A terse exchange of letters from at least three U.S. senators and between NFL Commissioner Roger Goodell and the head of Time Warner Cable could lead to an ugly fight over the league's plan to put games on its in-house program, The NFL Network.
In short, if the NFL doesn't find a way to have the potentially historic New England-New York Giants season finale Dec. 29 seen across the country instead of being made available only to those who pay, at least two senators said they plan to challenge the league's anti-trust exemption, the lifeblood of the league's ability to operate.
On Wednesday, Senators Patrick Leahy (D-Vermont) and Arlen Specter (R-Pennsylvania) sent a letter to Goodell. The letter was a follow-up to a letter sent Dec. 14 from the Vermont delegation of Leahy, Senator Bernard Sanders and Congressman Peter Welch, who expressed deep concern about the citizens of Vermont not being able to see the Patriots-Giants game.
That game could feature the Patriots going for what would be a historic undefeated regular season if New England defeats Miami on Sunday. New England is currently 14-0.
The Leahy-Specter letter, which also came after attempts by the league to lobby the federal government in November and early December, questions the NFL's justification for restricting the distribution of game programming to cable outlets and the senators urged Goodell to take prompt action to make games more broadly available.
"The NFL appears to be moving incrementally closer to limiting distribution of its programming to subscription television," the senators wrote. "Now that the NFL is adopting strategies to limit distribution of game programming to their own networks, Congress may need to reexamine the need and desirability of their continued exemption from the Nation's antitrust laws."
In a press release regarding the letter, Leahy's office wrote: "Actions taken by the NFL may mean that residents of Vermont and Western Pennsylvania, for example, may not be able to watch the potentially-historic New England Patriots v. New York Giants game."
In addition, Senator John Kerry (D-Massachusetts) wrote a letter to Goodell earlier this month urging compromise so that people throughout his state could see the game.
The game will be seen on broadcast in the Boston and New York metropolitan areas because of the NFL's rule forcing games to be seen locally if the game is sold out. However, the game will not be seen on broadcast television outside those areas.
In response to that, the NFL offered Time Warner Cable a deal on Thursday and even sent out a press release about the offer. Time Warner Cable is one of three companies the league has jousted with over the past two years regarding the NFL Network. The others are Cablevision and Comcast.
According to the letter from Goodell, if Time Warner agreed to go to binding arbitration, the NFL would allow the cable company the chance to carry the NFL Network starting immediately. Time Warner cable has approximately 13 million customers, including roughly 10 million outside the Boston and New York areas who will be unable to see the game.
Binding arbitration would allow a third party to hear arguments from both the NFL and Time Warner about the potential price for the NFL Network.
Time Warner's response was a simple rejection, made in a matter of hours.
"As I'm sure you are aware, over the years we've been able to successfully reach agreements with hundreds of programming networks without the use of arbitration. We continue to believe that the best way to achieve results is to privately seek a resolution and not attempt to negotiate through the press or elected officials," wrote Glenn Britt, the President and CEO of Time Warner Cable.
"We already have several standing offers for carriage of NFL (Network), and we remain willing to meet with you and your associates at any point to reach an agreement that benefits both companies and our customers," Britt continued. "To reiterate, we have offered to carry the NFL Network games available to our customers on a per-game basis, a retail price sent by the NFL, with 100 (percent) of the revenue collected for this programming going to the NFL. While carries with no mark-up to us is far from ideal from our point of view, we are willing to take this step to make sure no interested fan is unable to watch these games on our systems. To date, you and your colleagues have been unwilling to seriously discuss any of these proposals.
"In the interim, we strongly urge you to consider moving the Patriots-Giants game to a broadcast network to ensure the broadest possible distribution of this potentially historic game for fans. If the NFL is unwilling to make the Patriots-Giants game available through a national broadcast network, (Time Warner Cable) stands ready to explore the possibility of offering the game on a digital cable channel on a "freeview" basis, similar to the way we carried last year's Texas Bowl in some markets pursuant to an arrangement with the NFL."
On Friday, NFL Network spokesman Seth Palansky issued a response on behalf of the network and the league.
"We are disappointed but not surprised. We remain committed to finding a compromise that puts fans first and gets NFL Network on the air. It is clear Time Warner does not want to give what millions of their customers want. More than 240 other TV providers have listened to their customers and negotiated. Time Warner won't negotiate and only wants independent programming if it is free," Palansky wrote.
The bottom line to all of this is that the league has had increasing difficulty getting cable operators to budge. Cable companies have preferred to put the NFL Network on a sports tier package which costs an additional charge while the NFL wants the network offered as part of a basic package. However, the NFL also wants to be paid for the rights to the network on a per-customer basis.
The league had hoped to get help from the Federal Communications Commission. However, any discussion of the NFL was tabled during a Nov. 27 meeting of the FCC after other members of the FCC questioned FCC Chairman Kevin Martin about an accusation that he "cooked the books" regarding data he gathered in a fight for more control of cable companies.
Thus, instead of help from the government, the NFL could be staring at one nasty fight from the feds.