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Bell calls on Supreme Court to hear appeal on Super Bowl ad decision

Philadelphia Eagle Corey Graham celebrates during a game with the Minnesota Vikings in Philadelphia on Sunday. Bell asked the Supreme Court to hear its case for Super Bowl streaming rights on an expedited basis.

JUSTIN LANE/EPA

With the countdown on to the Super Bowl, Bell Media has asked Canada's top court to step in and allow it to substitute its own feed – along with Canadian advertisements – over the U.S. signal during the game on Feb. 4.

The company is seeking leave to appeal a federal court decision to the Supreme Court of Canada, a move that is the latest instalment in a three-year saga as BCE Inc.-owned Bell fights a regulatory policy it says has slashed the value of its right to broadcast the National Football League's championship game in Canada.

As part of its "Let's Talk TV" review of Canada's television landscape, the Canadian Radio-television and Telecommunications Commission in 2015 announced a change in policy that would ban the practice of simultaneous substitution ("simsub") during the Super Bowl starting in 2017. Some viewers had complained to the CRTC that the big-budget U.S. commercials were part of the Super Bowl experience that Canadians missed out on and the regulator changed the simsub rules specifically for the NFL's big game (along with a small handful of other sporting events).

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The ruling made Bell's rights to the game less valuable because Canadian viewers could tune to the U.S. channel carrying the game and watch American ads, reducing what Bell could charge advertisers for commercials and promotion on its own Canadian stations. The company says last year its audience for the game declined by 39 per cent and advertising revenue was down by about $11-million.

Bell, along with the NFL and a coalition of creative groups and advertisers, took the CRTC decision to the courts and, last month, the Federal Court of Appeal rejected their appeal. Bell filed a notice on Jan. 2 seeking leave to appeal that decision to the Supreme Court of Canada.

With less than two weeks until this year's Super Bowl, the company has also asked the court to hear the case on an expedited basis and grant a stay of the CRTC ruling, arguing it meets the court's test for such an order.

"The Super Bowl Order impacts advertisers and content providers across Canada. The Super Bowl Order has and will continue to result in lost job opportunities and lost revenues for Canadians employed in the Canadian television industry," the company stated in its court filing. Bell also argued that allowing a stay of the ruling would cause no inconvenience as Canadians could easily view the U.S. commercials online.

In a response to Bell's filing, lawyers for the government on Jan. 16 consented to Bell's request to expedite the application for leave to appeal but, on the matter of a stay, wrote that Bell has "failed to establish a basis" for the Supreme Court to reverse the CRTC ruling.

The government response dismisses Bell's claims that it lost money due to the CRTC ruling, saying, "Bell overstates the effect of the Decision and is silent on any efforts it might have undertaken to minimize its alleged losses." The response also suggests Super Bowl ratings were already declining for the past several years and questions the methodology Bell used to support its claim that it lost $11-million in advertising revenue, saying that number "is simply asserted in a table without any supporting information establishing how the figure was calculated."

"The Commission ultimately concluded it was in the public interest that the U.S. broadcast of the Super Bowl air in Canada without alteration, allowing Canadians the choice of what broadcast to watch," the government argued in its response.

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The Supreme Court is likely to decide on the issue of a stay on the basis of the written filings, but it could order a hearing if warranted. It is not clear when the court might rule on Bell's latest legal salvo.

The company has also asked the CRTC itself to reconsider its policy in an application Bell filed in August, but there's no indication whether a decision will come before the Super Bowl.

Both Bell and the CRTC declined to comment on the latest court proceedings Monday.

With a report from Susan Krashinsky Robertson

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