N.W.T.'s Cabin Radio asks Federal Court of Appeal to hear its case against CRTC

Yellowknife's Cabin Radio is taking its fight for a commercial FM broadcasting licence to court.

Cabin wants the Federal Court of Appeal to examine a decision by the Canadian telecommunications regulator that effectively blocks it from getting on Yellowknife's FM dial, and to overturn that decision.

In February, the Canadian Radio-television and Telecommunications Commission (CRTC) concluded that Yellowknife's radio market can't support another commercial station, and said the CRTC was unlikely to accept applications for new commercial radio stations in Yellowknife for another two years. The decision prompted an outcry among northerners who value the service. 

Last week, Cabin filed a motion asking the court to hear its case. Cabin is simultaneously seeking a judicial review of the CRTC's decision.

Cabin's claims have not yet been proven in court. 

"The CRTC made serious errors of law, jurisdiction and fact when it decided the market in Yellowknife, Northwest Territories, cannot support an additional commercial radio station," read court documents submitted by Cabin.

Cabin intends to ask the court to declare that the CRTC's decision was unreasonable.

It also wants the court to cancel the decision, and to direct the CRTC to consider Cabin's application for a commercial radio licence.

Lawson Lundell LLP, which has an office in Yellowknife, is representing Cabin for free. 

Cabin, a locally-owned news website and online radio station launched in 2017, applied for a commercial broadcasting licence in 2019. In court documents, Cabin says that in the three-and-half years in which it waited for the CRTC to make a decision, the commission didn't consider its application or any of the materials it filed in relation to Yellowknife's market capacity. 

Cabin argues that the CRTC decision involved "profound breaches" of procedural due process and fairness.

Mark Mancini is a PhD student at the University of British Columbia Allard School of Law who specializes in the law of judicial review.

He pointed out that Cabin's submissions weren't included in the CRTC's decision, even though Cabin was a main player in the matter at hand.

"Cabin was… the only entity putting forward a certain point of view on market capability, and when a decision maker doesn't consider evidence or submissions that run counter to its conclusion, that's a sign that the decision may not be reasonable," Mancini said.

The CRTC declined to comment for this story, saying the matter is before the courts. 

'A story of administrative neglect and bungling'

Cabin's court filings argue that the CRTC erred, misled and stalled throughout its decision-making process.

"The process followed by the CRTC is a story of administrative neglect and bungling that has resulted in real prejudice to the applicant and the community it serves," reads Cabin's memorandum of fact and law.

In one instance, Cabin alleges, the CRTC "erroneously thought" Cabin was owned by Vista Radio, the B.C.-based company that owns True North FM in Yellowknife and 43 other stations.

The memorandum goes on to allege that the process was "non-transparent," that Cabin was met with "extraordinary and unreasonable" delays, and that the CRTC wrongly stated that Cabin didn't provide it with evidence that Yellowknife can, indeed, support another commercial radio station. 

"There have clearly been some big issues that we'd like the court to examine around procedural fairness, around some of the evidence that was included in the decision-making process, and some of the evidence that wasn't included," Ollie Williams, Cabin's editor and part-owner, told CBC News. 

"There are some big issues there that extend well beyond Cabin Radio, as well, into the broader broadcasting sphere, and we think those deserve to be examined."

CRTC failed to meet its mandate, argues Cabin

Another key point argued by Cabin in its court filings is that the CRTC failed to meet its mandate under the federal Broadcasting Act.

Cabin argues that a primary aim of the act is to promote Canadian content and original and diverse programming, and yet, the CRTC based its decision about Yellowknife's FM airwaves on economic grounds and profitability. 

Cabin points out that the Broadcasting Act states that the Canadian broadcasting system should be regulated in a flexible way that takes into account regional needs. 

"By failing to consider the importance of having a locally owned and operated radio station in Yellowknife, and its importance to the community culturally, the CRTC not only erred in law but also arbitrarily restricted the community from having its own voice," reads Cabin's memorandum.

Williams said Cabin still plans to re-apply for a broadcasting licence by the end of April.

"We've always been really clear that our audience wants us to be on FM," he said.

"We know that the community wants this to happen. It's why we want it to happen."