public's participation in this process. we need citizens to be engaged and informed and part of that means making sure they have access to their government. so, allowing cameras in the courtroom is one way to help educate the public about the workings of our judiciary, at the same time, making sure we implement it in a way that is responsible is going to be very important. we need to make sure we don't compromise the safety of victim's of violent crimes who may be witnesses before the court as has been brought up earlier or violate due process rights of defendants and striking the right balance is key. this bill, i believe, takes a thoughtful approach and i want to commend my colleagues for their work on it. it's important that we look at steps where we do increase transparency in our system across all three branchs of government and this bill seems to be a step in the right direction. the supreme court provides online audio recordings of oral arguments and it's been releasing audio during the same week as arguments only since

2010. before that, audio from one term generally wasn't available until the beginning of the next term and so i was wondering, what's your view on the impact of having these audio recordings available now publicly within the same week of the argument and has there been an improvement in public access? >> well, it certainly a good first step, but when we're talking about the age of the internet, when someone can tweet something and millions of people can see it and read it and share it seconds after it's been sent, especially in news when you're talking about something -- we'll release it that week. i mean, in the news business, a week later is really yesterday's news. so, for the people that really rl interested and there are a surprising amount of them that whether they're shut-ins or just

people interested in the way that we conduct ourselves in the judiciary, i think at least having simultaneous broadcast of the audio might be a good first start. i just have a problem again with the audio only. not to disbare raj courtroom artists. they have a good function. 2014, cave drawings than high definition television just seems to be wrong to me. >> judge robinson, do you have a view of the difference between audio and video? >> well, i can only speak to that in terms of what's going on in the trial courts and the circuit courts of appeals. there are circuit courts of appeal that are posting audio recordings, digital audio recordings of their arguments in short measure and there are some trial courts, district and bankruptcy courts that are doing

the same. those are courts that are recording their proceedings by audio rather than court reporter and they are posting those to the internet. obviously that improves public access. the federal courts have really evolved over the last 20 years in the right direction in terms of becoming more transparent. unlike state courts, who look to us, i think with some reverence but because of what we've done with our electronic case filings and all of that information is readily available on the internet. we're focussing on the small percentage of civil cases that go to trial and the small percentage of criminal cases that go to trial but in the very many cases that don't the public right now in the federal system has access to virtually every pleading that's filed and obviously every judicial system and there's a lot of information

and lot of public education that happens in the context of what we're already providing in the public sphere. >> now, we also know that access to actually get into the court and the supreme courts a good example, very few members of the public can get in, people pay people to stand in line for them right now and they're paid up to $50 an hour to secure spots in a long line for people to get in. so that makes it pretty difficult for people to have the opportunity to have access to live arguments in the courtroom or in the supreme court in particular. so that doesn't seem like that's great public access either. as was pointed out, in many cases you might be sitting in a room watching it on video any way, so it seems like we could do a better job there of improving access as well. do you agree with that?

>> i would. as was mentioned earlier, this morning, the supreme court was hearing arguments in young versus united parcel which was a case about the pregnancy discrimination act. i can only imagine how many people would have been very interested in hearing those arguments this morning while we've been sitting talking here. hearing them, watching them, seeing how the proponents argue their case, seeing how the justices reacted to those arguments, i think that's all very important part of this process and people much better understanding how the judicial system works. i would almost go so far as to make a comparison. we've talked about things in ferguson. it's been a big discussion. i was there dealing with issues of photographers being arrested and interfered with, but my point here is that, even though grand jury proceedings are

secret and they should be, i think as an analogy, if those grand jury proceedings had been open and people had been able to see and understand what went on in that proceeding, we might not have had the same reaction as we had after the grand jury handed up a no bill. >> my time is expired. i yield back to mr. chair. thank you. >> the chair now recognizes the gentleman from new york, congressman jeffries. >> excuse me. thank you, mr. chairman. thank the witnesses for their presence here today. we've got, of course, three branchs of government, all of which are coequal and all of which are incredibly important to our democracy, but we also have a fourth estate and sometimes the media has been

colocally referred to which also plays a very important role in our democracy and projecting that out ward and making sure that people are informed about the things that are occurring. certainly with the executive branch and with the legislative branch and hopefully increasingly as it relates to the judicial branch. so, judge robinson, i just wanted to ask, do you think that the role that the media plays in the context of helping to bring our democracy to life is a point worthy of consideration as we determine the best way to proceed? >> absolutely. i'm a j school graduate, so that's an easy answer for me to give. but i think it's important to note that our pilot, this pilot, provides for video recordings pushed out on the u.s.

courts.gov websites. we've evolved as a nation. we've evolved as an institution. 20 years ago when we did that first pilot, it was based on media recording. we made a very deliberate decision this time to not have recordings based on what the media wanted to record but to make all recordings that, you know, meet the requirements of pilot pushed out to the public. what we have found is that the media now is much broader in terms of their public reporters in the sense of people that tweet and people that report and people that, you know, create youtube videos and a ul of that that sometimes actually find themselves in the hands of the media and they're used by professional journalists to report on the news. >> now, we have three branchs of government as i mentioned, all of which in our founder's wisdom are separate and coequal. does judicial conference take a position on whether it's

appropriate for congress, a different branch, to be making determinations about the best way for a separate and entirely coequal branch to proceed as it relates to cameras in the courtroom? in other words, is there a separation of powers concern that should legitimately be considered in the context of this debate? >> with respect to the trial courts and the circuit courts of appeal, we haven't raised a separation of powers argument, but what we have asked is for you to let us study and then formulate policy on the basis of our experience as further informed by the study itself. case management -- while it's clear that congress promulgates rules that govern what goes on in federal litigation, at the same time, we also need to be in control of your case management

practices and how we can best go about controlling what happens in the courtroom to ensure that the parties receive a fair trial. and so that's why -- it's not so much a separation of powers argument, but an argument that you give credence to the fact that we're studying this. we are experts, if you will, in what happens in the courtroom and we want to make sure what ever policy we formulate is shaped by our experience and our information. >> is there a legitimate distinction that be drawn between criminal and civil proceedings such that perhaps a greater degree of access is allowed on the civil side because of some of the concerns that maybe implicated that we need to think through in the context of a criminal trial privacy and krconfidentiality a unwanted exposure don't necessarily expose on the civil side. >> we have concerns with respect to the effect on witnesses and particularly the effect on the

substance of the witness' testimony in civil proceedings, but we have more concerns on the criminal side. that is because we have witnesses, as i mentioned before that are confidential informants and cooperators. we have undercover officers and agents who routinely testify in criminal cases. we're very concerned about their security and safety. >> is it legitimate for the parties who are participating in the actual trials to have an opportunity to object based on their determination that the presence of cameras in a courtroom will complicate the ability for them to receive a fair trial or should we completely dismiss their concerns and simply just allow a judge to be the arbiter? >> once again, i think that the trial court judge could make that decision. the problems that i see are if everybody objects, we're not going to have very much of a pilot study for them to have

