On January 12, 2012, the FCC announced that it was seeking comment on a petition filed arguing that the FCC should eliminate its Sports Blackout Rules.
In the petition, the petitioners, which include the Sports Fan Coalition, Inc., Public Knowledge, Media Access Project, National Consumers League, and League of Fans, provide several reasons as to why the Sports Blackout Rules should be overturned. The petitioners argue that blacking out games in a tough economy faced with high unemployment amounts to “anti-fan, anti-consumer behavior by professional sports leagues.” The petitioners also pointed to the public subsidies leagues receive “in the form of taxpayer-funded stadiums; federal antitrust exemptions. . . [and] tax-exempt status for professional sports leagues” as a reason why sports fans should not be prevented from watching a game due to a blackout. Finally, the petitioners assert that the Sports Blackout Laws are outdated, as they were not created in a time when modern technology existed, but rather, in the birth of the cable area.
Upon learning that the FCC will consider eliminating the Sports Blackout Rules, many fans likely breathed a collective sigh of relief. There is no doubt, that when leagues blackout games in geographic areas for one reason or another, it is annoying. However, the FCC’s elimination of its Sports Blackout Rules is not a be-all-end-all solution to leagues blacking out games.
When news broke yesterday about the petition to the FCC seeking elimination of the Sports Blackout Rules, the general media described the situation in a way which made it appear that it is the FCC’s Sports Blackout Rules which require games which are not sold out to be blacked out. However, the FCC’s Sports Blackout Rules nowhere specify that a game must be blacked out on cable television if it is not sold out.
Rather,the Sports Blackout Rules prevent cable and satellite stations (not local broadcast stations) from carrying a live television broadcast in a particular geographic region, at the request of the holder of the broadcast rights, if the event is not available live on a television broadcast station in the specified geographic region.
Typically, the holder of broadcast rights is the league, because the leagues generally hold the copyright to a respective game. As such, each league determines the rules for which of its games will be blacked out on local television broadcast stations. The leagues have adopted significantly different models of blackout policies.
The NHL and MLB share a similar policy, which in effect gives local broadcasters broadcasting priority, unless a national broadcaster has exclusive rights to the game. As for the NBA, if a game is aired on NBATV, it will be blacked out from local broadcasting stations within a 35-mile radius of the home team’s market. The NFL’s blackout rule is the only major league rule which centers around the stadium attendance of a given game. In general terms, the NFL’s policy specifies that local broadcasters within 75 miles of a given team may only broadcast a game if it is an away game or if the game was sold out 72 hours prior to kickoff.
The benefit of elimination of the FCC’s Sports Blackout Rules, is that doing so will allow cable and satellite television providers to broadcast games when their local television broadcast counterparts are barred from doing so because of various league blackout policies. The NFL has argued against overturning the FCC’s Sports Blackout Rules by asserting that this would essentially provide cable providers with an unfair competitive advantage over local television broadcasters.
While elimination of the FCC’s Sports Blackout Rules will likely give sports fans more access to watch previously blacked out games, it is not a perfect solution to the problem of leagues blacking out games for various reasons. As noted above, technically, all that the elimination of the FCC’s Sports Blackout Rules would do, is allow cable and satellite broadcast providers the opportunity to broadcast games which are blacked out from local stations. However, it is likely that if the FCC’s Sports Blackout Rules are eliminated, that leagues will work to institute their own set of the rules, through contracting with cable and satellite broadcast providers. This in turn would remove the competitive advantage spoken of by the NFL, while also recreating the problem of sports blackouts.
Thus, it will likely be many years before the world sees a Sunday afternoon when there isn’t a single NFL game blacked out from a market due to low game attendance.