For local Buffalo Bills fans, the perpetual fear always hangs in the air that they won’t be able to watch home games on television. With the requirement that all stadium tickets be sold out 72 hours before kickoff for a game to be locally televised on cable TV, Buffalo, a cold weather Rust Belt city, constantly faces the challenge of filling Ralph Wilson Stadium to capacity.
Buffalo ranks as one of the National Football League’s smallest markets. It had a 2012 metropolitan area population of 1,134,210, and western New York state, where Buffalo sits, contains 40 percent of the region’s ethnic minorities who earn less than $15,000 per year, according to the U.N. report “State of the World’s Cities.
With only 20,000 tickets so far sold, of a possible 73,079, for the Dec. 22 home game against the Miami Dolphins, it’s unlikely if another home game will be televised locally this season. Previously, team owner Ralph Wilson, Jr. bought up the surplus supply of tickets in order to cover the visiting team’s share of the gate receipts and lift the TV blackout.
In a number of other small markets, including Minneapolis, Memphis and Jacksonville, this juggle between ticket sales and protecting local TV broadcasts of home games is a familiar fight.
“The plain and simple fact is that blackouts prevent fans from watching the games they deserve to watch,” said Sen. Richard Blumenthal (D – Conn.) in an interview with Politico.
Among many in Washington, there is the growing suspicion that NFL blackouts unfairly deny fans who cannot afford to attend the game in person the chance to watch games. The average ticket price this season ranged from $109 for a Cleveland Browns ticket to $446 for a Chicago Bears ticket. In early November, the Federal Communication Commission announced that it will review the decades-old blackout rule. Mignon Clyburn, a commissioner and the then-acting chairwoman of the FCC, said that changes in the marketplace have raised questions about whether these rules remain in the public interest, particularly when high ticket prices and the economy make it difficult for many sports fans to attend games.
Preemption
Every sporting league has its own version of the TV blackout, or preemption. Major League Baseball and the National Hockey League allow blackouts to protect the exclusive broadcast rights of a licensee. For example, if TBS, which is considered to be a local broadcaster in Atlanta, had exclusive rights to broadcast Atlanta Braves games, but ESPN wished to broadcast the game nationally, MLB would blackout ESPN’s coverage of the games in the Atlanta market. For the National Basketball League and the Women’s National Basketball League, blackouts are only used for NBA TV to block games that are also appearing on preferred regional partners.
Currently, the National Football League has the most aggressive blackout policies. All broadcasters within 75 miles of an NFL stadium cannot broadcast a game being contested at the stadium unless the game is an away game or sells out 72 hours or more before the official start, unless a time extension has been granted.
In 2012, the NFL softened its blackout rules to allow teams to set a team goal for blackouts between 85 and 100 percent of the stadium’s non-premium capacity. Any seats sold beyond the set goal would be subject to a higher revenue sharing plan with the league. The Bills, Browns, Indianapolis Colts and San Diego Chargers have all rejected this proposal.
From the point-of-view of a financially struggling team, such as the Bills, these blackout policies are a double-edge sword. While it can be argued that the die-hard football fan who can’t watch a game locally will sacrifice to buy a ticket, such arguments run counter to the notion that most small NFL markets are also economically sparse, and denial of local broadcasting rights would actually aggravate the team’s financial situation. Many also argue that TV broadcast blackout rules ignore a key fact: in an era where the Internet is as ever-present as television, little prevents a fan in Buffalo from watching the Bills home games on his iPad or laptop.
The law and money in sports
The Sports Broadcasting Act of 1961 permitted sporting leagues to seek joint broadcasting agreements. Prior to this, single broadcasters such as NBC could force leagues into exclusive broadcasting deals that could leave local and regional broadcasters, who have limited resources, out in the cold. With the passage of the Sports Broadcasting Act, leagues became free to seek multilayered broadcasting arrangements. The law also gave leagues the right to deny broadcasters permission to broadcast their games in specific markets at specific times, or preemption. This was allowed to avoid broadcast overlap.
