Sports Fan Coalition: Ending FCC Blackout Rule Probably Won't End Blackouts

Armed with quotes from disabled and elderly fans, the Sports Fan Coalition told the FCC once again its sports blackout rule must go.

The coalition, which was filing reply comments to its own petition to scrap the rule, said that even if the government blackout were lifted, the NFL and other sports leagues could maintain the blackouts contractually, although the coalition is hoping market forces would force them away from that policy.

The FCC's sports blackout rule prevents a cable or satellite company from carrying a local market NFL game whose local broadcast has been blacked out per the NFL policy for broadcasts of games not sold out 72 hours in advance.

The coalition was responding to NFL arguments that if the government policy were lifted, cable operators would be able to use their compulsory license to import a distant signal version of the game to cable subs in the market, thus circumventing the NFL blackout policy. Broadcasters have argued that the blackout and other exclusivity rules are crucial to preserving geographic exclusivity and the local ad revenues that ensue, and both NAB and NFL have argued that eliminating the rule would speed the migration of sports from free TV.

The coalition says the NFL and National Association of Broadcasters are trying to have it both ways.

It says that the NFL argues that only a small percentage of games are blacked out, but both argue that the prospect of MVPD subs watching those few games is a dire threat to free sports.

The coalition argues that even for those few games, there remain legal and regulatory hurdles from MVPD importation of the games even without an FCC blackout rule.

The coalition says that the compulsory copyright statute makes it so that Dish and DirecTV would effectively be barred from importing the signal, while the increased fee for importing a single game would not make economic sense. If that were not enough, it points to the network nonduplication rule, which would prevent the importation of any game carried on one of the networks, which it points out is essentially all of them. Third, it argues, broadcasters could simply make nonimportation of distant signals a new term in the retransmission consent agreements.

As much as it would like to think getting rid of the FCC rule would grant instant relief to sports fans and end blackouts, said the coalition, that is "probably" not the case. But, regardless of whether or not the leagues change their behavior, it said, "the federal government should no longer prop up the leagues' economically irrational and anti-consumer" policies.

The issue is essentially in the bottom of the first inning. The FCC is currently seeking comment on whether or not to open a proceeding at all. Once it does, there will be more comment, and then the FCC is under no obligation to act. Some dockets in which rulemakings have been proposed remain open for months and even years without action.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.