 The
e‑mail trail was clear. I am
disappointed that a rule was pulled out of left field to justify the decision
like that. Again, if I had been told
"can we see what you are talking about" ‑‑ you can
see from the nature of the material.
It's not like a nuclear bomb. I
would have submitted it, gladly. I would
have taken it down to the local office or had it faxed or whatever.
757 Again,
I respect your rules. But if I am not
told what your rules are, it's a real stretch to expect members of the public
to ‑‑ I think I said one e‑mail. I don't have ESP. How am I supposed to know that I am supposed
to submit this stuff for you to evaluate?
I would have.
758 I
have had a conversation with you. I
think you are fairly confident that if you said "can we look at this first
and we will tell you what we think", I would have sent it to you in
Regina, or whatever.
759 THE
CHAIRPERSON: Mr. Boroditsky, I want to
get to where we are right now.
760 You
have provided us with five documents.
Four documents are being objected to by Harmony.
761 Do
I understand that you are not providing them in confidence to us?
762 MR.
BORODITSKY: No. If I made ten copies, I am putting it out in
public. I didn't want to be forced to do
that, but there is evidently no contemplation of protecting whistle‑blowers
within the Regulations of the CRTC. So
this has forced our hand.
763 THE
CHAIRPERSON: So there is no claim for
confidentiality and ‑‑
764 MR.
BORODITSKY: On this material? No.
765 THE
CHAIRPERSON: All right.
766 The
second issue is you wish to have the documents admitted because you didn't know
our rules. Is that it?
767 MR.
BORODITSKY: I was not told your rules
and I did not know your rules.
768 Certainly
with regard to the circular, it is not hard to pull up the e‑mails from
Ottawa. That reference to the circular
came from Mr. Ramsay in justifying the decision when I started to question it
actually. I am pretty sure that is how
it transpired.
769 THE
CHAIRPERSON: The problem is that we have
two further individuals who are here sitting with you at the table who have not
intervened within the timeframe.
770 The
question is: How would you feel if the
converse happened to you? Would you
think that was fair?
771 MR.
BORODITSKY: Oh, they are not going to
say anything. I will make my address,
but I think this way, if you have any questions about what was going on, you
can ask them. They were there.
772 They
weren't questioned in the course of the investigation for two years, and their
reputations are on the line. They have
stepped forward very bravely, as I said.
773 THE
CHAIRPERSON: Again I ask you how you
would feel if you were in Mr. Capozzolo's shoes if these documents come out of
left field at him within a hearing.
774 MR.
BORODITSKY: Well, you see, it depends on
how a hearing is structured. If a
hearing is structured to get to the truth and hear from witnesses, then you
expect it. In this case, since he has
said that certain individuals were fired and weren't complying, they are right
here. They can tell you whether any of
that is true or not.
775 If
your hearing structure doesn't permit that, then it may not serve the purposes
of getting to the truth overall. I
respect that you have rules and procedures, and that is all way above our
heads. We just want to work in radio
here.
776 THE
CHAIRPERSON: Are you aware of the legal
concept of vicarious liability where the boss is responsible for everything
that the employees do?
777 MR.
BORODITSKY: Yes, I am aware of
that. But again, people's reputations to
some extent may be not at stake but maybe have been raised as a question. They clearly anticipated that this might
happen, and they want to have an opportunity in a public forum, if they are
questioned in public, to stand up for themselves.
778 I
understand what you are saying, and I am not suggesting that you are not wise
people who can interpret the information, the evidence.
779 You
know, if you want to work in radio and it is on the public record, regardless
of the way the boss is responsible, if you work in radio and you are fingered
as the guy who didn't do the Canadian content right, or didn't provide the news
right, or whatever, go try to find a job in radio.
780 In
a law firm, maybe the senior partner is responsible, but you know what? If you are fingered as the guy who screwed up
the case, you will be working in Fort McMurray instead of working in Ottawa.
781 THE
CHAIRPERSON: Fort McMurray isn't a bad
place these days.
782 MR.
BORODITSKY: It may not be for
lawyers. I'm speaking in terms of radio
actually, ma'am, but I understand your point.
783 THE
CHAIRPERSON: Counsel, do you have
anything further to say?
784 MR.
HOWARD: No; thank you.
785 THE
CHAIRPERSON: Clearly we need to make a
ruling on whether those four documents, as elucidated by the Secretary, are
admissible.
786 I
wish everybody in the room to know that we have not seen them. The Panel has not read them. We have to make our decision based on the
arguments that we have heard.
787 I'm
sorry for this, but can you give us ten minutes, until a quarter to 1:00.
788 MR.
BORODITSKY: Could I ask you a question,
ma'am?
789 I
have remarks that will take up about nine minutes of the ten minutes allotted.
