Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.
With the Super Bowl only a few weeks away, an unusual coalition comprised of the National Football League, Bell Media, Canadian advertisers and an actors' union have launched a full lobbying blitz aimed at overturning a 2015 ruling that will allow Canadians to view both the U.S. and Canadian feeds of the game. The change addresses long-standing frustration with Canadians' inability to view U.S. commercials during the Super Bowl, since simultaneous substitution policies dating back to the 1970s allow Canadian broadcasters to block U.S. signals and substitute their own feed and commercials.
The fight to block the U.S. feed has led to some unlikely arguments. CRTC critics who typically call on the regulator to get out of the way are now calling on it to impose the simultaneous substitution rules. Meanwhile, in an odd role reversal, the NFL is emphasizing the Canadian culture benefits of blocking its U.S. broadcast and ACTRA, which issued a press release calling the Super Bowl ruling balanced and protective of the public interest when it was first unveiled, is going to bat for Canadian coverage of a U.S. sporting event.
In fact, given the vocal criticism, Canadians could be forgiven for thinking that the CRTC sprung the decision on broadcasters without a proper hearing (it did not as the future of simultaneous substitution was squarely on the record), that it will spell the end of the Canadian broadcasting system (the estimated cost is $18-million in a $16-billion industry), that the ruling bans Canadian commercials (it does not as Bell is free to air its own feed with local commercials), or that dual feeds are unusual for a major sporting event (they are not as Canadians already have access to multiple feeds for the World Series, Stanley Cup, MLS Cup and Olympics).
Critics contend that relatively few people have filed official complaints about the issue, but, if they are correct that few Canadians truly care, most will presumably watch the Canadian feed with limited impact on domestic television ratings. However, if Canadians opt for the U.S. feed, that will signal that many more were unhappy and preferred greater choice.
Beyond the Super Bowl broadcast, the far bigger issue is the future of a policy born decades before specialty channels, recording devices and Internet streaming that have combined to render simultaneous substitution increasingly irrelevant. Recording television shows, watching them on demand or subscribing to sports streaming packages largely eliminates the simultaneous substitution issue since Canadians control when and what they watch.
Moreover, while the Canadian industry has grown addicted to the revenues from licensing the relatively cheap U.S. programming that triggers the ability to block U.S. feeds through simultaneous substitution regulations, the policy arguably undermines the long-term success of the Canadian system and Canadian programming.
Simultaneous substitution generates some revenues that the CRTC can leverage for mandatory Canadian content contributions, but it comes at a cost of losing control over the Canadian programming schedule and effectively turning the Canadian broadcast system into a country-wide U.S. affiliate. Rather than focusing on original Canadian programming, Canadian broadcasters are beholden to the United States, with hundreds of millions of dollars spent on the rights to non-Canadian programming and schedules largely dictated by U.S. networks.
The CRTC recognized that eliminating simultaneous substitution altogether would create a shock to the system. Limiting the elimination to the Super Bowl has the practical benefit of starting to move the industry off its reliance on U.S. programming and toward competition rather than regulatory protection.
Looking ahead, Canadian Heritage Minister Mélanie Joly has emphasized that the future success of Canadian culture will depend upon developing original content to sell to a global audience. Simultaneous substitution slows that evolution by creating a protected market that elevates the importance of foreign programming. The policy may have once made sense to support the emergence of the Canadian broadcast distribution system, but if the government is serious about bringing broadcast into the digital world, it may be time to cancel simultaneous substitution altogether.