SCC simsub ban rejection a boon for Canadian performers: ACTRA

The nation’s highest court has quashed a 2016 decision by the CRTC to ban the substitution of Canadian advertising on American networks for the Super Bowl, which will mean more work opportunities for Canadian performers, a labour union says. In a 7-2 decision released on Thursday, the Supreme Court of Canada said that the CRTC did not have the jurisdiction under section 9(1)(h) of the Broadcasting Act to ban such advertising, and that it only allows the CRTC to require TV distributors to carry certain channels. “Because the CRTC did not, in the Final Order, purport to mandate the carriage of any particular programming services, but instead sought to ‘add a condition that must be fulfilled should a carry station’ that broadcasts the Super Bowl...the issuance of that order was not within the scope of its delegated power under s. 9(1) (h) of the Broadcasting Act,” the court decision said. “We would therefore quash the Final Order, as well as the Final Decision.” The decision “will open up more opportunities to our performers to appear in Canadian commercials,” ACTRA president David Sparrow said in a phone interview. His organization was an intervenor in the case. “Our Canadian companies will be able to have access to the advertising space during the Super Bowl, which has a lot of viewers obviously, it will bring in extra money to our Canadian broadcasters, and it will allow our performers to augment their income through performances in those commercials.” Canadians tuning into February 2020’s game will now see Canadian commercials on American networks. In 2016, the CRTC officially implemented the rule that said BCE Inc. could not simultaneously substitute in Canadian commercials on American networks broadcasting the NFL’s Super Bowl game, so Canadians can continue to watch American commercials on the corresponding networks. Bell and the NFL appealed on the basis that the CRTC could not do that on individual programs and that it would erase revenues factored in when the two entered a licensing agreement for the games. The Federal Court of Appeal unanimously denied the appeal challenging the CRTC’s jurisdiction. Bell and the NFL then applied to the Supreme Court, where the highest court bundled the cases with another case examining the standard of review -- in essence, the standard by which the court can get involved in reviewing decisions made by administrative bodies. Thursday’s decision, which came almost exactly a year after a hearing on the matter, hinged on the interpretation of 91h, and specifically the use of the term “programming services.” The statute requires a licensee to carry “programming services specified by the CRTC.” Bell and the NFL argued that the CRTC went beyond the scope of the law, which they said “does not allow the CRTC to require carry a specific program, or set terms and conditions for the carriage of a single program like the Super Bowl.” Bell and the NFL argued that “programming services” is used to refer to an aggregation of programs and does not deal with the targeting of individual programs. The Supreme Court agreed, stating that section 9(1)(h) gave it no ability to attach “terms and conditions to such mandatory carriage orders.” The decision, however, has a caveat: it does not preclude the ability of the CRTC to make the same determination through a different statute. That statute could be the CRTC’s ability to regulate generally under section 10 of the Broadcasting Act, the decision read. But Jay Kerr-Wilson, a lawyer at Fasken Martineau DuMoulin who represents telecoms on certain matters, said the issue is “effectively moot” once the new North American trade pact, known as USMCA, is ratified, because the federal government had already agreed to ensuring simultaneous substitution during negotiations, during which the NFL raised the issue. "We take note of the Supreme Court decision," CRTC spokesperson Patricia Valladao said in an email. "As of now, the next Super Bowl may be broadcast using simultaneous substitution. It is now up to Canadian companies who own the broadcasting rights to decide whether they want to air American ads or Canadian ads during the Super Bowl." The decision, which came out of the 2015 Let’s Talk TV proceeding on the future of television, also drew the ire of U.S. and Canadian politicians as it made its way through court and regulatory appeals. “We’re happy the issue has finally been resolved by the Supreme Court,” Bell Media spokesman Scott Henderson said in an emailed statement. “We thank our partners at the NFL for their ongoing support and look forward to providing Super Bowl LIV on CTV with simultaneous substitution.” Bell and the NFL renewed its broadcast deal on a multi-year basis in June 2017. The ban on simultaneous substitution lasted three Super Bowls. In the first year under the ban, Bell noted a 39 per cent decrease in viewership for the Super Bowl on its channels, which stayed steady in the next year. Bell said it suffered an $11-million loss in advertising revenue in the first year. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

SCC simsub ban rejection a boon for Canadian performers: ACTRA

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SCC simsub ban rejection a boon for Canadian performers: ACTRA

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