790 I
am going to hold the question. I will
let you make your decision, because it could prove to be moot. You might as well proceed that way.
791 So
I withdraw the question. I won't ask.
792 THE
CHAIRPERSON: Give us ten minutes. Thank you.
‑‑‑ Upon recessing
at 1235 / Suspension à 1235
‑‑‑ Upon resuming
at 1250 / Reprise à 1250
793 THE
CHAIRPERSON: Thank you. We are back in order again.
794 I
have consulted with the Panel and legal counsel ‑‑ please sit
down; I'm sorry. I will wait for you.
795 This
hearing is a very serious hearing. The
issue is compliance or non‑compliance with the Regulations and the
conditions of licence. The issue is
compliance by Harmony Broadcasting and should a mandatory order be issued
against Harmony Broadcasting.
796 Given
the seriousness, strict natural justice and rules must be applied. All procedural orders and public notices
giving deadlines must also be followed.
Harmony Broadcasting has a right to know the case against it and be able
to reply in a considered manner.
797 The
Panel therefore accepts Harmony's objection and all documents will be returned
to Mr. Boroditsky.
798 We
ask you now, Mr. Boroditsky, to state your intervention and to contain yourself
to matters on the public record.
INTERVENTION
799 MR.
BORODITSKY: At the outset, I want to
explain why the operation of this campus instructional radio licence became the
subject of a complaint from me over two years ago. I want to make clear that it was only under
the requirements of the federal Labour Program that I conducted a search of the
records.
800 I
was told by department officials to determine which individuals be held liable
as directors of Harmony for paying me when a payment order was issued by the
federal government. The general manager
illegally withheld my pay cheque when I refused his demand to alter our
agreement. He insisted that I had to
work for less than the legal minimum wage when a new format was being imposed,
starting in September 2004.
801 Had
I been paid the money I had earned when it was due, I would not have ever
bothered to look into the corporate structure of Harmony Broadcasting or the
assurances the CRTC was given about the operation and the involvement of student
broadcasters.
802 What
I found on the files was that promises and claims had been made to the CRTC
about classes being offered and students already working on programming. Those conditions were the very basis of the
licence. Those promises were patently
false, based on my own experience at the station and the statements and actions
of the general manager.
803 I
outlined much of what was transpiring in an e‑mail to Commissioner
Barbara Cram two years ago, which I guess has now been submitted.
804 When
the licence was renewed there was no involvement from the sponsoring
educational institution, the Winnipeg Technical College, and the broadcast
courses I was originally told I would be teaching in the fall of 2004 were not
even being contemplated for another six months.
805 That
was the first fraud.
806 People
had been saying that this has been an accredited school for two years. You were being deceived.
807 The
first class was finally scheduled for October, although now this morning you
were told it will be held in January.
Both the general manager and the Winnipeg Free Press and Robertson
College, when I phoned them, confirmed that it is when the very first class is
being held. No students were enrolled
through an accredited institution or have been at the station since September
of 2004.
808 When
I looked at the provincial corporate file, I found that Harmony supplied a
false list of people with the CRTC as being responsible for the licence. Then the treasurer listed on the CRTC forms
told me, and his boss at the Winnipeg Technical College confirmed, that he,
Doug Kurtz, was never on the board, had nothing to do with my pay cheque and
was not the treasurer.
809 There
was no treasurer and no oversight from Winnipeg Technical College. This was against your rules, and this was the
way Harmony operated when you were deceived into renewing the licence.
810 According
to the Province of Manitoba, only two directors were on the board when the
licence was renewed. Harmony was in
breach of minimum governance requirements.
One of those directors was the general manager.
811 The
CRTC was told a functioning representative board which met the Regulations was
in place and responsible for the station.
There was not.
812 The
station was not being run by a non‑profit board representative of the
community, faculty, volunteers and student body. That was the second fraud.
813 There
was no board, no meetings, no student body and no student director as required.
814 A
statement which is not admitted contains comments from Devol Dryden, who is to
my left. He has indicated to me that he
was never on the board, was never invited to a board meeting, never appeared at
a board meeting and was never a student.
815 He
indicated there have never been any courses or classroom setting and that
everyone at the station was getting paid or getting their pay banked to be paid
at a later date.
816 He
also was responsible for matters involving turntablism and Canadian content.
817 The
total absence of students and classes was the third fraud. By every measure, Harmony was a sole proprietorship,
confirmed by the provincial Companies Office documents.
818 Since
the day the licence was renewed, the general manager was in law the president
of the non‑profit that employed him, retained on an annual contract, and
the provincial documents he himself submitted to the CRTC say he is not only
president, but his contract was approved by a board he hand picked.
