Super Bowl simsub ban reversed in USMCA

The new trade agreement orders Canada to rescind the CRTC's contentious ban on simultaneous substitution of Canadian ads during the Super Bowl.

FootballWhile cultural exemptions, the dairy market and auto trade stole many of the headlines with regards to the United States-Mexico-Canada Agreement (USMCA), a smaller item will have a big impact at one of Canada’s biggest media and telcom companies: Super Bowl simsub.

An annex to the 15th chapter of the United States-Mexico-Canada Agreement (USMCA) includes a ruling that reverses the CRTC’s ban of simultaneous substitution in the annual NFL game, the Canadian broadcast rights to which are currently held by Bell Media.

“Canada shall rescind Broadcasting Regulatory Policy CRTC 2016-334 and Broadcasting Order CRTC 2016-335,” said the trilateral agreement, referring to the CRTC’s broadcasting order, made in August 2016, that banned simsub for the Super Bowl’s broadcast on Canadian TV.

The policy, which blocks Canadian BDUs from substituting Canadian ads and feeds into the U.S. broadcast of the Super Bowl, came into effect during the game in February 2017, leading to a steep decline in viewership. At the time, Bell Media said 4.47 million viewers watched the game across CTV, CTV Two and TSN, compared with 7.32 million on CTV alone the year before.

The clause in the USMCA paves the way for Bell Media to begin substituting Canadian ads into Super Bowl LIII, set to take place on Feb. 3, 2019. 

“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 favorable than the treatment accorded to other programs originating in the United States retransmitted in Canada,” continued the USMCA.

Bell Media welcomed the decision in an statement sent to Playback Daily: “We thank the government of Canada for overturning an unfortunate decision by the regulator. It’s a positive outcome for content creators, advertisers and the overall Canadian broadcasting industry.”

The CRTC’s ruling, which stemmed from decisions emanating from 2014′s Let’s Talk TV hearings, had drawn criticism from a number of companies and organizations, including the NFL, Bell, ACTRA, Unifor, U.S. politicians and the Association of Canadian Advertisers.

Late last year, a federal court dismissed Bell Media and the NFL’s appeal against the CRTC decision. In its ruling at the time, the federal court said: “Although it is the NFL’s right, as a copyright holder, to licence its program to Bell, it is not the NFL’s right that the program will be simultaneously substituted – this is a benefit conferred by Canada’s broadcasting regulatory regime.”

Bell in January filed a subsequent appeal with the Supreme Court of Canada, though that appeal was denied ahead of the 2018 game. Then, in May, Bell Media and the NFL filed another appeal, which is still pending. A spokesperson for Bell Media said the company is “looking at all options” regarding what to do with the appeal.