CRTC won’t yet rescind order that lets Canadians watch U.S. Super Bowl ads

In this Feb. 4, 2018, file photo, the Philadelphia Eagles celebrate their 41-33 win over the New England Patriots at the NFL Super Bowl 52 football game, in Minneapolis. AP Photo/Bruce Kluckhohn File

Canadian fans of American football may yet have a chance to watch U.S. Super Bowl ads when the big game kicks off in February.

That’s because the Canadian Radio-television and Telecommunications Commission (CRTC) has refused to rescind the broadcasting policy and order that allowed for American ads to play on Canadian networks.

And that’s despite a clause in the U.S.-Mexico-Canada Agreement (USMCA), in which the Canadian government agreed to rescind them.

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BCE Inc., the parent company for Bell Media, applied to the CRTC to temporarily rescind the broadcasting policy and order that permitted U.S. ads to be seen on Canadian television during the Super Bowl after USMCA negotiations wrapped up.

CRTC Secretary-General Claude Doucet responded to that application in a letter last week.

READ MORE: Canadians can’t watch U.S. Super Bowl ads on TV anymore — Trump says that’s his doing

In it, he wrote that USMCA “has not yet been formally ratified by the Government of Canada or implemented as law.”

Doucet went on to say that the broadcasting order at the centre of the issue had been appealed to the Supreme Court of Canada, and would be the subject of a hearing on Dec. 4.

“The commission is of the view that entertaining an application in respect of the very matter which is before the court, prior to it having been heard or decided by the court, would be inappropriate and would be disrespectful of the process by which commission decisions may be reviewed and appealed,” he wrote.

In its application, BCE had argued that it’s in the public interest to have revenues from Canadian advertising included in the calculation of its Canadian programming expenditure contributions.

But the CRTC said this concern is “outweighed by the importance of the commission’s deference to and support of the Canadian judicial framework.”

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A Bell Media spokesperson said the company would not comment on the communication from the CRTC.

Fans celebrate after the Philadelphia Eagles won the Super Bowl LII, in Philadelphia, Pa., on Feb. 4, 2018. EPA/BASTIAAN SLABBERS via AP

Broadcasting Regulatory Policy CRTC 2016-334 and Broadcasting Order CRTC 2016-335 formed two parts of a single decision that the CRTC reached in August 2016.

The decision removed “simultaneous substitution” or “simsub” once a year, for the Super Bowl.

“Simsub” allows Canadian ads to be shown on U.S. networks when the same program is being shown in both places at one time.

This practice thus allowed for Canadian ads to be seen on American networks that were showing the big game.

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Bell Media, which owns the rights to broadcast the Super Bowl in Canada, had gone to court alongside the NFL to overturn the order.

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But the action was dismissed.

However, an agreement by the Canadian government to rescind that broadcasting order was later included in Chapter 15 of the USMCA.

It said, “with respect to simultaneous substitution of commercials during the retransmission in Canada of the program referenced in those measures, Canada may not accord the program treatment less favourable accorded to other programs originating in the United States retransmitted in Canada.”

U.S. President Donald Trump took some credit for making this happen at a rally in October, saying he did it in “two minutes.”

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