some evaluations from. you know, my experience in state court in new york was many times when the media made an application to cover it, you could certainly expect out of hand that there would be an objection. and we would make those arguments to the judge and the judge would decide with a presumption of coverage whether or not that objection would overcome that presumption. so i think that might be a good way to start. i just also wanted to go back to one other point in terms of the media deciding which cases to cover. that's true. but what's also true, at least in my understanding of this pilot program, is that none of the video that's recorded in any of these cases gets posted to the website until the judge in the case has reviewed the video. so in a way, if there's something there that might be

problematic, that's something that, you know, he or she could do as well. >> thank you. my time has expired. >> thank you, congressman. the chair recognizes the gentleman from rhode island. >> thank you, mr. chairman. the bill before us today, the sunshine in the courtroom act promises to provide greater access to the public and into the inwore workings of our justice system. as my colleague noted in her testimony, trials have always been open to the public and the enactment of this legislation would expand upon that promise of transparency. it's very hard for me to understand the argument that the quality of our system of justice or the fairness of our courts is impaired by or is improved by limiting public access. and judge robinson, i want to start with you because you know if you look at the history of the right to a public trial, it is of course grounded in the anglo saxen history in the common law in the 17th century

and the idea of it was that the public proceedings would operate as a check against ma lev lant prosecution, corrupt judges the idea that a public trial would aid the fact-finding mission and make -- encourage citizens to come forward and speak truthfully while providing evidence. so your testimony that the single greatest threat to underlying media exposure in the courtroom is to the search for the truth seems to the turn the sixth amendment right to a public trial on its head. the whole idea is that it would be a check, it would provide assurances that people would be truthful. it would open to the public. why does the judicial conference the expansion of that public trial will undermine the search for the truth rather than advance it even more?

>> that's a critical question that we're studying. the right to a public trial is sackry sangt. the right to a fair trial is sackry sajt. we're balancing those two. we have to worry, but we don't know how much we have to worry. to the extent we have to worry that a witness hedges or shades the truth is not forth coming with information that they would otherwise be forthcoming with when they're testifying in front of a courtroom of say 20 people because they know there may be millions of people watching that, including people that are of particular importance to them, their boss, pastor, or next door neighbor who otherwise probably wouldn't go online and get the transcript of that trial and go through that effort, we have to boarry. i gave some examples earlier in a civil case. i had a case recently that i thought the parties might agree to record, they did not.

i wasn't surprised. it was a case about trade secrets. they come into a public courtroom. but they're going to be more concerned if their competitors are out watching it on the internet, something that they won't know. and this comes up in a variety of contexts. it comes up in terms of our witnesses are going to be concerned about hedging or shading their testimony when they are being cross-examined about a loss of consortium claim or emotional distress claim or in a criminal case if they're a confidential informant. there's a number of concerns depending on the type of case and the witness. >> in general, do you agree with the proposition that it is more likely that people will testify truthly when it's broadly exposed. if you don't accept that proposition then this notion underlining the right to a public trial doesn't make any sense? the idea is if your going to make an assertion and the whole world is going to hear it and it's not true, then there's someone who might be able to prove it's not true. if it's a truthful statement,

then you're less concerned that the whole world hears it. your argument or the argument of the judicial conference really undermines the basic notion of a public trial as being a very effective trial. i was a criminal defense and civil rights lawyer, did a lot of state and federal practice, and i think that public trial, the notion of being subjected to cross-examination and being done broadly and not in the sort of secret way or way that limits public access actually enhances the truthfulness. i want to go to a second question. you also said in your recent testimony that the presence of cameras in the trial courtroom is likely to heighten the level and potential of threats to judges. what is the basis for that conclusion and have you seen any evidence in the state court practice that the presence of cameras in the courtroom has increased the level or potential for threats to judges? >> of course, our study is focussed on federal practice and federal district courts. we haven't studied what's happened in state courts but

there are judges who have had threats, all of us have had threats -- >> the fact that your face is broadcast is a concern if it's the type of case where you have been -- the -- you have received threats. that's a concern. there are a number of concerns. and that is one of them. it won't happen in every case. i probably won't happen except in a small number of cases. you looked like you were about to say something? >> i can certainly understand it being a concern, but is it any more of a concern then, judge robinson, i've never met you, last night i went on the internet, i googled you and found the picture of you. oh, i know who to look for. it's not that difficult in this day and age. you don't need to have a proceeding of somebody testifying and having their face on television to find out what they look like. >> thank you. i my time has expired. i yield back. thank you, mr. chairman.

>> thank you, congressman. the chair recognizes the congressman from texas. >> thank you all for being here, the chair. couple of points to begin with and then we'll get your input. as the chair mentioned, i served on the criminal court district bench in texas for 22 years, tried felonies, everything from stealing to capital murder, before that i spent eight years as the trial prosecutor at the d.a.'s office in houston. and when i took the bench, a long time ago, the idea of cameras in the courtroom was just, you know, nonexistent. and i actually allowed cameras in the courtroom very early on in my judicial career. it was based upon the philosophy, the belief, the frustration and i'm going to agree with mr. sis leeny from rhode island, i know that shocks him that i agree with him on

this, the public the mystery of the courthouse still exists with the public. they pick up the newspaper in the morning and they read that this happened in a courtroom somewhere. and many times they're frustrated. why in the world did that happen in the courtroom? and it's because all they get is a little blip in the paper about the trial. they don't have access to the public trial. public trial, i agree, it's public so that the public knows what's taking place. we get away from the star chamber of england when they did things in the back room. the more the public knows the better they understand why the outcoomb turned out the way it did. with that, i allowed cameras in the courtroom. we heard all those arguments. we protected victims of crime. they weren't televised. the media always worked with

that. children weren't televised. special cases. the jury wasn't televised. we kept it focussed on the importance of the trial. wi never had a problem. we heard these arguments about the lawyers who would play to the cameras, they don't play to the cameras. they play to the jury like they have done throughout centuries. they play to the trier of fact. i always thought if judges didn't want cameras in the courtroom, why was that? maybe they would be doing things that the public -- they shouldn't be doing things that they're doing. so, i've had experience with cameras. it worked out. we did a capital murder case of a juvenile. and both sides agreed to the trial filming most of the case. and so i'm a big supporter of the public knowing about the greatest judicial system in the world. it's the american judicial system. it's not somebody else's. it's ours.

