Bell and NFL win at the Supreme Court
By Denis Carmel
OTTAWA – In what some will consider a surprising decision, the Supreme Court of Canada (in a 7-2 majority decision) on Thursday quashed the 2015 CRTC Let’s Talk TV decision to disallow the practice of simultaneously substituting the Super Bowl broadcast.
That decision, announced with much fanfare by then-CRTC chair Jean-Pierre Blais, prevented Bell Media from requiring distributors to substitute the American broadcaster signal with the CTV for the Super Bowl and just the Super Bowl. The simsub policy for all other programming carried on as it has for decades.
Both Bell and the NFL had appealed the decision, and lost, at the Federal Court of Appeal.
This means that for the next Super Bowl, to be held on February 2nd, Canadians will not be able to see the American ads when tuning Fox. (Ed note: They will be able to see them all over the internet before, during and after the game.)
Bell Media said it had lost significant amounts in those three years, which a spokesperson characterized as “double digits of millions of dollars.” The company said in 2017 that in the first year it could not simsub the game, ad revenues came in $11 million lower than the prior year.
“It does not empower the CRTC to impose terms and conditions on the distribution of programming services generally.”
The Supreme Court on Thursday determined the CRTC order banning the Super Bowl simsub “was issued on the basis of an incorrect interpretation by the CRTC of the scope of its authority under s. 9(1)(h) of the Broadcasting Act.”
“It does not empower the CRTC to impose terms and conditions on the distribution of programming services generally,” the ruling says.
The courts historically and consistently have given deference on such decisions to the expert tribunals in interpreting their statutes from which they come. This decision, and the new standard of review that now supports it, introduces a departure from what was in place. “All such decisions will now presumptively receive judicial deference,” said a Thursday afternoon blog post from law firm McCarthy Tétrault, which acted on behalf of Bell on this case.
Thursday’s decision will “usher in a new era of Canadian administrative law. The analysis in these cases will apply whenever the substance of an administrative decision is challenged in Court,” adds the McCarthy email.
As the two of the justices, Rosalie Abella and Andromache Karakatsanis, argue in the Vavilov decision issued simultaneously: “Because judicial substitution is incompatible with deference, reviewing courts must carefully evaluate the challenges raised to ensure they go to the reasonableness of the decision rather than representing a mere difference of opinion.”
On the specific Bell decision, the two dissenting judges argued the “reasonableness review is consistent with the highly specialized of the CRTC. Under reasonableness review, Bell and the NFL bear the onus of demonstrating that the CRTC’s decision, as a whole, is unreasonable. They have not met their burden. As an archetype of an expert administrative body, the CRTC’s specialized expertise is well-settled. Extensive statutory powers have been granted to this regulatory body, and an exceptionally specialized mandate requires the CRTC to consider and balance complex public interest considerations in regulating an entire industry.”
Bell Media sales reps will be very pleased with this decision. A company spokesperson told Cartt.ca in an email: “We’re happy the issue has finally been resolved by the Supreme Court. We thank our partners at the NFL for their ongoing support and look forward to providing Super Bowl LIV on CTV with simultaneous substitution.”
The CRTC also responded to our queries by email, saying: “We take note of the Supreme Court decision. As per the Supreme Court decision, the CRTC Order prohibiting simultaneous substitution of the Super Bowl through section 9(1)(h) is reversed.”
As of now, the next Super Bowl will be broadcast using simultaneous substitution and Bell and the NFL do not have to wait for the ratification of the USMCA.
The impact of this decision will be felt by all government decision makers.
