Bell wins right to appeal new Super Bowl ad policy

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Three months before the fifty-first Super Bowl kicks off in Houston, Bell Media has won the right to appeal a new policy that would allow U.S. commercials to air on Canadian televisions.The Federal Court of Appeal granted Bell, a division of BCE Inc., leave to appeal a new regulatory policy that bans broadcasters from swapping their own signals – as well as lucrative advertising – into U.S. channels airing the National Football League's championship game.

But Justice David G. Near, writing for a three-judge panel, denied Bell's request to suspend the new policy until an appeal is decided, leaving Bell under pressure to adjust ahead of the February spectacle, which has typically been TV's marquee stage for advertisers.

As the matter wound its way through the courts, Bell had been selling ad space for the Super Bowl broadcast on the assumption that it would still be able to substitute Canadian ads into U.S. feeds, according to a source who was not authorized to discuss the matter. It now appears unlikely the appeal will be resolved before the Feb. 5 game, which could force Bell to revisit its agreements with advertisers.

"The applicants may bring a motion to expedite the appeal once a notice of appeal has been filed," Justice Near wrote.

The Canadian Radio-television and Telecommunications Commission, which regulates broadcasting in Canada, announced in January of 2015 that it would ban simultaneous substitution of U.S. feeds only during Super Bowl broadcasts, starting with the 2017 contest. The controversial decision emerged from Let's Talk TV, a sweeping review of TV policies undertaken by the regulator.

For years, some viewers have complained about being denied access to flashy, big-budget U.S. TV ads made specifically for the Super Bowl when watching the game from Canada. Jean-Pierre Blais, chairman of the CRTC, promised viewers would "will finally get free from an anachronism" when he announced the new rules.

Lawyers for BCE requested leave to appeal a month later, arguing the CRTC decision "impairs Bell Media's rights and interests." Bell, which owns the CTV network and an array of specialty channels including TSN, bought the exclusive rights to broadcast the Super Bowl in Canada beyond 2017. Because so-called "simsub" will still be allowed on other programs, the media giant feels it is being unfairly singled out.

"We're happy that our appeal is moving forward but disappointed the court didn't stay the CRTC's decision considering the uncertainty it creates and its impact on viewers and advertisers in Canada for Super Bowl LI," a Bell spokesperson said in a statement.

The Broadcasting Act "does not authorize the making of regulations singling out a particular program or licensee," Bell wrote in an early court filing. Lawyers for the NFL also intervened, taking Bell's side in the dispute.

The Federal Court denied Bell's initial request, saying it was "premature" to rule on a decision that had yet to be implemented by the CRTC. But On Aug. 19, the regulator released an order putting the new rules in place, and Bell re-filed its request, this time successfully.

Simsub garners an estimated $250-million in revenue for Canada's broadcasting system as a whole, including millions from the Super Bowl alone. Some of those funds flow back to produce other Canadian shows, and the game has provided a unique platform to promote other programs, including Canadian productions, to a massive audience.

A CRTC spokesperson declined to comment on the ruling "given that this matter is still before the courts."

But in an interview with The Globe and Mail in August, Mr. Blais said he is "quite comfortable" with the decision.

"The Super Bowl is a different kettle of fish, and we certainly are having a lot of debate on three hours [of programming]," he said. "And if you actually want to watch the Canadian version of it, you'll be able to."