and blocking and preventing that access when they have the right to sit there and watch it and say -- we put a camera and view it on television, you're not allowed to do that, that does not make any sense to me. so i'm -- i do believe that we ought to athrew in federal court as well. you go over to the supreme court and you get a 15-minute snippet f you're a guest, on what's taken place in a very important trial with the most important court in the world. the public is allowed to walk in and they rush them out to bring in more people who are wanting to see what takes place. reading the transcript is not the same as watching the trial. so, without elaborating so much on that specific issue, what does the -- what does the media, those who -- in the business of filming courtroom trials think how that would help or hinder the public perception of the

judicij judicial system that's taking place. do you have an opinion on that? either one of you. >> certainly i think that the more informed the public can be, the fact that, you know, when i first started doing this, as you said, i might be at the courtroom all day and we're going to run 1:30 story on a trial. that day is also long since past because now with the internet, if you work at a television station, they can live stream the trial all day long and doesn't take away from their broadcast abilities. if somebody wants to watch gavel to gavel, they get to watch gavel to gavel if they allow the cameras. certainly the more informed you can be -- i would much rather watch a courtroom proceeding without any of the commentary. i would just like to see as if i was sitting there what's being

said, what's being asked, what evidence is being introduced. now, i realize i'm a lawyer, but i think there are a lot of people that have that same interest. if i can just watch for myself, i believe that happened during the civil trial of oj simpson and you just -- there were really no commentators. you could just turn it on and watch it. it was on everyday and i think courtv did gavel to gavel coverage and you could form your own opinions or learn things. i think that's the real benefit of allowing the cameras in. i think unfortunately far too often the electronic coverage gets confused with the commentators and the pundits and the spin and all the other stuff that comes with what used to be news and is now info tanment. i'm out of time. >> if the judge wants another 30 seconds, fire away. >> well, i appreciate the chairman. judge, i was going to ask your

personal opinion, do you think if the public had more visibility of what we did in the courtroom, whether it's trial bench or whether it's at the appellate bench or the supreme court, do you think maybe they would understand and appreciate the judicial system more or not with cameras? >> that would be my hope, mr. poe. maybe i should call you judge poe. i think all judges want the public to be better informed about our branch of government. and recognize that the public is not as well informed as they used to be, perhaps when we were in school many years ago. we recognize and embrace the fact that public access to the courts is very important. they are public proceedings. we understand that, you know, cameras may augment that. at the same time, though, we're balancing other interests. i appreciate that you have had seasoned experience as a trial judge in texas and there are a number of judges in the pilot

itself that came from state court experience. we're going to be surveying all of the participants in the pilot, including judges, some of us didn't have that experience before being on the federal bench. others did. it will be interesting to hear from those judges that have the prior state court experience as well. but that's going to inform how we go about formulating policy forward. there are concerns. i think there are legitimate concerns. we are balancing the right to fair trial versus the public's very important right to access. we just ask that you allows to complete our study to formulate our policy and our proceedings and our guidance going forward. >> thank you very much. thank you for the additional time, mr. chairman. >> thank you, congressman. the chair now recognizes the gentle lady from texas. >> thank you very much, mr. chairman. i thank the ranking members as well for his leadership and the questions of my colleagues who have expressed vigorously our collective commitment to justice and fairness and the importance

of the judiciary. i would offer to say that i think the issues have been raised here are legitimately judge robinson that give merit to concerns and comments that you've made along with those of mr. ostericher. so i hope that as we deliberate as a judiciary committee that we will about with judiciousness and take all of these points into consideration. i want to ask about the pilot. give me the ending time of the pilot. >> it's july 2015. it was originally a three-year pilot. we extended a year and now into a fifth year. >> so at that point, you will have a collection of data that included cameras in the

courtroom of varying levels of the judiciary state, county, federal? >> no. the pilot is focussed only on federal trial courts, the district courts. and the participants are federal district judges. so in judge 2015, the recordings will stop and then the federal judicial center will compile the data, including the very many surveys of practitioners and law officers and other participants in the process. we hope at the court administration and case management committees biannual meeting in december of 2015, that report will be ready for the committee. i chaired that committee until september 30th of this year, but i would anticipate that it's at that meeting -- cacm, but at that meeting that that body will -- >> excuse me for interrupting. but you have had cameras in the courtroom now for a number of

different federal courts. do you by any chance know how many? >> there are 14 courts participating in the pilot. >> i'm going to ask you a series of questions. >> that's all i need. 14. and you do what with the video now? >> the video is posted to the u.s. courts.gov website. >> it is able to be viewed? >> they're posted fairly quickly. the goal is to post them that day or thele toing morning. the attorney had talked about the fact that the judges review the videos before they're posted. that's not the practice. the judges may review the video if there's a problem. if there's not the problem, it's posted. >> let me ask a series of questions. thank you very much. so in essence this is a judicial cspan somewhat. c-span is current and present. you don't post it until the next day. i just need a yes or no. >> yes, correct.

>> are we all getting your name correctly, maybe we should say mr. mickey. we thank you for your intolerance, your tolerance. in the bill, i note that there is an effort to protect witnesses for judges to ask the question about witnesses, blurring their particular faces. let me ask you this and i've heard enthusiastic expression by my colleagues. being a lawyer and the champion of the first amendment which is what the tensions are here that wonderful first amendment and that recognition of the importance of speech not being, if you will, unfettered speech, which in the courtroom there is speech and then the whole judicial system that gives every party an opportunity to be heard but then also for witnesses to be heard as well. what comes to mind is the unfortunate case of mr. zimmerman and trayvon martin and

the demonizing of a beautiful young lady because she happened to be different. what is your response to witnesses who may look differently and speak differently and people across the country watching and even though this is just unfettered video, then it becomes in the open sphere. and that person, that innocent person, that beautiful young african-american woman became the -- not of her own fault. she was doing her civic duty. and the horror of demonizing her was inexcusable. how do you answer to the potential of those kinds of things happening? >> i certainly believe that was very unfortunate. i have always been a proponent of the fact that cameras and electronic coverage should be up

to the discretion of the trial court judge. i don't think there should be a per se ban. i don't think there should be a per se, we're coming in whether you like it or not. i mean, a judge needs to conduct his or her courtroom in the way he or she sees fit. and make sure that justice is fairly served. so that's really all i'm saying here. you know, it's unfortunate in this day in age, you know, people are often targeted whether now on social media. it's not just broadcast anymore. that leads to this kind of mob mentality that's out there. >> i thank the chairman for his indulgence. i want to make one sentence. i appreciate the testimony of both witnesses. i believe it has been very helpful. this is an important legislative initiative. it has some protective measures to it. judge robinson, you've indicated some protective measures through the pilot. i would hope that we could see

the report of the pilot. and mr. chairman, i'm hoping that we will have the opportunity to vigorously look at this and the legislation and make an important decision that will be fair to both of the witnesses' testimony. i yield back. >> thank you, congresswoman. i think it's my turn to ask some questions. and i'm staying as neutral as possible on this. i was a prosecutor of the state and the federal level as a u.s. attorney, and i tried my own cases. i know what g on in the federal courtroom. i'm going to play a little bit of a devil's advocate here with the two of you and get your reactions. do we agree that -- and i've tried these cases in federal court, when a minor is involved in a case, that there is no -- nothing divulging who that minor is as far as the tv's concerned. there's an agreement there? >> we agree, in fact, that's consistent with our privacy policy now in terms of written,

