Bell Media has suffered a setback in its bid to keep U.S. commercials off Canadian televisions during the Super Bowl, but says it will continue its fight to appeal a regulatory policy on the issue.
The Federal Court of Appeal on Friday dismissed Bell's appeal of a Canadian Radio-television and Telecommunications Commission (CRTC) policy that will bar broadcasters from swapping their own signals and ads into U.S. channels carrying the National Football League's championship game as of 2017.
The broadcast regulator announced its intent to implement new policies on the practice of "simultaneous substitution" (often referred to as "simsub") in January, 2015, as part of its broader Let's Talk TV consultation on television rules. Bell appealed the policy one month later.
In February of this year, the CRTC issued a notice of consultation seeking input on the text of the proposed change to Super Bowl ads.
The court heard arguments in the case in June and the CRTC issued a formal order confirming the proposed rules on Aug. 19.
However, the court ruling Friday did not reference the fact that the CRTC has issued a final order on the policy.
Justice Yves de Montigny, writing for a three-judge panel, said that since the CRTC decision was not yet final, it would be "premature" for the court to rule on it.
"This is all part of an ongoing process that will eventually culminate with the enactment of an order," Justice de Montigny wrote, adding that there should be nothing stopping Bell from appealing a final order.
BCE spokesman Mark Langton said Tuesday that the company plans to "refile our appeal as soon as possible because the fact remains that we, the NFL and Canadian advertisers need clarity on this issue well in advance of game day."
"The court dismissed this appeal because the CRTC hadn't yet issued its formal order to ban Super Bowl simsub, despite announcing its ban a year and a half ago. It's been an extraordinary delay by the CRTC," Mr. Langton said.
Bell, which is owned by BCE Inc., has the exclusive rights to air the Super Bowl in Canada and the decision preventing it from substituting its own signal with Canadian advertising is expected to cost the company millions. Bell argued that the CRTC made a mistake by finding that simsub is crucial to the Canadian broadcasting system but singling out the Super Bowl as an exception.
The NFL, which also intervened in the appeal, had argued that an appeal will be of little use if the matter is not decided before the next Super Bowl in February.
The judge wrote that a motion for a stay and an expedited hearing could be filed with the court if necessary but also noted: "It is obviously in the interest of all potentially affected parties that the commission arrives at a final decision long before February, 2017, to allow for a timely application for leave to appeal."
Notwithstanding his views on the premature nature of the appeal, Justice de Montigny later stated: "I would venture to add that there was no breach of procedural fairness by the commission."
He said that through the Let's Talk TV process, Bell "was given fair notice that the entire practice of simultaneous substitution was up for discussion," adding that prior to the public hearing, the commission summarized public feedback and "specifically referenced Canadians' preference for seeing American commercials during the Super Bowl."
The court also dismissed an appeal of a related CRTC policy that will bar simsub for specialty channels, such as Sportsnet and TSN, because that policy has not yet been implemented either.
Bell also appealed the CRTC's decision to impose penalties on broadcasters who make simsub errors leading to the substituted signals being out of sync with the original broadcast, resulting in viewers missing the ending of a live broadcast, for instance. The court dismissed that appeal too, stating that broadcast legislation gives the CRTC powers broad enough to encompass a regime that includes monetary penalties.
CRTC spokeswoman Patricia Valladao said Tuesday the court ruling confirms the CRTC's authority to introduce a regime that included penalties for simsub errors. She said the ruling did not "specifically address the legality" of the commission's decision to bar simsub of the Super Bowl as of 2017, but as of now, that policy remains in place.