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FCC Considers RequestTo Punt Blackout Rules

The Federal Communications Commission scoreboard lit up last week with comments on whether the government should continue to protect the National Football League’s local TV blackouts—and the broadcasters contractually obligated to them—with its own rule preventing cable or satellite operators from delivering those blacked-out games to their subscribers.

That issue is at the center of a primarily gridiron battle over broadcast exclusivity, fans’ access to their home team games and the ongoing retransmission consent power struggles.

Comments came in to the FCC last week on whether or not it should even open a proceeding on lifting the blackout rule, making it, in essence, first and 10 on the FCC’s own 20 yard line.

The NFL says blackouts protect broadcast exclusivity and points out that even if the FCC lifted its blackout on MVPDs, that would not prevent the league from continuing its blackout policy, which means the blacked-out games would not be available to over-the-air viewers.

The National Cable & Telecommunications Association did not weigh in; ditto the American Cable Association. NCTA’s largest member is Comcast, which has a dog on both sides of this fight, so it is unclear what public position NCTA will take, if any.

But lifting the FCC blackout would seem to be a net gain for cable operators, since they would be allowed to import distant-signal versions of the games and the NFL would not be able to black them out, given cable’s compulsory license allowing it to import distant-signal programming without having to clear it individually with rights-holders.

And if some senators weighing in last week had their way, cable operators would be able to import competing stations’ game coverage during retrans impasses, where the threat of losing access to must-have sports is one of broadcasters’ negotiating strengths.

The National Association of Broadcasters, not surprisingly, is strongly against lifting the blackout policy. It views the petition—lodged by the Sports Fans Coalition—as an assault by pay-TV on its programming exclusivity protections. “You need only look at who is funding the [coalition]—Time Warner Cable, Verizon and the former head lobbyist for [Dish Network chairman]Charlie Ergen—and it becomes apparent that this is more about hurting the foundation of local broadcasting than about protecting sports fans,” said Dennis Wharton, NAB executive VP.

The “former head lobbyist” is David Goodfriend, coalition board member and ex-Dish VP. “NAB attacks us personally because on this issue, they’re intellectually bankrupt and have no persuasive defense for government subsidization of sports blackouts,” Goodfriend told B&C.

If the FCC does open a rulemaking, the coalition needs to hope it is more like a two-minute drill than trying to take a knee. Retrans rulemaking will have been teed up without action for a full year come next month. At that rate, Buffalo Bills fans, three of whose home games were blacked out last year, could be in for another long winter.

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