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Bell launches new appeal of CRTC's Super Bowl ad policy

An official game ball for the NFL Super Bowl 50 football game is photographed on Jan. 26, 2016

Rick Osentoski/AP

Little more than a month before the Super Bowl, Bell Media is launching an appeal of new rules to allow U.S. television commercials to run on Canadian airwaves during the big game, adding a fresh legal challenge to a recent chorus of lobbying and public relations efforts to change the policy.

Bell's filing with the Federal Court of Appeal on Wednesday is one more step in a protracted legal process that began when the Canadian Radio-television and Telecommunications Commission ruled in early 2015 that broadcasters cannot substitute their own signals or advertisements into U.S. channels carrying the National Football League's championship game starting in 2017.

Simultaneous substitution generates about $250-million in annual revenue for Canadian broadcasters but viewers have long griped about substitution errors interrupting live programming and particularly about missing out on the spectacle of the high-budget U.S. ads during the Super Bowl. The consumer-friendly CRTC's ruling aimed to tackle those complaints about the NFL's biggest game while leaving the rest of the "simsub" system largely untouched.

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Related: Liberal MPs want CRTC to reverse decision on Super Bowl ads

Related: Bell's Super Bowl revenue to take hit from ad ruling: sources

Related: Bell wins right to appeal new Super Bowl ad policy

BCE Inc.-owned Bell Media has the exclusive rights to air the Super Bowl in Canada and the CRTC ruling is expected to decrease the value of advertising Bell sells since viewers will now be able to tune to U.S. channels and watch the American ads. The NFL, which stands to see the value of its Canadian rights decline, also filed a notice of appeal Wednesday.

Bell and the NFL have been fighting the ruling in court for well over a year but as game day looms on Feb. 5, a Canadian performers' union as well as politicians on both sides of the border have given new life to complaints about the policy.

In mid-December, Liberal MPs Bob Nault and Wayne Easter wrote letters to policy makers, including Heritage Minister Melanie Joly, reportedly arguing the CRTC ruling should be reversed as it will cost the Canadian economy tens of millions of dollars. Last week, former U.S. Republican presidential hopeful Marco Rubio denounced the CRTC policy, saying it could undermine Canada-U.S. trade relations.

The Alliance of Canadian Cinema, Television and Radio Artists (ACTRA) also voiced its opposition to the decision and last week it launched a website and other online efforts to encourage its members to write to their MPs and complain.

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ACTRA called simultaneous substitution an "essential pillar" of the Canadian broadcasting system, stating that "Canadian broadcasters will lose a key revenue stream with the loss of Super Bowl ad revenue – the very revenue that is used to sustain local broadcasting and local creation in the Canadian broadcasting system."

A representative for ACTRA was not available Wednesday for comment on the campaign or any response it has generated.

Michael Geist, a University of Ottawa law professor and frequent commentator on tech and broadcast policy, has dismissed criticism of the ruling, arguing it will give viewers more choice and that the Canadian broadcasting system needs to adjust to a world in which content – including sports programming – is increasingly available online.

"If Bell uses the opportunity to compete with local content, many may prefer the Canadian feed," he wrote in a blog post in early December. "Regardless, Canadian advertisers are not blocked from advertising during the Super Bowl and the predicted revenue losses are purely speculative since no one knows the impact on ratings."

The Federal Court of Appeal dismissed an earlier appeal by Bell and the NFL in September, stating it was premature at the time. That's because the CRTC had yet to issue a "final decision" on the policy when the court heard arguments in June, although the regulator did publish a final order confirming the proposed rules in August.

Bell then won the right to appeal that final decision in late October, however, the court declined to grant the company's request to suspend the new policy until the appeal was decided. The company and the league are continuing their appeals, but without that "stay" of the ruling, they have little hope of winning a legal victory before this season's Super Bowl and are instead hoping public pressure will convince politicians to intervene.

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"There is a growing community of voices highlighting the negative impact of this decision on the Canadian creative and broadcasting industry. Unions, creative and business associations, political leaders on both sides of the border, and the NFL itself are all pressing for action before Super Bowl LI," Bell Media said in a statement Wednesday.

In its own statement, the NFL said that while it "continues to preserve its legal rights and press its case in Canadian courts, the League remains confident that the Government of Canada will act reasonably and responsibly before the 2017 Super Bowl to address this arbitrary attempt by the CRTC to disadvantage not only the NFL, but Canadian broadcasters and the Canadian creative community as well."

The CRTC said it would not comment on the issue as it is before the courts.

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About the Author
Telecom Reporter

Christine Dobby covers the Canadian telecom industry for The Globe and Mail. Before joining the Globe in May 2014 she reported for the Financial Post for three years, most recently writing about telecom and media. She has also reported for the Toronto Star and New Brunswick Telegraph-Journal. More

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