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west coast, the Midwest, the South, the Southwest, maybe five in all. And we restrict the telecast of these games just to that area, so that there is only one game being telecast in any given area in the United States. We do that, as I stated, to increase exposure so that in all more schools are included and more schools benefit from the income.

However we don't want more than one game on television in any area. That is because we have myriads of colleges, small and large, playing and if we had all of these games on in every area, we would be smothered. A good example of what would happen-relating to my point No. 1–if capable systems were to be able to pick up distance signals of these regional games is provided in my area, in Texas. The only game we might have on local television would be, for instance, Arkansas and Texas Tech. And if I know that telecast is scheduled for a certain time of the day, say they're going to play at 2 o'clock, I schedule my game at night, or if it's going to be at night, I schedule my game that day.

We are going to be bothered by any game that people are interested in, they will be watching it. If cable television comes in, however, they may also pick up the game on the east coast. It might be Penn StateNotre Dame, and start about 11 o'clock in the morning. Next, they will pick up the midwest game, it could be Michigan State-Michigan or LSU-Mississippi, and end up on the west coast with UCLA or somebody like that on the screen until 9 o'clock that night.

There is no place for us to run. Many, many schools and colleges will be disrupted in trying to attract a crowd, and for this reason, we would be in serious trouble. Without express limitations, obviously there would be nothing to prevent that.

My second point concerns the impact of professional games. Under this Public Law 87-331, Congress protected the colleges and high schools from the pros on Saturdays and Friday nights. The law does however, allow them to telecast if there is not a high school or a college game being played in the area.

For instance, Atlanta Falcons are playing up in Minnesota, and the NFL determines there is no college game and no high school game within 75 miles from Atlanta. The market is there and they probably will telecast that game back to Atlanta. And they wouldn't hurt anybody, they wouldn't hurt any high school game or any college game.

If, however, cable comes in, and picks it up off the air—and particularly later when the technology is more advanced, and they are able to interconnect--this game could be carried by interconnecting cable all over the United States into many communities which are trying to have a local school or college football game, whether it was Honolulu or Arizona, or wherever. We think certainly this protection the Congress gave us in Public Law 87–331 should be protected from this kind of erosion by cable.

Returning to telecasts of collegiate sports, as another example, we have the sellout exception. We may have scheduled one game to be shown all over the Nation that day, maybe University of Southern ('alifornia and Notre Dame. However, the Texas-Oklahoma game in Dallas is sold out. People in Dallas can't get a ticket. People in Norman can't get a ticket, and people in Austin can't get a ticket, and it's not going to be televised.

So the plan allows that game to be televised in only those three communities. Obviously, their supporters should have an opportunity to see it, buy a ticket, or see it on television, and the network which buys our national program, they know this. They say, well, okay, we're going to lose those three markets. That's okay. We are going to buy the program with that limitation.

But what happens and has already happened, a cable company puts up their antenna and picks up the limited telecast and carries it to additional wide areas. I believe the last count_I forget how many thousand homes in the Texas Panhandle and Oklahoma where this Texas-Oklahoma game was pirated and shown. Obviously this hurts local colleges, and the big advertisers, the Chevrolet people, the people who advertise the NCAA package, they wonder why they should be spending their money on the NCAA package when their rival, Ford Motor Co., picked up the 'Texas-Oklahoma game, which was a whole lot better game, and had a lot more interest. As a result, our package is less valuable.

These are the salient points of our problem.

We think if the limitations we request are not placed on the cable TV systems, then the end result will be less college television. The big schools, the Notre Dames, the Ohio States, the Penn States, the Alabamas and Texas Universities, those people are going to be on television. But the people who will get hurt are the small schools that are getting some exposure because of our plan, because we spread out these exposures.

And if the protection will no longer be there, then those schools who are trying to regenerate in-stadium attendance will suffer. In addition, our plan diverts some of the money to the smaller schools. If no limitations are imposed on secondary transmissions of collegiate sports events, we think our plan will be completely disrupted, and would

blow up.