819 While
the renewal process was under way, funds derived from suspicious agreements
affecting the format of the station and the content of the programming,
approved by no functioning board, flowed into the station while employees were
denied their earned pay.
820 Flava
107.9 was designed to be run after the renewal was approved strictly as a
commercial venture. It relied almost
entirely on advertising revenue, contrary to CRTC rules. The ad revenue was to be derived from one
single source, Robert Edward Blake, who was later arrested and charged as being
part of an Ephedrine smuggling ring.
821 In
my presence at the station, Blake was frequently accompanied by people who were
later arrested and identified as members of the Banditos motorcycle gang. One of those associates took part in a
meeting at Blake's nightclub with Franc Capozzolo and Ron Taylor about Blake's
interest in the station. That person was
also arrested with Blake in the drug sweep.
Now he is in jail in Ontario awaiting trial for the murder of eight
other members of the Banditos Outlaw Motorcycle Club.
822 Blake
was told he could buy every single minute of advertising. After the renewal was granted, he was given
control of the format and told a reporter from the University of Manitoba he
was the new owner of the station.
823 He
ordered Hip Hop music as a new format, and he had no interest in the school
requirements or in the spoken word or educational programming that your rules
require. Neither did the general manager
once he believed the money was going to be flowing to pay his own wages.
824 A
clock outline that was provided to me as a proposal for the morning show that I
was doing, that was to be continued, clearly did not meet even the barest
requirements for spoken word, as there was music, promotions and other matter
scattered generously throughout that four‑hour period.
825 The
operation of Flava was 100 percent commercial with not a single student in
sight.
826 I
expressed concern to the general manager about the various associates
frequenting the station with the advertiser, who had been given an office on
the premises. As events unfolded, I
understand why my warnings were ignored and why I was ordered by the general
manager to stop doing public affairs segments, focusing on crystal meth
addiction and the lack of provincial treatment programs.
827 After
I was ousted, I was shocked to hear Blake was almost immediately arrested in
Operation Diversion on drugs and weapons charges still before the courts.
828 As
I indicated, his associate was also charged and is now awaiting trial on the
murder of eight men in Ontario.
829 This
alone should explain why the CRTC needs to review and change their policy about
providing confidentiality to people who come forward and why staff must be
directed to scrutinize licensees and applicants more than the bare clerical
minimum of just accepting paperwork or believing what they are told.
830 When
the advertiser was arrested and the general manager disavowed any involvement
with him, the mystery of there already being two boards of directors ‑‑
one listed with the CRTC and the other with the province ‑‑
became even stranger.
831 Neither
board was legitimate. One was not
registered with the province and the other didn't have the required number of
directors. The one that was not
registered with the province meaning the one that the CRTC was given.
832 As
you can see from documents that are already on the public file with the
CRTC ‑‑ documents that were given on CRTC forms and others
from the provincial Companies Office ‑‑ Harmony filed
backdated documents inventing a director to satisfy the minimum requirements of
the province that they were in violation of when your federal agency renewed
the broadcast licence.
833 The
CRTC is well aware of public reports from September 2004 about a new owner, a
new format and an intention to target the Hot 103 audience share.
834 Although
there may be claims no deal was ever signed, it is clear that some deal took
place between Franc Capozzolo and the advertiser, and the terms of that deal
were being implemented.
835 When
the licence got renewed, we were immediately told the format was changed to Hip
Hop music, with a distinct commercial business plan. The advertiser was given an office and
control over the entire musical content and every ad spot, and over hirings,
firings and the budget, including wages.
836 The
general manager was slated to earn $65,000.
No board approved any aspect of this arrangement, which totalled well
over $100,000.
837 The
licence was under the control of a single entity, the general manager, who
effectively handed the station to another single entity, an advertiser who, I
grant you, may even have been told that the practice was legitimate.
838 What
was not legitimate about Harmony and Flava is outlined in the experience of
Devol Dryden, who is willing to step forward and indicate that there were no
students, no school, no classes, no board of directors, no pay, unusual
financial practices, including the issuing of fake T‑4s, and has
knowledge of why the loggers were not filed as required and why the music was
not in compliance.
839 Another
person who stepped forward in the complaint to the CRTC is Chris Knight. He is the fellow second over on my left.
840 He
was also claimed by Harmony to be a student in the responses to my original
complaint in September of 2004.
841 Mr.
Knight joins Mr. Dryden in denying ever being a student enrolled in any classes
or paying any tuition or that any classes or students ever existed.
842 Mr.
Knight also says he was told to lie to authorities if asked about it.
843 He
also has information about the music operations, financial irregularities, the
advertising revenue, the refusal to pay employees and the lack of any board of
directors to appeal to, and the lack of any student body.
