[Senate Hearing 113-847]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 113-847

                   THE FANS ACT: ARE SPORTS BLACKOUTS
                 AND ANTITRUST EXEMPTIONS HARMING FANS,
                  CONSUMERS, AND THE GAMES THEMSELVES?

=======================================================================

                                 HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            DECEMBER 4, 2014

                               __________

                          Serial No. J-113-75

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California         CHUCK GRASSLEY, Iowa, Ranking 
CHUCK SCHUMER, New York                  Member
DICK DURBIN, Illinois                ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island     JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota             LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota                JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE HIRONO, Hawaii                 JEFF FLAKE, Arizona
           Kristine Lucius, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director
                            
                            
                            
                            C O N T E N T S

                              ----------                              

                      DECEMBER 4, 2014, 10:20 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Blumenthal, Hon. Richard, a U.S. Senator from the State of 
  Connecticut....................................................     3
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     5
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
    prepared statement...........................................    54
Lee, Hon. Michael S., a U.S. Senator from the State of Utah......     6

                               WITNESSES

Witness List.....................................................    25
Goodfriend, David R., Chairman, Sports Fans Coalition, 
  Washington, DC.................................................     8
    prepared statement...........................................    30
Greenberg, Sally, Executive Director, National Consumers League, 
  Washington, DC.................................................    10
    prepared statement...........................................    34
Lake, William T., Chief, Media Bureau, Federal Communications 
  Commission, Washington, DC.....................................     7
    prepared statement...........................................    28
McCain, Hon. John, a U.S. Senator from the State of Arizona......     1
    prepared statement...........................................    26
Waldron, Gerard J., Partner, Covington and Burling, Washington, 
  DC.............................................................    12
    prepared statement...........................................    42

                               QUESTIONS

Questions submitted to David R. Goodfriend by Senator Grassley...    57
Questions submitted to Sally Greenberg by Senator Grassley.......    58
Questions submitted to William T. Lake by Senator Grassley.......    59
Questions submitted to Gerard J. Waldron by:
    Senator Franken..............................................    56
    Senator Grassley.............................................    60

                                ANSWERS

Responses of David R. Goodfriend and Sally Greenberg to questions 
  submitted by Senator Grassley..................................    61
Responses of William T. Lake to questions submitted by Senator 
  Grassley.......................................................    64
Responses of Gerard J. Waldron to questions submitted by Senator 
  Franken and Senator Grassley...................................    67

 
                   THE FANS ACT: ARE SPORTS BLACKOUTS
                    AND ANTITRUST EXEMPTIONS HARMING
               FANS, CONSUMERS, AND THE GAMES THEMSELVES?

                              ----------                              


                      WEDNESDAY, DECEMBER 4, 2014

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:20 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Richard 
Blumenthal, presiding.
    Present: Senators Klobuchar, Franken, Blumenthal, Grassley 
and Lee.
    Senator Blumenthal. Senator McCain, I was going to suggest 
if the Ranking Member agrees, that you go first and then we 
will give our opening statements.
    Senator Grassley. Yes, go ahead.

                 STATEMENT OF HON. JOHN MCCAIN,
            A U.S. SENATOR FROM THE STATE OF ARIZONA

    Senator McCain. I thank you, Mr. Chairman and Ranking 
Member Grassley, and I thank you for allowing me to testify and 
thank you to Senator Blumenthal for making this hearing happen. 
Senator Blumenthal's commitment to advocating for consumers has 
made him a valuable partner to work with on this issue, an area 
where the rules and regulations far too often leave consumers 
holding the short end of the stick. I am here this morning to 
discuss sports blackouts and to explain why the continued use 
of blackout rules and policies fail to serve the interests of 
consumers, in this case, loyal sports fans.
    I will truncate my opening statement just to say the simple 
fact is that the rules as they are today only serve to benefit 
sports leagues and their member teams at the expense of the 
hard-working fans who support them so loyally through their 
money, time, and passion. Just last year during the NFL 
wildcard playoffs, fans of the Cincinnati Bengals, Indianapolis 
Colts and Green Bay Packers came very close to experiencing 
blackouts when those games had not sold out just days before 
the kickoff.
    The blackouts in these regions were only averted when, at 
the last-minute, local businesses bought-up tickets to bring 
the total above the NFL's required threshold. Mr. Chairman, 
there is something wrong with a situation in which the NFL can 
say to all of those fans who have made the League what it is 
today, ``you had better purchase tickets or else.'' The NFL and 
its teams have benefited from myriad public benefits, including 
an exemption from antitrust rules, a specialized tax status, 
and taxpayer dollars that subsidize their multimillion dollar 
football stadiums.
    These public benefits carry with them a responsibility back 
to the public an obligation to treat their loyal fans with 
fairness. We have been chipping away at these rules for some 
time, but there is still a lot of work to do. This year I am 
happy, Mr. Chairman, to join you and introduce the FANS Act 
aimed at eliminating the various causes of sports blackouts. 
This legislation would condition the NFL and other leagues' 
antitrust exemptions on ending blackout practices including in 
those circumstances when stand-offs during contractual disputes 
between broadcasters and cable and satellite companies result 
in blackouts.
    We would strongly prefer that the League take the 
initiative itself and demonstrate leadership by reforming anti-
consumer policies and practices. But let us be clear, should 
the League fail to act, we should do everything we can to stand 
up for consumers by advancing the FANS Act and other 
initiatives.
    I look forward to hearing from the witnesses on the 
following panel on ways we can work together to finally blow 
the whistle on sports blackouts once and for all.
    I would like to say, again, Mr. Chairman, you come from a 
State where it is huge as far as sports broadcasting is 
concerned. So I particularly admire your courage on this issue. 
Again, it is just unconscionable to have average fans be 
deprived of the ability to see an activity in a stadium they 
paid for. So it is a no-brainer in many respects and if we are 
not able to succeed, it is frankly a triumph of the special 
interests over the public interests.
    I want to thank you for your leadership and I want to thank 
the Ranking Member who, as always, I have the greatest 
admiration for and respect. Thank you.
    Senator Blumenthal. Thank you so much Senator McCain. I 
really appreciate you being here. I know it is a busy day in a 
busy time of our closing days of this session and I want to 
express my personal thanks for your leadership and courage in 
sponsoring this bill and working with me on it and I look 
forward to continuing our work together.
    I know that you have another meeting and certainly you 
should feel free at any time to leave despite the powerful and 
riveting remarks that I am about to give. I know you will find 
it difficult to break away.
    [Laughter.]
    Senator McCain. Thank you. I would also like to invite 
Senator Grassley to come to Arizona for the Super Bowl and join 
many of his constituents who are smart enough to spend the 
winter with us. Thank you.
    [Laughter.]
    Senator Blumenthal. Thank you Senator McCain. We are going 
to give opening remarks and then, unfortunately, we are going 
to have to take a recess because of the votes that are ongoing 
right now. We are going to come back at the end of those votes, 
we hope not too long from now, in a little while to continue 
the hearing at that point with the remainder of the witnesses.
    I will give my opening remarks. Then Senator Grassley will 
give his.

         OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
          A U.S. SENATOR FROM THE STATE OF CONNECTICUT

    Senator Blumenthal. As Senator McCain said so eloquently, 
Americans really love sports and they deserve to see them on 
their terms, not on the terms that are prescribed by the 
professional sports leagues in blacking out what they think 
Americans should see rather than what Americans want to see on 
their terms. The competitive teams of professional football, 
baseball, hockey and basketball leagues represent a rich and 
vibrant part of our American culture. They contribute immensely 
to what makes America the greatest country in the history of 
the world.
    Professional sports leagues generate billions of dollars, 
thousands of jobs and critical economic activity in multiple 
industries. The Super Bowl is, in fact, the highest rated event 
on television and last year the NFL playoffs collectively 
accounted for the ten most-watched sporting events of the 
entire year.
    So these games are a part of what makes America great. Most 
of these games were carried on free over-the-air television and 
I believe we ought to keep it that way. Sports fans power this 
media and merchandising juggernaut by purchasing tickets and 
merchandise, watching games on TV and supporting their teams 
through thick and thin.
    These billion-dollar professional sports leagues derive 
almost half of their revenue from licensing TV rights to cable, 
broadcast and regional sports networks. Some estimate those 
rights cost upwards of $17 billion a year. A large bill, a 
large cost that is increasingly passed on to consumers in the 
form of higher monthly rates for cable and pay-TV and we have 
evidence of it at this very table when we have had recent 
hearings on some of the proposed mergers.
    Sadly, in return, fans and the public are often treated 
like a fumbled football, sometimes even a kicked football. When 
places like Buffalo, New York fail to sell out its 74,000 
person stadium, the Bills game is blacked out for local fans. 
When powerful cable companies and broadcasters failed to reach 
an agreement, it is often the threat of holding sports 
programming hostage that is used to negotiate higher fees. And, 
by the way, higher rates for consumers.
    Even the Internet cannot escape blackouts. When fans live 
too close to their favorite baseball team, but not close enough 
to actually watch them on television, they face online 
blackouts that force them to drive to the next city to catch a 
game. These blackouts are loathed by fans and rightly so, hated 
by consumers and even reviled by most of the industry 
stakeholders in the business of television.
    The good news is we can do something about it. The NFL, the 
NBA, the MLB and the NHL receive tremendous assistance, huge 
benefits from the Congress in puting their brands, their sport 
and their advertising before the American people. This public 
assistance takes several forms, but chief among them is the 
antitrust exemption enjoyed by the four major sports leagues.
    Essentially, every American company is bound by antitrust 
regulations that prevent coordination and price-fixing. Sports 
leagues are an exception. Almost a unique exception to this 
antitrust rule. In the Sports Broadcasting Act of 1961, 
Congress granted a special exemption from the rules that govern 
other companies permitting professional sports leagues to 
coordinate and fix prices for negotiating broadcast rights.
    The country affords these teams their special status 
because of their special role in American culture. But that 
does not give them the right to abuse this privilege and the 
Government certainly should not endorse abusive behavior. The 
public benefits come with a public trust.
    The FCC recognized this when they through a flag this 
September on the NFL's anti-fan blackout policy. Chairman 
Wheeler of the FCC announced at that meeting, ``Federal 
Government should not be a party to sports teams keeping their 
fans from viewing the games.''
    I am grateful that all five FCC Commissioners joined 
together in a bipartisan vote and repealed their blackout rule 
as I had called for there doing, along with Senator McCain, 
Senator Brown, Congressman Higgins and many more. But despite 
the FCC's actions in September, sports leagues and the NFL, in 
particular, retain the power to blackout games through their 
private contract agreements.
    I believe these blackout policies are anti-fan and anti-
consumer because they disregard the public trust that the 
leagues have because of the special benefits and public 
benefits that they receive and because of the trust they have 
to their fans and the teams. Moreover, these policies are an 
affront to the direct and indirect investment made by Federal 
and local governments that have provided tax exemptions, 
enhanced public transportation, infrastructure to stadiums and 
exemptions as, I have mentioned, from the antitrust law.
    That is why I have joined with Senator McCain to introduce 
S. 1721 Furthering Access and Networks for Sports Act, the FANS 
Act, and that is why I have joined in seeking support from my 
colleagues and I believe that support is growing, that we have 
momentum on our side. This bipartisan bill leverages the 
antitrust exemptions that leagues enjoy against the elimination 
of these blackout policies.
    Let me put it very simply. Unless the leagues end 
blackouts, they will no longer be exempt from the Nation's 
antitrust laws when they negotiate their billion-dollar 
television contracts. The FANS Act would remove language in the 
law that allows the NFL to maintain their local sports blackout 
policies when stadiums fail to sell out. It would require the 
leagues to instruct anyone carrying their games that they can 
no longer hold sports programming hostage for higher fees and 
cable rates and it would make more live games available on the 
Internet.
    I want to make one thing clear. This bill does not use the 
heavy hand of government to force the sports leagues to do 
anything. It does not require them to end blackouts with the 
threat of fines or enforcement actions. It does end the blank 
check from the Government to the leagues and it takes away 
Congress' implicit endorsement of blackout policies.
    Fundamentally, it represents a bargain to the leagues. They 
can continue enjoying their exemption from existing law if they 
treat fans fairly. If they want to continue their blackout 
policies, the Government will not stop them, but they will no 
longer get the special public benefits and protection from 
antitrust enforcement that they currently have.
    I want to note, particularly, that this hearing is a fact-
finding mission. We are obviously not going to pass this bill 
out of the Senate or Congress this year, but I look forward to 
a lively debate and Senator McCain and I are open and committed 
to working with all of the stakeholders on their ideas for 
changes and edits before reintroducing this bill again next 
Congress which we expect to do.
    Thank you very much and I yield to Senator Grassley.

           OPENING STATEMENT OF HON. CHUCK GRASSLEY,
             A U.S. SENATOR FROM THE STATE OF IOWA

    Senator Grassley. I thank you, Mr. Chairman. You have been 
very thorough in your explanation and purpose of the 
legislation. I particularly compliment you for taking on a 
strong, powerful force that you are taking on. That is what has 
to be done if you are going to make changes sometimes.
    I thank the witnesses who are here and look forward to your 
testimony. I think we can all agree on one fundamental notion, 
no one likes sports blackouts. The sports leagues and their 
member teams do not like them, television providers do not like 
them and, of course, sports fans definitely do not like them.
    A particular issue in Iowa is that we do not have any major 
league teams, so the entire State, one way or another, falls 
within the blackout territory of six different teams: the 
Cardinals, the Royals, the Twins, the Brewers, the Cubs, and 
the White Sox. I can tell you the periodic blackouts are a very 
frustrating experience for the fans of my State.
    So there is no question that blackouts are an exasperating 
experience and disfavored. The question is how best to minimize 
blackouts and maximize the benefits to the consumers while also 
respecting the rights of private parties to negotiate with each 
other at arms length.
    On that note I will add one other comment. As we all know, 
the Federal Communications Commission voted unanimously in 
September to eliminate its sports blackout. I think as a 
general matter, the Federal Government should not be in the 
business of mandating policies that parties are otherwise free 
to negotiate privately. At the same time, however, I think we 
need to be mindful of the flipside of the same coin. More 
specifically, as a general rule the Federal Government should 
not be in the business of mandating which provisions should not 
be included in private contracts. Anytime such a step is 
proposed, we should tread carefully.
    So the Chairman just said he is beginning discussions on 
this in consideration of it and I am happy to join in that 
dialogue. So I thank the witnesses once again and look forward 
to the hearing as a start of that dialogue.
    Senator Blumenthal. Thanks, Senator Grassley, and thanks 
for your excellent remarks. We are going to--I apologize--take 
a recess now. I want to thank the witnesses for your patience. 
We will be back literally as soon as we can and we will take 
the second panel at that time. Again, my thanks and my 
apologies. We will be right back. Thank you.
    [Whereupon, at 10:36 a.m., the hearing was recessed.]
    [Whereupon, at 11:30 a.m., the Committee reconvened.]
    Senator Blumenthal. We will come to order. I am going to 
recognize Senator Lee for an opening statement and then we will 
proceed to the second panel of witnesses.