Moreover, we believe that the secondary transmission authority should include a provision which extends to high schools and colleges the same protection in the case of secondary transmission of professional football games by cable systems as that which they now possess from television broadcasts of those games.

And in conclusion, the NCAA strongly believes that the limitations on cable systems' secondary transmission of sports events which we have requested are of vital importance to the colleges, junior colleges and high schools of the United States. We believe that these limitations are in the public interest, and that they must be incorporated into any legislation granting cable systems broad rights to make secondary transmissions of a television broadcast.

Senator McCLELLAN. All right.
Mr. Higgins, thank you very much.
[The prepared statement of Mr. Higgins follows:]

STATEMENT OF JAMES B. HIGGINS, CHAIRMAN, NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION CABLE TELEVISION SUBCOMMITTEE, BEFORE THE SUBCOMMITTEE ON PATENTS, TRADEMARKS AND COPYRIGHTS

The members of the National Collegiate Athletic Association has a vital interest in the cable television provisions of the copyright revision legislation (S. 1361) which is the subject of these hearings, and we appreciate the opportunity to appear today and explain our interest and our concerns.

I. INTRODUCTION AND BACKGROUND The provisions ultimately incorporated into this legislation will broadly define the conditions under which cable television systems will be authorized to intercept

censed by agreement of the parties, such unauthorized transmissions will be actionable as acts of copyright infringement and subject to the infringement remedies provided by the bill.

As originally prepared by this Subcommittee, Section 111(c)(4) (C) of the bill would deny authority to make secondary transmissions of a live telecast of an organized professional team sporting event in areas where local stations are not broadcasting that contest. Should this provision be retained in the modified version of the bill, the protection requested by the NCAA could be extended by an amendment to cover amateur sporting events as well. Certainly it seems clear that amateur sports should be given treatment in the bill at least as favorable as that accorded professional sports. Regardless whether special provision is made for professional sports, however, we believe protection of the kind we have outlined is independently justified as required in the best interests of interscholastic and intercollegiate sports programs.

III. CABLE SYSTEMS SHOULD BE DENIED AUTHORITY TO MAKE SECONDARY TRANSMIS

SIONS OF PROFESSIONAL FOOTBALL GAMES INTO AREAS WHERE TELECASTS ARE PROHIBITED UNDER SECTION 3 OF PUBLIC LAW 87-331

In addition, the NCAA wishes to point out that when Congress gave professional sports clubs a special exemption from the antitrust laws so that they could sell telecasting rights to their games on a pooled basis, it included a provision designed to protect high schools and colleges from the disastrous impact on in-person attendance at their games of conflicting telecasts of professional football games. That provision, (Section 3 of the Telecasting of Professional Sports Contests Act, Public Law 87–331), cancels the antitrust exemption as to any agreement which permits a Friday evening or Saturday telecast of a professional game from a station within 75 miles of a scheduled interscholastic or intercollegiate football game, during the period beginning on the second Friday in September and ending the second Saturday in December.

So long as the copyright revision bill contains an exception from the general copyright authority in the case of secondary transmissions of professional team sporting events into areas where television broadcasts had not been authorized, the provisions of Public Law 87–331 are (at least in part) indirectly imposed on cable systems. Removal of the exception for professional sports telecasts, however, would raise the possibility that CATV systems will be at liberty to carry professional games in direct conflict with high school and college contests.

Under Public Law 87-331, a professional game may be telecast on a Friday night or a Saturday during the protected period so long as no high school or college game is scheduled to be played within 75 miles of the transmission site. Telecasts of professional games may be, and have been, freely made in areas where there are no local high school or college games on the day concerned. It is frequently the case, for example, that NFL games will be telecast nationwide by CBS and NBC in December, avoiding, however, telecasts in areas where local high school or college games are to be played.

