CRTC passes on Bell’s attempt to overturn Super Bowl ads policy
Canadians can watch U.S. commercials despite USMCA deal to rescind order
Canada’s broadcast regulator will not shelve its Super Bowl advertising policy before next year’s game even though Canada agreed to scrap the controversial rule as part of the updated trade agreement with the United States and Mexico.
In a relatively obscure annex of the USMCA, Canada promised to rescind the Canadian Radio-television and Telecommunications Commission order that banned broadcasters from swapping out U.S. ads for Canadian ones during the National Football League’s championship game, a practice called simultaneous substitution or simsub.
The CRTC order meant Canadians could finally watch flashy American commercials during the live broadcast. But it got swept into trade negotiations by frustrating big players on both sides of the border — the NFL and BCE Inc., which purchased the exclusive rights to broadcast the game in Canada.
Bell said the order cost it $11 million in 2017 since it could no longer sell spots to local advertisers. It teamed up with the NFL to fight the decision in court, a battle that has escalated to the Supreme Court of Canada. High profile U.S. senators also lobbied against the rule.
After the USMCA was reached in October, Bell nudged the CRTC to suspend the policy at least until after Super Bowl LIII on Feb. 3.
But the CRTC refused to budge, noting the USMCA has not been ratified or implemented as law, and that it was premature to erase the policy. More importantly, it said it would be “inappropriate” and “disrespectful to address Bell’s request since the matter is before the Supreme Court of Canada.
“The commission is of the view that entertaining an application in respect of the very matter which is before the court, prior to it having been heard or decided by the court, would be inappropriate and would be disrespectful of the process by which commission decisions may be reviewed and appealed,” secretary general Claude Doucet wrote in a letter to Bell last week.
“While BCE submitted that it would be in the public interest to have the revenues from the Canadian advertising during the Super Bowl included in the calculation of its Canadian programming expenditure contributions, it is the commission’s view that this concern is outweighed by the importance of the commission’s deference to and support of the Canadian judicial framework.”
Bell and the NFL have less than a month to wait before the Supreme Court hears their case. They argue the CRTC has overstepped its power by banning simsub from a single broadcast. They also argue the CRTC wrongly infringed Canada’s international trade obligations by changing the rules of the game in the middle of a multi-year, multimillion-dollar contract between Bell and the NFL.
A federal court judge originally dismissed the case, but the Supreme Court agreed to hear an appeal. The court date is set for December.