Draft NPRM Said to Propose Ending Sports Blackout Rule, Ask About Continued Need

A draft rulemaking notice proposes ending the FCC’s 38-year-old sports blackout rule, said agency officials in interviews Friday. Acting Chairwoman Mignon Clyburn on Friday, her last business day before Tom Wheeler is to start as permanent chairman (CD Oct 31 p1), said she circulated a rulemaking notice to address the rule. Several nonprofits and groups saying they represent fans sought a proceeding to change the rule in 2011 (CD Nov 15/11 p3), with the NAB, NFL and affiliate groups of three of big four broadcast networks opposing the change. Some backing the rule change think the NPRM will be approved without much controversy within the FCC, while a foe said he’s not so sure that will be the case.

The draft item is seen as relatively simple and straightforward by some in the agency. An industry official voiced optimism to us that the rulemaking would get a 5-0 vote that would also include Michael O'Rielly, the newest Republican to join the agency to round out its full complement of members. “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,” said Clyburn in a written statement. A Media Bureau spokeswoman declined further comment.

The item isn’t among the things being voted on at the end of Clyburn’s tenure, which began when Julius Genachowski stepped down in the spring, said agency and industry officials. The draft asks about the continued need for the blackout rule, and may tentatively conclude that the agency has authority to end it, said a commission official. The item notes that a rule change won’t negate existing contracts that bar professional games from being televised in certain circumstances, and talks about how since the rule was adopted sports teams no longer rely on ticket revenue for sales, said the official.

"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,” said Clyburn. “Nevertheless, if the record in this proceeding shows that the rules are no longer justified, the Commission’s involvement in this area should end.” Spokespeople for the American Cable Association, American Television Alliance of the ACA and many major multichannel video programming distributors and the NFL had no comment.

There doesn’t appear to be any ready-made constituency against ending the blackout rule, other than some broadcasters and the NFL, said several lawyers who have filed comments supporting junking it, in interviews after Clyburn said the NPRM circulated. The rule keeps professional games from being carried on MVPDs in markets where contracts between leagues and stations keep them off-air. NAB, the NFL and affiliate groups of ABC, CBS and NBC appear to be the only entities opposing the request to end the rule, based on filings in docket 12-3 (http://bit.ly/1h6IMMr).

An NAB spokesman said “sports blackouts are exceedingly rare,” and it “dislikes” them as much as viewers. The group is concerned the proposal “may hasten the migration of sports to pay-TV platforms, and will disadvantage the growing number of people” who rely on terrestrial TV as their primary way to see games, he said. “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."

Look for O'Rielly and Wheeler to look at the NPRM with “fresh eyes,” said broadcast lawyer Gerry Waldron of Covington & Burling, representing the NFL in the proceeding. “We don’t think it’s a foregone conclusion that it will be adopted."

Consumer advocates and some conservatives don’t like the rule, which doesn’t seem to have much support, said Senior Staff Attorney John Bergmayer of Public Knowledge, which sought the rule change along with some other nonprofits and self-styled fan groups in 2011. “That it’s on the books has given it some inertia.” That Clyburn circulated the NPRM probably means the rule will be eliminated, said Bergmayer. It’s “good that she’s looking to continue to make forward progress on a number of issues that have sort of been outstanding at the FCC for a long time” as she prepares to return to being a regular commissioner, said Bergmayer. He cited among other items a 700 MHz interoperability order.

It appears “we have the votes” for the sports blackout ban to end, said David Goodfriend, a lobbyist who has worked for Dish Network and chairman of the Sports Fan Coalition that was behind the petition for rulemaking to nix the rule. He hopes Wheeler and the other FCC members “vote in a timely manner and get the NPRM under way,” said Goodfriend. The record in 2012 comments “was extremely robust,” he said. -- Jonathan Make (jmake@warren-news.com)