FCC Sacks NFL Blackout Rule in Unanimous Vote

This ends FCC-sanctioned authority for pro football to black out football games if the local venue is not sold out

The Federal Communications Commission on Tuesday punted the 39-year-old sports blackout rule to the sidelines of broadcast history with a unanimous 5-0 vote.

The action was taken despite stiff opposition from the National Football League, which has argued that the rule has served the interest of the teams and the fans and should not be changed.

The NFL has also warned that if the blackout rule is ended, it could mean even more games will move from free broadcast TV to pay TV. But opponents of the rule point out that pro football games on broadcast remain highly rated, and the licensing rights are extremely lucrative for the league and its 32 teams.

Daniel Durbin, director of the Annenberg Institute of Sports, Media & Society, says the NFL fears that if there are empty seats in a stadium during a game, it will harm the image of the sport. “It’s sold as a huge event, and it's packaged that way…. If you’re trying to create this sense this is a monumental event, its going to diminish the feel of the event to have all those empty seats in the stadium,” he said.

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The action to eliminate the rule was led by FCC chairman Tom Wheeler, who was carrying on an effort begun in 2012 by then acting FCC commissioner Mignon Clyburn.

“Today we are blowing the whistle on an anti-fan practice,” Wheeler wrote in an editorial in USA Today on Sept. 9. “The NFL should no longer be able to hide behind government rules that punish loyal fans.”

Wheeler and other critics have made the case that when the FCC put the rules in place in 1975, teams got most of their revenue from selling tickets and other in-stadium sales. Today, the largest source of revenue is televising the games.

“The bottom line,” Wheeler wrote, “is the NFL no longer needs the government's help to remain viable. And we at the FCC shouldn’t be complicit in preventing sports fans from watching their favorite teams on TV. It’s time to sack the sports blackout rules for good.”

While the FCC vote ends government-mandated authority, some in Congress feel that is not enough to ensure the blackout rules are not enforced arbitrarily by the league. Prior to the FCC vote on Tuesday, U.S. Sen. Richard Blumenthal (D-Conn.) and U.S. Rep. Brian Higgins (D- N.Y.) held a press conference.

Blumenthal, who has been working with U.S. Sen. John McCain (R-Ariz.), wants to next eliminate the NFL’s antitrust exemption, which he says is “no longer justified” because teams can fill stadiums simply by “lowering the prices” for tickets.

Blumenthal and McCain have proposed the Furthering Access and Networks for Sports (FANS) Act, which would remove the league’s antitrust exemption unless the league also voluntarily ends the practice of blacking out games that don’t sell out.

Blumenthal believes the FCC action on blackouts provides significant momentum to get his bill passed by attracting attention and more co-sponsors. However, he admits it is unlikely to happen in the final days of the current session of Congress and is calling for passage early in the next term.

David Goodfriend, chairman of the Sports Fan Coalition, who supports ending the blackout rules and the antitrust exemption, called it “a historic day for sports fans.”

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Goodfriend said Congress should eliminate the league's antitrust exemption, and that any future taxpayer funding should include benefits for fans, which he suggested might be free or lower-cost tickets for veterans or students. He also said the time may have come to completely eliminate all public funding for NFL teams, including billions provided by governments to build stadiums.

If the antitrust exemption was completely eliminated without condition, it would open the door to other big changes. The 32 teams are able to negotiate a single TV deal because of the exemption. Without it, each team might have to make its own TV deals, which would take away much of the NFL’s leverage in the negotiations.

Goodfriend predicted the FCC action will be a topic of conversation next week when NFL owners meet in New York City.

“As long as sports leagues receive these enormous gifts from the public, we have the right to have a say,” he said.