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BROADCASTING - Broadcasting policy - Public service - Distribution undertakings - Simultaneous substitution - Content - Advertising

Tuesday, January 23, 2018 @ 8:30 AM  

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Appeal by Bell Canada and Bell Media Inc. (Bell) and the National Football League, NFL International LLC, and NFL Productions LLC (NFL) from a Canadian Radio-television and Telecommunications Commission (CRTC) order, excluding the Super Bowl from the simultaneous substitution regime (Final Decision). Bell and the NFL also appealed a CRTC Final Order through which simultaneous substitution would no longer be authorized for the Super Bowl, effective January 1, 2017 (Final Order). The NFL was the copyright holder for the television production of the Super Bowl, the NFL’s annual championship game. The NFL had an agreement with Bell, granting Bell the exclusive rights to broadcast the Super Bowl in Canada. For more than 40 years, the Super Bowl had been broadcast in Canada under the regime, which resulted in all viewers of the game in Canada, whether watching the game on an American or Canadian station, seeing Canadian commercials. In 2013, the CRTC commenced a series of public consultations about the future of television, throughout which some Canadians complained about not being able to watch the American commercials during the Super Bowl. These consultations resulted in the orders under appeal. In making the orders, the CRTC stated that simultaneous substitution for the Super Bowl was not in the public interest. The result was that as of January 1, 2017, Canadian viewers could watch the Super Bowl on Canadian stations with Canadian advertisements, or on American channels with American advertisements. The main issues on appeal were: 1) whether it was reasonable for the CRTC to determine that its Final Order, made pursuant to s. 9(1)(h) of the Broadcasting Act (Act), was within its jurisdiction; 2) whether it was reasonable for the CRTC to determine that its Final Order was not retrospective and did not interfere with vested rights; and 3) whether it was correct for the CRTC to determine that its Final Order did not conflict with the Copyright Act and/or international trade law.

HELD: Appeal dismissed. The Final Order was not inconsistent with the policy objectives of the Act. Promoting Canadian content was not the sole objective of the Act, despite its cultural aim. Supporting Canadian content and drawing content from local, regional, national and international sources were amongst the Act’s objectives. The Court would not interfere with the CRTC’s discretion to decide how best to balance these competing objectives. The Final Order did not conflict with the Simultaneous Programming Service Deletion and Substitution Regulations, as the Regulations provided for a public interest exception to the regime. Bell did not have a vested right that the law would not change, such that it could argue the order interfered with its contractual right to sell advertising based on advertisers’ reliance that their advertisements would be seen in Canada during the Super Bowl regardless of the channel viewers chose. The NFL did not have the right to simultaneous substitution that it could confer to Bell. That was a benefit conferred by the CRTC. The Final Order did not conflict with the Canada-United States Free Trade Agreement or provisions of the Copyright Act. It was well established that the purpose of the Copyright Act was to balance authors' and users' rights and  there was no conflict between the Final Order and this purpose. The NFL’s argument that the Final Order conflicted with s. 31(2)(c) of the Copyright Act because it was not "required or permitted by or under the laws of Canada", was rejected. The Final Order complied with each of the enumerated requirements in s. 31(2) of the Copyright Act and therefore met the requirements of the exception to the exclusive transmission rights. Given that the Final Order was within the CRTC’s jurisdiction, there could be no operational conflict with paragraph 31(2)(c) of the Copyright Act.

Bell Canada v. Canada (Attorney General), [2017] F.C.J. No. 1252, Federal Court of Appeal, W.W. Webb, D.G. Near and M.J.L. Gleason JJ.A., December 18, 2017. Digest No. TLD-January222018004