Time is tight though as CRTC took 19 months to issue order
A FEDERAL COURT of Appeal decision released Friday said no to Bell Media’s request to strike down the CRTC’s decision to ban the simultaneous substitution of the broadcast of the Super Bowl.
The court did not say whether it thought the policy decision was correct or not, but only, essentially, that Bell Media (which owns the rights to the broadcast in Canada through the 2018-19 season) appealed it too early. The company launched its case in May 2015, four months after the CRTC notice that it would be banning simsub for the Super Bowl, beginning this coming 2016-17 NFL season. The appeal was heard in April. Bell has claimed the loss of simsub for the Super Bowl over the life of its remaining contract will cost it $80 million.
Simultaneous substitution, of course, is the practice where Canadian broadcasters’ TV signals are inserted over top of U.S. broadcasters’ signals carried by BDUs when the Canadian broadcaster has purchased the rights for a show in our market and it airs at the same time. It allows the Canadian broadcaster to monetize 100% of the viewing done over Canadian BDUs because viewers watching the U.S. channel see the Canadian advertisements and has been regular practice here for about 40 years.
The CRTC, however, only issued the distribution order for the Super Bowl simsub ban on August 18, 2016, nearly 19 months after the original policy announcement. The Federal Court decision says Bell should have waited for the order before appealing. “(T)the policy reform proposed by the Commission has no direct, immediate or legal effect on the appellants unless and until they are formally implemente
d through regulation or order,” reads the decision.
Since there has been a call for comments on the policy decision and then a wait on the order, the court sided with the Attorney General of Canada that it could not decide on the appeal until the CRTC record was complete. “The process should follow its course and the appellants should not be allowed to sidestep it by bringing what amounts for all intents and purposes to a request for a judicial opinion,” reads the decision.
“The result of the consultation should not be prejudged, and the administrative process should follow its course before the Court is called upon to adjudicate what may well turn out to be a moot issue.”
However, with the game just about five months away, time is very tight to hear a further appeal before Super Bowl 51. Filing to decision on this appeal took 15 months. The court recognized the short timeframe left and said there are other recourses available.
“It’s been an extraordinary delay by the CRTC. We’ll re-file our appeal as soon as possible.” – Bell Media
“It is obviously in the interest of all potentially affected parties that the Commission arrives at a final decision long before February 2017 to allow for a timely application for leave to appeal. In any event, and as conceded by counsel for the NFL, a motion for a stay and for an expedited hearing could be filed before this Court if time was of the essence,” reads the decision.
In a statement to Cartt.ca, Bell Media said this is definitely not the end of it. “The court dismissed this appeal because the CRTC hadn’t yet issued its formal order to ban Super Bowl simsub, despite announcing its ban a year and a half ago. It’s been an extraordinary delay by the CRTC. We’ll re-file our appeal as soon as possible because the fact remains that we, the NFL and Canadian advertisers need clarity on this issue well in advance of game day.”
The court decision, which combined several appeals about simultaneous substitution, also upheld the CRTC’s decision to ban simsub on Canadian specialty channels as well as the Regulator’s new policy to force TV carriers to compensate viewers if a simsubbed show is really botched.