Unless the secondary transmission authority is appropriately conditioned, therefore, telecasts of such games could be picked up by cable systems and carried to subscribers in areas many miles from the broadcast site where there are local high school or college games. The effect of the telecasts of professional football games on local high school or college games is well established, and it is clear that the impact of such cable carriage on intercollegiate and interscholastic sports programs would be disastrous.

Accordingly, we believe that the secondary transmission authority should include a provision which extends to high schools and colleges the same protection in the case of secondary transmissions of professional football games by cable systems as that which they now possess from television broadcasts of those games.

IV. CONCLUSION The NCAA strongly believes that the limitations on cable system secondary transmissions of sports events which we have requested are of vital importance to the colleges, junior colleges and high schools of the United States. We believe that these limitations are in the public interest and that they must be incorporated into any legislation granting cable systems broad rights to make sec ondary transmissions of television broadcasts.

Mr. BRENNAN. The final witnesses of this hearing are the representatives of the professional leagues.

The current football television plan calls for network telecasting of Saturday games, with nationwide telecasts of a single game in some weeks and in other weeks a series of regional games being telecast. Opportunity is also afforded for the local telecasting (or cablecasting) on a limited number of stations of games of great interest in a particular college community, under specified circumstances and only if no appreciable damage will be done to any concurrently conducted college game. Friday night telecasts are authorized only if no injury will be done to concurrently conducted college, junior college or high school games.

This arrangement permits a wide diversity of colleges and universities to appear on national or regional television: an average of 55 colleges will appear on network telecasts in any year. Income from such appearances typically is. received by other members of the conferences to which the participants belong as well as by the participants themselves, with the result that on the average 220 colleges and universities share in this income each year. Taking local telecasts into account, in 1972, 90 members of the NCAA made 158 appearances on some form of simultaneous television pursuant to the plan. Seventy-four of these appearances were on national television. Twenty-one games were telecast in local areas (ranging from Hartford to Honolulu) under the provisions governing such telecasts.

A somewhat similar plan has been designed in order to permit the telecasting of games in the National Collegiate Basketball Championship, again containing limited restrictions appropriate to provide necessary protection to in-person attendance. In general, the tournament television policy provides that firstround, regional and national finals games may be televised via stations located more than 180 miles from the game site (120 miles in the case of first-round games) and that such games may be televised without geographical restrictions provided the games are sold out at least 48 hours prior to first-round and regional games or 72 hours prior to the finals games. In addition, the basketball telecasting policies of the various intercollegiate conferences, although diverse, generally take account of the impact of telecasts on concurrently scheduled contests.

The vast coverage potential of cable television systems threatens the effectiveness of these control systems, to the extent that cable television systems can and do appropriate the authorized telecasts for proliferated transmission into areas where only measured impact of telecast games upon games in progress is contemplated by the control plans. The premises of the exceptions granted for local telecasting of intercollegiate football games are completely vitiated when a CATV system appropriates the right of the authorized local telecast and carries it into other areas, where local high school or college games are being played. The same result occurs when a cable system carries a basketball championship game into the locality of the game in circumstances where the plan does not provide for local telecasting. The arrangement for regional telecasts will become unworkable, because cable systems able to import games telecast in other regions may carry three or four college games staggered (because of time zone differences) throughout the day on Saturday, greatly increasing the impact on attendance at local games.

As a consequence, these plans would collapse, and there would be less rather than more college sports coverage available to the television viewer. In the case of football, only the top 20 or 30 collegiate football powers would be seen on national television, because without the discipline of these plans both networks and local stations will be principally interested in telecasting the most attractive major college games. Smaller colleges will be effectively denied access to national or regional television, and athletic programs will suffer at colleges and universities, which are not national football powers—including all of the members of conferences which will no longer be represented on national television.

In the case of both of these plans, the principal concern of the NCAA is not the impact widespread cable carriage of the telecasts concerned may have on the revenues from network telecasting. The fundamental problem is the loss of control over-and thus the ability to mitigate—the impact of telecasts of intercollegiate sports events on in-person attendance at local games.

