Broadcasters, Nonprofits Debate If Sports Blackout Rule Helps Terrestrial TV
Whether a sports blackout rule supports terrestrial TV by keeping professional games on over-the-air broadcasts and not only on multichannel video programming distributors was debated in replies to the FCC on a petition from five groups to end the rule. The affiliate associations of three of the four major U.S. broadcast networks chimed in for the first time on the request, backing NAB’s opposition. The groups that petitioned (http://xrl.us/bmwid3) the commission (CD Nov 15 p3) to end the 1970s-era requirement that MVPDs not carry games in markets where contracts between leagues and stations keep them off-air said there’s “no compelling economic rationale” to keep the rule.
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The rule supports the NFL’s contracts with broadcasters barring them from airing games that don’t sell out, and the league “has indicated that its sports blackout policy is key to its distribution of all NFL games on free, over-the-air, local television,” the affiliate groups said. “The sports blackout rule does not create blackouts. Rather, it respects the contractual rights negotiated by copyright holders for distribution of sports programs by local broadcast stations -- contractual rights that otherwise would be compromised by the statutory compulsory copyright licenses that afford cable and satellite companies the ability to retransmit the signals of distant television stations without the consent of the copyright holder,” said the ABC, CBS and NBC affiliate associations. “The sports blackout rule prevents cable and satellite companies from exploiting the compulsory copyright licenses to interfere with copyright holders’ market-based decisions.”
Nixing the rule would “tip” the “competitive balance of contractual opportunity” toward MVPDs and away from broadcasters, the associations said (http://xrl.us/bmwiem). “Professional sports leagues would be limited in their ability to manage the television distribution of their events,” with “substantial incentive to move their programming to pay-television services, with whom the compulsory copyright license regime would not undermine private distribution agreements,” they said. The NAB and NFL were among initial commenters citing Sections 111 and 119 of the Copyright Act, which let cable and DBS companies carry distant broadcast signals without leagues’ assent, in seeking to keep the blackout rule (CD Feb 15 p12). Tossing it out “would severely undermine local broadcasters’ program exclusivity,” the NAB said in replies posted Wednesday in docket 12-3 (http://xrl.us/bmwifa). “It could accelerate the migration of popular sports programming from free to pay TV,” and won’t force leagues to dump their policies for stations not to show blacked out games, the association said.
The comments show the rule doesn’t help leagues’ business and is “an anti-consumer practice,” said the groups that made the petition (http://xrl.us/bmwifr). “The alarmist claims by the NAB and NFL that ending the Sports Blackout Rule will force sports programming off broadcasting, however, also do not stand up to economic logic and analysis,” said groups including the Sports Fan Coalition, which has gotten financial help from MVPDs and was begun by an ex-Dish Network lawyer who continues to represent the company. “The relatively insignificant economic effect on the NFL of the few blacked out games today means that eliminating the Sports Blackout Rule would not have a material impact on the NFL’s broadcast distribution policies,” said the comments also submitted by the Media Access Project, National Consumers League and Public Knowledge. “Current agreements between broadcasters and the NFL will remain in place and keep the games on free over-the-air broadcast. The recently announced multi-year, multibillion dollar NFL broadcast agreements probably would remain in effect.”
The NFL said the petitioners “ignore” the threat that removing the rule poses to sports staying on over-the-air TV. “The League’s decades-long fan-friendly policies” seek to “maximize stadium attendance while also maximizing television distribution,” the NFL said (http://xrl.us/bmwif3). “On those rare occasions when games do not sell out, encouraging stadium attendance is a valid, important interest, as Congress and this Commission repeatedly have recognized over many years.”