Antitrust and Consumer Protection

Competition: 2016, Vol 25, No. 2

HOME RUN OR STRIKEOUT? THE UNSETTLED RELATIONSHIP BETWEEN THE SPORTS BROADCASTING ACT AND CABLE PROGRAMMING

By Steven M. Perry1

I. INTRODUCTION

The Sports Broadcasting Act ("SBA") exempts from the antitrust laws "any joint agreement . . . by which any league of clubs participating in professional football, baseball, basketball, or hockey contests sells or otherwise transfers all or any part of the rights of such league’s member clubs in the sponsored telecasting of the games of football, baseball, basketball, or hockey, as the case may be, engaged in or conducted by such clubs."2

In the 55 years since the SBA was enacted, only a handful of courts have addressed the question of whether the antitrust exemptions contained in the SBA apply to basic cable programming. This article reaches two conclusions with respect to that question. First, and contrary to what various commentators have assumed, no court has ever held that league-wide agreements that license sports programming on basic cable channels are, or are not, exempt from the antitrust laws under the SBA. Second, the application of current principles of statutory interpresentation demonstrates that the SBA’s exemptions do, in fact, apply to basic cable programming.

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