CRTC has no jurisdiction over content on single programs, SCC hears

OTTAWA — The CRTC can’t decide what commercials broadcasters can show on individual programs, as that authority lies beyond the jurisdictional boundaries the commission is confined to, the Supreme Court heard on Tuesday. Lawyers for the appellants, BCE Inc., said that the CRTC overstepped those dimensions, conferred on it by Parliament in the Broadcasting Act, when in 2015 it instituted a ban on simultaneous substitution (simsub) for the National Football League’s Super Bowl game. Simsub allowed Bell, which owns the rights to broadcast the game, to use the same signal for its Canadian broadcast of the game on American networks, effectively forcing viewers to watch Canadian commercials — and giving Bell additional revenue. The appellants laid out, on the first day of a three-day hearing Tuesday, arguments that zeroed in on the scope of section 9(1)(h) of the Broadcasting Act, commonly known as the mandatory carriage provision, and suggested that the CRTC does not have the jurisdiction to discriminately pluck a single program for its simsub elimination when the section “limits” its power to “programming services” as a whole. The SCC proceedings come after the CRTC denied Bell’s request to abolish its ruling in time for the next Super Bowl in February. In its request, Bell cited the new continental trade agreement that included an agreement to revoke the order. The broader issues of the hearing pertain to when the courts can step in to review decisions of administrative bodies, such as the CRTC. The appellants’ argument that the CRTC stepped beyond its own framework sets the stage for a jurisdictional problem that their lawyer, Steven Mason of McCarthy Tetrault said requires legal intervention. They further argued the CRTC gave “deficient reasons” for why its decision was reasonable, which therefore requires the court to intervene. “The legal implications of the CRTC Order are profound,” the appellant’s submission says. “Section 9(1)(h) is used to justify the CRTC’s most controversial regulatory measures, and has been invoked here to usurp a power that the Broadcasting Act grants only to the Governor in Council due to its significant infringement on freedom of expression. “The CRTC should not be permitted to derogate from this essential right without clear and compelling reasons.” But Michael Morris, representing the attorney general of Canada, argued that the result of the CRTC order is simply that the Canadian and American format of the game will be left in its original state, and therefore “no program is being ordered to be altered or broadcast. The order simply restores, during broadcast of the Super Bowl, the default rule under section 7 of the broadcasting distribution regulations that the signal of a broadcasting service shall not be altered or deleted. “This is not a case about the meaning of programming services as the appellants suggest,” Morris continued. “The only question is, in imposing those terms and conditions that require a particular television station be distributed without alteration, is there some limitation within the Broadcasting Act that prevents the CRTC from imposing that term and condition.” “We submit the artificial restrictions imposed by the appellants cannot...be sustained in light of the very broad discretion given to the CRTC under the statute.” — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

CRTC has no jurisdiction over content on single programs, SCC hears

Broadcast | December 4, 2018

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CRTC has no jurisdiction over content on single programs, SCC hears

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