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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 hy 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 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 secondary transmissions of television broadcasts.
Mr. BRENNAN. The final witnesses of this hearing are the representatives of the professional leagues.
Would you please come forward.
Mr. VANDERSTAR. My name is John Vanderstar. I'm an attorney in Washington for the firm of Covington & Burling representing the National Football League, and I'm appearing here on behalf of Commissioner Rozelle.
Mr. Kuhn. And my name is Bowie Kuhn. I am commissioner of baseball, and here I'm representing the professional baseball.
Mr. Ruck. My name is Don Ruck. I'm vice president of the National Hockey League, and I'm representing the member clubs of the National Hockey League.
Mr. HOCHBERG. My name is Phillip Hochberg. I am counsel to the National Hockey League.
Mr. KAUFMAN. My name is Robert M. Kaufman. I'm a member of the firm of Proskauer, Rose, Goetz & Mendelsohn, counsel to the National Basketball Association, and I represent the commissioner of the National Basketball Association.
Mr. BRENNAN. Commissioner, do you wish to be the first man at bat?
Mr. Kunn. I would like to. I appreciate the idiom you use, Mr. Brennan.
Mr. BRENNAN. I'm surprised there is no designated pinchhitter from the two leagues.
Mr. Kuhn. He is doing so well we left him in the stadium and they sent me here alone.
STATEMENTS OF BOWIE KUHN, COMMISSIONER OF BASEBALL,
BASEBALL LEAGUES; DON V. RUCK, VICE PRESIDENT, NATIONAL HOCKEY LEAGUE; JOHN VANDERSTAR, COUNSEL, NATIONAL FOOTBALL LEAGUE; ROBERT M. KAUFMAN, COUNSEL, NATIONAL BASKETBALL ASSOCIATION; AND PHILLIP HOCKBERG, COUNSEL, NATIONAL HOCKEY LEAGUE
Mr. Kuhn. Let me say first, Mr. Chairman, I am delighted to be here with you and to give my views to your committee. We have submitted an extensive statement to the subcommittee.
Senator McCLELLAN. Your statement will be printed in the record in full, and you may highlight it.
Do you have others who have statements?
Senator McCLELLAN. Each of the witness statements may be printed in full in the record, and you make your presentation by highlighting your statements and your position as you choose.
Mr. Kuhn. Thank you, Mr. Chairman. I'll just take a few minutes and try to highlight and give some perspective on the statement we have submitted. I'm speaking on behalf of not only Major League Baseball and its 24 clubs, but on behalf of Minor League Baseball and 127 clubs in the 17 leagues in the United States.
We support the copyright revision bill as it has been prepared, and particularly we support section 111 of that bill. I say that for this reason, Mr. Chairman, we feel that the control, which the bill as proposed, would give to professional sports and professional baseball, for whom I speak—is vital to the health of our professional game, and to these 151 cities where we present baseball to the United States.
As you know, I believe, Mr. Chairman, we sell our broadcasting rights on both a national and local basis. We sell a package to the National Broadcasting System for the World Series, the National All Star Game, the Saturday Game of the Week and the Monday Game. We also sell 24 separate local packages. Each major club sells a local broadcasting package to stations or sponsors.
This is a very important part of our business, 25 percent of our revenue, approximately, over the years has come from broadcasting, and I would anticipate that this percentage may very well increase.
It is vital to us that this revenue be protected, and I say that for some very practical reasons, that we in professional baseball are faced with. Today, the overall position of our major league industry is in a loss position financially and has been so for several years. I am hopeful, of course, that this will be changed, but that is a difficult fact that we are presented with today.
Over one-half of our clubs are losing money today in their present operations. They exist and operate because they are operated by men who have a very strong sporting instinct, who are devoted to our game, and who want to be a part of it.
Senator McCLELLAN. Why are they losing money?
Mr. Kuhn. I am coming to that. What I'm going to say, Mr. Chairman, let me jump ahead and say this.
Senator McCLELLAN. All right. You may proceed. I would just like to have some comment about it.
Mr. Kuhn. All right.
The 127 minor league clubs that exist throughout the United States could not exist, and this is a critical part of the answer to your question, Mr. McChairman, without the subsidy provided by the major leagues. The cost of player development
Senator McCLELLAN. In other words, it is maintaining the farm team that is where the great emphasis
Mr. Kuun. Yes; that is correct.
Mr. Kuhn. The minor league clubs? They do here and there, yes; but in the main they do not. An exceptional operation may be profitable but in the main they do not because they exist, again because in 127 or the better part of 127 cities around the country you have as you do in the major leagues, sports-minded people who want to see professional baseball presented in their towns.
And I may say with respect to those 127 minor league towns that in most of them professional baseball is the only professional sport presented, and forms a critically important part of the entertainment for the citizens of those communities. And I would emphasize here the importance of the entertainment.
Senator McCLELLAN. They are not supported by gate receipts alone, are they?
Mr. Kuhn. No; they are not. They're supported by basically two things or perhaps basically three things. They are supported by gate receipts in part. They are supported by concession receipts, which are really important in the minor league, and they are supported by the subsidy provided by the major league clubs to the minor league clubs.
Senator McCLELLAN. And in some instances, they are supported also by public subscription, aren't they?
Mr. Kuhn. Yes, sir. They certainly are, and by what might be referred to as the charity of the men who finance the clubs, which is another public subscription.
I think there is a very great danger to professional baseball, if we have uncontrolled telecasting of baseball. The vital part of our broadcast picture at the major league level is this local package that each club sells, that I described a moment ago. These are sold on an exclusive basis, and their value unquestionably is greatly hinged on the ability of the local club, whether it's the Phillies, the Yankees, or whoever, to sell exclusively in their market territory.
If there is a prospect, as we think there is, a dangerous prospect of an infusion of distant signals carrying other baseball broadcasts to these markets, surely the value of these exclusives is going to be greatly diminished. And I might say, Mr. Chairman, that when we telecast our games locally, the main part of our telecasting is away games, about 75 percent of the games that we telecast are our away games, not our home games.
Therefore, we are concerned with the protection of that exclusive of both the away games we telecast as well as the home games we telecast. And we are further concerned, and this is where we see a great danger at both the major- and minor-league levels of the effect on the home games. At both levels, it is the sincere opinion of our operators, and of myself that if there is uncontrolled television coming into the market, our ability to sustain our home gates, as we now sustain our home gates, will be greatly diminished. In other words, it will be a form of competition for home gates.
Now, in the comments I have heard earlier today there was a great emphasis on football, which has the wonderful situation of having largely sold its ballparks at the major league level. That is not true in professional baseball. While our attendance is enormous, we are not able to day-after-day sell our entire ballparks.
And it is of vital importance to us that we maintain the protection of our home gate, and we feel this uncontrolled television coming in would have a very adverse effect upon our home gate. We think the evidence that this is a real danger is quite dramatic from what we have submitted. We have been given some new information that we have developed recently, and the burden of that is this:
Since the new FCC regulations, in the year ended April 1, 1973, 304 CATV permits have been granted by the FCC in major league territories; 304 in major league territories and of those 304, 171 are right in major league cities.
Let me take some specific examples which point up the danger that we think affects it. Take Milwaukee where the Brewers play, and telecast a great many of their games; unless the copyright revision bill is passed with section 111, it will be possible under present regulations to have 277 games now being telecast by the Cubs and the White Sox in Chicago made available for telecast in Milwaukee.
The Chicago Cubs are on WGN. The White Sox are on WSNS. They are both independent stations. The Cubs do 148 of their games annually, the White Sox, 129; 277 total. All of these will be available to go into Milwaukee.