What is the Sports Blackout Rule the FCC Just Repealed?

On Tuesday the FCC voted unanimously to repeal its 40-year-old sports blackout rule, a move that means a lot less than its coverage in the media has made it look like. This is not, in itself, the rule that prohibits the broadcasting of NFL games that don’t sell out or the rule that frustrates MLB Extra Innings subscribers so much, but it is related to the former. As this Awful Announcing piece explains, the blackout rule essentially provides a backstop for the NFL’s blackout rule by prohibiting cable providers from airing games blacked out on local broadcast stations. (It technically applies to all leagues, but the NFL is both the only league with a blackout policy this would apply to and the only league that hasn’t seen virtually all its games migrate to cable anyway in recent decades.) It was never particularly a matter of good policy, with the FCC putting a foot on the scales of private enterprise, but its weird specificity (which betrays its vintage from an almost unthinkably different time not only in the NFL, but in the cable business and the television business more generally) dulls its effect enough that it’s hard to see its repeal changing anything, at least in the near term, given the NFL’s existing contracts.

Despite this, AA itself has inflated the rule’s importance in subsequent reporting on the debates on the issue, and the NFL warned that repealing the rule could force the league to abandon broadcast television and move to cable. It’s hard to see how a rule that keeps games from airing on broadcast, one the NFL could easily repeal its end of tomorrow and obviate the effect of the repeal of the FCC rule, is protecting the presence of games on broadcast, but the FCC’s response, noting the league’s current contracts run through 2022, is worrisome to me, because it doesn’t cover what happens after that, given cable’s unfair advantages, or the fact that the Big Four networks have made clear they would abandon over-the-air television themselves if they could.

Could cable providers air games the NFL has blacked out on local stations? Maybe, but if such isn’t covered by the NFL’s exclusive deal with DirecTV for Sunday Ticket the NFL could still police it, with a potential last resort of holding NFL Network and NFL RedZone over their heads. It may or may not affect DirecTV’s own ability to show blacked-out games, assuming DirecTV blacks out games on Sunday Ticket that are blacked out on the local station, but if so it’s likely that’s guaranteed in their contract as well and the league could continue to police it. The repeal of the FCC’s rule might change the economic incentives for the league going forward, but again the prospect of blacked-out games airing on cable undermining their presence on broadcast is a problem of the league’s own making through their imposition of the blackout rule in the first place. If the NFL declares in their next TV contract – and I’m assuming the impossible, that by the end of this decade the content landscape is exactly as it is today – that the repeal of the FCC rule is forcing them to abandon their commitment to broadcast TV and move their games to cable, it would call into question their motivations for making that commitment to begin with. Protecting gate attendance, no matter what way you slice it, seems to have little to do with protecting the league’s presence on broadcast television, and anyone who thinks there’s a serious prospect of the league eventually abandoning broadcast should be paying more attention to the broken economics of the television industry and the prospect of broadcast being permanently if not terminally crippled by the upcoming incentive auctions. All told, the repeal of the FCC’s blackout rule is a purely symbolic gesture not worth the ink spilled on it, but it does give some indication that the FCC is willing to stand on the side of the consumer and good policy – at least, if they can also stand on the side of the cable companies and against broadcasting at the same time.