           OPENING STATEMENT OF HON. MICHAEL S. LEE,
             A U.S. SENATOR FROM THE STATE OF UTAH

    Senator Lee. Thank you, Mr. Chairman. First of all I want 
to start by thanking you, Senator Blumenthal and Senator McCain 
for bringing this important matter to the attention of the 
committee. I think you have raised an important question.
    No one really likes sports blackouts, least of all the 
public. Yet as we all know, Congress has permitted professional 
sports leagues to operate outside of our antitrust laws in 
order to have them. We have done so on the theory that without 
blackouts fans might stay home and watch the game on TV while 
the ticket sales necessary to support the team might dwindle as 
a result.
    That economic assumption has now been called into question. 
The proponents of the bill argue that there is no evidence to 
support it. Fans, they say, will attend games if the ticket 
price is right regardless of whether they could also watch the 
game at home as an alternative.
    At the moment, however, I am not yet prepared to support 
the FANS Act without additional study on my part. I am 
particularly concerned that the bill might unsettle some 
legitimate contractual expectations the sports leagues have 
bargained for with broadcasters without an appropriate phaseout 
period. I would also like to take a closer look at the economic 
evidence on both sides of this issue.
    But I agree that the issue certainly merits the attention 
of Congress. Professional sports leagues have asked for and 
have received exemptions from the competition laws that most 
other American businesses are required to comply with. Those 
antitrust laws are an important and effective tool for ensuring 
free markets and protecting low consumer prices.
    As Ranking Member of our Antitrust Subcommittee, I take a 
keen interest in ensuring that our competition laws are 
functioning well and having their desired effect of protecting, 
competition. For that reason, I am certainly open to examining 
in the future whether the antitrust exemptions enjoyed by 
professional sports leagues in their current forms rest on 
sound justifications and if not, how Congress might act to 
modify those exemptions.
    Thank you very much Mr. Chairman.
    Senator Blumenthal. Thank you, Senator Lee. I am going to 
ask the next panel to please come forward and take your seats. 
And actually before you take your seats, why do I not swear you 
in which is, as you know, the custom of this committee.
    Do you affirm that the testimony you are about to give is 
the truth, the whole truth and nothing but the truth so help 
you God?
    Mr. Lake. I do.
    Mr. Goodfriend. I do.
    Ms. Greenberg. I do.
    Mr. Waldron. I do.
    Senator Blumenthal. Thank you. By way of introduction, let 
me give a brief bio of each of the witnesses today.
    William Lake is the Chief of the Media Bureau at the 
Federal Communications Commission. He has served as the DTV 
Transition Coordinator for the FCC, Counsel to the 
Administrator at the Environmental Protection Agency, and 
Principal Deputy Legal Advisor at the U.S. Department of State. 
He was also a partner at Wilmer Cutler Pickering Hale and Dorr.
    David Goodfriend is the founder and chairman of the Sports 
Fans Coalition, the largest multi-issue public policy 
organization for fans. He is currently the president of 
Goodfriend Government Affairs and he has served as Deputy Staff 
Secretary to President Clinton and Media Legal Advisor to 
Commissioner Susan Ness at the FCC. He also previously served 
as vice president of the law and public policy at DISH Network.
    Sally Greenberg is the executive director of the National 
Consumers League. She has testified numerous times before 
Congress on consumer protection issues. From 2001 to 2007 she 
worked at Consumers Union. She served for many years on the 
Board of Directors of the Alliance for Justice and HALT, an 
organization that focuses on protection of consumer rights in 
their interaction with lawyers and the legal system.
    Gerard Waldron is a partner at Covington and Burling, 
representing a range of technology companies, online social and 
media companies and communications client before the FCC and 
Congress. Before joining Covington, Jerry served as the Senior 
Counsel on the House Subcommittee on Telecommunications and 
worked on the committee staff for over 10 years.
    Thank you all for being here today. Let us begin with
    Mr. Lake.

  STATEMENT OF WILLIAM T. LAKE, CHIEF, MEDIA BUREAU, FEDERAL 
           COMMUNICATIONS COMMISSION, WASHINGTON, DC

    Mr. Lake. Good morning Senator Blumenthal and Senator Lee. 
I am Bill Lake, Chief of the Media Bureau at the Federal 
Communications Commission. I am pleased to appear before you 
today to discuss the recent FCC action to eliminate our sports 
blackout rules.
    A bit of history may provide useful context for our action. 
Our sports blackout rules specifically prohibited cable and 
satellite operators from airing any sports event that had been 
blacked out on a local broadcast TV station pursuant to a 
private blackout policy adopted by a sports league.
    The Commission adopted a sports blackout rule for cable in 
1975, finding that the rule was necessary to ensure that cable 
importation of distant signals would not reduce ticket sales 
and thus, lead sports leagues to refuse to sell the rights to 
their events to distant stations, which could in turn reduce 
the availability of sports programming to TV viewers--which was 
the principal concern of the Commission. We later adopted 
similar rules for satellite carriers and open video systems.
    As you know, the Commission voted unanimously to eliminate 
the sports blackout rules on September 30 of this year finding 
that they were unnecessary and outdated today. The repeal of 
the rules took effect on November 24.
    The Commission's action followed an open and transparent 
public process that began in 2011 when the Sports Fans 
Coalition filed a petition for rulemaking with the Commission. 
After careful review of the comments we received in the 
proceeding, the Commission found that significant changes in 
the sports industry since the rules were adopted had eliminated 
the justification for the rules.
    First, for the NFL, the only league for which the 
Commission's sports blackout rules continued to be relevant, 
ticket sales are no longer the primary source of revenue. The 
massive popularity of pro football means that the primary 
source of income for the NFL has shifted to television, with TV 
revenues now the NFL's main source of revenue approaching $6 
billion this year. Total NFL revenues reportedly exceeded $10 
billion in 2013.
    Second, the increased popularity of NFL games has brought 
fans to the stadiums in numbers that make blackouts exceedingly 
rare. In 1975, almost 60 percent of NFL games were blacked out 
because they failed to sell out. Last year only 2 of 256 
regular-season NFL games, less than 1 percent, were blacked 
out, and no games have been blacked out so far this year. 
Moreover, in recent years, blackouts have affected only a few 
NFL markets such as Buffalo, Cincinnati, and San Diego.
    Finally, the Commission determined that the impact on 
consumers of eliminating its sports blackout rules would be 
minimal. The NFL's existing contracts with the broadcast 
networks extend through 2022, keeping games on over-the-air 
stations through at least that timeframe. Beyond that, the 
Commission found it is highly unlikely that the NFL would find 
it more profitable to move its games from over-the-air stations 
to pay-TV in the absence of the sports blackout rules.
    In conclusion, I would like to note that I am limiting my 
testimony to the Commission's decision and its rationale. 
Elimination of our rules does not prevent the sports leagues 
from continuing to have a sports blackout policy, and the 
Commission does not take a position on whether Congress should 
eliminate or modify existing antitrust exemptions that allow 
leagues to have such blackout policies in the first place.
    Again, thank you for the opportunity to appear before you 
today. I will be happy to take your questions.
    Senator Blumenthal. Thank you, Mr. Lake.
    Mr. Goodfriend.

