No New Groups Expected to Surface in Sports Blackout NPRM That Rosenworcel OK'ed

The same groups for and against elimination of the sports blackout rule will likely surface during the comment proceeding once the FCC launches a rulemaking, said some broadcast and public interest officials in interviews this week. A draft NPRM to end the nearly 40-year-old FCC rule preventing cable and satellite networks from delivering sports events to which a TV station was given exclusive broadcasting rights by the sports league began circulating at the commission last week (CD Nov 4 p3). So far, Commissioner Jessica Rosenworcel has voted for adoption of the NPRM, an FCC official said. “I support this rulemaking,” Rosenworcel said in a statement. “After 40 years it’s time to take a fresh look at these issues."

Groups against the sports blackout rule, like Public Knowledge and Sports Fans Coalition, haven’t changed their stance on the issue, they said. “It'll be interesting to see whether the NFL and broadcasters have recruited any new allies in this,” said Harold Feld, Public Knowledge senior vice president. It’s hard to know who really cares still about the rule, he said. “It’s very difficult to imagine that there’s going to be anything new in terms of overall opposition to this,” Feld said. “While nobody really likes it, there isn’t a lot of interest in getting rid of it.” But people are realizing that the rule doesn’t make much sense anymore, he added.

The groups that filed comments a year ago will file again, said a broadcast executive. But, if the rule were changed tomorrow, the impact would likely be minimal, he said. Deals to black out a game can still be done contractually, he said. “The NFL, networks and affiliates can contractually do whatever they want with the content.” To prohibit that, the government can direct a local station to broadcast the local team game, he said. “That’s not going to happen."

The NHL, NBA and many other sports leagues haven’t commented in the proceeding previously, said David Goodfriend, chairman of the Sports Fans Coalition, the group that filed the 2011 petition to end the rule. “Not a single cable or satellite company filed in support of our petition,” he said. “We're all by ourselves.” This “undercuts the broadcasters’ argument that this is going to be a boon to cable and satellite,” he said.

Last year, an attorney for the office of the MLB commissioner Bud Selig filed comments in opposition to ending the rule (http://bit.ly/HKaOgr). The rule remains important to baseball, said an MLB attorney. “Baseball would oppose elimination of that rule for the reasons already stated in its opposition to the petition filed by the Coalition.” The NBA didn’t comment. The American Cable Association and American Television Alliance had no comment.

The trend is that fewer blackouts are taking place, said broadcast lawyer Gerry Waldron of Covington & Burling, representing the NFL in the proceeding. Last year, 15 out of 256 NFL games were blacked out and this year no games have been blacked out so far, he said. “It’s affecting fewer and fewer markets and fewer people know or care about it.” Waldron said he plans to ensure that the commission understands that the rule exists to protect broadcasters, but it’s rarely invoked. “When it is invoked, it provides a necessary point of protection.”

Goodfriend said he’s confident momentum is on the side of public interest groups. Commissioner Mignon Clyburn released the item while she was acting FCC chairwoman and Rosenworcel “always seemed sympathetic to consumers,” he said. “When you have two Republican commissioners who are consistently calling for deregulatory action, this a proposal to get rid of a regulation,” he said referring to commissioners Ajit Pai and the newly seated Michael O'Rielly. A new chairman has to find a way to let housekeeping items get done, Feld said, referring to Chairman Tom Wheeler who was sworn in Monday. “The mark of a chair who knows how to balance the agenda and knows how to keep items going through on circulation is that you get stuff like this done.” It doesn’t have to happen at an open meeting, Feld said. “It’s not a priority but it shouldn’t have to be a priority to get done.”