Acting FCC acting chairwoman Mignon Clyburn is not going out with a whimper. On Friday she circulated a proposal to eliminate the sports blackout rule. That would allow cable ops to carry some games backed out on broadcast TV and could potentially boost MVPD leverage in retrains deals. But the practical effect may not be dramatic.
As Clyburn pointed out in her statement, the NFL can still require blackouts as part of their contracts with programmers, and probably will. Essentially, it gets the FCC out of the picture.
“Changes in the marketplace have raised questions about whether these rules are still in the public interest, particularly at a time when high ticket prices and the economy make it difficult for many sports fans to attend games," she said. "Elimination of our sports blackout rules will not prevent the sports leagues, broadcasters, and cable and satellite providers from privately negotiating agreements to black out certain sports events," she added.
"[I]f the record in this proceeding shows that the rules are no longer justified, the Commission’s involvement in this area should end," she added.
Her tenure as acting chairwoman is expected to end Monday, when Tom Wheeler is sworn in as chairman.
The rule prevents cable or satellite providers from carrying an NFL game when the over-the-air broadcast is blacked out due to lack of attendance at the game. In October 2011, the Sports Fan Coalition asked the FCC to lift the ban saying it would be a "pro-fan, pro-consumer, deregulatory action serving the public interest by expanding the availability of sports to the public without adding any regulatory compliance costs to the private sector."
Media Access Project and Public Knowledge joined the coalition petition.
Broadcasters oppose excising the rule, arguing that it would undermine program exclusivity, which is essential to its business model, and would speed the migration of sports to pay TV. The Sports fan coalition is backed by Time Warner Cable and Verizon.
Broadcasters oppose excising the rule. "Sports blackouts are exceedingly rare, and NAB dislikes these disruptions as much as our viewers," said the National Association of Broadcasters in a statement, "However, we're concerned that today's proposal may hasten the migration of sports to pay-TV platforms, and will disadvantage the growing number of people who rely on free, over-the-air television as their primary source for sports. Allowing importation of sports programming on pay-TV platforms while denying that same programming to broadcast-only homes would erode the economic underpinning that sustains local broadcasting and our service to community."
The NFL agrees, and has argued that getting rid of the rule would "undermine the retransmission-consent regime and give cable and satellite operators excessive leverage in retransmission-consent negotiations."
In June, Senators John McCain (R-Ariz.) and Richard Blumenthal (D-Conn.) told Clyburn it was past time for the FCC to act.
At the Senate Commerce Committee hearing on the nomination of Tom Wheeler to become the new FCC chair, Blumenthal pressed the nominee on the issue and Wheeler suggested it was ripe for action given changes in the marketplace. But the senators weren't waiting for him to take the big chair.
The Sports Fans Coalition recently hailed both senators as MVPs--Most Valuable Policymakers--at a Capitol Hill event.
“Thanks to Acting Chairwoman Mignon Clyburn, sports fans put points on the board today as the FCC formally considers an end to the decades-old ‘Sports Blackout Rule,’” the coalition said in a statement. “Sports Fans Coalition and the multitude of fans from across the country who wrote to the FCC to end the Sports Blackout Rule commend Chairwoman Clyburn for circulating a Notice of Proposed Rulemaking to end the federal government’s support for leagues’ anti-fan local blackout policies.
“If you’ve ever been in the stands and caught a home run ball, you know how we feel. For the first time in a long, long time, sports fans are being heard in Washington, D.C," said David Goodfriend, chairman of Sports Fans Coalition.