          STATEMENT OF DAVID R. GOODFRIEND, CHAIRMAN,
             SPORTS FANS COALITION, WASHINGTON, DC

    Mr. Goodfriend. Thank you, Senator--thank you Senator 
Blumenthal and Senator Lee and Senator Klobuchar. Members of 
the committee, we appreciate very much the fact that you have 
invited Sports Fans Coalition to testify on the FANS Act.
    My name is David Goodfriend and I am the founder and 
chairman of Sports Fans Coalition, the nations largest multi-
issue fan advocacy organization in the public policy arena. 
Founded in 2009, we now have tens of thousands of members from 
across the USA and are led by a bipartisan, diverse and 
seasoned Board of Directors.
    The Government should not subsidize or support anti-fan 
activities by professional sports leagues. When a sports league 
receives a public benefit, the fan should get a fair return or 
the subsidy should go away. That is why Sports Fans Coalition 
is proud to have lead the successful effort to end the FCC's 
sports blackout rule.
    The NFL's blackout policy prohibits a local broadcaster 
from televising a game when tickets do not sell out 72 hours 
before kickoff. The FCC rule, as you have just heard, bolstered 
that anti-fan policy by requiring pay-TV companies, likewise, 
to impose such blackouts. The efforts of Sports Fans Coalition, 
National Consumers League, and others culminated in a unanimous 
five to zero vote this past September 30, to end the FCC's 40-
year-old anti-fan sports blackout rule. And we could not have 
done it, Senator Blumenthal, without support from you, Senator 
McCain, and others. So thank you for that.
    That was a great moment for fans, but the NFL's policy 
remains in place. The NFL should end its local blackout policy 
once and for all, effective immediately. Fans hate local 
blackouts and you know this. But just listen to to fans who 
told the FCC how they feel.
    Denis Steinmiller from North Tonawanda, New York, said, ``I 
am a disabled Vietnam vet. I also suffer from post-traumatic 
stress disorder. I am unable to attend the Bills games because 
of my disabilities. Watching the Bills on TV is one thing I 
look forward to every year as well as to help me with my PTSD. 
Please put all of the games on TV for me and the others who 
gave much of ourselves for our country.''
    Or listen to Mary Bash from Masaryktown, Florida, who said, 
``For people like me who are disabled, this blackout rule is 
discrimination against people with disabilities. I cannot 
physically attend a live game at any arena. I am stuck at my 
home with only the television to bring me to sports or anything 
else that I enjoy watching. The NFL blackout policy from the 
70s does not reflect the times of today. Technology has 
changed. The NFL's market has changed. Where do they think all 
of that money comes from? It is us, the consumer, who buys the 
products from their advertisers. It is us, the taxpayer, who 
built most of those arenas. It is us, the American citizen, who 
continues to foot the bill.''
    Real fans. Real comments submitted to the FCC. But the fans 
are not alone. We saw economists from Stanford, Michigan, and 
other institutions submit detailed declarations to the FCC 
explaining why the NFL's blackout policy does not even serve 
its stated purpose of getting more fans into seats.
    Listen to other professional sports leagues. We submitted 
depositions from the commissioner of baseball and the 
commissioner of hockey who said under oath, we got rid of our 
blackout policy because it does not work. And the FCC agreed 
with all of this when they got rid of their own sports blackout 
rule.
    Now the NFL should do the right thing. It should listen to 
fans, economists, other leagues, the commissioners, the FCC, 
the Members of Congress and end its local blackout policy. But 
failing that, Congress should pass the FANS Act.
    The antitrust statutes currently shield leagues from 
liability when imposing local blackouts and the FANS Act would 
eliminate this ``get out of jail free card.'' Sports Fans 
Coalition also believes that fans should not be used as pawns 
during contractual disputes between big TV companies. The FANS 
Act would take care of that too.
    Finally, I would like to make clear that Sports Fans 
Coalition fully supports putting as many games as possible on 
free over-the-air broadcast TV. The migration of sports off 
broadcast TV has created problems. All you have to do is look 
at Los Angeles where Time Warner Cable took over the television 
rights of the L.A. Dodgers and what happened? Seventy percent 
of L.A. fans could not watch their Dodgers play in a great 
season because they did not have Time Warner Cable.
    So when major league baseball and the L.A. Dodgers have 
received so much public subsidization, fans should have a 
better access to those games and putting them on broadcast is 
one way to do that. Perhaps a revised FANS Act could require 
all sports leagues to maintain just a certain amount of games 
on free over-the-air TV so that fans have access to at least 
some games.
    Thank you and I look forward to answering any questions.
    Senator Blumenthal. Thank you very much, Mr. Goodfriend.
    Ms. Greenberg.

       STATEMENT OF SALLY GREENBERG, EXECUTIVE DIRECTOR,
           NATIONAL CONSUMERS LEAGUE, WASHINGTON, DC

    Ms. Greenberg. Good morning Senator Blumenthal, Senators 
Lee, Klobuchar and Franken.
    My organization, the National Consumers League, was founded 
in 1899. We are the Nation's pioneering consumer organization 
and our nonprofit mission is to advocate on behalf of consumers 
and workers in the United States and abroad. We very much 
appreciate your inviting the consumer point of view for this 
very important bill, S. 1721.
    I'm delighted to see my fellow Minnesotans here because I 
grew up going to Minnesota Viking games and Minnesota Twins 
games. I am an avid fan. I love watching professional sports, 
but like me, millions of Americans define themselves, in part, 
by the teams they support. However, the professional sports 
leagues are also multibillion dollar businesses that benefit 
from a multitude of public subsidies.
    These take the form of exemptions from Federal antitrust 
laws, tax breaks and public funding for stadiums, 
infrastructure support from municipalities and blackout 
policies that benefit the leagues and their broadcast partners. 
As the leagues enjoy huge profits, taxpayers are right to 
question what they receive in return for these public benefits.
    For example, a Harvard University study recently calculated 
that seventy percent of capital costs of National Football 
League stadiums have been provided by taxpayers whether they 
are sports fans are not. A 2012 Bloomberg study estimated that 
tax exemptions on interest paid by municipal bonds issued for 
sports facilities cost the U.S. Treasury $146 million a year. 
Over the life of the $17 billion of exempt debt issued to build 
stadiums since 1986, taxpayer subsidies to bondholders will 
total $4 billion.
    Lavish public subsidies for stadiums are not the only way 
that taxpayers subsidize professional sports. The rising cost 
of acquiring sports programming is also a significant driver of 
rising cable bills which have gone up at more than three times 
the rate of inflation since 1998. Due to the widespread 
practice of channel bundling, the increasing cost of sports 
programming are passed along to all cable and satellite 
subscribers regardless of whether they actually watch sports.
    Sports programming costs are also a major driver of the 
fights between broadcasters and cable television providers over 
retransmission fees that have contributed to the increasing 
number of programming blackouts. In return for the Government 
largess lavished on sports leagues, consumers are right to be 
outraged when essential services are cut to subsidize 
unaffordable tickets at publicly funded stadiums.
    Cable and satellite subscribers, fans and nonfans alike are 
angry that their bills go up due to ever higher sports 
programming costs when the games even make it on the air. The 
game is clearly rigged in favor of the professional sports 
leagues and taxpayers are getting the short end of the sick. So 
it is, indeed, time for Congress to step up and began to level 
the playing field.
    That is why NCL is proud to support the FANS Act. The bill 
would benefit consumers in a number of ways by reigning in 
cable rate hikes, reducing incentives to blackout games and 
giving consumers access to online game broadcasts. To 
elaborate, the bill conditions sports leagues antitrust 
exemptions on the requirement that their broadcast partners not 
blackout games as a result of contractual disputes with cable 
and satellite companies.
    NCL believes the consumer should not be used as pawns in 
disputes over retransmission fees. Thus, the bill helps to 
reduce the incentive to use blackouts as a negotiating tactic 
and promises to reduce the frequency of these programming 
interruptions.
    Second, the bill eliminates the antitrust exemption for 
local sports blackouts in the event that games do not sell out 
their tickets. This will benefit millions of fans in smaller 
markets such as Buffalo, many of which have larger stadiums but 
smaller populations and thus, are less likely to sell 85 
percent of their seats.
    Third, the bill benefits consumers living in teams' 
overlapping broadcast territories by conditioning the League's 
antitrust exemptions on the provision of alternative platforms 
like the Internet. This would particularly help major-league 
baseball fans who live in States like Arkansas, Connecticut, 
Nevada, Oklahoma that are overlapped by separate clubs in their 
home television territories and thus, subject to local 
blackouts.
    Finally, the bill corrects a historical anomaly by bringing 
major-league baseball under the auspices of the Clayton 
Antitrust Act in the same way as the NFL, NBA and NHL are 
currently treated. In doing so, the statutory conditions placed 
on existing antitrust exemptions by this bill would also apply 
to MLB.
    In conclusion, I would like to reiterate our strong belief 
that the FANS Act addresses some of the unfair and unbalanced 
subsidies and preferential policies like antitrust exemptions 
that professional sports leagues enjoy at the expense of 
taxpayers and sports fans alike.
    Thank you very much.
    Senator Blumenthal. Thank you very much, Ms. Greenberg.
    Mr. Waldron.