844 Both
these individuals asked me to request confidentiality to address the CRTC so
they could bring their evidence and concerns forward without fear of
reprisal. Both of them indicate in
statements they have provided to me that they continue to fear repercussions
because they have been forced to publicly step forward.
845 Both
say that the evidence that I uncovered going back over two years is supported
by their experience and knowledge from listening to and working for the general
manager and how he said the CRTC could be fooled by stalling and excuses and
blaming others.
846 Both
asked me how the CRTC allowed this to happen and why this was not investigated
and stopped. With no legitimate board of
directors to turn to, employees were made to pay the price for the deception
being played under government licence.
847 Winnipeg
can certainly benefit from a facility that could teach students about new music
forms like Hip Hop and that could teach true investigative journalism. The general manager proposed this, but for
obvious reasons had no intention of delivering.
848 An
entire segment of our community has had their trust and hopes betrayed, and
therefore in no way can the CRTC continue to allow the people associated with
Harmony Broadcasting to stay on the air or be in care and control of the
licence when the entire station and format were built on lies and when the
renewal was given to a board that was not legal.
849 That
concludes my remarks.
THE CHAIRPERSON: I have just one question.
850 You
are aware of the mandate of campus stations; that they have to be truly
Alternative. And you know the Winnipeg
market.
851 We
have a duplication of the playlist of 20 to 25 percent with the Standard
Radio ‑‑ I forget the name of it; CJ...
852 MR.
BORODITSKY: It's Hot 103.
853 THE
CHAIRPERSON: Yes; CKMM‑FM.
854 Do
you consider that Alternative?
855 MR.
BORODITSKY: I do not profess to be an
expert in the variety of music formats, but from my own experience I can
explain to you what effect this has had in the marketplace.
856 It
is not Alternative because what it does is besides duplicating a substantial
percentage of the playlist, what it does is it creates a market demand where
all of a sudden you have a situation where a campus station has been selling
live remotes like a commercial station, has been sponsoring events like a
commercial station and it has driven audience and market share away from Hot
103.
857 In
other words, if kids are going to ‑‑ and let's face it, we are
dealing basically with a younger generation in terms of this format. This isn't CJOB we are talking about.
858 You
have kids and they want to hear certain kinds of music. Right?
They want to hear Dr. Shock.
They want to hear Esqway(ph).
They want to hear people that they feel they can relate to on the air in
terms of the music selection, in terms of just their presence on the air.
859 They
get drawn to that. They get drawn into
that. Now when the station starts
selling live remotes and Dr. Shock goes on the air, Esqway(ph) goes on the air
and says we're going to be at Canad Inns, whatever ‑‑ and
there is a series of bars, an entire hotel chain, that a deal was cut
with. And this is for like $1,000 or
$1,500 a night?
860 Well,
normally those commercial outlets would go to Hot 103 or perhaps to one of the
other stations.
861 Instead,
because this format was in effect like a narrowcast, and very specific, this
cannibalized Hot 103, the financial aspect, as well as in terms of the
listenership.
862 This
isn't just a question of the BBMs and who is tuning in kind of stuff, because
as far as I know, Harmony Broadcasting, none of the college stations are
metered. They all fall into that 1
percent ‑‑ or I guess there's 10 percent of the market here
that is "other stations" whenever I read the ‑‑ is
it still called BBMs ‑‑ when I read the ratings. And it is not metered.
863 But
you know what? That 1 percent is going
out every Friday, paying $5.00 at the door to get in, buying the T‑shirts,
buying the CDs, wanting to come see the artists when they are bring brought
in. As the general manager described,
they have been approached by others to bring in.
864 Then
go get a commercial licence. That is not
what campus stations do.
865 I
have talked with Rob Schmidt at the University of Manitoba. I talked with someone at the University of
Winnipeg. I have been unable to find any
other station in the country that conducts this kind of financial plan to
underwrite the station.
866 Now
it could be that somebody has come up with a great idea here, but without being
a lawyer or an expert on the Regulations like you are, something tells me there
is a reason why no other station in the country does this.
867 My
instinct is it is not a legitimate practice.
868 This
has been a commercialized operation from day one, to go after the hottest
market.
869 I
lived in Los Angeles for a year and a half.
I lived in Vancouver around that time so I have an idea what is going on
out there. It takes a while to get to
Winnipeg. The midwest gets things kind
of last.
870 In
this case, although the idea ‑‑ you know, the commercial idea
is great. But you turned down Paul
MacRae applying for a commercial licence, and that is how this licence ended up
in the hands of Harmony.
871 There
is no way of looking at it any other way.
This was commercially driven from the beginning.
872 It
is hard for bureaucrats and public officials and appointees. You are not exactly hanging out in
clubs. You don't necessarily understand
how the economics of that part of the industry work.
