« iepriekšējāTurpināt »
blackout provision might provide the weaker leagues would be more than offset by the detrimental impact such a provision would have on the growth of cable television. I submit that a blanket policy of protecting home gate receipts for all professional team sports, without regard to the existnig financial health of particular sports, is unwarranted and unnecessarily restrictive.
If this Committee, however, believes that it is necessary national policy to protect the home receipts of professional sports teams, then I believe due care should be addressed to the existing overbreadth of Subsection 111 (c)(4)(C). Congress in the past chose to limit blackouts to what was reasonably necessary to protect gate receipts. Surely nothnig more is required here.
The following are some of the aspects of the subsection's overbreadth. First, it is not limited to days on which a team in the market is playing at home. Indeed, it is not even limited to markets which have a local team in the league, or even the sports, to which the blackout would apply. Second, it applies even where none of the local stations is interested in broadcastnig the event in question. Third, it is not limited to the geographic area critical to home gate receipts. When the limitation on the antitrust exemption was debated, cable television with its unique ability to pinpoint audiences, was not considered. It differs significantly from television broadcasting which transmits to the public for up to a radius of sixty miles. Since once broadcast the signals of a television station are not selectively blocked, the only practical solution to protecting home “draw” available to the Courts and the Congress, at that time, was to permit the blackout of broadcasts by local stations in the team's market when the team was at home. The incidental but necessary effect of this approach was to black out an area much larger than was necessary to protect the home territory. Since the reach of a cable television system is limited to its own community, blackout provisions applicable to cable television can and should be limited to the geographic area reasonably necessary to protect the home gate.
We submit that the problems of defining the area of protection, which may differ from sport to sport, market to market, and year to year, as well as the ability to grant waivers for equitable reasons, demand a flexible approach to regulation which cannot adequately be met by the necessary rigidity of copyright legislation. Such flexibility could be provided by the Federal Communications Commission, and we believe that delegated appropriate authority to the FCC for regulation in this area would be fare more appropriate than giving professional sports programming rigid, preferential treatment in copyright legislation.
If some form of preferential treatment for sports programming is deemed necessary by this Committee, then I suggest the following alternative for a sports blackout provision :
“A cable system, located within the urbanized area of a city in which a professional baseball, basketball, football, or hockey team is permanently headquartered, which carries secondary transmissions of distant stations pursuant to a compulsory license as provided for herein, may be required to delete programs on such signals embodying home games of such team, if the home team or its league has made the game unavailable to all television stations which serve the city in which the cable system is located. Cable systems in existence on the date of enactment of this ACT shall not be required to delete such programs."
Thank you for your courtesy and consideration.
STATEMENT OF REX A. BRADLEY, PRESIDENT, TELECABLE CORP., BEFORE THE SUB
COMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS OF THE SENATE COMMITTEE ON THE JUDICIARY
My name is Rex A. Bradley. I am President of TeleCable Corporation with offices at 740 Duke Street, Norfolk, Virginia 23510. I am also a member of the Board of Directors of the National Cable Television Association, Inc. TeleCable is the sixteenth largest cable television company in the United States which, through its subsidiaries, operates thirty-three cable television systems located in South Carolina, Georgia, Alabama, North Carolina, West Virginia, Illinois, Wisconsin, Virginia and Kansas. Because the members of the public who avail themselves of my company's cable television services desire more diverse programming, at more convenient viewing times, I am vitally interested in those sections of S. 1361 which affect cable television operations.
It is my understanding that Subsection 111(c) (4) (C) provides a sports blackout applicable to the reception and distribution of television broadcast signals by cable television systems. It is to that specific subsection that I wish to address my comments.
While I am not a lawyer, I understand that professional football, baseball, basketball and hockey clubs have been afforded special treatment under the Federal antitrust statutes, to enable them to pool their separate rights for television and radio broadcasting without violating the national anticompetitive policy, and also to prevent such pooling contracts from being used to impair college broadcast receipts.
If the sports blackout” subsection is enacted as presently written, a cable television system in a television market would be prevented from carrying a live professional team sports event if an authorization to broadcast that event has not been secured by any broadcast station within the local service area of which the system is located.
I believe that this cable sports blackout provision goes far beyond a restatement of the existing national antitrust policy, and is unrelated to the reasons for, and the purposes of, the exemption from the antitrust laws granted by Public Law 87–331. Furthermore, in the context of this copyright bill, only sports programming receives special treatment; all other types of commercially broadcast programs are treated the same in determining whether their secondary transmission will be subject to a compulsory license.
I have examined my company's cable television systems signal complement in the light of the proposed sports blackout provision and I find that twenty-one of the thirty-three systems would be immediately, and adversely, affected. Furthermore, it is my opinion that almost every new cable television system would also be seriously affected.
As I understand the purpose of the antitrust exemption, it was, first, to allow pooling arrangements so that the “draw area" of certain types of professional sports teams could be protected. This area has not been clearly defined—it is some times called "the home territory”—but I believe that an appropriate area would be the urbanized area, as defined by the U.S. Census Bureau, which is an area sufficiently large to protect a home team's gate receipts, if protection is deemed necessary.
