FCC tackles blackout rule, but do NFL fans win?

October 1, 2014

Every Sunday, football fans across the country anxiously await their teams’ match-ups—saddling up to sport bars, piling onto friends’ couches, or settling into their recliners to catch the game. But what if your team hasn’t sold out its stadium? Since 1975, the Federal Communications Commission (“FCC”) had the ability to prohibit cable and satellite operators from airing any sports event that had been blacked out on a local broadcast station.
On Tuesday morning, the FCC voted to dump this rule.
The action removes FCC protection of the NFL’s private blackout policy, which requires local broadcast stations to black out a game if a team does not sell a certain percentage of tickets at least 72 hours prior to game day.
Democratic FCC Chairman Tom Wheeler and senior GOP Commissioner Ajit Pai both say it is time to sack the rule. Wheeler adds,

“It’s a simple fact, the federal government should not be party to sports teams keeping their fans from viewing the games — period.”

Additionally, Sens. John McCain (R-Ariz.) and Richard Blumenthal (D-Conn.) have both called for getting rid of the rule, claiming it “harms consumers by insulating the NFL from market realities and punishing fans in cities with large stadiums and declining populations.”
To some, the FCC’s rule seems obsolete. The NFL is king, selling out almost every game. The rule was imposed in 1975 when barely 40 percent of games sold out and gate receipts were the league’s principal source of revenue. Since 1975, the number of games blacked out has steadily decreased, leading to more than 99 percent of games in 2013 being aired on free television. Ken Edmonds, the league’s director of legislative affairs, said just two games were blacked out last season. In this regard, it would appear that getting rid of the rule would make no difference in fans’ experiences.
Despite these stats, the NFL’s blackout policy remains a real concern for fans. During the 2014 playoffs, Cincinnati, Green Bay and Indianapolis hadn’t sold out their games 72 hours before kickoff. In order to keep them from being blacked out, local businesses bought blocks of tickets so that the game could be officially “sold out” and therefore viewable to the local residents.
Green Bay faced a blackout when temperatures were minus-15 degrees. Despite a solid history of fan support and loyalty (Green Bay had sold out every regular season game since 1959) local Packer fans were effectively told that if they didn’t sell out the game and sit in the freezing cold, the community wouldn’t be able to view the game on television. Eventually, fans and corporate sponsors bought the remaining 1,000 tickets to avoid the blackout.
Businesses bailing communities out of a potential blackout is a sweet deal for the NFL. Fans are happy because they get to view the game for free and the NFL is happy because they just “sold out” a game despite lack of fan attendance.
While this move to get rid of the rule seems like a win for fans, the NFL still holds the reins.
First, the NFL, without the FCC’s help, is still capable of blacking out games. Though Tuesday’s action “takes [FCC’s] public policy finger off the scale,” said Commissioner Mignon Clyburn, the NFL still has the ability to blackout games under existing private contracts with broadcasters, or as a result of negotiation disputes between broadcasters and pay-per-view operators.
Second, the NFL warns the repeal of the blackout rule could lead to pay-per-view football. The league warns that any FCC action to eliminate the rule “may hasten the migration of sports to pay-TV platforms,” ultimately depriving many fans of the ability to watch games. Despite caution from the league regarding the end of free football on local networks, NFL spokesman Brian McCarthy assures, “with or without the rule, the league will continue to work to find new ways to bring more people to the game, and bring the game to more people.”
The NFL is already under scrutiny for how they handle domestic violence, concussions, and the Washington Redskins name. The repeal of the FCC blackout rule may be the first of many withdraws by the government from the NFL during this rocky time.
For example, under the 1961 Sports Broadcasting Act, NFL teams are permitted to jointly negotiate broadcasting rights without violating antitrust law. Sens. Richard Blumenthal (D-Conn.) and John McCain (R-Ariz.) and Rep. Brian Higgins (D-N.Y.) are sponsoring a bill called the FANS Act, which would remove the league’s antitrust exemption if it allows blackouts during disputes between its broadcast and cable partners.
On its face, the FCC decision is a win for sports fans, but it is the NFL and further legislative action that will decide the fate for our Sunday nights in the long run.