873 Again,
I am fortunate. By living on the west
coast I learned a few things I wouldn't have learned in Winnipeg. And working in the film industry and such.
874 This
was purely commercial, with no legal board of directors when you handed that
licence renewal over, and no indication given to you that the format was going
to be changed.
875 This
is a dangerous precedent you would set by accepting these mea culpas, these
apologies and now we are in compliance.
In my complaint, the response to my complaint, that was in my opinion
continually being buried in the process of the bureaucracy of the CRTC, the general
manager would write: Oh, well, we have
students and they are providing programming.
876 And
no investigation was done to verify this.
877 I
don't understand that, but while that was going on, vast amounts of revenue
were being generated through these live remotes and through these sponsorship
packages. This isn't selling an ad spot
for five bucks each or ten bucks each like they do at the U of M. It is very sophisticated because it is driven
by the music.
878 When
you start involving the music business with students from all economic classes,
all racial classes, all walks of life, the music business can be a very cut‑throat
industry and a very dangerous industry.
879 I
think there is ample indication that this campus operation tread far too deeply
on the other side of the equation with no accountability and really as a
deception on the CRTC.
880 Great
idea. Go get a commercial licence.
881 If
I had thought that I could go get a licence, sell advertising and not have to
turn out, graduate one student in two years, I dare say that if I had thought
it was legal, if I hadn't of done it, somebody else would have come up with
this idea.
882 It
is troubling because there is an entire community out there, represented by
Mr. Dryden and Mr. Knight, who had a following and they feel
betrayed. And they should feel betrayed
because their music is being used, their culture. It is a cultural movement. This isn't the same as saying well, we're
going to play Country so we will play some Hank Williams. Or we are going to play 60s and 70s Rock.
883 This
is a very different kind of environment that I am not certain that the CRTC is
well informed about or that the staff has necessarily studied. And I'm not saying that as a criticism.
884 We
are all middle‑aged and we come from a different culture, and the times
are changing. The CRTC has to change
with those times and do a better job of understanding what is going on out
there or you are going to get, as we said in L.A., put into the trick bag.
885 This
is clearly, in my opinion, what has gone on.
886 So
to answer your question the long way, do I think it is Alternative
programming? To some extent that it
might play some Canadian artists, yes, it is.
And people should be complimented for that.
887 But
when it is 20‑25 percent, you are just trying to steal not just market
share, but it is those advertisers and it is those live remotes that generate
all that revenue.
888 We
have heard that this is an organization, by his own admission, that is
controlled by the general manager, that hand picks the board of directors, that
has not said who is on the nominating committee, has not ever produced a
membership list or explained how members are found, who is also the sole
principal of a numbered company or the Winnipeg Broadcast Training Centre ‑‑
I am not really clear on what that was all about.
889 This
boils down to a sole proprietorship with a commercial format, which again, if
it is done legally, I'm all for it. God
bless them.
890 But
when people's labours are used ‑‑ I was hauled into this to
provide spoken word programming. So when
the renewal was taking place, the station was showing an effort to try to
comply. And I did my best, and I could
probably say, as far as I know, no one complained to Mr. Krushen or anybody at
the CRTC about anything that I did on the air.
Thank God.
891 I
never wanted to deal with the CRTC. When
you are a broadcaster, you don't want the reputation of being in conflict with
the CRTC. I have done some broadcasting
as well as some consulting work, whatever.
I don't want to jeopardize my career.
These gentlemen don't want to jeopardize their work as DJs or, you know,
as scratchers or whatever in other markets, Vancouver, Toronto, the bigger
markets where there may be some additional demand for their skill and their
talent.
892 I
was sucked into something under very false pretences. And the minute I was told well, there won't
be any classes in September, maybe October, and I phoned Winnipeg Technical
College and was told oh, there's not going to be any classes until January. Fraud.
893 The
premise of why I came in was honest. I
performed honestly. And everybody that
is sitting at this table feels that their labours were used to help deceive the
CRTC into thinking there were students and compliance when in fact there was a
commercial operation being run by a sole proprietorship.
894 THE
CHAIRPERSON: Thank you,
Mr. Boroditsky.
895 Thank
you for intervening.
896 We
will actually now move on to the reply period.
897 THE
SECRETARY: Thank you, Madam Chair.
898 That
now completes Phase II. We are at this
point proceeding to Phase III, and I would now ask Mr. Franc Capozzolo to
respond to all the interventions that were filed on these matters.
899 You
have ten minutes for this purpose.
REPLY / RÉPLIQUE
900 MR.
TWEED: The response will be brief.
901 The
response to the written intervention was made in writing, and that is the only
response we intend to make on that.
902 The
response to this one will also be brief.
903 Some
of what he said is relevant to the matter that is in front of you. Most of everything that he raised has been
issued in your questions to Mr. Capozzolo during the original hearing this
morning.