            STATEMENT OF GERARD J. WALDRON, PARTNER,
             COVINGTON AND BURLING, WASHINGTON, DC

    Mr. Waldron. Good morning, Senator Blumenthal, Senator Lee, 
Senator Klobuchar and Senator Franken and Members of the 
committee. My name is Jerry Waldron and I am here today in my 
capacity as outside counsel to the National Football League on 
television related matters.
    I appreciate the opportunity to discuss the NFL's 
commitment alone among the professional sports leagues in 
ensuring that all of its games are available across the country 
via free over-the-air television. For more than five decades, 
the Sports Broadcasting Act has been a key component in this 
strategy enabling the NFL, major league baseball, the NBA, and 
the NHL to put their games on broadcast television.
    In the NFL's case, the League has agreements to put all 256 
regular-season games and all playoff games on free TV. That is 
a claim that no other sports league can make about all of its 
playoff games, let alone all of its regular-season games. Quite 
simply, the sports broadcasting act is working to benefit fans 
and the public interests. For this reason, the FANS Act which 
attempts to dictate business decisions, would ultimately be 
harmful to fans.
    For context, the NFL strategy serves three main goals. 
First, because NFL teams generally play once each week, the 
League tries to make each game a special event and obtain the 
widest possible audience for those games. Second, the League 
wants to encourage strong fan support in each local market. And 
third, the broadcast television agreements generate substantial 
revenues that are shared equally by the 32 NFL clubs. Thus, 
clubs in Buffalo, Green Bay or Minneapolis receive the same 
amount from TV contracts as teams in the New York City and 
Chicago media markets.
    To promote these goals, the NFL has long maintained a 
blackout policy which is incorporated into the League's 
contracts with the broadcast networks. The hallmarks of NFL 
games are full stadiums, excited crowds and competitive games. 
Sold-out games improve the experience both for fans in the 
stadium and for those watching on television. Increased 
attendance at games also helps to support local jobs, 
businesses and taxes.
    The League's business judgment is that it serves these 
objectives well. While some may disagree with the League's 
television policy, strong television ratings matched with high 
attendance demonstrates that the policy is working.
    The debate about blackouts of NFL games should be seen in 
context. NFL game blackouts are at an all-time low. Last season 
only two games were blacked out across the League. This season 
there have been no blackouts. So over the past season and two 
thirds, with almost 450 NFL games played, there have been just 
two blackouts. This reduction reflects adjustments in the NFL's 
blackout policy that the League has made over the years to 
promote both game attendance and viewership.
    The sports broadcasting act encourages broad-based game 
viewership. Congress passed a law in 1961 to enable league 
agreements with broadcast networks and a sharing of revenues. 
Under the SBA, the NFL has created the most proconsumer 
television plan in sports today. The NFL has maintained its 
commitment to broadcast television even in extending its 
contracts to 2022 with its broadcast partners despite the 
dramatic change in the broadcast industry and, frankly, trends 
by the other sports leagues off of free TV and toward paid 
television.
    The FANS Act proposes changes to the SBA that would 
ultimately harm fans by creating uncertainty around the future 
of sports on free television. A possible result would be to 
migrate popular sports programming from free broadcast 
television to pay-TV.
    This committee has long cautioned against such a move. The 
FANS Act proposes untenable conditions on the SBA's antitrust 
provisions. The bill would deny a sports league the antitrust 
provision if third-parties, such as a television station and a 
cable or satellite company, have a contract dispute.
    Yet, the NFL is not a party to those contracts and has 
absolutely no control over the outcome of these disputes. No 
business can plan its operation under laws that could change at 
a moments notice due entirely to the actions of third parties.
    In conclusion, NFL television policies made possible by the 
SBA bring fans across the country a wide range of outstanding 
television content each week. The NFL and the other sports 
leagues practice of televising games on free over-the-air 
television is made possible by the SBA. These arrangements 
benefit fans and are in the public interest thus, the 
underlined policies should not be altered.
    Thank you and I will take any questions.
    Senator Blumenthal. Thank you, Mr. Waldron. I have some 
questions that I am going to pose to you and then yield to my 
colleagues. I particularly am grateful to Senator Klobuchar, 
the head of the Antitrust Subcommittee of the Judiciary 
Committee, for being here today.
    You mentioned the uncertainty of fans. The reason for their 
uncertainty right now is the potential deprivation they suffer 
from blackouts. There may have been few this year, but the 
potential for blackouts is what creates their apprehension that 
they may be deprived of access to these games.
    So I wonder whether you have additional evidence that was 
not presented to the FCC that you have to present to this 
committee or whether it is your contention that the FCC failed 
to consider the evidence that you presented in reaching its 
conclusion.
    Mr. Waldron. Senator, I have sort of two comments. One, it 
was mentioned that a sports economist provided a study. 
Actually, Dr. Hal Singer also provided a study on the sports 
economists saying that an important reason why the NFL keeps 
games on broadcast television is because it is able to control 
its product. So there was conflicting evidence before the FCC. 
I respect what Mr. Lake said, that the FCC made one conclusion.
    The NFL's business judgment is that this is very important. 
But I think it misses sort of a larger point. Senator, with 
respect to your constituents, they have seen every Giants game 
this year, last year, the year before, the year before that, 
all the way back to the early 1990s.
    If you look at the Knicks games, all of those Knicks games 
are on cable television. They have to pay $80 a month to get 
their Knicks games, to get their Rangers games and to get 
almost all of their Yankees games. But they have seen every one 
of their Giants games and I daresay every one of the Jets games 
going back for that same timeframe.
    So I recognize that there are blackouts of NFL games. They 
are few and far between, but the NFL's commitment to broadcast 
television, actually, I think stands out among the other sports 
leagues.
    Senator Blumenthal. But the threat continues to exist in 
Connecticut and around the country that they will be deprived 
of access to those games. And if the reality is that they are 
seeing the games anyway, why continue with the threat of 
blacking them out?
    It seems to me that your contention is that the blackout 
policy is essential to your business policy. In fact, it is the 
antitrust exemption that is essential to your business policy. 
Without the antitrust exemption you would not be able to 
negotiate the enormously lucrative broadcast agreements that 
you have and the revenue-sharing pacts that you enjoy and as a 
condition for receiving that very public and unique benefit, 
why not eliminate the threat to Connecticut consumers and 
others around the country, fans across the United States that 
simply because of a failure beyond their control of big 
business interests to reach an agreement, they may be deprived 
of access?
    Mr. Waldron. I recognize that the Sports Broadcasting Act 
gave an exemption to all of the sports leagues. In our view, 
the NFL has used that exemption very responsibly by putting 
overwhelmingly its games on television. But to be clear, major 
league baseball testified last year before the Senate Judiciary 
Committee, the only reason why the World Series is on Fox 
television is because of the Sports Broadcasting Act.
    So it ensures that broadcasters--and I would say, if you 
look at the NFL in comparison to the other leagues, I think the 
League has used its antitrust exemption very responsibly by 
putting so many of its games, all of its regular-season games 
and all of its playoff games on free television. I acknowledge 
that there is--last year there were two. This year there have 
been none so far, that they are few and far between, but the 
overwhelming number of games are on television and we think 
that is a responsible use of the SBA provision.
    Senator Blumenthal. And the overwhelming number of games 
also are sold out in the stadiums. Are they not?
    Mr. Waldron. Yes, that is correct. Yes.
    Senator Blumenthal. So why the blackout policy?
    Mr. Waldron. Because we think over the long term it has 
served to promote that benefit. It is easy to--remember that in 
the late 1990s, 25 percent of games actually were still being 
blacked out.
    Senator Blumenthal. In fact, are there not other actions 
that the teams regularly take? During the 2012 season, the 
Miami Dolphins bought tickets to prevent a blackout for seven 
of its eight home games. The Jacksonville Jaguars have covered 
approximately 10,000 seats at EverBank Field with tarps since 
2005, reducing their stadium capacity from 76,000 to 67,000.
    The teams regularly take actions to fill their stadium, 
giving away tickets, selling them for less than face value so 
as to avoid blackouts. Why not just eliminate the blackouts?
    Mr. Waldron. Well, Senator, I view that activity as very 
pro-fan. I think it is evidence that the clubs actually 
understand. Look, the NFL does not want blackouts. The clubs do 
not want blackouts. Senator Lee and Senator Grassley both made 
that point in their opening statements. No one likes blackouts 
and that includes the NFL.
    So I think the examples that you have shown are clubs 
