Sport programming as a public good: A complicated Congressional legacy

On November 2, 2016, the U.S. Justice Department sued DirecTV and AT&T, Inc., alleging it orchestrated a campaign to block broad carriage of a television channel owned by the Los Angeles Dodgers. In its filing, the Justice Department noted “a significant number of Dodgers fans have had no opportunity in recent years to watch their team play on television because overlapping and competitive pay television providers did not telecast Dodgers games” (United States of America v. DirecTV, 2016, p. 2). While the two parties settled the case on March 23, 2017, that the government was compelled to intervene in a case which, essentially, alleged collusion to limit consumer access to watching professional baseball, is illustrative of decades of conflicting public policy legacy and rhetoric to sports programming as a public good.

The Justice Department lawsuit also speaks to the complex nature of the sports media business generally. Professional sports leagues have enjoyed a Congressionally-approved exemption to antitrust laws when negotiating broadcast rights agreements since 1961. At that time, the impact of having leagues make its contests available to consumers on free-to-air broadcast networks was unknown. Leagues initially feared free broadcasts would negatively impact game attendance. National Football League (NFL) Commissioner Pete Rozelle, who led the lobbying effort in 1961, argued the exemption was necessary to prevent “open competition among its teams for broadcasting rights,” which would create an environment in which rich clubs got richer, and poor clubs got poorer (Lowe, 1995, p. 93).

A half-century later, the benefits of selling broadcast rights are numerous. Hundreds of millions of dollars trade hands annually between networks and professional sports leagues, often with the goal of increasing the amount of available content to consumers. However, that content, in many cases, now ← 3 | 4 → comes with an increased cost which is passed directly on to consumers. Or, in extreme cases such as the Dodgers example, the content is simply not made available to all consumers in a given market.

The topic of sports programming on television has warranted significant Congressional review in the past 50-plus years. On at least 20 occasions, committees or subcommittees in Congress have held hearings on the subject. A similar number of bills have been introduced in Congress since the mid-1970s. Yet for all of the talk on the part of politicians, no laws have been passed to alter the current antitrust exemptions.

This chapter will consider in more detail the exact role of Congress in regulating sports programming, particularly in light of evidence supporting increased migration from free to pay television. What emerges through a review of proposed legislation and Congressional testimony is a lot of discussion on the part of public officials, but near-zero action. Members of Congress often use local constituents as examples of individuals in need of protection, but exhibit little willingness to back up threats to revamp legislation for consumer good. In this sense, American politicians project a confusing legacy as to whether the ability to view sports programming, something they often claim is central to American culture and lifestyle, is a public good.