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Most people would agree that when it comes to watching football, more is better. But is more always legal? With the rise of pay-per-view television in the 1980s, enthusiastic fans have been willing to pay a premium to watch their favorite teams engage in normally untelevised action or view other notable sports events such as championship boxing matches. While the early forms of this entertainment consisted of single game footage (literally, pay-per-view), it was not long before full networks developed and became dedicated to providing fans with a larger dose of their favorite sport. As seen recently, however, presenting tiered broadcasting options such as these to viewers has the potential to create conflict with regular programming.
The Vanderbilt Journal of Entertainment and Technology Law is proud to present the following Abstract from Solidifying the Defensive Line: The NFL Network’s Current Position Under Antitrust Law and How it Can Be Improved. Be sure to look for the full Note in the Spring 2009 issue (Vol. 11, No. 3).
In the United States, the broadcasting of professional sporting events is a multi-billion dollar industry, and the National Football League (NFL) alone earned more than $3 billion from television contracts during its 2008 season. Considering the massive revenues that broadcast rights can generate, it is no surprise that some major professional sports leagues have recently developed their own television networks. While it was not the first league-owned television network, the NFL Network has certainly generated the most attention. Since it started broadcasting a select number of NFL regular season games in 2006, the NFL Network has been subject to media criticism, extensive litigation, and even Congressional committee hearings.
There are potential antitrust concerns surrounding the Network that are highlighted by an ongoing dispute between the NFL and cable provider Comcast Corporation. Comcast offers the NFL Network on a separate sports programming tier instead of on its basic cable package. As a result, subscribers must pay extra for access to the Network, and it reaches far fewer viewers than basic cable. The antitrust scrutiny stems from uncertainty about whether the NFL Network (1) is exempt from antitrust liability under the Sports Broadcasting Act of 1961, and (2) constitutes an agreement in restraint of trade in violation of Section 1 of the Sherman Act.
This Note first examines the analysis that a court is likely to use in determining whether the NFL Network violates antitrust law. For sports-related cases that involve potential antitrust liability under Section 1 of the Sherman Act, courts have applied the rule of reason analysis and have looked to what effects the challenged conduct will have on competition or consumer welfare. The NFL Network’s impact on competition and consumer welfare can be evaluated by considering its role in the League’s television policy, and how broadcasting games on the Network actually affects consumers’ access to NFL programming. Ultimately, the NFL Network may avoid antitrust liability as long as it remains a supplement to the NFL’s primary focus: regional broadcasts of every NFL game on free, over-the-air networks. In that way, games shown on the Network only increase consumer access by giving viewers a way to pay for NFL programming that would not otherwise be available in their market. Finally, this Note proposes a flexible-scheduling policy that would address some of the NFL Network’s antitrust issues and ensure that consumer access to NFL programming is enhanced.
– Note Author: Ethan Flatt
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