trying to respond and the League has adjusted its policy to be 
more responsive. We think over the long term it has served and 
it is in the business judgment of the League that it has served 
it, but as that shows, clubs take extraordinary examples to 
avoid them.
    Senator Blumenthal. I am going to continue this 
conversation with you and the other witnesses, but I now turn 
to Senator Klobuchar.
    Senator Klobuchar. Thank you very much Senator Blumenthal. 
Thank you to all of the witnesses.
    I thought I would start with you, Mr. Waldron. The blackout 
rule was put in place in 1961. Is that right?
    Mr. Waldron. The Sports Broadcasting Act was adopted in 
1961. The FCC's rule was put in place in 1975.
    Senator Klobuchar. All right. Good. Well, most of the money 
made by sports tickets--it has been pointed out in the 
testimony--from that time came from ticket sales. But today NFL 
games are consistently among the most popular television 
programs, certainly in my State where we are proud of the 
Vikings. With that, comes a significant increase in revenue--as 
has been pointed out by the other witnesses--for the League.
    The cost of tickets has also significantly increased. It is 
a big expense. Do sports teams need blackout rules the same way 
they did half a century ago? If not, why do we still have the 
same rule?
    Mr. Waldron. No question that those facts are all right. I 
will say--and this is in the record--it may surprise people 
that as much as a quarter of the revenue of the NFL still comes 
from ticket sales. So ticket sales still sort of remain 
important.
    The NFL has a balance. They want to have popular games on 
television and they want to have a stadium that is full. You 
can imagine a scenario in which--the other sports, they play 
162 games or 82 games. So every game is not a special event.
    In the NFL they work hard to make every game a special 
event. So they try to balance that, maximizing the full stadium 
capacity with the engaging of the fans on television. It is a 
balance and they have, frankly, adjusted that balance over the 
years. So we do think that the blackout policy sort of strikes 
that balance correctly by encouraging fan attendance and also 
encouraging fan engagement over television.
    Senator Klobuchar. Thank you. Mr. Lake, the FCC unanimously 
voted to repeal its sports blackout rules which prevented cable 
and satellite operators from airing sports events blacked out 
on a local station. What prompted the FCC to change its stance 
and is there anything preventing the NFL or other sports 
leagues from negotiating blackout rules directly with cable and 
satellite operators now?
    Mr. Lake. What prompted the Commission's action was the 
change in the sports industry since 1975 when we adopted our 
rule. Principally, the two facts that the Senator has noted, in 
1975, the principal source of revenue for the NFL was ticket 
sales, and over 60 percent of the games failed to sell out. Now 
those facts are both reversed. TV revenue is the principal 
source of revenue for the NFL and most games are sold out.
    What the Commission concluded from that was that there was 
very little risk that elimination of the FCC's rule would lead 
the NFL to move its games from broadcast television to pay-TV. 
The objective of our rule from the outset was not to maximize 
the revenues of the sports leagues or the broadcasters, but to 
try to protect the right of viewers to see games.
    At the time the rule was adopted, it was thought that the 
rule would help to keep games on broadcast TV by eliminating 
the risk that if a cable operator, for example, imported a 
distant station, this might lead the leagues to fail to sell 
the games to that distant station and more viewers would lose 
the right to see the games. We concluded that because of the 
changes in the industry, the risk no longer existed and 
therefore the rule was outdated.
    I should note though that, to your last question, the 
Commission's action simply eliminates the support for the 
private blackout policies that was previously in the 
Commission's rules. That action does not prevent the leagues 
from continuing to implement their blackout policies as a 
private matter without FCC support. Although as I say today, 
blackouts are increasingly uncommon, the risk of blackouts 
continues.
    Senator Klobuchar. All right. Thank you. Does anyone want 
to add anything to that, any of our witnesses?
    Mr. Goodfriend.
    Mr. Goodfriend. Thank you Senator. I think this discussion 
would be helped by understanding how we got the law in the 
first place. We are talking a lot about the antitrust exemption 
as though it has always been there. Let us talk about how we 
got here.
    In 1953, the United States Department of Justice Antitrust 
Division succeeded in litigation with the NFL on antitrust.
    Are you commenting on the Packers tie?
    Senator Klobuchar. Yes. We are commenting on that. We just 
noticed it and it might not have been your smartest move given 
that half of the Senators here are from Minnesota right now.
    [Laughter.]
    Mr. Goodfriend. I was realizing that as I started talking. 
But we gave you Brett Favre.
    Senator Klobuchar. I mean we are not at all distracted. Are 
we Senator Franken?
    [Laughter.]
    Senator Franken. I was just thinking of Senators Feingold 
and Kohl.
    [Laughter.]
    Senator Klobuchar. They used to be----
    Senator Franken. How they would have enjoyed that.
    Senator Klobuchar. But we are on here now.
    Mr. Goodfriend. Yes, you are.
    Senator Klobuchar. Continue on answering.
    Mr. Goodfriend. I love the color purple. I am wearing a 
purple----
    Senator Klobuchar. All right. Yes, yes, yes.
    Mr. Goodfriend. So 1953, U.S. v. NFL, the Department of 
Justice won a judgment against the NFL for violating antitrust 
laws. Why? Well, there were four things that the court spelled 
out.
    Number one, the League restricted the broadcasts of games 
locally during a home game. Number two, the League restricted 
the broadcast of an away game in the home market. Number three, 
same restrictions with respect to radio and number four, a kind 
of blanket power given to the NFL commissioner to restrict 
broadcast overall.
    The court said no. Three of those four violate antitrust 
laws. One, the restriction of broadcasting games locally during 
a home game, the judge allowed to stand. That was 1953.
    In 1960, a new football league, the American Football 
League came along and did a deal with the ABC television 
network whereby it pooled all of the teams' broadcast rights 
and did one nationwide deal. So the NFL tried to do the same 
thing. It entered the same type of deal with CBS.
    No, said the court. That violates our 1953 order. So what 
did the NFL do? It came right here to this committee, the U.S. 
Congress, and it said we need your help. How can it be fair 
that the AFL gets to pool its broadcast rights, but we do not? 
That is not fair. Congress agreed, and the Sports Broadcasting 
Act of 1961 was expressly designed to overturn the 1953 Eastern 
District of Pennsylvania decision while at the same time 
preserving that court's decision to allow local blackouts.
    That is how we got here. It was to overturn a case brought 
by the United States Department of Justice during the 
Eisenhower Administration. So what does that mean for today's 
discussion?
    The court in 1953 and Congress in 1961 both premised their 
decision on the importance of local ticket sales, on the 
importance of maintaining the economics of the League. That was 
over a half-century ago. It is perfectly legitimate for this 
committee to revisit the statute from 1961 and ask whether the 
same economic principles apply today.
    We at Sports Fans Coalition believe they do not. Moreover, 
we think that anytime the Government gives a gift to a 
professional sports league, it is perfectly legitimate to ask, 
should any conditions be attached to that gift? Does the gift 
still make sense? It is, after all, a gift from the American 
people to a private multibillion dollar organization to get an 
antitrust exemption for your type of business practice.
    Senator Klobuchar. Thank you very much. My time has 
expired.
    Senator Blumenthal. Senator Franken.
    Senator Franken. Mr. Goodfriend, the threat of blackouts 
during retransmission contract disputes is especially 
concerning to me because that could potentially affect fans of 
any major sports league. Such contract negotiations seem to be 
growing increasingly contentious each year.
    Last year, for example, negotiations between Time Warner 
Cable and CBS led to a month-long blackout of programming that 
affected millions of consumers. As you know, Comcast's proposed 
acquisition of Time Warner Cable is currently being reviewed by 
the FCC and the Department of Justice.
    It is a deal that would unite the two largest cable 
operators in the country, and in my view--as I have made very 
public--it should be rejected. I think it is simply a bad deal 
for consumers. I do not believe it would improve service or 
choice and I believe that it will result in higher prices.
    A combined Comcast-Time Warner Cable company would exert 
particular power in the sports programming market. Mr. 
Goodfriend, you have noticed that both companies have long 
track records of trying to prevent individuals who do not 
subscribe to cable from viewing games. Can you explain what 
that means and tell us what you think the implications of the 
proposed acquisition deal would be for sports fans?
    Mr. Goodfriend. Thank you, Senator Franken. Let me just 
note that Sports Fans Coalition is on record opposing the 
Comcast-Time Warner Cable merger and filed a petition to deny 
at the FCC to that effect.
    Your question regarding the effect on sports--my learned 
friend from Covington and Burling mentioned Hal Singer, the 
economist who opposed us in the sports blackout proceeding. 
Interesting to note, Mr. Singer also authored a paper that we 
cited extensively in our pleading that said when a cable 