the trial transcript and pleadings that minors are identified by initials, not by name. >> i certainly think that's true. and for the most part, in cases where the media does cover these trials. if that's what's indicated by the judge, then media will follow along with those guidelines. >> and i'm particularly concerned about a victim. because i've prosecuted cases concerning sex trafficking of minors. >> i think in much the same way as the media does not often report the name of victim in cases, it certainly would follow that you wouldn't show their identity. >> do either of you have a distinction whether the proceedings concern testimony, demonstrative evidence, or appellate or oral argument? do you draw distinction of the two of whether one or the other should or should not be televised. judge? >> again, the circuit courts of

appeal can make the decision as corporate bodies individually, whether to allow for cameras in their courtroom. there are different concerns, but there are many more concerns at the trial court level as i've articulated today. >> this is probably rhetorical, from what i've seen, there's no money allocated for this. who's going to pay for it? taxpayers. >> well, i would argue that if the media were allowed to cover these cases, it would be their costs not the court's. who is going to be the director? does just my local news guy come in and take control and film? or is the judge now going to have the responsibility of being the director and calling the shots? >> well, the concern that the judicial conference has and the reason we structured the pilot the way we have, we want to be in control of the equipment to

make sure that jurors or witnesses are not inadvertently recorded. if you're talking about a live broadcast, once the toothpaste is out of the tube, it's out of the tube. you can't fix something like that. you're right, it takes resources, labor, someone monitoring the equipment. >> well, i think there's certainly a ways to make sure that the jury is not recorded in the o.j. trial, for example, the camera was mounted on the wall above the jurors' heads. there was no way for it to look down at all. so there was no inadvertent, certainly as photojournalists, if i was told by the judge this person doesn't get recorded, that's what that means. >> am i to -- am i correctly assuming that neither one of you are -- i know certainly, judge, you're not, but attorney, are you -- saying that you do not want to have an individual coming in the courtroom with his or her own camera and photograph this? >> i certainly think there needs

to be rules and decorum. i -- i can't imagine just as in those trials of the century during the lindbergh baby where you had photographers literally running around the courtroom with big speed -- so in this day in age where everybody's got a phone and everybody's got a camera in that phone, i'm certainly not suggesting that everybody in the courtroom sit there and record it on their own. >> but i do not hear you saying that you agree with what i'm purporting here. that the court cameras are the only cameras in the courtroom and the judge controls them. do you not agree with that? >> i have a problem with that. >> okay. what do we do about -- my time's running out here. but what do we do about the situation where once these digital recordings are released. now, what is going to happen

when the public gets ahold of it? what's going to happen when the comedians on late night tv get ahold of it? what's going to happen when someone out there who has the ability and it's very easy today and my kids teach me how to do it, taking that video and altering it and putting it out on youtube. >> obviously we had no control of any of that. and -- but to suggest that because that's a problem, the public -- if there's value in the public having a right to record a proceedings or having access, i should say, to record a proceedings, that's one of the risks attended with that. >> i think there's always going to be a parade of horribles. and no matter what we do, no matter how far we try and think this ahead, there's going to be an issue. but i don't think that's a valid one. >> but i -- i agree with my friend judge poe that we have the best legal system in the

world. it's a sanctity that we have to cherish. and i would hate to see it be ridiculed. so with that, i would thank you very much for your testimony today. it's been very helpful to all of us. this concludes today's hearing. thanks to all of our witnesses and those attending. without objection, all members will have five legislative days to submit additional written questions for the witnesses or additional materials for the record. this hearing is adjourned. >> thank you. >> thank you, judge. >> thank you. on the next "washington journal," david price looks at federal government funding set to expire this thursday, december 11th.

after that, georgia representative doug collins discusses transparency in the health care law and the possible release of a report examining the alleged use of torture by the cia. plus, your phone calls, facebook comments and tweets. "washington journal's" live at 7:00 a.m. eastern on c-span. >> jonathan gruber served as an adviser for the massachusetts and national health care bills. he'll testify in front of the house oversight committee on his recent criticism of the obama administration's rollout of the affordable care act and his belief that administration officials intentionally obscured details to enable passage by congress in 2010. see that hearing live at 9:30 a.m. eastern on c-span 3. and later, secretary of state john kerry speaks about combatting isis and the possible new authorization for the use of military force. he'll testify to members of the

foreign relations committee. and that starts live at 2:00 p.m. eastern also here on c-span 3. >> this week on q & a, political reporters share stories about being on the campaign trail with senator mitch mcconnell. >> he had planned for four ye s years. this started in 2010 after he saw what happened in the republican primary for rand paul, the kentucky republican senator. rand paul beat mcconnell's hand picked guy in that primary. at that point, mcconnell realized, i have to recalibrate everything i know about republican primary politics in my home state, and he started to make changes, he hired key staff, started to build this very sophisticated infrastructure, knowing this would be the most difficult race in his campaign.

they've watched harry reid's re-election in 2010. they needed he needed to go from the 2008 race where he beat bruce lunsford by about six points, a tough race. he was going to have the latest technology. had done an interview with him in 2013 and he said he was going to build the most thorough senate campaign ever. he was going to build the best -- >> in american history. >> in american history. >> and he probably got -- he probably got there. >> sunday night at 8:00 eastern and pacific on c-span's q & a. and to mark ten years, we're airing one program from each year starting december 22nd at 7:00 p.m. eastern on c-span. next, a hearing on sports blackouts and anti-trust exemptions. we'll hear from john mccain who is a co-sponsor of a bill that would remove such exemptions for sports leagues that impose blackouts of game broadcasts in the licensing agreements with program distrib held in front of the senate judiciary committee, this is an

hour and 20 minutes. >> mr. chairman, i'm also supposed to be at a foreign relations committee. would you mind if i went ahead with my -- >> senator mccain, i was going to suggest if the ranking mem r member -- >> go ahead. >> agrees that you go first and we'll give our opening statements. >> thank you, mr. chairman, and ranking member grassley, and i thank you for allowing me to testify, and thank you to senator blumenthal for making this hearing happen. senator blumenthal's commitment that made him a valuable partner to work with on this issue. leave consumers holding the short end of the stick, and i'm here this morning to discuss sports blackouts and to explain why the continued use of blackout rules and policies failed to serve the interest of consumers. in this case, loyal sports fans. i will truncate my opening statement, just to say the

simple fact is that the rules as they are today today only serve to benefit sports leagues and member teams at the expense of hardworking fan who is support them so loyally through money, time, passion. just last year during the nfl wildcard playoffs, fans of the cincinnati bengals, indianapolis colts, green bay packers came close to experiencing blackouts when those games hadn't sold out just days before the kickoff. the blackouts in these regions were only averted at the last minute local businesses bought up tickets to bring the total above the nfl required threshold. there's something wrong with the situation in which the nfl can say to all those fans who made the league what it is today you better purchase tickets or else. the nfl and teams have been benefitted from myriad public benefits including exemption from antitrust rules, specialized tax status and tax that subsidize their

