Telecom by yum9me (CC BY-NC-ND 2.0) https://flic.kr/p/53jSy4
With the Super Bowl only a few weeks away, an unusual coalition comprised of the National Football League, Bell Media, Canadian advertisers, and an actors’ union have launched a full lobbying blitz aimed at overturning a 2015 ruling that will allow Canadians to view both the U.S. and Canadian feeds of the game. The change addresses longstanding frustration with Canadians’ inability to view U.S. commercials during the Super Bowl, since simultaneous substitution policies dating back to the 1970s allow Canadian broadcasters to block U.S. signals and substitute their own feed and commercials.
My Globe and Mail opinion piece notes that the fight to block the U.S. feed has led to some unlikely arguments. CRTC critics who typically call on the regulator to get out of the way are now calling on it to impose the simultaneous substitution rules. Meanwhile, in an odd role reversal, the NFL is emphasizing the Canadian culture benefits of blocking its U.S. broadcast and ACTRA, which issued a press release calling the Super Bowl ruling balanced and protective of the public interest when it was first unveiled, is going to bat for Canadian coverage of a U.S. sporting event.
Upon Further Review, the Ruling Should Stand: Why the CRTC Made the Right Call on the Super Bowl Simsub Ban
The CRTC’s 2015 decision to ban simultaneous substitution from the Super Bowl broadcast starting in February 2017 has generated renewed criticism in recent days as the NFL, Bell, and the U.S. government launch a lobbying blitz against the decision that will take effect with this season’s game. The league, broadcaster and their supporters argue that the inability to block the U.S. feed will mean lost revenue for the Canadian broadcaster and presumably reduced licensing revenue in the future for the NFL as the Canadian rights may be viewed as less valuable.
Despite claims about damage to Canadian broadcasting, the ban on simultaneous substitution for the Super Bowl does not eliminate the ability of the Canadian broadcaster to air its own commercials. In fact, the use of simultaneous substitution for the Super Bowl is an outlier when compared to the broadcast of most other major sporting events in Canada. Whether the Stanley Cup finals, the World Series, the Olympics, or the World Cup, Canadians typically have access to both Canadian and U.S. feeds. Canadians often opt for the Canadian version, perhaps because they like the commentators or the Canadian-oriented coverage. No one suggests that Canadian access to the Stanley Cup finals on NBC or the World Series on Fox (Sportsnet uses the international feed and many commented this year that they preferred that version that included Buck Martinez on colour commentary) eradicates rights or eliminates the ability for a Canadian broadcaster to successfully air the same event.
The centerpiece of Canada’s 2012 digital copyright reforms was the legal implementation of the “notice-and-notice” system that seeks to balance the interests of copyright holders, the privacy rights of Internet users, and the legal obligations of Internet service providers (ISPs). The law makes it easy for copyright owners to send infringement notices to ISPs, who are legally required to forward the notifications to their subscribers. The personal information of subscribers is not disclosed to the copyright owner.
Despite the promise of the notice-and-notice system, it has been misused virtually from the moment it took effect with copyright owners exploiting a loophole in the law by sending settlement demands within the notices.
My weekly technology law column (Toronto Star version, homepage version) notes that the government has tried to warn recipients that they need not settle – the Office of Consumer Affairs advises that there are no obligations on a subscriber that receives a notice and that getting a notice does not necessarily mean you will be sued – yet many subscribers panic when they receive notifications and promptly pay hundreds or thousands of dollars.
Bell’s defeat this week at the Federal Court of Appeal over its MobileTV service marked the second high profile regulatory loss in recent months for Canada’s largest communications company. Last month, the government rejected Bell’s cabinet appeal of a CRTC decision on broadband infrastructure. The CRTC ruling means that companies such as Bell will be required to share their fibre networks with other carriers on a wholesale basis.
Bell’s appeal (and accompanying lobbying effort) was premised on the notion that CRTC regulation would force the company to reconsider its fibre investment. Indeed, its cabinet appeal stated:
In the fall of 2013, Ben Klass, a graduate student in telecommunications, filed a complaint with the CRTC over how Bell approach to its Mobile TV product. Klass noted that Bell was offering a $5 per month mobile TV service that allowed users to watch dozens of Bell-owned or licensed television channels for ten hours without affecting their data cap. By comparison, users accessing the same online video through a third-party service such as Netflix would be on the hook for a far more expensive data plan since all of the data usage would count against their monthly cap.
In January 2015, the CRTC released its decision in the case, siding with Klass. The Commission expressed concern that the service “may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.” While Bell argued that the mobile TV service was subject to broadcast rather than telecom regulation, the CRTC ruled that mobile television services effectively invoked both broadcast and telecom regulation, since a data connection was required to access the service.