company owns a regional sports network, the tendency is for 
fans who do not subscribe to that cable company to not be able 
to see the game. That is the trend. As opposed to, let us say, 
an independent regional sports network that is carried more 
widely on other providers.
    Mr. Singer and his colleagues went on to conclude that the 
bigger the local cable company, the worse the problem gets. And 
that just makes sense intuitively. If I am going to give up 
some revenue by not sharing my sports with you, the smaller you 
are, the bigger I am, the less of a loss it is to me. So that 
was the conclusion of Singer et al.
    Now, in the context of the proposed merger between Comcast 
and Time Warner Cable, take a market like Los Angeles. Los 
Angeles today has Time Warner Cable and as I mentioned earlier, 
Time Warner Cable owns a regional sports network. The merged 
entity would acquire roughly a quarter of a million new 
subscribers from Charter.
    So what does that mean? The local cable company is getting 
bigger. As a result, the trend we already see today, when Time 
Warner Cable owns Dodgers games and will not televise those 
games to most fans, it is just going to get worse if the cable 
footprint gets bigger. So that is why Sports Fans Coalition has 
chosen to oppose the merger.
    Senator Franken. Thank you. I am going to get on a little 
bit of a different subject, but I think--Mr. Waldron, this is 
addressed to you. We have spoken a lot today about the 
significant taxpayer support and public benefits that sports 
leagues, including the NFL, enjoy. I think that as a country we 
provide such enthusiastic support for professional competitive 
teams, at least in part, because we recognize all of the ways 
in which they can enrich our culture.
    Yet, we have a team in the NFL that continues to call 
themselves by an offensive name, a racial slur. The use of the 
name is hurtful and insulting to so many people in our country, 
including in my home State of Minnesota where we have a large 
and vibrant Native American community. I have heard from Tribal 
leadership in my State who understandably find this name 
offensive and harmful, as do I. A simple step would be for the 
NFL to address the need for a name change. What is the League 
considering doing at this time?
    Mr. Waldron. Senator, I recognize the importance of your 
question. I am not in a position to answer it. I advise the 
League on television matters, but I will consult with them and 
get back to you with an answer.
    Senator Franken. I would appreciate that. Thank you.
    Mr. Chairman.
    Senator Blumenthal. Thank you, Senator Franken.
    Just to continue with some of what we were discussing and I 
think Mr. Lake addressed part of this issue.
    Mr. Waldron, I guess it is your contention that the FCC 
failed to consider certain evidence and therefore reached the 
wrong conclusion by a 5-0 vote?
    Mr. Waldron. Sure. I am not embarrassed to say that. I 
think it is an assessment of uncertainties and Mr. Lake cannot 
prove that he is right any more than I can prove that Mr. Lake 
is wrong when he said the FCC's prediction was changing the 
sports blackout rule will have no effect on what the NFL does 
with respect to it.
    Their judgment in looking at the evidence and looking at 
the sports economists study and the Dr. Singer study that Mr. 
Goodfriend cited, they said no. That was their judgment looking 
at the evidence. The NFL has been at this for 50 years. It 
actually wants to maximize the number of people in the 
stadiums.
    Senator Blumenthal. But things have changed over that 50 
years.
    Mr. Waldron. I understand that and they watch this every 
week. I assure you the NFL watches this every week.
    Senator Blumenthal. Is not the present policy in effect to 
the disadvantage of certain cities over others, certain fans 
over others? For example, the Ralph Wilson Stadium in Buffalo 
represents 28 percent of the population in that city. That 
stadium can hold 28 percent of the population compared to the 
capacity of Soldier Field in Chicago which represents 2 percent 
of the population of that city. The stadiums in the New York 
area, probably even a smaller percent which may be the reason 
that they are regularly filled.
    But the threat is there for all fans, New York, 
Connecticut--maybe it falls more heavily on Buffalo, 
Cincinnati, San Diego, Tampa Bay where economic recession 
population trends may have made the markets less robust. Is 
there not a discriminatory aspect here? Also, insofar as it, 
frankly, hits the elderly, disabled and folks who cannot attend 
because of the price?
    Mr. Waldron. Two parts to that answer--the first is I think 
the League has recognized that different stadiums and different 
clubs are in different situations which is why it has adopted 
and adjusted its policy and adopted more flexibility. Frankly, 
the flexibility that was adopted in--I believe it was 2011 or 
2012, frankly, it has benefited the very clubs that you 
mentioned, sort of Tampa and San Diego and Cincinnati. That is 
one of the reasons why we have not seen.
    To the point about the elderly--and we have all seen the 
studies. It may surprise people, but----
    Senator Blumenthal. If I may--and I will let you finish on 
the elderly and disabled and people of modest means who may not 
be able to afford tickets right now. If you are worried about 
filling the stadiums, why not just lower the ticket price? That 
is the way the market normally works.
    You have the immense benefit of an exemption from normal 
market forces in the antitrust exemption. Why be greedy about 
it? The antitrust exemption are the keys to the kingdom. They 
are the gold mine for you and it seems to me you continue to 
take a step too far. Is it not in your own enlightened self-
interest to eliminate the blackout rules--step to legislation?
    Mr. Waldron. Well, I will say all of the sports leagues 
enjoy that exemption. Congress passed it to actually benefit 
the public by putting sports on free television. That was the 
judgment when Congress passed it in 1961. But yes, it has been 
a benefit to the League. I do not want to suggest otherwise, 
Senator. We recognize that. But I think it also has been a sort 
of benefit to the public in that regard.
    The Dr. Singer study that was cited earlier, he actually 
found that it actually does have a downward pressure on prices 
for the very reasons that you cite which is that if you want to 
put people in the seats, then you are going to lower your 
prices and you actually have an incentive. Because of the 
blackout policy, clubs have that incentive that you sort of 
point at.
    But I do not want to lose sight of your very important 
comment about the elderly and Latinos. Many of those same 
people actually cannot afford cable. And yet to watch every 
Sabres game they are going to have to pay $80-$100 a month to 
watch every Sabres game and that is for 6 months of the season. 
To watch their Bills--everyone wishes they would watch all of 
their games, but they certainly watch all of their away games. 
Every Buffalo Bills away game is on free, over-the-air 
television in Buffalo and as many as are sold out.
    So we think that the League has actually used its benefits 
under the SBA responsibly and to benefit the public.
    Senator Blumenthal. I am going to ask some of the other 
witnesses to respond to the points that you have made very 
well, Mr. Waldron.
    Mr. Lake, in essence, I think you have heard Mr. Waldron 
say that the FCC could and should have adopted a contrary 
conclusion. What would you say to that?
    Mr. Lake. We held a public proceeding in which we received 
extensive comments from a wide variety of parties, including 
conflicting presentations by economists. The conclusion of the 
five unanimous Commissioners was that based on that record, 
elimination of our sports blackout rule would not be likely to 
lead the League to move their games off of over-the-air 
television and on to pay-TV.
    We also noted, the Commission noted that the contracts 
today extend through 2022, so that ensures that they will 
remain on over-the-air television until at least within that 
period.
    Senator Blumenthal. So the FCC, in essence, to put it from 
the fan's perspective, found no uncertainty as to what would 
happen to broadcasts?
    Mr. Lake. They certainly concluded that the very likely 
result is that this would not take games off of over-the-air 
television.
    Senator Blumenthal. Mr. Goodfriend, do you agree with that 
conclusion and particularly as it affects the smaller cities 
and fans in those cities and the threat to fans in larger 
cities as well?
    Mr. Goodfriend. Well, Senator, you will note from our prior 
conversation, I am wearing a Green Bay Packers tie, so I care 
about small market teams very much. And I think it is a little 
bit of a red herring to argue that all this is made possible 
solely by the beneficence of the U.S. Congress in granting the 
antitrust exemption.
    The NFL is not running a charity. They are a highly 
profitable multibillion dollar organization. They put their 
games on television because that is where the money is. They 
put their games on broadcast because that is where the audience 
is. The day that Pepsi and Budweiser and GM stop paying top 
dollar for top ratings on broadcasts, we will see a change. But 
until that day comes, the NFL is maximizing its revenues as any 
rational business actor would.
    Now, Professor Rod Fort at the University of Michigan, in 
the submission that he made to the FCC, pointed out that even 
under the most exotic assumptions, the threat of a local 
blackout might put a few thousand more people in seats on any 
given Sunday. Contrast that with the loss of revenues from 
taking a game off broadcast. It would be in the millions, 
perhaps tens of millions.
    So, Professor Fort concluded the rational economic actor 
would say, I am not going to give up all of that money on the 
broadcast TV side just to put a few thousand more people in 
seats. That is why, intuitively, you could say there really is 
