The Supreme Court of Canada (SCOC) has quashed a CRTC order that has prohibited simultaneous substitution of American ads during the Super Bowl since 2017.
In a nine to two judgement in favour of Bell, which holds the Canadian broadcast rights, the SCOC found that the simsub ban order was issued “on the basis of an incorrect interpretation by the CRTC of the scope of its authority under section 9(1)(h) of the Broadcasting Act.”
“Properly interpreted, this provision only authorizes the issuance of mandatory carriage orders — orders that require television service providers to carry specific channels as part of their cable or satellite offerings — that include specified terms and conditions. It does not empower the CRTC to impose terms and conditions on the distribution of programming services generally. Accordingly, because the Order does not actually mandate that television service providers distribute a channel that broadcasts the Super Bowl, but instead simply imposes a condition on those that already do, its issuance was not authorized by section 9(1)(h) of the Broadcasting Act,” the judgement states.
The CRTC instituted a ban on simultaneous substitution in Aug. 2016, following public consultation on television regulation in Canada when some Canadian viewers expressed frustration over their inability to see high-profile U.S. commercials during the annual NFL championship.
Bell Media has been fighting the order since, losing an earlier challenge at the Federal Court of Appeal.
“We’re happy the issue has finally been resolved by the Supreme Court,” said Scott Henderson, VP of Communications, Bell Media, in an emailed statement. “We thank our partners at the NFL for their ongoing support and look forward to providing Super Bowl LIV on CTV with simultaneous substitution.”
Bell Media blamed the ruling for a 39% decline in audience for the game in 2017 and a drop of $11 million in ad revenue. The 2019 broadcast on CTV, CTV2 and TSN attracted an average audience of 4.33 million viewers in Canada, down from 4.45 million viewers last year and 4.47 million viewers in 2017 – a total drop in viewership of 41% from the 7.32 million Canadians who watched in 2016 – the last Super Bowl broadcast prior to the simsub ruling taking effect.
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