I am sure that this Committee is aware, however, that there is much debate about whether such protection is necessary. I understand that Senator Pastore has introduced S. 1841, a Bill which would place a one-year moratorium on such blackouts under certain circumstances. Further, the Federal Communications Commission has under consideration, in Docket 19417, proposed rules which will deal with the carriage of sports events by cable television systems.
In these circumstances, the expansion of the "black-out” area from the home territory necessary to protect the gate receipts of certain sports teams to the service area of a television station-an area encompassing hundreds of square miles—would be most unwise. It seems to me to be better public policy to refine the antitrust exemption rather than place such rigid concepts in a copyright revision Bill.
I also believe that the exemption to the anti-trust statutes identifies only four major team sports : Football, Baseball, Basketball and Hockey. The language of the sports blackout provision in S. 1361 would expand that protection to all professional team sports from soccer to the roller derby. If it was the judgment of the Congress that restrictions should be placed on the extent of the exemptions to our anti-trust laws, which I believe is a valid and necessary one there has been little or no justification, in the public interest, to reverse that judgment. If for no other reason alone than to limit the erosion of our anti-trust laws, the present sports blackout provision of S. 1361 should be rejected.
The anti-trust exemption was designed to protect a local “member club" on the day when it was playing at home from a broadcast of that home game. As I read the sports blackout provision of this Bill, any sports event will be blacked out unless it is being broadcast by a local television station. In my experience a Redskin fan is a Redskin fan, and carriage of a Philadelphia Eagles-New York Giants game on a cable system in Rockville, Maryland, even if that game is not broadcast by a Washington television station will not keep that fan from Kennedy Stadium, if he can get tickets to the Redskins' game. If this sports blackout provision is enacted as written, it will require cable television systems to blackout broadcasts of Rams Forty-Niners games in towns as far away as Lexington Park, Maryland, unless it is carried on a local station. I cannot see how this is consistent with the present anti-trust exemption or how it serves the public interest.
It is my understanding that the anti-trust exemption provides protection only when a football baseball basketball, or hockey team, through its league, has
prohibited a local broadcast. The blackout provision here would go farther. Even if a team or league had offered the program to a local television broad. caster, who turned it down for one reason or another—that game could not be carried by importing a television station from a more distant city which had decided to broadcast the game. Here the standard is that the local station must have received, in hand, authorization to broadcast the game. How does it serve the public's interest to prohibit carriage of a team sports event if the local broadcaster chooses not to get broadcast authorization ? It seems clear to me that this provision also ranges beyond existing public policy or anti-trust statutory exemptions.
I think it is well to remember that the sports blackouts would be an illegal conspiracy in restraint of trade without the statutory exemption. It is submitted that when football teams alone receive almost $70 million this year from radio and elevision stations for broadcast rights, and advertisers are charged $210,000 a minute for their messages during the Super Bowl, the sports blackout need not be further expanded.
In any event, cable television viewers in mostly remote and rural areas have come to depend on a variety of sports for part of their television entertainment. It would not be in the public interest to deprive viewers of programs to which they have become accustomed over a period of many years.
Lastly, I believe that in the rapidly developing fields of professional sports and cable television, it would better serve the public interest to provide a mechanism which would remain flexible, so that changes in the public interest could be accommodated. By deleting the present sports blackout provision and leaving regulation of the carriage of such programs to the Federal Communications Commission, that mechanism can be achieved.
As FCC Chairman Bean Burch testified last year, before the Senate Subcommittee on Communications of the Committee on Commerce :
"The Commission is well aware of the facts of sports blackouts. Each new football season brings us a steady stream of complaints that a particular television station is not televising a particular game because of a blackout provision.
“There is also the background matter of cable television and sports blackouts. We instituted a rule making proceeding in the entire area of cable's sports carriage on February 2, 1972, the same day the Commission adopted its new rules for cable television.
"To focus the proceeding, we proposed a specific rule to deal with Section 1292 and requested comment on other possible rules to carry out the purposes of the law as a whole. Under our proposed rule, when a major league football, baseball, basketball, or hockey team is playing at home, a cable system licensed to the home city of a team may not carry a professional game of the same sport unless it is available on a local station. (In this event, of course, it must be carried.)"
Chairman Burch pointed out that the public was better served by access to the broadcast possible range of programming made available to the largest possible public. He stated that impact on sports teams “must, of course, be balanced against the desire of the public for the most diverse possible menu of sports programming."
I believe that it is highly unfair to the American public to further deprive them of the right to watch televised events of the professional sports business.
I respectfully urge this Subcommittee to remove Section 111(c) (4) (C) from this Bill.
Thank you for the opportunity to be heard. If you should desire a supple mentary statement showing examples of how the purposed sports blackout would affect my company's cable television systems, I would be happy to provide it.
Mr. BRENNAN. The next witnesses appear on behalf of the National Collegiate Athletic Association.
Senator McCLELLAN. All right, gentlemen. Have a seat.
