TORONTO and OTTAWA – The XLIX Super Bowl may have been decided over a month ago, but the matter of American Super Bowl ads coming to Canadian television is still front and centre for Bell Media, the current Canadian rightsholder of the big game.
On Monday, the broadcaster filed a motion with the Federal Court of Appeal seeking to appeal BRP CRTC 2015-25, the CRTC’s January 29th decision prohibiting the practice of simultaneous substitution in Super Bowl games starting in 2017. Bell Media spokesperson Scott Henderson said in a statement that in making that decision, “the CRTC erred in law, exceeded its jurisdiction, and demonstrated a lack of awareness of Canadian attitudes, opinions, and values.”
The nine-page motion maintains that the CRTC’s decision to disallow simultaneous substitution during the Super Bowl starting in 2017 “interferes with” and “overrides” Bell Media’s rights and benefits under its agreement with the NFL, one that allows it to sell and substitute Canadian advertising for American commercials broadcast during the games, including the Super Bowl.
In addition to disregarding “the overwhelming evidence of the benefits of simultaneous substitution for Canadian broadcasters and the broadcasting system in general”, valued at approximately $250 million annually, the Commission also “has no authority under the Broadcasting Act or otherwise to make regulations conferring on itself the power to penalize broadcasters for simultaneous substitution errors or to order BDUs to pay monetary rebates to its customers”, the motion continues.
“The decision discriminates by singling out this one particular broadcast and, more specifically, one particular licensee, given that the decision takes effect during the term of Bell Media's current contract for the Super Bowl rights”, added the statement. “This is a denial of procedural fairness, purports to bestow powers not conferred under the Broadcasting Act, and is unreasonable in light of Canadian broadcasting policies and the overwhelming evidence in support of simultaneous substitution provided during the Let’s Talk TV hearing.”
Bell Media’s appeal has the backing of the Association of Canadian Advertisers (ACA), a trade association representing over 200 companies in various industry sectors, that last month sent letters to both CRTC chairman Jean-Pierre Blais and Heritage Minister Shelly Glover asking them to quash the simsub decision.
Estimating that almost 20% of all TV viewing in Canada is to signals that cannot currently be accessed by advertisers in Canada (i.e. U.S. conventional and cable channels, international channels, on-demand, pay and educational channels), the ACA's letters say that the CRTC’s decision would impose further restrictions which makes it "not only flawed in its logic as a policy, but will bring real harm to Canadian advertisers, broadcasters, performers, the production community and all other employees in this ecosystem.”
To further bolster its position, Bell Media commissioned a survey by Nanos which suggests that 1,000 Canadians, by a margin of more than three to one, would rather support Canadian broadcasters who have paid for the broadcast rights for the Super Bowl over the ability to watch U.S. commercials during the Super Bowl.
