Some Canadians may be clamouring to see American Super Bowl ads during the big game, but Bell Media is going to court to fight a federal regulator's decision to allow the commercials onto Canadian televisions.
On Monday, Bell filed a motion for leave to appeal with the Federal Court of Appeal, claiming a Jan. 29 decision by the Canadian Radio-television and Telecommunications (CRTC) that bans broadcasters from swapping their own signals and ads into U.S. channels carrying the Super Bowl and other live sporting events "impairs Bell Media's rights and interests."
The practice, known as "simultaneous substitution," has long irked some viewers but generates major revenue for conventional television stations that carry popular American programs, and the Super Bowl is the most lucrative show of all. The CRTC ruled that "simsub," as it is often called, should still be allowed on other shows. But it heeded pleas from those who want to see flashy American ads as part of the National Football League championship game on networks such as NBC.
BCE Inc., Bell Media's parent company (which also owns 15 per cent of The Globe and Mail), is now battling the CRTC on multiple fronts. Late last month, the company went to court to overturn a separate decision released the same day in January, which struck down the pricing model Bell uses for its mobile TV app.
In the case of simsub, Bell's only recourse is to argue a question of law or jurisdiction, and it is doing just that. "The CRTC erred in law, exceeded its jurisdiction, and demonstrated a lack of awareness of Canadian attitudes, opinions, and values," Bell Media spokesman Scott Henderson said in a statement.
In January, CRTC chairman Jean-Pierre Blais promised Canadians "will finally get free from an anachronism with respect to the Super Bowl" when the new rules take effect in 2017. The CRTC also banned simsub for specialty channels such as Sportsnet and TSN and promised penalties for errors that put substituted signals out of sync.
But Bell counters that the commission made a mistake by deciding simsub is still crucial to the broadcasting system, then undermining its own position by singling out the Super Bowl broadcast as an exception. The Broadcasting Act "does not authorize the making of regulations singling out a particular program or licensee," Bell writes in its submission.
The company also argues the ruling will do more harm than good. Simsub garners an estimated $250-million in revenue for Canada's broadcasting system as a whole, including millions from the Super Bowl alone, a part of which flows back into producing Canadian content. And it provides a platform to promote other shows to a massive audience.
If the decision stands, Bell could lose millions of dollars in revenue as its rights deal with the NFL extends beyond 2017. The ruling's practical effect "would be to retrospectively override significant terms of this agreement," Bell writes in its motion.
A CRTC spokesperson declined to comment while the matter is before the courts.
On Monday, in an effort to show public support, Bell released a poll it commissioned with Nanos Research in which nearly 69 per cent of 1,000 Canadians surveyed said it was more important to support broadcasters that paid for program rights than to see U.S. Super Bowl ads.
Other groups have also lined up against the decision: The Association of Canadian Advertisers (ACA) and the actors union ACTRA both wrote letters to Ms. Glover warning the expected lost revenue from the ruling could mean less work and fewer jobs for their members.
"A policy that's built on targeting one thing is not good policy," said Ron Lund, president and CEO of the ACA, who has also urged Mr. Blais to reverse the decision.
Yet Michael Geist, a law professor at the University of Ottawa, sees little chance that Bell will prevail.
"I think it's a pretty weak argument," he said. "… [Bell's] rights are to be the exclusive Canadian broadcaster of the Super Bowl. They still are."