David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

Last week, when the NFL playoffs and upcoming Super Bowl had everyone thinking football, Congress held a hearing on how streaming media has affected sports and other video programming rights.  We noted that hearing in our weekly update this weekend.  As we said in our update, the hearing touched on all the video media issues of the day – sports rights, retransmission consent, the changing balance between pay TV (cable and satellite) versus streaming, and similar issues (the House staff memo outlining the issues to be discussed at the hearing can be viewed here, and a video of the hearing can be viewed here).  During the discussion, there were even some questions about whether there needed to be some local access mandates for some forms of programming – whether that be sports or, probably more importantly, access to emergency information.  In some sense, that discussion provided some faint echoes of the debate over mandates to preserve AM radio in the car (see our articles here and here).  The discussion, and a review of recent articles on accessing sports events without pay TV that omit any discussion of over-the-air television, makes clear that everyone in the industry needs to do more to emphasize the role that over-the-air television plays in the media landscape before those faint echoes of the AM debate become pronounced.

While the hearing touched how some local television stations have been able to acquire some sports rights from failing regional sports networks and expand the viewership for those games, the role of local television broadcasting was overshadowed by the discussion of the rights issues and streaming video.  Yet the role of local media, including local television, is one that pervades many of the regulatory debates ongoing at the FCC.  The FCC and NAB are cooperating with other industry stakeholders in exploring the role of over-the-air television in connection with the roll out of the new ATSC 3.0 “Next Gen” television transmission standard.  The health of local television, and whether local ownership restrictions should be lessened to ensure that television can better compete from digital media that is directly affecting both the audiences and advertising revenue of every station, was part of the debate over the Quadrennial Review decision released by the FCC in December, and this issue is likely to be debated in any appeal that may follow from that decision.  Local over-the-air television also is under consideration in many other pending FCC proceedings, including possible review of the main studio rules, priority processing of applications proposing local programming, emergency communications issues, and many other topics under consideration at the FCC.

But perhaps the biggest issue for broadcast television is simply one of public perception – remembering that it is there.  In connection with the NFL Championship games, I’ve noted a disturbing trend in media publications – forgetting that local TV even exists.  During the NFL championships, I saw this article in the Hollywood Reporter about how to watch the NFC championship game for free if you had “cut the cord” on your cable TV subscription.  The article talked about various subscription services that offered free trials that could be activated for the game and terminated before fees kicked in.  It even suggested resubscribing to cable even though the article was supposed to be about what to do if you had cut the cord.  Surprisingly nowhere did it mention the obvious free solution – just watch the game on over-the-air TV!  This week, I saw a similar article in another publication about watching the Super Bowl if you have cut the cord, and it too failed to mention over-the-air TV, even calling CBS the “cable network” on which the game was airing.  Perhaps this article was an outlier as it appears to be sponsored, but it these two articles, and anecdotal evidence from discussions with friends and family, the fact that over-the-air television can be received over the air is perhaps not surprisingly top of mind to many in the media press or the general public. (We do applaud, however, the New York Times for mentioning that people can get access to sports programming on CBS and NBC with an antenna in an article about the new sports streaming joint venture between Fox, Disney, and Warner Discovery)

Perhaps the promotion of over-the-air television will be part of the outcome of the review of NextGen TV, as all the features promised by ATSC 3.0 are ones that call for an over-the-air television signal.  But no matter what these formal proceedings may decide, stations need to make the public perception of over-the-air TV a high priority to avoid being ignored in today’s highly competitive media marketplace.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.