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The Patriots Game

Unless the Patriots get beaten by the Dolphins this week, the issue of sports siphoning and access to programming and must-have sports will take the field with Tom Brady & Co. Dec. 29, when they meet up with the Giants to, perhaps, cement a perfect season.

That’s a lot more players than for your usual football game, perhaps a reason to call a "too many men on the field" penalty on everyone.

The FCC has just opened an official inquiry into what can or should be done about access to cable programming, and , rightly or wrongly, the Patriots game flap is just adding fuel to that fire. I know, Comcast carries the network on a sports tier, and if it didn’t, it would charge people more. So, its argument that it doesn’t want to charge people for something most people probably would’t watch most of the time should play into FCC Chairman Kevin Martin’s a la carte argument. But the chairman is also concerned about cable’s market power and is said to favor some government intervention in programming impasses involving must-have programming like, I don’t know, football.

NFL Commissioner Roger Goodell tells Time Warner the cable operators is free to carry the Patriots game if it will submit to baseball-style arbitration. Time Warner President Glenn Britt responds that it is willing to air a digital freeview of the game–will cable stop at nothing to try to get us analog dinosaurs to move to digital?–or it could sell the network’s package of eight games on a VOD basis. But arbitration? No thanks.

At that juncture, given the rancor in this battle, I was so tempted to write as a headline to Britt’s reply: "Glenn To Roger: Goodell!" (say that last name slowly and it sounds like something else, doesn’t it."

If neither relents, there will be Washington players all over that field, from FCC commissioners concerned about cable’s market power to legislators concerned that their constituents–or themselves or their families–will miss the game.

The e-mailed letters and statements that have blitzed journalists from both sides of the issue attest to its contentiousness. But it is not an easy call for the Zebras (as in referees) at the FCC.

They government should not be affecting the outcome of private carriage negotiations, but it has an obligation to make sure the playing field is level, and leveling if it is not.

If I had to guess, it would be that this stand-off gets resolved in the short-term and the game gets play on a broadcast network, whose ratings could reach American Idol-like proportions. The NFL could promote the heck out of itself, perhaps even ask viewers to contact their cable system if they wanted the network.

If if these seemingly intractible positions remain unaltered by the future, and football fans start raising a ruckus, look for hearings in the New Year and an FCC emboldened to push for mandatory arbitration.

It was only a year-and-change ago that Senator Arlen Specter was suggesting he might want to yank the NFL’s antitrust exemption over another issue.

Fair or not, both the NFL and the cable industry could come out smelling like an old gym sock unless some face-saving cease-fire puts the Patriots in prime space as well as time.