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

Law360 Canada ( January 23, 2018, 8:30 AM EST) -- 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....
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