multibillion sports stadiums. these benefits carry a responsibility back to the public and obligation to treat loyal fans with fairness. we've been chipping at rules for some time. there's still a lot of work to do. i'm happy mr. chairman to join you and introduce the fans act aimed to eliminate the blackouts. this ends blackouts in those circumstances when there are disputes between broadcasters, cable, satellite companies that result in blackouts. we would strongly prefer the league take the initiative it's and demonstrate leadership by conforming policies and practices. let's be clear. should the league fail to act, we should do everything we can to stand up for consumers by advancing the fans act and other initiatives. i look forward to hearing from the witnesses on the following panel on ways we can work together to finally blow the

whistle on sports blackouts once and for all. i'd like to say again mr. chairman, you come from a state which is huge as far as sports broadcasting is concerned. i particularly admire your courage on this issue. again, it's just unconscionable to have average fans be deprived of the ability to see activity in a stadium they paid for. so, it's a no brainer in many respects. if we aren't able to succeed, it's frankly a triumph of special interest over the public interests. i want to thank you for your leadership and thank the ranking member who as always have the greatest admiration for and respect. thank you. >> thank you so much senator mccain. i really appreciate you being here. i know it's a busy day and time of our closing days of this

session. i want to express my personal thanks for your leadership and courage in sponsoring this bill and working with me on it. i look forward to continuing our work together. i know you have another meeting. certainly you should feel free at any time to leave despite the powerful and riveting remarks i'm about to give. i know you'll find it difficult to break away. >> thank you. thank you. i'd also like the to invite senator grassly to come to arizona for the super bowl and join many of his constituents who are smart enough to spend the winter with us. thank you. >> thank you senator mccain. >> we are going to give opening remarks and then unfortunately going to have to take a recess because of the votes that are ongoing right now. we're going to come back at the

end of those votes, we hope not long in a little while to continue the hearing at that point with the remainder of the witnesses. i will give my opening remarks. then senator grassly will give his. as senator mccain said, americans really love sports and they deserve to see them on their terms, not on terms that are described by the professional sports leagues in blacking out what they think americans should see rather than what americans want to see on their terms. the competitive teams of professional football, baseball, hockey, basketball leagues represent a rich and vibrant part of our american culture. they contribute immensely to what makes america the greatest country in the history of the world. professional sports leagues generate billions of, thousands of jobs and critical economic activity in multiple industries. the super bowl is in fact the highest rated event on

television. last year the nfl playoffs collectively accounted for ten most watched sporting events of the entire year. so these games are part of what makes america great. most of these games were carried on free over the air television. i believe we ought to keep it that way. sports fans power this media and merchandising juggernaut by purchasing tickets and merchandise, watching games on tv and supporting their teams through thick and thin. these billion professional sports leagues derive almost half of their revenue from licensing tv rights to cable broadcasts and regional sports networks. some estimate those rights cost upwards of $17 billion a year. a large bill, a large cost that is increasingly passed on to

consumers in the form of higher monthly rates for cable and paid tv. we have evidence of it at this very table when we've had recent hearings on some of the posed mergers. sadly, in return, fans in the public are often treated like a fumbled football. sometimes even a kicked football. when places like buffalo, new york fail to sell out, it's 74,000 person stadium, bills game is blacked out for local fans. when powerful cable companies and broadcasters fail to reach an agreement, it's often the threat of holding sports programming hostage that is used to negotiate higher fees. and by the way, higher rates before consumers. even the internet can't escape blackouts. when fans live too close to their favorite baseball team but not close enough to actually watch them on television, they

face online blackouts that force them to drive to the next city to catch a game. these blackouts are loathed by fans and rightly so. hated by consumers and by most industry stakeholders in the business of television. good news is we can do something about it. nfl, nba, mlb and nhl receive tremendous assistance, huge benefits from the congress in putting their brands, their sport and advertising before the american people. this public assistance takes several forms but chief among them is the antitrust exception enjoyed by the four major sports leagues. essentially every company is bound by this price fixing. sports leagues are an exception. almost a unique exception to this antitrust rule. in the broadcasting act of 1961, congress granted a special exemption from the rules that govern other companies permitting professional sports leagues to coordinate and fix prices for negotiating broadcast rights.

the country affords these teams their special status because of their special role in american culture. but that doesn't give them the right to abuse this privilege. the government certainly shouldn't endorse abusive behavior. the public benefit come with a public trust. the fcc recognized that when they threw a flag in september on nfl anti-fan blackout policy. chairman wheeler of the fcc announced at that meeting and i'm quoting "federal government should not be a party to sports teams keeping fans from viewing the games. period." i'm grateful that all five fcc

commissioners joined together in a bipartisan vote and repealed their blackout rule as i had called for their doing along with senator mccain, senator brown, congressman higgins and many more. but despite the fcc's actions in september, sports leagues and the nfl in particular retain the blackout games through their private contract agreements. i believe these blackout policies are anti-fan and anti-consumer because they disregard the public trust that the leagues have because of this special benefits and public benefits that they receive and because of the trust they have to their fans and the teams. and more over, these policies are in the front to direct and indirect investment made by federal and local governments that provided tax exemptions, enhanced public transportation, infrastructure to stadiums and exemptions as i've mentioned from the antitrust law. that's why i've joined with

senator mccain to introduce s 1721 furthering access and networks for sports act, fans act. that's why i've joined in seeking support from my colleagues. i believe that support is growing that we have momentum on our side. this bipartisan bill leverages the antitrust exemptions that leagues enjoy against the elimination of these blackout policies. let me put it simply. unless the leagues and blackouts are -- unless the leagues and blackouts will no longer -- to instruct anyone carrying their games that they can no longer hold sports programming hostage for higher fees and cable rates. it would make more live games available on the internet. i want to make one thing clear. this bill does not use the heavy hand of government to force the sports leagues to do anything. it doesn't require them to end

blackouts with the threat of fines or enforcement actions. it does end the blank check from the government to the leagues and it takes away congress's implicit endorsement of blackout policies. fundamentally it represents a bargain to the leagues. they can continue enjoying exemptions from existing law if they treat fans fairly. if they want to continue their blackout policy, government won't stop them. they'll no longer get the special public benefits and protection from antitrust enforcement they currently have. i want to know particularly that this hearing is a fact finding mission. we obviously are not going to pass this bill out of the senate or congress this year. i look forward to a lively debate and senator mccain and i are open and committed to working with stakeholders on their ideas for changes and edits before reintroducing this bill again next congress which we expect to do. thank you very much. i yield to senator grassly.

