SuperBowl simsub ban shouldn’t be delayed, AG says

BCE Inc. hasn’t demonstrated enough evidence that a court should postpone the implementation of the CRTC’s decision to eliminate simultaneous substitution for the National Football League's (NFL) Super Bowl, and the evidence it has provided is “limited to bald and speculative assertions,” the attorney general is arguing. The 2017 Super Bowl is set to be the first in which simultaneous substitution will be prohibited and Canadians will be able to watch commercials from the United States. Bell, whose CTV network has the rights for the game, asked for a stay of that decision in September. In a memorandum of fact and law filed Tuesday, the attorney general said that it “concedes leave to appeal” for the case and agrees to the appeal being expedited, but opposes a stay of the CRTC’s decision. The document said that “while it is possible Bell may face some measure of financial loss if a stay is not granted, the evidence it offers in support of that loss is limited to bald and speculative assertions.” The court granted Bell confidentiality for some of that evidence, meaning it is not publicly available. The attorney general’s document said that evidence of irreparable harm has to be “clean and compelling,” arguing that harm is “likely” isn’t sufficient. The evidence submitted by Bell “proceeds from the unsubstantiated assumption that Bell’s profits are consistent year over year, and it fails to account for Bell’s delay in seeking a stay, and the absence of any apparent efforts to mitigate losses Bell claims may arise,” the attorney general said. Bell’s evidence is based on the assumption that if it wasn’t for the CRTC’s decision, the company would earn the same amount on the 2016/2017 football season that it did a year earlier, the attorney general said. “Bell adduces no evidence for this proposition beyond citing lower revenues to date as compared to revenue at the same time last year,” the document argued. “Evidence of revenue from one prior year simply does not establish what revenues for the following year might be. Revenue can fluctuate annually based on a multitude of factors.” Unless Bell provides information about revenue in every year of its NFL contract, it’s impossible to determine the significance of a decrease from last year to this year, the attorney general said. “Further, based solely on a comparison to revenue from 2016, no clear conclusion can be made that any reduction in revenue for 2017 is due exclusively, or even primarily, to the elimination of simultaneous substitution for the Super Bowl,” it said. The attorney general also said that despite knowing the decision was coming for some time, Bell hasn’t provided any “evidence of efforts, plans, ideas, promotions, innovations, campaigns or incentives aimed at attenuating the losses it claims it will suffer by, for example, changing its bundled advertising practices or incentivizing viewers to prefer its broadcast to the US broadcast.” It made that decision despite the CRTC giving advance notice of its decision in order to give Bell enough time to make adjustments, the document noted. The attorney general also said the CRTC reached the decision following a “wide-ranging, multi-stage public consultation process” during which it considered all perspectives, and made the decision in the public interest. “By comparison, Bell has not met the onus of establishing a sufficient public interest should a stay be granted,” the document said. “Bell presumably entered into its contract with the NFL as all parties enter contracts, namely, by allocating risks in a manner that maximized its prospects of recouping its investment,” it argued, adding there was never any guarantee it would recoup that investment or make any profit on that contract. “Further, a change in the regulatory landscape is part of the risk of operating in a highly regulated environment thus one of the risks Bell presumably allocated in agreeing to the terms it agreed to with the NFL,” the document said. “In any event, Bell offers no evidence establishing that the revenue it may forego this year will certainly cause its agreement with the NFL to become, on the whole, a money losing venture.” — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Ahmad Hathout at ahathout@thewirereport.ca

SuperBowl simsub ban shouldn’t be delayed, AG says

Broadcast | October 13, 2016

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SuperBowl simsub ban shouldn’t be delayed, AG says

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