Digital channel leak stuns CRTC and industry; internal review underway

The CRTC is conducting an internal investigation into how a confidential list of digital specialty channel winners ended up on the front page of the National Post on Nov. 24, about two weeks before the decision was to be released publicly. Commission officials say the article came as a shock, although Canadian Communications Reports has learned that several people in industry were aware of the 16 English-language winners several days before the article appeared. Whether the Post’s reporter, Matthew Fraser, obtained the list from someone within the CRTC, or someone within industry, isn’t known. He would only "categorically deny" that he received the information from either chair Françoise Bertrand or commissioner Stuart Langford. While it’s become almost commonplace to have snippets of CRTC decisions leak out before their release, no one CCR spoke with could recall a decision of this magnitude getting out. Because of the sensitive nature of the issue, most sources asked that their names not be published. "A lot of staff and commissioners know people in the industry, personal friends or people who used to work here," says one source. "So they talk. From time to time little tidbits of issues can inadvertently slip in conversations. But nothing like this before, nothing so complete. Obviously, somebody had a piece of paper that had the list of the 16 (winners) on it." A former senior official at the CRTC described this leak as unprecedented, although the person agrees that advance knowledge of decisions has become prevalent. "Usually what happens is you’ll get people phoning five or six different staff members, and they will ask different questions. They know enough not to ask for the whole story, but they can piece it together... To have everything and to have it right is incredible. And if industry players had the same information, that means it was absolutely deliberate and widespread." Once the article appeared, senior CRTC officials met quickly to decide what to do. Since some of the winners are publicly traded companies, the commission decided the first priority was to confirm the list of winners. "Most people outside the commission I’ve talk to have commended us for the way we handled the leak," says David Colville, the CRTC’s vice-chair of telecom. "Let’s deal with it in a positive way right away. All we needed to put out was a notice confirming the story. Here are the 16 licensees so everybody knows." The CRTC plans to release its rationale for the decisions, as well as the terms and conditions for licences, in mid-December. Officially, the CRTC is saying very little about the leak, or what steps it is taking internally to deal with the situation. A source in the federal government confirmed however that an internal review is underway. That review could lead to disciplinary measures against the staff member or commissioner who leaked the information – if it can be proven who did it. At a minimum, it appears everyone at the commission will receive a stern reminder on what their obligations are under the Official Secrets Act. Introducing new policies or procedures is another option, although as one source said, turning the CRTC into a "regulatory Fort Knox" is not the answer. While industry speculation has been rife that the RCMP would be called in to investigate the breach, such a move is considered extreme. An official with the RCMP in Ottawa says such an investigation would have to be triggered by a complaint from the regulator. "Someone would have to make an official complaint to the CRTC. The CRTC would look at that and then report to us," says Sgt. Paul Marsh, media relations officer with the RCMP. "For us to look at it, it would have to be a breach of Cabinet confidence document. … It’s a type of protected document that has limited distribution within that agency. Once we received a complaint from the CRTC, we would look at the complaint to determine whether or not a complete investigation was required." Identifying the person who leaked the information – let alone proving it – will be difficult. It appears that as many as 50 staff worked on this file, the largest of its kind in Canadian broadcasting. An internal list of the proposed licensees had been circulating within the CRTC for at least three weeks before the final vote was taken on Nov. 23, the day before the Post article appeared. Under CRTC rules, the commissioners who preside over a licensing hearing decide the winners. But other commissioners are given an opportunity to query the list of proposed winners before the final vote. Insiders report that the discussion was heated, and that not all commissioners were happy with the results. Some thought that the panel commissioners were licensing too many Category 1 channels. What it means to be quasi-judicial As a quasi-judicial body, the CRTC operates at arms-length from the federal government. According to one veteran communications lawyer, it has power through the courts to issue subpoenas and binding orders, and to enforce its orders. The commission also has authority to determine its own rules and procedures (i.e. in cross examination of witnesses). But can it hold someone in contempt of court for leaking a licensing decision to the media or someone in industry? "My gut instinct is to think that the CRTC, as a quasi-judicial tribunal, may have the power to cite somebody for contempt," says the lawyer. At a minimum, the lawyer says someone has violated their oath under the Official Secrets Act. ("The leak) had to come out either through staff or a commissioner – either way, somebody has violated their oath. The fact that they’re public servants and have taken an oath, that’s why they could be investigated (by the RCMP)." One CRTC insider says a distinction should be made between the commission acting as a quasi-judicial body, or in an administrative capacity. When issuing licences for Category 2 channels, the source describes that as more of an administrative function. The individual notes that the leak wouldn’t have mattered as much if it had been the less-coveted Category 2 licensees that were leaked to the press. "As long as you had a passport and a pulse, and you weren’t in direct competition with someone else, you got it. Is that an administrative job or is that quasi-judicial? I think you could make a heck of an argument that it was simply administrative. But when you get to the Category 1s, you’re handing out some real prizes." According to another former CRTC senior bureaucrat, the commission will have to take a serious look at this issue, considering the magnitude of the leak. "It would be difficult just to go on pretending everything is OK and this is an isolated incident, because to me, this is too serious to ignore," the source states. Some sources suggest the leak is endemic of a larger problem, one in which commissioners and staff have become too close with people in industry. One industry source says the CRTC needs to be held more accountable, perhaps through regular reviews by the Auditor General. Others say the entire commission should not be held responsible for the actions of one person. "I think we should draw a distinction between the integrity of the staff and commissioners who didn’t leak this as compared to the one person who did," says one industry source. "I don’t think we should let the bad apple taint everybody."

Digital channel leak stuns CRTC and industry; internal review underway

Broadcast | 12/07/2000 5:00 am EST

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