Court denies Bell Super Bowl SimSub appeal

The Federal Court of Appeal dismissed a case brought forward by BCE Inc. challenging the CRTC’s rule forbidding simultaneous substitution for the Super Bowl on Monday, putting an end to a nearly three-year court challenge — though the company indicated Tuesday it is still hoping the regulator will rescind the decision. “Although it is the NFL’s right, as a copyright holder, to licence its program to Bell, it is not the NFL’s right that the program will be simultaneously substituted — this is a benefit conferred by Canada’s broadcasting regulatory regime. Consequently, this could not have been a term of the licence granted to Bell,” justice David Near wrote in the decision. Bell first launched an appeal of the decision in March 2015, after the CRTC said that January it would prohibit the use of simultaneous substitution for the Super Bowl and specialty channels, but would otherwise keep the practice in place. Bell argued that the ruling singled out one particular program, the rights to which are held by one licensee, and retrospectively overrode Bell’s agreement with the NFL. That agreement extends beyond the 2017 Super Bowl, the first to take place under the new rules, and in which Bell saw its viewership fall by 39 per cent. “Even if Bell wanted to, it could never have guaranteed that it would engage in simultaneous substitution… Bell only ever had the possibility to sell advertising space at a later date and so lost only a speculative opportunity for profit that is not sufficiently concrete to be considered vested,” Tuesday’s decision said. The issue also became political, with both U.S. and Canadian politicians asking for the decision to be reversed, and Unifor asking for it to be suspended or reversed, noting the importance of the game for the creative industry. The appeal court decision also tackled the argument that the ban contravened the Broadcasting Act because it didn’t privilege Canadian content. “The appellants argue, and I agree, that there is a certain irony that legislation that has the protection of the Canadian broadcasting industry and its employees as one of its important objectives is being used to allow for the broadcasting of American ads during the Super Bowl to the apparent detriment of the Canadian industry and its employees,” Near wrote. “But there are numerous disparate objectives set out in the Broadcasting Act and Parliament intended that the CRTC decide how best to balance competing policy objectives related to broadcasting in Canada. It is not for the Court to engage in weighing these competing policy objectives and substituting its own view in deciding which policy objectives should be pursued.” Bell’s initial appeal was dismissed in September 2016 for being premature, leading the company and National Football League (NFL) to re-file a year ago. The NFL also brought the case up in the U.S. consultations on the North American Free Trade Agreement (NAFTA) renegotiations. The appeal court judgement also dismissed the argument that the CRTC’s decision was in conflict with the Copyright Act and the Canada-U.S. Free Trade Agreement (CUSFTA). “In my view, the NFL is trying to elevate a principle limited to a small section in article 2006(1) of the CUSFTA pertaining to the remuneration for retransmission to a principle of general application across the Copyright Act. I see no conflict between the Final Order and the purpose of the Copyright Act,” the decision said. However, this decision doesn’t necessarily mean Bell’s fight against the ban is over. It filed a Part 1 application this August, as the CRTC was undergoing a leadership change, asking the commission to not only rescind the decision, but to suspend it right away until after the next broadcast on Feb. 4, 2018. Bell Media spokesman Scott Henderson said in an email Tuesday afternoon that “the court deferred to the CRTC so we hope the regulator will take a close look at the clear impact of its decision on Canadian broadcasting and all those who work in the industry.” He added: “A broad range of Canadian creators, producers, unions and advertisers are asking the CRTC to prevent further damage by rescinding its decision.” In an emailed statement, CRTC spokeswoman Patricia Valladao said the CRTC "takes note that the Court has upheld its policy decision, demonstrating the CRTC has made no errors of fact or law." She added that decision was "part of a series of important regulatory decisions made further to Let’s Talk TV and designed to ensure Canadian television adapts to the technological realities of the future." "Simultaneous substitution causes Canadians to miss the special non‑Canadian advertising produced for the Super Bowl. In its policy decision, the CRTC recognized that the Super Bowl is a unique event and that the heavily promoted ads are part of the spectacle." — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Bryson Masse at bmasse@thewirereport.ca

Court denies Bell Super Bowl SimSub appeal

News | 12/19/2017 7:01 pm EST

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