No more U.S. Super Bowl ads, but access to U.S. stations remains under USMCA trade deal

I was a bit busy yesterday in the middle of a Quebec newsplosion, but fortunately people in the rest of Canada (Globe and MailFinancial Post, CBCBNN, Michael had time to read the new U.S.-Mexico-Canada Agreement and notice an annex that directly impacts the CRTC and Canadian TV viewers.

Annex 15-D of the agreement is very specific: “Canada shall rescind Broadcasting Regulatory Policy CRTC 2016-334 and Broadcasting Order CRTC 2016-335.”

It doesn’t use the words, but that policy is about ad substitution during the Super Bowl. It’s the policy (originally announced in 2015) that said Bell could not require TV providers in Canada substitute its signal over those of U.S. border stations during the game because of Canadians’ strong demand for those high-profile U.S. commercials.

Bell has been trying hard since 2015 to get that decision overturned, going all the way up to the Supreme Court of Canada. The NFL has been on their side, because without simsub, the value of the Super Bowl rights in Canada plummets.

Now, thanks to the NFL’s lobbying of U.S. trade negotiators, the Canadian government will step in and solve the problem for them. The annex doesn’t specify a timeframe, but presumably it would happen when the treaty is ratified, which may or may not come before the next Super Bowl in February.

Putting this in the trade deal gives the Canadian government and the CRTC some cover. The Canadian government can say they were forced into this by the U.S. government, and the CRTC can blame the Canadian government when people go back to complaining to it that U.S. ads are blocked.

This also could have ended much worse for Canadian TV viewers. This trade deal could have ended the entire practice of allowing U.S. over-the-air stations to be rebroadcast in Canada without their consent. There was lobbying from a coalition of U.S. border stations in favour of requiring retransmission consent. Instead, the existing simsub regime will be maintained, and rebroadcasting through TV distributors allowed (but only when the signal is unaltered and simultaneous).

Assuming this deal is ratified, it could be decades before the simsub regime changes. And by then it could be completely irrelevant.

UPDATE (Oct. 6): Donald Trump amazingly brought up this clause in a campaign rally on Thursday night, saying a “big big problem” with Super Bowl ads was fixed when he told his negotiators to fix it. He said he got a phone call thanking him from NFL commissioner Roger Goodell.

And let QVC in, too

The annex also includes a provision related specifically to QVC: “Canada shall ensure that U.S. programming services specializing in home shopping, including modified versions of these U.S. programming services for the Canadian market, are authorized for distribution in Canada and may negotiate affiliation agreements with Canadian cable, satellite, and IPTV distributors.”

In 2016, the CRTC denied an application by TV provider VMedia to allow it to distribute the American shopping channel in Canada. It argued that since QVC would be doing business with Canadians, and that’s the very basis for that channel, “QVC would be carrying on a broadcasting undertaking in whole or in part in Canada” and for that it needed a licence (which it couldn’t get because it’s not Canadian-owned).

VMedia filed a request in court to overturn that decision, and the federal court sent it back to the CRTC. The commission opened a proceeding about its reconsideration, but has not published a decision.

9 thoughts on “No more U.S. Super Bowl ads, but access to U.S. stations remains under USMCA trade deal

  1. Bruce

    You know it’s not the issue with the Canadian commercials as some of them are quite good. It’s the fact the station replays the same few commercials over and over and over that gets my goat. By the third time I’m ready to put a fork in my eye as Tony Marinaro likes to say.

  2. kv

    personally, if i was a superbowl fan and a bell subscriber i would thank bell for fighting so hard to take away something i like by finding another service provider even tho that other provider couldn’t run the original ads either. that is if i can’t do without certain channels that can’t be received with an antenna. i’d also get an antenna so i could watch the programming i want. we should also have a law here similar to one in the us that states that no one can tell you that you’re not allowed to put up an antenna.

    /my opinion.

  3. Marc

    Passage by Congress and Parliament of this new NAFTA 2.0 deal is unlikely. Far too many House Democrats hate it and it will have a tough time passing the Senate here now with the “independant” grouping of senators. It’s probably already dead in the water.

  4. dilbert

    Okay, maybe a bit of a dumb question here, but:

    The trade deal specifically blocks the Super Bowl sim-sub issue. Does it also forbid any future move to get rid of sim-sub, or would it just require a more general and less specific move by the CRTC? In other words, can they terminate sim-sub without being in violation of the agreement?

    Also, gotta wonder: Does the agreement have the ability to override law? If the house of commons passed a ban on sim-sub, would the trade agreement override that?

    1. Fagstein Post author

      The relevant paragraph is here:

      Other than as provided for in paragraph 1, nothing in subparagraph 2 (b) shall be
      construed to prevent a Party from maintaining existing measures relating to retransmission of a
      program carried in signals intended for free, over-the-air reception by the general public; or
      introducing measures to enable the local licensee of the copyrighted program to exploit fully the
      commercial value of its license.

      In other words, simsub is allowed, but it is not absolutely required by my reading of this provision.

      Also, gotta wonder: Does the agreement have the ability to override law?

      This agreement is not a law, and does not override other laws. But to ratify it will require legislation that can alter or override other laws. If Canada passed laws that violated the agreement, it would be in violation of the agreement, and subject to its dispute resolution mechanisms.

      1. J C

        Yes. The appropriate response to BellMedia’s attempt to end run the CRTC and the courts, should be the elimination of all simsub. The trade deal prevents singling out one programme, but won’t prevent removal of all simsub, where every show is treated equally. Bell needs to be smacked down, hard, and taught a lesson.

  5. Charles Bront

    Get an Android box with IPTV… about 800 channels per year, for about $60 per year!!! No simsubs either.

  6. Pingback: Media News Digest: Prime Video Channels, TVA cuts 68 jobs, Bell launches Pure Country | Fagstein

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