Commission itself could reverse this, prior to the game
TORONTO – To the surprise of no one, Bell Media has filed an appeal to the Supreme Court of Canada looking to strike down CRTC’s Super Bowl simsub decision – and has asked for a stay of that policy for this year’s game, scheduled for February 4th.
As readers will be aware, last month the Federal Court of Canada ruled against Bell, saying the CRTC is within its rights to make rules for individual programs. However, the court also noted the “irony” of deploying rules normally used to protect and promote Canadian content (section 9(1)(h) of the Broadcasting Act) to instead promote the airing of American advertising.
As we’ve written about repeatedly, in January of 2015 the Commission made a decision from its Let’s Talk TV policy review process that revoked the Canadian broadcast rightsholder’s ability to simultaneously substitute its signal over the American broadcast of just the Super Bowl game (the decision doesn’t include the hours of pre-game programming or any other games or programming).
The rest of the simsub regime, where Canadian broadcasters buy the territorial rights to U.S. shows airing on border broadcasters – and then can demand broadcast distribution undertakings (BDUs, or cable, satellite and IPTV providers) substitute the Canadian signals and their advertising over the American signals – was left alone by the Regulator.
Bell and the NFL insist in this latest appeal (which the court may or may not decide to hear) the CRTC is wrong to have made a new policy for a single program and have also asked the court for a stay of the CRTC policy for the game coming up in two weeks. Last year, when the signal was not simultaneously substituted, Bell instituted some clever call-in programming for viewers to “watch and win”, but the company says it still lost $11 million in advertising revenue for the 2017 game.
(The broadcaster has begun promoting similar watch and win contesting for this year’s Super Bowl game, promising $300,000 in prizes for those watching the game on CTV instead of the American broadcaster NBC, in case the court doesn’t side with Bell.)
“The CRTC has taken an unprecedented and perilous step towards usurping the Cabinet’s limited power to dictate the programs that Canadians must watch.” – Bell Media
“The CRTC’s Super Bowl Order is the first and only order ever made by the CRTC pursuant to section 9(1)(h) banning simultaneous substitution for a single program,” says Bell’s January 2nd request for a stay of the policy for this year's game. “If that order is valid, it gives the CRTC the power to order BDU’s to carry – or not carry – specific, individual programs. Parliament expressly reserved this right for Cabinet, and only then in cases of ‘urgent importance’. The significance of this power is reflected in the fact that Cabinet has invoked it only once, on the eve of the Quebec referendum when Prime Minister Chretien addressed the nation. The CRTC has taken an unprecedented and perilous step towards usurping the Cabinet’s limited power to dictate the programs that Canadians must watch.”
Continues the Bell filing: “The Super Bowl Order has and will continue to result in lost job opportunities and lost revenues for Canadians employed in the Canadian television industry (and) harms and will continue to harm Canadian businesses and the Canadian economy. U.S. businesses that advertise on the U.S. broadcast are now effectively advertising for free to the millions of Canadians who watch the U.S. broadcast.
“By contrast, Canadian businesses who would have previously had access to that entire Canadian television audience have to pay to access only a part of that market. This tilts the balance in favour of U.S. companies, drives Canadian consumers to U.S. retail and only businesses, and has a financial impact of over $100 million and a significant number of lost jobs.”
Of course, the CRTC itself could put an end to all of this. As Cartt.ca reported, Bell filed another appeal with the CRTC back in August – and supported by national union Unifor, the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA), the Association of Canadian Advertisers (ACA) and the Canadian Media Directors’ Council (CMDC) – to overturn the decision.
The Commission has remained mum on that application or if there is any chance at a decision coming prior to the game.