The NCAA believes that these effects can and should be regulated through protection against unauthorized appropriation and transmission of telecasts afforded by the copyright laws. To this end we urge that the modified cable television provisions of S.1361 be fashioned so as to deny cable system authority to make secondary transmissions of intercollegiate sports events into areas where television broadcasts are not authorized, with the result that, unless licensed by agreement of the parties, such unauthorized transmissions will be actionable as acts of copyright infringement and subject to the infringement remedies provided by the bill.

As originally prepared by this Subcommittee, Section 111(c) (4) (C) of the bill would deny authority to make secondary transmissions of a live telecast of an organized professional team sporting event in areas where local stations are not broadcasting that contest. Should this provision be retained in the modified version of the bill, the protection requested by the NCAA could be extended by an amendment to cover amateur sporting events as well. Certainly it seems clear that amateur sports should be given treatment in the bill at least as favorable as that accorded professional sports. Regardless whether special provision is made for professional sports, however, we believe protection of the kind we bave outlined is independently justified as required in the best interests of interscholastic and intercollegiate sports programs. IIL, CABLE SYSTEMS SHOULD BE DENIED AUTHORITY TO MAKE SECONDARY TRANSMIS

SIONS OF PROFESSIONAL FOOTBALL GAMES INTO AREAS WHERE TELECASTS ARE PROHIBITED UNDER SECTION 3 OF PUBLIC LAW 87-331

In addition, the NCAA wishes to point out that when Congress gave professional sports clubs a special exemption from the antitrust laws so that they could sell telecasting rights to their games on a pooled basis, it included a provi. sion designed to protect high schools and colleges from the disastrous impact on in-person attendance at their games of conflicting telecasts of professional football games. That provision, (Section 3 of the Telecasting of Professional Sports Contests Act, Public Law 87–331), cancels the antitrust exemption as to any agreement which permits a Friday evening or Saturday telecast of a professional game from a station within 75 miles of a scheduled interscholastic or intercollegiate football game, during the period beginning on the second Friday in September and ending the second Saturday in December.

So long as the copyright revision bill contains an exception from the general copyright authority in the case of secondary transmissions of professional team sporting events into areas where television broadcasts had not been authorized, the provisions of Public Law 87-331 are (at least in part) indirectly imposed on cable systems. Removal of the exception for professional sports telecasts, however, would raise the possibility that CATV systems will be at liberty to carry professional games in direct conflict with high school and college contests.

Under Public Law 87-331, a professional game may be telecast on a Friday night or a Saturday during the protected period so long as no high school or college game is scheduled to be played within 75 miles of the transmission site. Telecasts of professional games may be, and have been, freely made in areas where there are no local high school or college games on the day concerned. It is frequently the case, for example, that NFL games will be telecast nationwide by CBS and NBC in December, avoiding, however, telecasts in areas where local high school or college games are to be played.

Unless the secondary transmission authority is appropriately conditioned, therefore, telecasts of such games could be picked up by cable systems and carried to subscribers in areas many miles from the broadcast site where there are local high school or college games. The effect of the telecasts of professional football games on local high school or college games is well established, and it is clear that the impact of such cable carriage on intercollegiate and interscholastic sports programs would be disastrous.

Accordingly, we believe that the secondary transmission authority should include a provision which extends to high schools and colleges the same protection in the case of secondary transmissions of professional football games by cable systems as that which they now possess from television broadcasts of those games.

IV. CONCLUSION The NCAA strongly believes that the limitations on cable system secondary transmissions of sports events which we have requested are of vital importance to the colleges, junior colleges and high schools of the United States. We believe that these limitations are in the public interest and that they must be incor porated into any legislation granting cable systems broad rights to make secondary transmissions of television broadcasts.

Mr. BRENNAN. The final witnesses of this hearing are the representatives of the professional leagues.

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