904 Some
of the rest of the stuff, I am sure you know what hearsay evidence is and you
will know what weight to put to those kinds of things and you will deal with
that in your considerations. So I am not
going to address those issues at much length.
905 I
just want to advise you that we have here three gentlemen, former employees
that left under unhappy circumstances.
906 That
concludes my representation. Thank you.
THE CHAIRPERSON: You don't get away so easily.
907 We
now have the agreement that has been filed, the agreement between Midwestern
School of Business and Technology, operating under the name of Robertson
College, and 5163642 Manitoba Ltd.
908 That
is your numbered company, Mr. Capozzolo?
909 Commissioner
del Val has a question.
910 Do
you have this agreement in front of you?
911 MR.
CAPOZZOLO: No, I don't.
912 THE
CHAIRPERSON: Mr. Secretary, could you
give Mr. Capozzolo a copy of that agreement.
‑‑‑ Pause
913 COMMISSIONER
del VAL: I just want to confirm that
that numbered company is in fact the Winnipeg Broadcast Training Centre.
914 MR.
CAPOZZOLO: Yes.
915 COMMISSIONER
del VAL: Mr. Howard, there is an
undertaking to provide the agreement that is between Winnipeg Broadcast
Training Centre and Harmony?
916 MR.
HOWARD: That is my recollection.
917 MR.
CAPOZZOLO: Yes.
918 COMMISSIONER
del VAL: All right.
919 Turning
to Section 3.01 of this agreement between Midwest and the numbered company, on
page 3, the last sentence says:
"Failure to come to an
agreement by November 30, 2005 will make this Agreement null and void."
920 Was
there an agreement that you subsequently made?
921 MR.
CAPOZZOLO: Yes, we went through quite a
few versions of this document. This
document took seven to eight months to come to, partly because there was
outside interference in the process.
Therefore, things slowed down.
922 This
was a proviso that we put in so it would keep us at the table during the
negotiations of the contract.
923 COMMISSIONER
del VAL: So is there an agreement
further to this Section 3.01?
924 MR.
CAPOZZOLO: No. I think that might have been a clerical error
because we went through a few changes on the dates over the period of our
negotiations.
925 For
example, November 30th at one time was October‑something. At one time it was a previous date.
926 But
this contract is in place, though. This
was just a thing that didn't get taken care of.
927 COMMISSIONER
del VAL: Aside from the Section 3.01,
the rest of the terms of this agreement represents the agreement currently
between Midwestern, which is Robertson College, and Winnipeg Broadcast Training
Centre?
928 MR.
CAPOZZOLO: Yes. This is what I filed, yes.
929 COMMISSIONER
del VAL: All right.
930 This
morning you said the agreement between the college and the numbered
company. What is the term of the
agreement?
931 MR.
CAPOZZOLO: Ten years.
932 COMMISSIONER
del VAL: Ten years starting when?
933 MR.
CAPOZZOLO: Starting last year, 2005.
934 COMMISSIONER
del VAL: So it expires ‑‑
do you have the month?
935 MR.
CAPOZZOLO: I can't recall.
936 The
Winnipeg training centre is a registered name, and we are operating as the
registered name. Then once we got into
negotiations with Robertson College, the company was ‑‑ the
timeline wasn't really foremost in my mind.
It was getting the contract signed, sealed and delivered.
937 COMMISSIONER
del VAL: There is no other document to evidence
the term of this agreement lasting until 2015?
938 MR.
CAPOZZOLO: No, not this agreement. This agreement is with the 516.
939 For
marketing purposes, we call 516 right now Winnipeg Training Centre.
940 Does
that make sense?
941 COMMISSIONER
del VAL: If it is not this agreement,
what other agreement is there?
942 MR.
CAPOZZOLO: This is the agreement. This is the agreement with the training
centre.
943 There
is one with Harmony and the training centre.
944 COMMISSIONER
del VAL: Yes. And that one you will produce.
945 MR.
CAPOZZOLO: Yes.
946 COMMISSIONER
del VAL: But between the training centre
and Robertson, the terms of this agreement, except for Section 3.01, represent
the terms of the current agreement between the training centre and Robertson
College.
947 MR.
CAPOZZOLO: That is correct.
948 COMMISSIONER
del VAL: That current agreement expires
some time in 2015.
949 MR.
CAPOZZOLO: No. That one expires ‑‑ I
believe it is a three‑year deal with a two‑year ‑‑
we can renew after two years if we are both happy.
950 COMMISSIONER
del VAL: Mr. Capozzolo, this is a very,
very critical document for your station.
951 MR.
CAPOZZOLO: Yes.
