The FCC’s decision in September to quit enforcing the NFL’s blackout rule didn’t end the blackout rule. With no blackouts in the 2014 NFL season, the Senate nevertheless wants the NFL to get rid of the blackout rule for good.
The Senate Judiciary Committee held a hearing on Thursday regarding the topic. Among those testifying was Senator John McCain (R-Ariz.), a strong proponent of scuttling the rule that prevents games not sold out 72 hours before kickoff from being televised in the market where the stadium is located.
“There is something wrong with a situation in which the NFL can say to all those fans who have made the league what it is today, ‘You had better purchase tickets, or else,’” McCain said. “The NFL and its teams have benefited from myriad public benefits, including an exemption from antitrust rules, a specialized tax status, and taxpayer dollars that subsidize their multimillion dollar football stadiums. These public benefits carry with them a responsibility back to the public -- an obligation to treat their loyal fans with fairness.”
McCain is right, on that point. However, his explanation of a proposed solution possibly goes too far.
“We have been chipping away at these rules for some time, but there is still much work to be done,” McCain said. “This year, Senator [Richard] Blumenthal and I introduced the FANS Act, aimed at eliminating the various causes of sports blackouts. This legislation would condition the NFL and other leagues’ antitrust exemption on ending blackout practices, including in those circumstances when stand-offs during contractual disputes between broadcasters and cable and satellite companies result in blackouts. We would strongly prefer that the league take the initiative itself, and demonstrate leadership by reforming anti-consumer policies and practices. But let’s be clear, should the league fail to act, we will do everything we can do stand up for consumers by advancing the FANS Act and other initiatives.”
It’s one thing to scuttle the blackout policy; it’s quite another to block the broadcast networks owning the rights to televise the games from yanking programming from cable and satellite companies that want to pay less for the programming. It creates an unfair environment in which cable and satellite companies can low ball networks, knowing that the networks ultimately wouldn’t be able to keep NFL games off the air.
So while it makes sense to get rid of the blackout rule in its classic form, extending a law that would end the blackout rule to carriage disputes makes no sense.
Meanwhile, the NFL has enjoyed a blackout-free year -- due in part to the decision by multiple teams to take advantage of the rule that allows as few as 85 percent of all non-premium tickets to be sold and/or to guarantee that any unsold non-premium tickets will be purchased at 34 cents on the dollar, necessarily lifting the blackout.
Thus, while the league contends that full stadiums are good for the sport, the NFL has found a way to create the impression that stadiums are full, even when they aren’t, to ensure that games not featuring full stadiums remain televised. While the political pressure to get rid of the blackout rule may subside if the no-blackout trend continues, the NFL could now be stuck with what is becoming a de facto elimination of the blackout rule.