The NFL has used this as a motivator to encourage ticket sales. The basic argument is that for the population that lives close enough to see a game in person the presence of unsold seats represent a lack of interest in the game. Until 1973, all home games were blacked out in the team’s local market, regardless of attendance. Super Bowls, the league’s championship and among the top five annual global televised events, were also blacked out in the host city’s market. In 1973, Congress passed Public Law 93-107, which amended the Sports Broadcasting Act to allow local blackouts only if the game was not sold out. But the decision to blackout is a business decision, not a legal one.
The FCC has rules in place that prohibit pay TV providers (cable and satellite television) from transmitting a game locally that has been blacked-out. Yet the decision to black-out is always decided by the league itself. Returning to the Buffalo example, Syracuse, NY, is 150 miles due east of Buffalo. But due to an overlap of Buffalo’s 75-miles radius at the town of Italy, NY, which was considered to be part of the Syracuse’s market, the NFL ruled that the Syracuse market is subject to the same black-out stipulations for Bills games as the Buffalo market. Despite the fact the overlap no longer exists, Yates County, where Italy is situated, has joined the Rochester market area, yet the NFL has not lifted its ruling. This creates an unfair burden, as Syracuse, a two-and-a-half hour drive from Buffalo, cannot realistically be expected to contribute significantly to Buffalo’s ticket sales.
“Professional football is a stadium sport, not a studio sport,” said league spokesman Brian McCarthy. “The excitement that one feels in a packed arena or stadium translates onto television, and thus improves the television viewer’s experience. So, for both the fans in the stadium and the fans watching television, a packed stadium matters.”
On controlling viewership
The NFL argues that the need for change is moot, as no blackouts have occurred so far this year. The number of blackouts has been incrementally decreasing over the years, from 60 percent of local home games being aired in the 1980s, to 69 percent in the 1990s, and 92 percent in the 2000s. This in part is due to an increased effort from stadium owners to protect broadcasting revenue — from closing off whole sections of the stadiums’ seating for the season to buying out and giving away unsold tickets.
As fights over retransmission becomes more common, such as the CBS and Time Warner Cable tussle earlier this year, the notion of NFL programming blackouts in major cities is becoming a consistence fact. Blumenthal and Sen John McCain are leading the congressional fight to resolve the blackout issue, which threatens to strain the NFL’s relationship with the federal government, which many people, considering the NFL’s status as a section 501(c)(6) nonprofit and the multiple tax breaks, stadium-funding grants and regulatory exemptions the league has enjoyed over the years, consider to be too cozy.
“It’s wonderful that they haven’t been abusing fans this year,” Blumenthal said. “But they know the legislation is looming if they engage in blackouts. It’s a not-so-subtle pressure.”
David Goodfriend, executive director of the Sports Fan Coalition, said the NFL is the only league that blocks out an unsold stadium.
“What Senator Blumenthal and Senator McCain are saying is: ‘Enough with your free gifts. Enough with the monopoly. We need to start demanding positive behavior toward consumers in exchange for these gifts, or they just shouldn’t take the gifts,” Goodfriend said.
But it is important that Washington fixes the right thing. The FCC rule, which the senators have expressed interest in overturning, only keeps pay TV providers from overriding a blackout; it doesn’t prevent the blackout in the first place.
“The rule wasn’t written to protect the NFL,” a source close to the league told Politico. “It was written to protect broadcasters. The NFL will continue to have its blackout policy. It’s the broadcasters that are hurt, because if the Chargers game is blacked out, the cable operator will bring in [another] signal, so it’s the local CBS affiliate in San Diego that gets screwed.”
The source pointed out that the NFL is the only American league that broadcast its games on free television. “Contrast that with the NFL,” the source continued. “Every game of your team is on over-the-air television. Every single game, whether they’re playing on NBC or ESPN or the NFL Network, the league has structured its policies such that every game will appear in the local market over the air, so you can pay zero dollars so you can watch every Redskins game, and you can see every playoff game for free.”