952 COMMISSIONER
del VAL: I am surprised that: (1) you
don't seem to be that familiar with the terms, even the expiry date, which is a
fundamental term; and (2) that such a key document doesn't seem to be ‑‑
953 MR.
CAPOZZOLO: This document took over a
year to put together. Once I put it to
bed, I put it to bed. It's signed, it's
sealed.
954 I
could go over it and recall the elements on here. I do everything. I put this contract together. I put the curriculum together. I do the morning show. I deal with this stuff. I deal with the Commission.
955 And
what happens is there is a lot of detail that I can't recall; dates. I was up all night because the on‑air
system failed.
956 So
right now dates and particulars are a little foggy for me.
957 COMMISSIONER
del VAL: Could you give an undertaking
to give us a letter to tell us exactly the expiry date of the agreement between
the broadcast centre and Robertson.
958 MR.
CAPOZZOLO: I believe it is in this
document.
959 COMMISSIONER
del VAL: Where would it be?
‑‑‑ Pause
960 MR.
CAPOZZOLO: My counsel has suggested that
we will provide that within ten days and maybe highlight it for you, or
whatever.
961 COMMISSIONER
del VAL: Please. I recognize paragraph 12, but with wording as
in paragraph 3.01, the dates would be a moving target.
962 I
would expect that if the agreement is firm now, one of the elements of making a
contract is that those dates be certain.
963 If
you could please provide that ‑‑
964 MR.
CAPOZZOLO: No. Those dates were in regard to this contract
being put together, not a future contract.
965 COMMISSIONER
del VAL: Thank you, Mr. Capozzolo.
966 MR.
CAPOZZOLO: Thank you.
967 THE
CHAIRPERSON: I'm sorry,
Mr. Capozzolo, you have two ex‑lawyers here on the Panel and both of
us are having problems with this agreement.
968 MR.
CAPOZZOLO: Okay.
969 THE
CHAIRPERSON: In 3.01 it says ‑‑
and this is a joint venture:
"Each of the Venturer's
respective Share in the Project shall be determined in writing by October 31,
2005."
970 Where
is that agreement?
971 MR.
CAPOZZOLO: No. I think that might be a typo.
972 This
was an off‑the‑shelf contract that we reworked along the way.
973 THE
CHAIRPERSON: Then what respective shares
did you decide upon in this venture?
974 MR.
CAPOZZOLO: Shares with regard to what
they would receive and what 516 would receive.
975 THE
CHAIRPERSON: So what were the
shares? With a joint venture you put
things in and you get things out.
976 So
what were the shares?
977 MR.
CAPOZZOLO: Okay, the shares.
978 THE
CHAIRPERSON: How many shares did you get
out of a hundred and how many did they get?
979 MR.
CAPOZZOLO: Oh, no, no, no. This is a joint venture. We are two distinctly different organizations
operating as one.
980 THE
CHAIRPERSON: All right.
981 So
then I go to paragraph 6 at page 5:
"The Venturers shall cause a distribution
to be made to each Venturer of its Share, or a part thereof, of the tuition
fees earned from the Project on such periodic basis as is agreed by the
Venturers as described in Schedule C of this Agreement."
982 MR.
CAPOZZOLO: That is based around, you
know, there are timeframes where after a certain period of time if somebody
wants a refund, they get a percentage of their tuition.
983 So
that money will be disbursed as those time periods elapse.
984 That
is what the meaning of that is.
985 THE
CHAIRPERSON: Schedule C refers to fees
being split as follows:
"a. Tuition fees (after the TCF has been paid)
will be split at a percentage which will be determined in writing by October
31, 2005."
986 MR.
CAPOZZOLO: Okay, I understand. There is another document.
987 This
is the document that didn't describe the financial aspects of the
agreement. This is an agreement. If you wish to see that ‑‑
I'm sorry, I thought that was all part of one.
988 THE
CHAIRPERSON: This is an agreement to
agree, Mr. Capozzolo.
989 MR.
CAPOZZOLO: This is an agreement to
agree; correct.
990 I
thought that was all included in here.
I'm sorry about that.
991 THE
CHAIRPERSON: So there is a further
agreement.
992 MR.
CAPOZZOLO: Yes. There is the agreement that discusses the
split and how they happen over the course of a year and that type of thing;
what happens if things happen.
993 THE
CHAIRPERSON: So you agree with me that
this agreement to agree was in fact meant to expire, or it was contemplated
there would be a further agreement.
994 MR.
CAPOZZOLO: Not unless you have the wrong
document here.
995 THE
CHAIRPERSON: You have the same document
I have.
996 MR.
CAPOZZOLO: Okay.
"This Joint Venture Agreement
made as of the Twenty‑Eighth day of October, 2005"
997 This
is where we started. Okay, it's coming
back to me.
