Anti-siphoning law
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Anti-siphoning laws and regulations are designed to prevent pay television broadcasters from buying monopoly rights to televise important and culturally significant events before free-to-air television has a chance to bid on them. The theory is that if such a monopoly was allowed, then the poor would be unable to view the important and culturally significant events. Generally the laws allow pay-TV to bid for such monopoly rights only if free-to-air television has declined to bid on them. Anti-siphoning in the United States was introduced by the FCC in 1975 and was soon overturned as unconstitutional. Australia's Anti-siphoning laws were introduced in 1992 and remain in force to date. They also affect free-to-air digital-only services, and require that certain programmes be simulcast on analogue channels.
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[edit] United States
In the early days of cable television the Federal Communications Commission refused to regulate it. In 1958 the FCC ruled that cable TV was not a common carrier and thus is not subject to FCC jurisdiction. In 1960 the FCC lobbied against placing cable TV under its jurisdiction, arguing that the administrative burden is inadequate to low perceived threats of unchecked cable development. In 1965 the FCC changed its stance and imposed must-carry rules, requiring cable providers to carry local free-to-air channels, and banned importation of distant channels that duplicated content available on local free-to-air channels.
In the end of the 1960s the public and the government raised concerns that cable operators can outbid free-to-air channels and "siphon" popular content, first of all sports, off the free air.[1] Specific events like the Super Bowl were deemed particularly vulnerable due to greater inelasticity of demand.[2]
In 1975 the FCC imposed anti-siphoning regulation that virtually prohibited operations of sports and film channels. Precisely, the cable channel could not devote more than 90% of its time to film and sports, and could not broadcast films less than three years old. Specific (i.e. annual) sporting events could not be "siphoned off" by cable at all if they had been broadcast on free airwaves during any of the previous five years.[2] Cable coverage of regular season games in popular championships was limited so that only a fraction of all games could be shown on cable.[2] Should sports coverage on free-to-air channels decrease, stipulated FCC, cable operators had to decrease their sports programming proportionately.[2] Administrative record, however, did not support FCC allegations of "siphoning".[3]
The Department of Justice and a number of cable providers contested the FCC ruling in courts as unconstitutional.[2] In 1977 the DC Circuit Court consolidated these cases in Home Box Office vs. the FCC and found that the FCC has trespassed over the rights guaranteed by the First Amendment. The court ruled that cable bandwidth is not a scarce resource, thus it is not subject to limitations allowed by the Red Lion vs. the FCC ruling. The court applied the O'Brien test (the FCC failed two of its four "prongs"[3]) and found that the degree of limitation of free speech imposed by the FCC was inadequate, "grossly overboard"[3] and thus "arbitrary, capricious and unconstitutional".[2]
The National Football League imposed protections for the broadcast network affiliates in all 30 metropolitan markets. Should a game be on pay-television, the channel in question would be blacked out in the local market, and the NFL will offer the game via a syndication package to the two markets in question.
In the 2010's, the issue has grown drastically. Two of the four tennis Grand Slams (Australian Open and The Championships, Wimbledon), one of golf's four Grand Slams (The Open Championship), and college football's Bowl Championship Series became exclusively pay-tv only events. NASCAR's Chase, which had a greater balance towards network television, moved mostly to pay-tv. Playoff games (except the championship level) are mostly on pay-tv today in MLB, NBA, and NHL. Most MLB, NBA, and NHL teams have gone to exclusive pay-tv contracts.
[edit] Australia
[edit] Notes
[edit] References
- Broadcasting Services Act 1892. Commonwealth Consolidated Acts. Retrieved 2010-05-15.
- Perrine, James B. (2001). Constitutional Challenges to Anti-Siphoning Laws in the United States and Australia. Sports Administration, 2001 vol. 3. pp. 22–31.
- Westfield, Mark (2000). The gatekeepers: the global media battle to control Australia's pay TV. Pluto Press Australia. ISBN 9781871204193.
