Court dismisses Super Bowl simsub appeal, Bell to re-file

The Federal Court of Appeal has dismissed BCE Inc.’s appeal of the CRTC’s move to ban simultaneous substitution for the Super Bowl, deciding that the case, which was launched before the ban became official policy, was premature. The company plans to file another appeal, Bell Media spokesman Scott Henderson said in an email Tuesday. Justice Johanne Gauthier said in the Sept. 2 decision that as “a matter of fact, the policy reform proposed by the Commission has no direct, immediate or legal effect on the appellants unless and until they are formally implemented though regulation or order.” Bell first launched the appeal in early 2015, after the CRTC announced that in January it would prohibit the use of simultaneous substitution for the Super Bowl and specialty channels. The Super Bowl ban is set to take effect for the 2017 game. However, the CRTC didn’t change its regulations to make the ban official until August 2016. Gauthier’s decision acknowledged the CRTC issued a distribution order on Aug. 19 “through which simultaneous substitution will no longer be authorized for the Super Bowl,” as of January 2017. “The panel, however, is not seized of that Order and ought not to express any views as to its legality.” During a hearing in the case in Montreal earlier this year, the lawyer for the National Football League (NFL) told the court that “there is some urgency to this,” given that ad sales for January’s broadcast would begin “certainly by the early fall.” In her decision, Gauthier said that it “is obviously in the interest in all potentially affected parties that the Commission arrives at a final decision long before February 2017 to allow for a timely application for leave to appeal.” “In any event, and as conceded by counsel for the NFL, a motion for a stay and for an expedited hearing could be filed before this Court if time was of the essence.” Bell Media’s Henderson said that the year-and-a-half gap between the announcement of the decision and the issuing of the order implementing it amounts to “an extraordinary delay by the CRTC.” He said the company would “re-file our appeal as soon as possible because the fact remains that we, the NFL and Canadian advertisers need clarity on this issue well in advance of game day. “ Both Bell and the NFL have argued that the CRTC never gave notice that it was considering eliminating simultaneous substitution for the Super Bowl. In her decision, Gauthier said that after reviewing the record, “it is clear that Bell was given fair notice that the entire practice of simultaneous substitution was up for discussion, and was made aware of the concerns raised by Canadians during Phase I and II of the Let’s Talk TV consultation process.” She noted that the CRTC “summarized those concerns and specifically referenced Canadians’ preference for seeing American commercials during the Super Bowl” in its notice of hearing for Let’s Talk TV. “Bell was provided every opportunity to make representations and to alert the Commission of the foreseeable impacts of its decision, and was in no way precluded from doing so merely because the Commission did not spell out all the conceivable outcomes of the consultation,” Gauthier said. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Charelle Evelyn at cevelyn@thewirereport.ca

Court dismisses Super Bowl simsub appeal, Bell to re-file

Broadcast | September 6, 2016

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Court dismisses Super Bowl simsub appeal, Bell to re-file

Broadcast | September 6, 2016

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