Bell asks Supreme Court for stay, reversal of CRTC simsub decision

Weeks ahead of the 2018 Super Bowl, BCE Inc., along with the National Football League (NFL), is turning to the Supreme Court of Canada over the CRTC’s decision to ban simultaneous substitution for the annual football game. It’s asking for an expedited court process and an immediate stay of the decision ahead of this year’s game, which is scheduled for Feb. 4. “If this Court grants a stay of the Super Bowl Order, in advance of the 2018 Super Bowl broadcast, the Bell Media advertising team will be able to scramble to sell unallocated advertising slots for Super Bowl for full price,” Bell’s vice-president of regulatory affairs, content and distribution, Kevin Goldstein, wrote in a Dec. 31 affidavit filed with the Supreme Court. “This will minimize or eliminate the unrecoverable revenue losses to Bell and mitigate the considerable harm caused to the television industry and the Canadian economy more generally.” Doing so also won’t cause “any serious inconvenience” to Canadians, given that the “vast majority of Canadians have little problem with the lack of U.S. advertising on Canadian Super Bowl broadcasts,” Goldstein argued, noting that the CRTC received complaints from only 91 people ahead of its 2015 decision to ban the practice for the game. “Without expedition and/or a stay Bell will lose its ability to monetize its investment for the next two Super Bowls,” the company argued in a notice of motion. The application to the Supreme Court followed a Dec. 19 decision by the Federal Court of Appeal that denied Bell’s challenge. The company has been fighting the CRTC on the issue for years, first launching an initial appeal in March 2015 that was dismissed in September 2016 for being premature. Over that time, the ban turned into a political issue, with both U.S. and Canadian politicians and Unifor chiming in, while the NFL brought the case up in the U.S. consultations on the North American Free Trade Agreement (NAFTA) renegotiations. The NFL filed a separate notice of application for leave to appeal to the country's highest court this month. In August, Bell also filed a Part 1 application with the CRTC, asking the commission to not only rescind the decision — issued during the term of previous chairman Jean-Pierre Blais — but to suspend it right away. That application came just before current CRTC chairman Ian Scott began his term. The CRTC still hasn’t posted it on its website or opened it up to a comment process. The CRTC, which is named as an intervenor in both the NFL and Bell’s cases, told the Supreme Court Wednesday in a letter from its acting senior general counsel Stephen Millington that it would not be responding to the application for leave to appeal nor the motions in Bell’s case, or to the leave application in the NFL’s case. “The request for a stay is urgent,” a Jan. 3 letter from Bell’s lawyers read, which said that “in order for the request for a stay to not be moot in relation to the Super Bowl scheduled for 2018, Bell respectfully requests that its motion be urgently considered by a single judge of the court.” It also asked for the appeal to be heard ahead of the 2019 Super Bowl. Bell’s licence agreement with the NFL continues through to February 2020, it said in a motion document. Bell noted in a stay memorandum of argument that the “timing and manner in which the CRTC issued the Super Bowl Order means that, absent expedition, two more Super Bowls will likely pass before this Court renders its decision on the appeal if leave is granted.” It said that it “requests a stay to maintain what has been the status quo for more than 40 years in order to prevent the irreparable harm it would suffer from the continued enforcement of the CRTC Order, and to protect the varied Canadian interests described herein over the interests of U.S. advertisers who stand to benefit the most from the Super Bowl Order.” Goldstein noted in his affidavit that the Super Bowl is the most-viewed program of the year in Canada, watched by 60 per cent of Canadians “The Super Bowl order has already caused significant harm to broadcasters, creators and Canadian businesses,” Goldstein wrote. “Bell has already lost $11 million in revenue, lost advertising accounts and lost sponsorships. The Super Bowl Order has already deprived the Canadian creative community of $3.3 million in funding and $4 million in promotional time, deprived work opportunities for the Canadian television industry, and cost the Canadian economy millions of dollars. As long as the Super Bowl order remains in effect, that harm will continue.” Goldstein also argued that Bell’s local stations will feel the impact of the SimSub ban, arguing that their financial station has already “become particularly precarious” in recent years, as revenue dropped 13.4 per cent between 2011 and 2015. Since then they have gone from profitability to an over $30-million loss in 2016, while Bell’s local stations have sustained losses of approximately $80 million in the past three years. “Twenty-five of the 30 local stations that Bell Media owns lose money every year. Without significant revenue derived from advertising during the Super Bowl, these losses will substantially deepen,” he argued. — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Ahmad Hathout atahathout@thewirereport.ca

Bell asks Supreme Court for stay, reversal of CRTC simsub decision

Broadcast | January 18, 2018

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Bell asks Supreme Court for stay, reversal of CRTC simsub decision

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