>> sure. i thank you mr. chairman. you've been very thorough in your explanation and purpose of the legislation. i particularly compliment you for take on a strong, powerful force you're taking on. that's what has to be done if you're going to make changes sometimes. i thank the witnesses who are here and look forward to your testimony. i think we can all agree on one fundamental notion. no one likes sports blackouts. the sport leagues and their member teams don't like them. television providers don't like them. of course sports fans definitely don't like them. a particular issue in iowa is that we don't have major league teams so the entire state won

that's what has to be done if you're going to make changes sometimes. i thank the witnesses who are here and look forward to your testimony. i think we can all agree on one fundamental notion. no one likes sports blackouts. the sport leagues and their member teams don't like them. television providers don't like them. of course sports fans definitely don't like them. a particular issue in iowa is that we don't have major league teams so the entire state won way or another falls within the blackout territory of six different teams, cardinal, royals, twins, brewers, cubs, white sox.

i can tell you the periodic blackouts are very frustrating to experience for fans of my state. so there is no question that blackouts are exacerbating experience and disfavored. the question is how to minimize blackouts and maximum benefits to consumers while respecting the rights of private parties to negotiate with each other at arm's length. on that note, i'll add one other comment. as we all know, the federal communications commission voted unanimously in september to eliminate sports blackout. i think as a general matter, the federal government shouldn't be in the business of mandating policies or parties that otherwise negotiate. at the same time i think we need to be mindful of the flip side. more specifically as a general rule, the federal government shouldn't be in the business of mandating which provisions should and shouldn't be in public contracts. any time such a step is proposed, we should tread carefully. the chairman just said he's

beginning discussions on this and consideration of this. i'm happy to join in that dialogue. i thank the witnesses once again and look forward to the hearing of the start of that dialogue. >> thanks senator grassly and for your excellent remarks. we are going to apologize, take a recess now. i want to thank the witnesses the for your patience. we'll be back literally as soon as we can. we'll take the second panel at that time. again, my thank and apologies. we'll be right back. thank you.

>> thank you, senator lee. i want to thank you senator blumenthal and senator mccain for bringing this important issue to the committee. you've raised an important question. no one really likes sports blackouts. least of all the public. yet, as we all know, congress

has permitted leagues to operate outside the laws in order to have them. fans might go home and watch on tv. well, the ticket sales might dwindle as a result. that has now been called into question. fans, they say, will attend games if the ticket price is right regardless of whether they could watch at home as an alternative. i'm concerned the bill might unsettle some contractual expectations that the sports leagues have bargained for without appropriate phaseout period.

i agree that the issue certainly merits the attention of congress. for ensuring free markets and protecting low consumer prices. functioning well and having their desired effect of protecting competition. for that reason, i'm certainly open to examining in the future whether the antitrust exemptions enjoyed by professional sports leagues in their current forms rest on sound justifications and, if not, how congress might act to modify those exemptions. thank you very much, mr. chairman. >> thank you, senator lee. i'm going to ask the next panel to please come forward and take your seats. and actually before you take

your seats, why don't i swear you in, which, as you know, is the custom of this committee. do you affirm that the testimony you are about to give is the truth, the whole truth, and nothing but the truth so help you god? >> all: i do. >> thank you. by way of introduction, let me give a brief bio of each of the witnesses today. william lake is the chief of the media bureau at the federal communications commission. he has served as the dtv transition coordinator for the fcc, counsel to the administrator at the environmental protection agency, and principal deputy legal adviser at the u.s. department of state. he was also a partner at wilner, cutler, pinkering, hale, and door. david goodfriend is the founder and chairman of the sports fan

coalition, the largest multiissue public policy organization for fans. he's current through president of goodfriend government affair, and he served as deputy staff secretary to president clinton and media legal adviser to commissioner susan ness at the fcc. he also previously served as vice president of law and public policy at dish network. sally greenberg is the executive director of the national consumers league. she testified numerous times before congress on consumer protection issues from 2001 to 2007. she worked at the consumers union. she served for many years on the board of directors at the alliance for justice and h.a.l.t., an organization that focuses on protection of consumer rights in their interaction with lawyers and the legal system. gerald walden is a partner at

cubington burling representing a range of technology companies online, social and media company, and communications clients before the fcc, the ftc and congress. before joining covington, jerry served as senior counsel on the house subcommittee on telecommunications and worked on the committee staff for over ten years. thank you all for being here today. let's begin with mr. lake. >> good morning, senator blumenthal and senator lee. i'm bill lake, chief of the media bureau at the federal communications commission. i'm pleased to appear before you today to discuss the recent fcc action to eliminate our sports blackout rules. a built of history may provide useful context for our action. our sports blackout rules specifically prohibited cable and satellite operators from airing any sports event that had been blacked out on a local broadcast tv station pursuant to a private blackout policy

adopted by a sports league. the commission adopted a sports blackout rule for cable in 1975, finding that the rule was necessary to ensure that cable importation of distant signals would not reduce ticket sales and thus lead sports leagues to refuse to sell the rights to their events to distant stations which could, in turn, reduce the availability of sports programming to tv viewers, which was the principal concern of the commission. we later adopted similar rules for satellite carriers and open video systems. as you know, the commission voted unanimously to eliminate these sports blackout rules on september 30th this year, finding that they were unnecessary and outdated today.

the repeal of the rules took effect on november 24. the commission's action followed an open and transparent public process that began in 2011 when the sports fan coalition filed a petition for rule making with the commission. after careful review of the comments we received in the proceeding, the commission found that significant changes in the sports industry since the rules were adopted had eliminated the justification for the rules. first, for the nfl, the only league for which the commission's sports blackout rules continued to be relevant, ticket sales are no longer the primary source of revenue. the massive popularity of pro football means that the primary source of income for the nfl has shifted to television. with tv revenues now the nfl's main source of revenue approaching $6 billion this year, total nfl revenues reportedly exceeded $10 billion in 2013. second, the increased popularity of nfl games has brought fans to

the stadiums in numbers that make blackouts exceedingly rare. in 1975 almost 60% of nfl games were blacked out because they failed to sell out. last year only two of 256 regular-season nfl games, less than 1%, were blacked out, and no games have been blacked out so far this year. moreover, in recent years, blackouts have affected only a few nfl markets such as buffalo, cincinnati, and san diego. finally, the commission determined that the impact on consumers of eliminating its sports blackout rules would be minimal. the nfl's existing contracts with the broadcast networks extend through 2022, keeping games on over the air stations through at least that time frame. beyond that, the commission found it is highly unlikely that

the nfl would find it more profitable to move its games from over the air stations to pay tv in the absence of the sports blackout rules. in conclusion, i would like to note that i am limiting my testimony to the commission's decision and its rationale. elimination of our rules does not prevent the sports leagues from continuing to have a sports blackout policy, and the commission does not take a position on whether congress should eliminate or modify existing antitrust exemptions that allow leagues to have such blackout policies in the first place. again, thank you for the opportunity to appear before you today. i will be happy to take your questions. >> thank you, mr. lake. mr. goodfriend. >> thank you, senator. thank you, senator blumenthal, senator lee, and senator klobucar, members of the committee. we appreciate very much the fact