Mr. BRENNAN. Gentlemen, you have 12 minutes for your part of the presentation.
Mr. Higgins, would you identify yourself and your associate for the record, sir?
Mr. Higgins. Yes, sir. I am James B. Higgins, athletic director at Lamar University in Beaumont, Tex. I'm speaking to the concerns and interests of the National Collegiate Athletic Association. As a member of the NCAA's Television Committee, and chairman of our cable television subcommittee, I am supposed to keep abreast of our concerns with the cable industry.
Mr. THOMAS. Mr. Chairman, my name is Ritchie Thomas. I am associated with the law firm of Cox, Langford & Brown, Washington counsel for the National Collegiate Athletic Association.
I may say that we understood that we had 15 minutes, so we may go a couple minutes over.
Senator McCLELLAN. Gentlemen, we do have another vote scheduled for 4:30. We have an hour, but sometimes we ask some questions. And so, if you are through within that hour, I will be satisfied.
I try, in allocating the time, to be as fair as I could, but I realize sometimes presenting a statement the witness feels like he wants to further emphasize his point, he doesn't quite get through, and we try to take those things into consideration.
So you may proceed.
STATEMENT OF JAMES B. HIGGINS, CHAIRMAN, CATV SUBCOM
MITTEE, NATIONAL COLLEGIATE ATHLETIC ASSOCIATION; ACCOMPANIED BY: RITCHIE T. THOMAS, ESQ., OF COX, LANGFORD & BROWN, WASHINGTON COUNSEL, NCAA
Mr. HIGGINS. The members of the National Collegiate Athletic Association have a vital interest in the cable television provisions of the copyright revision legislation, Senate bill 1361, which is the subject of these hearings, and we appreciate the opportunity to appear today and explain our interest and our concerns.
The provisions ultimately incorporated into this legislation will broadly define the conditions under which cable television systems will be authorized to intercept programing broadcast over the air by television broadcast stations and carry those programs to cable system subscribers who may be located hundreds of miles away from the site of the broadcast.
The NCAA strongly believes that if serious injury to high schools and colleges is to be prevented, the authorization for such secondary transmissions by cable systems must be qualified in two special respects (1) In order to avoid the special and injurious impact unlimited secondary transmissions of broadcast television programs would have in the case of intercollegiate sports, cable systems should be denied authority under the blanket copyright license provisions to make secondary transmission of intercollegiate sports events to areas where they are not carried by local television broadcast stations. And I would like to come back to that point later.
(2) In order to avoid serious erosion of the protection which Congress extended to high schools and colleges in the Telecasting of Professional Sports Contests Act, which is Public Law 87-331, and regardless whether it makes any other specific provision regarding secondary transmission of professional sports events, the legislation should specifically deny cable systems authority to make secondary transmissions of professional football games into areas where telecasts are prohibited under section 3 of that act.
A little backround on the NCAA itself. It is voluntary, nonprofit, education organiaztion composed of 771 members of which almost 700 are 4-year colleges and universities. The membership provides intercollegiate competition in 24 different sports in which each year more than 175,000 students compete.
A basic purpose of the association is to initiate, stimulate, and improve intercollegiate athletic programs for student athletes.
Of these sports programs there are only two, in fact only one sports program which makes any money for the colleges. Our football program takes in dollars, and our basketball program just about breaks even at most universities and colleges. Tennis, track, field, swimming, golf, all of the other programs provide no income.
We usually take what, if any, profits we make from our football and basketball programs and support these other programs. In support of these programs, the NCAA members annually spend over $237.4 million in the administration and conduct of intercollegiate competition. As I have pointed out, for most of these institutions, income from attendance from these major sports events is a substantial source of income of economic support for their programs. But there are only about 85 of all these 700 members whose intercollegiate programs are operated in the black. The programs are subsidized by the institutions or the State legislature because they feel that it is important to the national and local interest.
Getting back to point No. 1, in about 1951, the NCAA saw the impact that the media of television was going to have on our athletic programs, and appointed a committee to develop a television plan to control that impact.
We were very much afraid of the impact of television on the instadium attendance.
Now, we'd like to point out that the plan that we operate. I would like to read the purpose of the plan—that this plan is modified, improved, brought up to date every 2 years and it's been in effect now about 22 years. Through this plan, we control our television programing, and it is really more of a plan to protect the members from the impact of television upon the instadium attendance than it is for the dollars it generates.
We state that the purpose of this plan shall be: To reduce as far as possible the adverse effects of live television upon football game attendance, and in turn upon the athletic and related educational programs depending upon the proceeds therefrom; to spread football television participation among as many colleges as practicable; to promote college football through the use of television; to advance the overall interest of intercollegiate athletics; and to provide college football television to the public to the extent that they are compatible with these other objectives.
The provision of this plan is that we have about 15 dates a year, 15 Saturdays, in which we telecast football. If we telecast one game each Saturday, that would only accommodate 30 colleges, if they were all different schools. So to spread the exposure and what income is derived, we devised a system where on some weekends we would have regional telecasts. We'd have one game each on the east coast, the