Super Bowl Ad Appeals Face Canadian Supreme Court Decision

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By BJ Siekierski

The Supreme Court of Canada will announce May 10 whether it will hear appeals of an order by Canada’s telecommunications regulator that’s allowed Canadians to see American Super Bowl advertisements in real time.

The court said May 7 it will deliver judgments of appeal applications in Bell Canada et al. v. Attorney General of Canada and National Football League et al. v. Attorney General of Canada—two separate attempts to reverse a 2015 order by the Canadian Radio-television and Telecommunications Commission.

That order, in force for the 2017 and 2018 games, ended the application of simultaneous substitution during the Super Bowl—a policy that previously resulted in advertisements on U.S. stations in Canada being swapped for Canadian ones.

Bell Canada and its division Bell Media Inc. have an exclusive license with the National Football League to broadcast the Super Bowl in Canada through February 2020, and both have argued that the commission’s order significantly devalued that license because large numbers of Canadian viewers have opted to watch the game on U.S. stations.

Bell claims that not having simultaneous substitution for the 2017 game alone cost them C$11 million (US$8.56 million), because it reduced what they could charge for advertising spots.

Bell challenged the commission’s jurisdiction under the Canadian Broadcasting Act to dictate the content of a “single program”—simultaneous substitution continues to be applied to other U.S. programs shown in Canada, such as the Academy Awards.

The NFL, meanwhile, has challenged the commission’s “unfettered power” to make administrative orders in the public interest under the Broadcasting Act.

The league also argued that the regulator’s discriminatory order “impaired the rights of a single U.S. copyright holder,” violating Canada’s treaty obligations and the Canadian Copyright Act.

In December 2017, the Canadian Federal Court of Appeal dismissed a joint appeal by Bell, the NFL, the Association of Canadian Advertisers, and the Alliance of Canadian Cinema, Television, and Radio Artists to overturn the commission’s order, making the Supreme Court the final Canadian legal option.

To contact the reporter on this story: BJ Siekierski in Ottawa at correspondents@bloomberglaw.com

To contact the editor responsible for this story: Jerome Ashton jashton@bloomberglaw.com

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