998 THE
CHAIRPERSON: There is a reference at
paragraph 12 to the termination, and it all talks about notice, 30 days, 60
days.
999 MR.
CAPOZZOLO: Exactly.
1000 THE
CHAIRPERSON: Or selling of the assets.
1001 So
there is no ten‑year term here.
1002 MR.
CAPOZZOLO: No, there is no ten‑year
term.
1003 THE
CHAIRPERSON: Is that in the next
document you are going to provide?
1004 MR.
CAPOZZOLO: Okay, let me make something clear.
1005 516
training centre is a for‑profit organization that I am the proprietor
of. It has put together an agreement
with Robertson College, that is an accredited institution, to provide training
with regard to the licence, the nature of the licence.
1006 The
agreement with Harmony Broadcasting and this for‑profit organization
known as 516 training centre, that is a ten‑year agreement.
1007 Then
there is the agreement between this organization, 516 ‑‑
1008 THE
CHAIRPERSON: Your numbered company.
1009 MR.
CAPOZZOLO: The training centre.
1010 THE
CHAIRPERSON: And Robertson.
1011 MR.
CAPOZZOLO: And Robertson, which is I
believe three years with a two‑year option.
1012 THE
CHAIRPERSON: I find it interesting, Mr.
Capozzolo, that there have been discussions throughout the file asking for
copies of your agreement with Robertson, and to date it is yet on this file.
1013 MR.
CAPOZZOLO: Pardon me?
1014 Okay. Now this file, I discussed this with Mr.
Krushen, and I believe that all we had to do was bring the agreement. This is the agreement.
1015 In
terms of financial discussions ‑‑
1016 THE
CHAIRPERSON: You told me there was a
subsequent agreement showing the shares and also showing the term of three
years.
1017 Is
that not correct?
‑‑‑ Pause
1018 THE
CHAIRPERSON: Do you want some time?
1019 MR.
TWEED: To be quite candid with you, I
think my client is confused about the nature of his agreements. We have undertaken to provide you with a copy
of those agreements, the complete agreement.
This is part of the agreement. I
believe there is another agreement between Robertson and 5163642 that addresses
the issues that you have both raised.
And there is also another agreement with 516 and Harmony, which we have
already undertaken to provide.
1020 THE
CHAIRPERSON: Which I have already asked
for.
1021 MR.
TWEED: I believe when we comply with
those two undertakings, your questions will be addressed.
1022 THE
CHAIRPERSON: And what if they are not?
1023 I
have one final question.
1024 You
have known throughout, Mr. Capozzolo, that there is an issue of you having
an agreement with a post secondary education institution.
1025 MR.
CAPOZZOLO: Yes.
1026 THE
CHAIRPERSON: I find it more than passing
strange that there is nobody from Robertson here today with you at the table.
1027 MR.
CAPOZZOLO: Was there a reason for them
to be here today?
1028 THE
CHAIRPERSON: That is certainly an issue,
isn't it, sir?
1029 MR.
CAPOZZOLO: I don't believe it is. I have discussed it with them. They asked if it was necessary for them to be
here. I didn't think it was. I thought this had more to do with the
licence.
1030 The
agreement is in place. The President of
the institution is on the board of directors.
He asked if it was necessary for him to be here. He is setting up schools in China and in
Calgary and is quite often not in Winnipeg.
So I said well, if you have to do what you have to do, do it.
1031 THE
CHAIRPERSON: Commissioner del Val.
1032 COMMISSIONER
del VAL: I am wondering whether I can
clarify the agreements again.
1033 Perhaps
you could undertake to provide all of the agreements you have in place with
Robertson College or any other post secondary educational institution
pertaining to the licensed station.
1034 That
is what we need to see.
1035 As
well as the agreement with the broadcast centre.
1036 MR.
CAPOZZOLO: Yes.
1037 COMMISSIONER
del VAL: Thank you.
1038 THE
CHAIRPERSON: And you undertake to do
that within ten days of the hearing?
1039 MR.
CAPOZZOLO: Yes, we do.
1040 THE
CHAIRPERSON: Thank you.
1041 Counsel?
1042 MR.
HOWARD: Thank you, Madam Chair.
1043 I
have no questions.
1044 THE
CHAIRPERSON: I want to thank
everybody: Mr. Secretary, Mr. Hearing
Manager, counsel, my colleagues, the stenographer, the individuals with AV, the
voice people, the speaker people, and the parties for attending.
1045 Thank
you very much.
1046 You
will receive our decision in due course.
1047 MR.
CAPOZZOLO: Thank you, Madam Chair.
‑‑‑ Whereupon the
hearing adjourned at 1330 /
L'audience est ajournée à 1330
REPORTERS
______________________ ______________________
Tom Bruce Fiona Potvin