Canadians didn’t get to see the Snickers candy bar commercial, based on the Brady Bunch TV series, during the 2015 Super Bowl.HE ASSOCIATED PRESS/The Associated Press
Canadians will have to wait until 2017 to see flashy American Super Bowl commercials on television. CTV owner Bell Media, which has already shelled out a considerable investment for the big game broadcast rights beyond 2017, wishes that weren't true.
The question is whether Bell will be able to stop it.
The Canadian Radio-television and Telecommunications Commission (CRTC) announced on Jan. 29 that it will ban "simultaneous substitution" – when a cable or satellite provider swaps out the signal of an American station with a Canadian feed when the same program airs at the same time – during the Super Bowl, starting in two years.
In an interview with The Globe and Mail earlier this month, Bell's chief legal and regulatory officer, Mirko Bibic, said the company is "exploring" whether to challenge the decision in court.
But exactly how hard is this to pull off?
Canada's Broadcasting Act sets out options. Those who object to a decision can appeal to Cabinet to review it (this is also known as a petition to Governor in Council.) This applies only to broadcast licences, however – when they are given out, amended or renewed. It does not apply here.
The other avenue is the Federal Court of Appeal. A leave to appeal can be sought, but only "on a question of law or a question of jurisdiction."
So, in a sense, it may not matter that Bell could theoretically argue it is unfair to hamper its ability to maximize Canadian ad revenues on the Super Bowl rights it has already paid for. From a legal perspective, the question is whether the CRTC made an error of law, or overstepped its jurisdiction.
"I think the one angle would be to establish to a court's satisfaction that the decision wasn't based on any evidence on the [public] record," Bell's Mr. Bibic said.
Bell parent company BCE Inc. owns 15 per cent of The Globe and Mail.
The decision is based on the "Let's Talk TV" hearing the CRTC held last fall. Consumers commented on issues including whether the regulator should end simultaneous substitution. Those comments were published on the CRTC website. So there is evidence that some consumers found the system annoying.
The CRTC acknowledged in its decision that simultaneous substitution contributes an estimated $250-million to the broadcast system each year. Some of that revenue is then redirected to fund Canadian programming. For now, simultaneous substitution will be left untouched, except for the Super Bowl and programming on specialty channels (such as TSN and Sportsnet, for example).
"Can the commission say, 'We still think it's important and we need the money for the system, but it's such an irritant for consumers – we all want the American ads – that we're going to ban it for the Super Bowl'?" said Stephen Zolf, a partner at Aird & Berlis LLP in Toronto with expertise in media and telecom law.
"If I were a lawyer arguing the error of jurisdiction, that's where they might be vulnerable. It's so arbitrary."
There is no certainty this argument would hold, Mr. Zolf said, but it is one possible way a challenge could be presented.
However, not many challenges are successful. Even in the relatively few cases when a leave to appeal has been granted, the courts have upheld the regulator's decisions roughly 85 per cent of the time.
The CRTC also sometimes asks the Federal Court of Appeal to clarify legal issues before a decision, to better understand where it stands in terms of matters such as jurisdiction.
"In the last couple of years, since [Jean-Pierre] Blais came in as chairman, he's been very explicit about how the CRTC sees its mandate. … He mentions it every chance he gets: putting Canadians at the centre of their communications systems," said Michael Geist, a law professor at the University of Ottawa, who has defended the CRTC's decision and has argued in the past that simultaneous substitution should be tossed out altogether.
There is also a technicality that could delay any challenge: The announcement on Jan. 29 was technically a policy, not a regulatory decision. The next step for the CRTC will be to put out a notice seeking comments on the changes to the regulation that will be needed to actually implement the policy. The Act allows for appeals to "a decision or order of the Commission." If anyone does decide to mount a challenge he may wait until this policy is solidified with a decision.
Either way, considering the CRTC's record in the courts, any objection may well face an uphill battle.