(OTTAWA, ON) – In 2016, the CRTC issued an order excluding the Super Bowl from the simultaneous substitution regime to which it has been subject for many years under the Simultaneous Programming Service Deletion and Substitution Regulations.
Under that regulatory regime, the Canadian broadcaster of the Super Bowl made requests to ensure that the Super Bowl was broadcast in Canada with Canadian commercials on both Canadian and American channels.
The CRTC’s determination that simultaneous substitution for the Super Bowl is not in the public interest means that, as of January 1, 2017, Canadians watching the Super Bowl on Canadian stations would see Canadian commercials while those watching it on American stations would see American commercials.
The National Football League, as copyright holder, had entered into an agreement with Bell Canada and Bell Media, granting Bell an exclusive license to broadcast the Super Bowl in Canada through to February 2020. Bell recovers the costs of the license by selling to Canadian businesses advertisements which can be inserted into the Super Bowl broadcast on both Canadian and American stations.
The NFL and Bell challenged the jurisdiction of the CRTC to issue the order on the basis that it conflicted with Canadian broadcasting policy and regulations, targets a specific program, applies changes to the regulatory regime retrospectively to the detriment of vested rights, and is contrary to the Copyright Act and Canada’s international trade obligations.
The Federal Court of Appeal dismissed those appeals, but today the Supreme Court of Canada has allowed the appeals to proceed. To that end, NFL and CRTC are to address the question of standard of review in written and oral submissions on the appeal, and will be allowed to file and serve a factum on appeal.
The Supreme Court has set aside three days from December 4 through 6 to hear arguments.