that you've invited sports fan kos ligs to testify. my name is david goodfriend and i'm the founder and chairman of sports fan to co-ligs, the largest fan advocacy organization in the public policy arena. founded in 2009 we have tens of thousands of members across the usa and are led by a bipartisan, diverse, and seasoned board of directors. the government should not subsidize or support anti-fan activities by professional sports leagues, period. when a sports league receives a public benefit, the fans should get a fair return or the subsidy should go away. that is why sports fans coalition is proud to have led the successful effort to end the fcc's sports blackout rule. the nfl's blackout policy prohibits a local broadcaster from televising a game when tickets don't sell out 72 hours before kickoff. the fcc rules you just heard bolster that anti-fan policy by requiring paid tv companies likewise to impose such

blackouts. sports fans coalition along with our friend from national consumer lesion and others -- our efforts culminated in a unanimous 5-0 vote this past september 30th to end the 40-year-old anti-fan sports blackout rule. and we could haven't done it, senator blumenthal, without support from you and senator mccain and others, so thank you for that. that was a great moment for fans, but the problem is the nfl's policy remains in place. the nfl should end its local blackout policy once and for all effective immediately. fans hate local blackouts, and you know this. but just listen to two fan who is told the fcc how they feel. dennis steinmiller from new york said, "i'm a disabled vietnam vet. i also suffer from posttraumatic stress disorder. i'm unable to attend the bills games because of my disabilities. watching the bills on tv is one thing i look forward to every year as well as to help me with

my ptsd. please put all the games on tv for me and the other who is gave much of ourselves for our country." or listen to mary bash from florida, who said, "for people like me who are disabled, this blackout rule is discrimination against people with disabilities. i can't physically attend a live game at any arena. i'm stuck at my home with only the television to bring me to sports or anything else that i enjoy watching. the nfl blackout policy from the '70s does not reflect the times of today. technology has changed. the nfl's market has changed. where do they think all that money comes from? it is us, the consumer, who buys the products from their advertisers. it is us, the taxpayer, who built most of those arenas. it's us, the american citizen, who continues to foot the bill." real fans, real comments submitted to the fcc. but the fans aren't alone. we saw economists from stanford, michigan, and other institutions submit detailed declarations to the fcc explaining why the nfl's blackout policy doesn't even serve its stated purpose of getting more fans in seats. listen to other professional sports leagues.

we submitted data, depositions from the commissioner of baseball, the commissioner of hockey who said under oath we got rid of our blackout policy because it doesn't work. and the fcc agreed with all this when they got rid of their own sports blackout rule. now the nfl should do the right thing. it should listen to fans, economists, other leagues, the commissioners of the fcc, the members of congress, and end its local blackout policy. failing that, congress should pass the fans act. the antitrust statutes currently shield leagues from liability when imposing local blackouts. it would eliminate the get-out-of-jail-free card. the sports fan coalition also believes fans shouldn't be used as pawns during contractual disputes between big companies. the fans act would take care of that too. finally, i'd like to make clear that sports fans coalition fully supports putting as many games as possible on free over the air broadcast tv.

the migration of sports off broadcast tv has created problems. just look at los angeles where time warner cable took over the television rights of the l.a. dodgers, and what happened? 70% of l.a. fans could not watch their dodgers play in a great season because they didn't have time warner cable. so when major league baseball and the l.a. dodgers have received so much public subsidization, fans should have a better access to those games and putting them on broadcast is one way to do that. perhaps a revised fans act could require all sports leagues to maintain just a certain amount of games on free over the air tv so that fans have access to at least some games. thank you, and i look forward to answer anything questions. >> thank you very much, mr. goodfriend. miss green berg. >> yes. good morning, senator blumenthal, senators lee, klobucar, and franken. my organization, the national consumers league, was founded in 1899. we are the nation's pioneering consumer organization and our nonprofit mission is to advocate on behalf of consumers in the united states and abroad. we very much appreciate you inviting the consumer point of view for this very important

bill, s-1721. i'm delighted to see my fellow minnesotans here because i grew up going to minnesota vikings games and minnesota twins game. i'm an avid fan. i love watching professional sports. but like me, millions of americans define themselves in part by the teams they support. however, the professional sports leagues are also multibillion-dollar businesses that benefit from a multitude of public subsidies. these take the form of exemptions from federal antitrust laws, tax breaks, and public funding for stadiums, infrastructure sum port for municipalities and blackout policies that benefit the leagues and their broadcast partners. as the leagues enjoy huge profit, taxpayers are right to question what they receive in return for these public benefits. for example, a harvard university study recently calculated that 70% of capital costs of national football

league stadiums have been provided by taxpayers, whether they are sports fans or not. a 2012 bloomberg study estimated the tax exemptions on interest paid by municipal bond issued for sports facilities cost the u.s. treasury $146 million a year. and over the life of the $17 billion of exempt debt issued to build stadiums since 1986, taxpayer subsidies to bondholders would total $4 billion. lavish public subsidies for stadiums aren't the only way that taxpayers subsidize professional sports. the rising cost of acquiring sports programming is also a significant driver of rising cable bills, which have gone up more than three times the rate of inflation since 1998 due to the wye spread practice of channel bundling, the increasing costs of sports programming are passed along to all cable and satellite subscribers regardless of whether they actually watch sports. sports programming costs are also a major driver of the

fights between broadcasters and cable television providers over retransmission fees that have contributed to the increasing number of programming blackouts. in return for the government largess lavish on sports leagues, consumers are right to be outraged when essential services are cut to subsidize unaffordable tickets at publicly funded stadiums. cable and shiite subscribers, fans and nonfans alike, are angry that their bills go up due to ever-higher sports programming costs when the games even make it on air. the game is clearly rigged in favor of the professional sports leagues. taxpayers are getting the short end of the stick. so it is indeed time for congress to step up and begin to level the playing field. that's why nc slshgs proud to support the fans act. the bill would benefit consumers in a number of ways, by reining in cable rate hikes, reducing incentives to blackout games, and giving consumers access to online game broadcasts. to elaborate, the bill commissions require that they

not black out games as a result of contractual disputes with cable and satellite companies. ncl believes consumers should not be used as pawns in tis puts over retransmission fees, thus the bill helps to reduce the insensitive to use blackouts as a negotiating tactic and promises to reduce the frequency of these programming interruptions. second, the bill eliminates the antitrust exemption for local sports blackouts in the event the games do not sell out through tickets np will benefit millions of fans in smaller markets such as buffalo, many of which have larger stadiums but smaller populations and thus are less likely to sell 85% of their seats. and third, the bill benefits consumers living in teams overlapping broadcast territories by conditioning the league's antitrust exemptions on the provision of alternative platforms like the internet.

this would particularly help major league baseball fan who is live in states like arkansas, connecticut, nevada, oklahoma, that are overlapped by separate clubs in their home television territories and thus subject to local blackouts. finally, the bill corrects a historical anomaly by bringing major league baseball under the auspices of the clayton antitrust act in the same way as the nfl, nba, and nhl are currently treated. in doing so, the statutory conditions placed on existing antitrust exemptions by this bill would also apply to mlb. in conclusion, i'd like to reiterate our strong belief that the fans act addresses some of the unfair and unbalanced subsidies and preferential policies like antitrust exemptions that professional sports leagues enjoy at the expense of taxpayers and sports fans alike. thank you very much.