not going to be too much of a connection between putting games 
on broadcasts and having a local blackout policy or an 
antitrust exemption that sustains it.
    Rather, the League will make money. That is what it does 
best. And if it thinks it is going to make more money putting 
games on broadcasts, then it will do so. If it thinks it is 
going to make more money putting it on ESPN, as we saw with 
Monday Night Football, or putting games on Thursday night on 
the NFL Network, it will do so. It already has.
    So I think it is important to differentiate between what 
the League gets from its local blackout policy and broadcast 
TV. I think it is a red herring to threaten taking games off 
broadcasts unless we get this antitrust exemption for local 
blackouts. The numbers just do not add up.
    Senator Blumenthal. Ms. Greenberg, what does this mean for 
ordinary consumers and fans? How are they impacted?
    Ms. Greenberg. Well, there is a problem with fans being 
able to afford to go to games. Our figures are that from 2010 
to 2013 the cost for a family of four to attend an NFL game 
increased by 8 percent to $459.
    So that is out of the--pun intended--the league of many, 
many families. So, of course, they turn to free broadcasts to 
get access to their games.
    I am curious about something that Mr. Waldron has said on 
several occasions, that the NFL has evidenced a lot of 
flexibility about the blackout rule and wonder what evidence 
there is of that. I think what we are really talking about, as 
David has just pointed out, it is enormously profitable, not an 
act of charity on the part of the NFL. It is enormously 
profitable for the League to have games on broadcast television 
and that is why they do it, not because they are so flexible.
    I do not understand, as you pointed out, fighting this 
blackout rule issue when it does not seem to be a problem for 
them and they could be part of the solution instead of being 
part of the problem. So for fans, it is obviously critically 
important for those fans who cannot make it to the game--for 
physical disabilities, because the costs are too high, because 
they have kids at home--I am puzzled by why the NFL is fighting 
your very, I think, sensible proposal.
    Senator Blumenthal. Mr. Waldron, has any consideration been 
given within the NFL--I know you cannot speak for other 
leagues--but within the NFL to changing the blackout rule?
    Mr. Waldron. After the FCC repealed its rule in late 
December, Commissioner Goodell said that he was going to study 
it and my understanding is that the owners' committee is 
studying this issue.
    Senator Blumenthal. And is there a time line for it 
possibly, actually, reversing the rule?
    Mr. Waldron. I am not aware of any time line for that, 
Senator. I can get back to you. I am not aware of any time 
line.
    Senator Blumenthal. If you could let us know whether there 
is any time line for the committee reaching a conclusion, I 
would appreciate it.
    Mr. Waldron. All right.
    Senator Blumenthal. What will be the determining factors in 
the consideration that the owners and they are the ones who 
decide? Am I right?
    Mr. Waldron. Yes.
    Senator Blumenthal. What will be the determining factor in 
their decision?
    Mr. Waldron. Well, it is a really good question and I will 
come back to a comment that was just made. My colleague, Mr. 
Goodfriend, referred to an economist's study that said 
blackouts actually increase ticket sales by 4,000. That is 
actually the League's contention and so that is the balance 
that the League has faced which is we want to have fans in 
attendance and we want to have games on television. That is the 
balance that we face and it has been adjusted over the years in 
order to, frankly, take care of some of the large stadiums that 
were out there and lots of sort of consequences.
    So that is the consequence which is the incentive for fans 
to attend as well as maximizing broadcast television because we 
do not like blackouts. No one likes blackouts, but they sort of 
look for that balance. So that is exactly what the owners' 
committee is looking at.
    Senator Blumenthal. I would strongly encourage them to do 
the right thing on their own. I think they would become heroes 
rather than the opposite which they are now. It is an outdated 
really outmoded obsolete rule which in many respects, to be 
very blunt, the owners seem to work hard to avoid imposing as a 
matter of practice. That is why they issue free tickets or low-
priced tickets or fictionalize their attendance in other ways. 
I do not mean fictionalized in the sense of any fraudulent 
activity, but----
    Mr. Waldron. I understand.
    Senator Blumenthal. They go through the pretense of filling 
a stadium so as to avoid a blackout, which is against their 
interests and the threat of the blackout gives them a black eye 
no matter what they do. So I look forward to hearing more.
    Mr. Waldron. I will share that perspective. Thank you, 
Senator.
    Senator Blumenthal. Ms. Greenberg, I hear about cable rates 
all of the time. You have raised the issue very appropriately. 
When we talk to cable companies, they point to the costs of 
sports as driving, in many respects, these rates skyward. Is it 
fair to blackout games after driving up those costs to the fans 
of, in effect, buying the cable services? Mr. Waldron has 
raised this consideration as well.
    Ms. Greenberg. Absolutely not and consumers are right to be 
furious about the fact that they are paying these very high 
rates and may not even have access to the sports programming 
that they are paying for. Not to mention, all of the other 
subsidies that taxpayers and consumers provide to sports teams. 
No, it is patently unfair and that is one of the reasons why we 
are so strongly supportive of this legislation. We think 
consumers are angry about it and they have a right to get 
access to the programming that they paid for.
    Senator Blumenthal. And when you go back to your client 
whom you have represented well here today, Mr. Waldron, I hope 
you will remind them that we are acutely aware of those other 
public benefits that the League enjoys and not just your 
league, again. It is not meant to put the focus only on the 
NFL, but those benefits and subsidies, and infrastructure 
whether it is transportation or stadiums or other kinds of 
public benefits that professional sports enjoys and we have 
chosen to single out one, which is the antitrust exemption, but 
these public trusts really demand a public trust from the 
League itself. Special public benefits, in my view, demand a 
recognition of that public trust from the League.
    Do any of the other witnesses--Mr. Goodfriend.
    Mr. Goodfriend. Senator Blumenthal, there is one category 
of Americans here who has not been mentioned and is harmed by 
the local blackout policy. I just want to make sure this goes 
on the record. Local broadcasters, local grocery stores, local 
business people often scramble at the last minute to buy up 
blocks of tickets in order to avoid a blackout.
    Now if ever there was an example of a tax being imposed on 
business people, that is it. And it is a tax imposed on them by 
virtue of this protection, the antitrust exemption, allowing 
the League to threaten a blackout.
    Now I will point out that Sports Fans Coalition in our 
reply comments described allegations provided to us by an 
executive who wished to remain anonymous. This person said that 
the reason why those three playoff games that you alluded to in 
your opening statement in Green Bay, Indianapolis, and 
Cincinnati, the reason why those threatened blackouts did not 
occur, it was alleged, was because the NFL pressured broadcast 
networks to buy up unsold tickets in order to avoid the 
blackout.
    Now let us just assume for a moment that that allegation is 
true. Let me get this straight. The U.S. Government gives the 
NFL an antitrust exemption. The NFL takes that antitrust 
exemption and exerts power on other third parties to get them 
to buy something from the NFL at full value.
    Now the NFL had every opportunity to turn around to me, the 
Sports Fans Coalition, and say that the allegation is blatantly 
false. How dare you make such allegations? Instead they said 
nothing--nothing--for weeks, nothing.
    When it was their turn to file at the FCC, the best they 
could come up with was if Sports Fans Coalition really purports 
to speak for fans, we should not care how we avoid local 
blackouts. In my opinion, Senator, that is a tacit admission.
    So do we allow the League to avoid blackouts by coercing 
others into buying blocks of tickets? They talked about how few 
blackouts there are. Yes, that is true, but how did we get 
there? Do we allow the League to avoid blackouts under its own 
policy by coercing others, allegedly, to purchase tickets? Or 
do we just say enough is enough? You do not get the gift 
anymore. You do not get to have your antitrust exemption for 
local blackouts. There would be a loud cheer not just among 
fans, but in my opinion, local broadcasters, local grocery 
stores, and local business people, if we did that.
    Senator Blumenthal. Thank you. I might point out with 
respect to those local businesses and grocery stores and 
broadcasters, if they got together the way that the clubs or 
teams do in collaboration to maximize their bargaining power, 
they would be seeing their State Attorney General or United 
States Attorney Geneneral and they would be in court defending 
against an antitrust prosecution, civil or criminal. So this 
exemption is really very special, very unique, and very 
undeserved if the leagues, in my view, fail to recognize their 
special public trust because of that unique exemption.
    So I would invite any other comments. If there are none, we 
are going to keep the record open for 1 week and I will adjourn 
the hearing. Thank you.
    [Whereupon, at 12:30 p.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]

                            A P P E N D I X

              Additional Material Submitted for the Record

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