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Supreme Court overturns decision that allowed U.S. Super Bowl ads in Canadian broadcast

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CRTC overstepped authority when it allowed U.S. ads, ruling says

Bell Canada and the National Football League appealed a decision by the federal broadcast regulator to exempt the championship game from the normal practice of substituting domestic ads for U.S. ones on Canadian TV. (Kevin Lamarque/Reuters)

The Supreme Court of Canada has blown the whistle on a federal regulatory decision that allowed Canadian viewers to watch keenly anticipated American commercials during the Super Bowl broadcast.

In its ruling Thursday, the high court said the Canadian Radio-television and Telecommunications Commission (CRTC) strayed beyond the scope of its authority under the Broadcasting Act when it took action to ensure the U.S. ads could be seen.

For almost half a century, the practice known as simultaneous substitution has been a central feature of the Canadian broadcasting system.

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It permits a television station that purchases exclusive Canadian rights to a U.S. program to require that cable and satellite companies substitute incoming U.S. network signals showing the same program with the Canadian station's own signal.

As a result, local viewers see only the Canadian station's signal — including commercials — no matter which channel they watch.

The idea is to ensure the Canadian broadcaster can offer advertisers exclusive access to Canadian viewers and maximize revenues.

However, the practice denied Canadian viewers a chance to see entertaining U.S. commercials that often generated as big a buzz as the football game.

Canadians campaigned to see U.S. ads

For years, Canadians complained to the CRTC that they wanted to see the American ads. The uproar led the regulator to address the issue.

In 2016, the CRTC decided that in the case of the Super Bowl, the usual practice of simultaneous substitution was not in the public interest.

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Bell Canada's media division, which secured an exclusive licence from the NFL in 2013 to broadcast the game in Canada, said the regulator's decision cost it viewers and millions of dollars in revenue.

Bell Media owns and operates 30 local CTV television stations across the country as well as specialty services, such as sports network TSN.

The broadcaster and the football league challenged the CRTC's move in court.

The Federal Court of Appeal rejected the challenge, saying Parliament intended the regulator to decide how best to balance competing policy objectives related to broadcasting in Canada.

Scott Henderson, a spokesperson for Bell Media, said Thursday the company is "happy the issue has finally been resolved by the Supreme Court."

Bell Media looks forward to broadcasting the next Super Bowl on CTV with simultaneous substitution, he added.