>> thank you very much, miss greenberg. mr. walgren. >> good morning, senators. members of the committee. my name is gerry wauld ren and i'm here in my christmas ti as outside counsel to the national football league on television-related matters. i appreciate the opportunity to discuss the nfl's commitment alone among the professional sports leagues in ep suring that all of its games are available across the country via free over the air television. for more than five decades the sports broadcasting act has been the key component in this strategy, enabling the nfl, major league baseball, the nba, and the nhl to put their games on broadcast television. in the nfl's case, the league has agreements to put all 256 regular-season games and all playoff games on free tv. that is a claim that no other sports league can make about all its playoff games, let alone all its regular season games. quite simply, the sports broadcasting act is working to

benefit fans in the public interest. for this reason, the fans act, which attempts to dictate business decisions, would ultimately be harmful to fans. for continue tech, the nfl strategy serves three main goals. first, because nfl teams generally play once each week, the league tries to make each game a special event and obtain the widest possible audience for those games. second, the league wants to encourage strong fan support in each local market. and third, the broadcast television agreements generate substantial revenues that are shared equally by the 32 nfl clubs, thus clubs in buffalo, green bay, or minneapolis receive the same amount from tv contracts as teams in the new york city and chicago media markets. to month pro-mote these goals the nfl has long maintained the blackout policy, which is incorporated into the league's contracts with the broadcast networks.

the hallmarks of informal. in games are full stadiums, excited crowds, and competitive games. soldout games improve the experience both for fans in the stadium and for those watching on television. increased attendance at games also helps to support local jobs, businesses, and taxes. and the league's business judgment is that it serves these objectives well. while some may disagree with the league's television policy, strong television ratings matched with high attendance demonstrate that the policy is working. the debate about blackouts of nfl games should be seen in context. nfl game blackouts are at an all-time low. last season only two games were blacked out across the league. this season there have been no blackouts. so over the past season and two-third, with almost 450 nfl games played, there have been

just two blackouts. just two blackouts. this reduction reflects adjustments in the nfl's blackout policy that the league has made over the years to promote both game attendance and viewership. the sports broadcasting act encouraging broad-based game viewership. congress passed a law in 1961 to enable league agreements with broadcast networks and a sharing of revenues. under the sba, the nfl has created the most pro consumer television plan in sports today. the nfl has maintained its commitment to broadcast television, even extending its contracts to 2022 with its broadcast partners and trends by the other sports leagues off of free tv and towards pay television. the fans act proposes changes to the sba that would ultimately harm fans by creating uncertainty around the future of sports on free television. a possible result would be to migrate popular sports programming from free broadcast television to pay tv. this committee has cautioned

against such a move. the act propose untenable commissions on the trust provisions. the bill would deny a sports league the anti-trust exemption if third parties such as a television station or cable or satellite company have a contract dispute. no business can plan its operation under laws that could change at a moment's notice due entirely to the actions of third parties. in conclusion, nfl television policies made pop by the sba bring fans across the country a wide range of outstanding television content each week. the nfl and the other sports league's practice of tell advising games and these policies should not be allowed.

i'll take questions. >> thank you. i have some questions that i'm going to pose to you and then yield to my colleagues. i particularly am grateful to the head of the judiciary committee for being here today. you mentioned the uncertainty of fans. the reason for the uncertainty right now is the potential deprivation they suffer from blackouts. there may have been few this year but the potential for blackouts is what creates their apprehension that they may be deprived of access to these games. i wonder whether you have additional evidence that was not presented to the fcc that you have to present to this committee or whether it's your contention that the fcc failed

to consider the evidence that you presented in reaching its conclusion. >> senator, i have two comments. one, it was mentioned that the sports economists provided a study. dr. singer said that an important reason why the nfl keeps games on broadcast television is because it's able to control its product. there was conflicting evidence before the fcc. i respect what mr. lake said that the fcc made one conclusion. the nfl's business judgment is that this is very important, but i think it misses sort of a larger point. senator, with respect to your constituents, they have seen every giants game this year, last year, the year before, the year before that, all the way back to the early 1990s. if you look at the knicks games,

they have to pay $80 a month to get their knicks games, their rangers games and to get almost all their yankees games. but they have seen every one of their giants games and i dare say every one of the jets games going back to that same time frame. i recognize that there are blackouts of nfl games, they are few and far between. but the nfl's commitment to broadcast television stands out among the other sports leagues. >> but the threat continues to exist in connecticut and around the country that they will be deprived of access to those games, and if the reality is that they are seeing the games anyway, why continue with the threat of blacking them out? it seems to me that your contention is that the blackout policy is essential to your business policy. in fact, it's the anti-trust exemption that's essential to your business policy. without the anti-trust exemption, you wouldn't be able to negotiate the enormously lucrative broadcast agreements that you have and the revenue sharing pacts that you enjoy, and as a condition for receiving

that very public and unique benefit, why not eliminate the threat to connecticut consumers and others around the country, fans across the united states, that simply because of a failure beyond their control of big business interests to reach an agreement, they may be deprived of access. >> i recognize that the sports broadcasting act gave an exemption to all the sports leagues and the nfl has used that exemption very responsibly by putting overwhelmingly its games on television. to be clear, major league baseball testified last year before the senate judiciary committee, the only reason why the world series is on fox television is because of the sports broadcasting act.

it ensures that broadcasters -- and i would say if you look at the nfl in comparison to the other leagues, i think the league as used its anti-trust exemption very responsibly by putting so many of its games, all of its regular season games and all of its playoff games on free television. i acknowledge that last year there were two, this year none so far, that they are few and far in between, but the overwhelming number of games are on television and we think that's a responsible use of the sba provision. >> and the overwhelming number of games also are sold out in the stadiums, are they not? >> yes, that's correct. >> so why the blackout policy? >> we think over the long term it has served to promote that benefit. it's easy to remember that in the late 1990s, 25% of games actually were still being blocked out. >> in fact, aren't there other actions that the teams regularly take during the 2012 system season, the miami dolphins bought tickets to prevent a

blackout for seven of its eight home games, the jacksonville jaguars have covered approximately 10,000 seats at ever bank field with tarp since 2005, reducing their stadium capacity from 76,000 to 67,000. the teams regularly take action to fill their stadium, giving away tickets, selling them for less than face value, so as to avoid blackouts. why not eliminate the blackouts? >> i think that is profane. i think it's evidence that the clubs actually understand. the nfl doesn't want blackouts. the clubs don't want blackouts. senator lee and grassley both made that point in their opening statements. no one likes blackouts and that includes the nfl. so i think the examples that you have shown are clubs trying to respond and the league has adjusted its policy to be more responsive.