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The (Absurd, Unjust) North Carolina Baseball Blackout

Raul IbanezTuesday night, the Yankees and Orioles played the second of a three-game set at Camden Yards. After 12 tense innings, Raul Ibanez broke a 4-4 tie with a two-out RBI double, and the Yanks won when Mariano Rivera notched his first save of the year.

I live in Chapel Hill, North Carolina, though, so I couldn’t watch the game with my MLB Extra Innings package, due to the coverage blackout. If I had MLB.TV for my laptop, I’d have faced the same problem. I live 312 miles from Baltimore (about six hours by car), but baseball’s blackout map covers the entire country, and Chapel Hill happens to fall in the Baltimore/Washington, D.C., region. This is common all over America; in Iowa, residents are blacked out from watching six different teams. But in a situation unique to North Carolina, I also had no way of watching the game on cable television.

I’m a Yankees fan, and the fact that I miss a handful of games over the course of a 162-game season due to the blackout doesn’t qualify as a huge tragedy. But what if I were an Orioles or Nationals fan?

Elsewhere in the country, this wouldn’t be a problem. Unlike the NFL, where games are carried on CBS or Fox affiliates (or NBC and ESPN for nationally broadcast night games), most baseball games are not on network television (the exception is Fox on Saturdays). Local broadcasts tend to air on cable channels — most of them offered on the analog tier of cable packages — and the blackout restrictions extend far beyond a team’s home city, unlike the NFL, in order to protect these cable rights. The justice of this policy is an argument I’ll leave for a different time. For now, let’s accept the idea that games should be available either on cable or a specially purchased MLB service.

In theory, the fact that I’m blocked from watching Orioles games should be mitigated by the availability of the game on cable. If I lived in Saratoga Springs, New York, for example, I might not be able to get Yankees games on the Extra Innings or MLB.TV package, but I could just flip on the YES Network and camp in front of the television. No big deal. But in North Carolina, things aren’t quite that simple.

Enter Time Warner Cable and the Mid-Atlantic Sports Network. The former is a media giant with a cable monopoly* in the area where I live, and the latter is the flagship station for the Baltimore Orioles and Washington Nationals. A long legal standoff between the two (summarized below) is now in limbo in the federal courts, and the upshot is that the Orioles and Nationals are not available on cable television in North Carolina. Because of this, residents are besieged on both sides; no cable coverage, and no special coverage from the MLB packages. Additionally, nationally televised games on Fox, ESPN, and the MLB Network are also blacked out.

(*Very recently, another option, AT&T U-verse, has emerged, but it also doesn’t carry MASN.)

Here’s the timeline:

2007: MASN, which is owned by the Orioles and Nationals, began televising Orioles games. At the same time, it demanded that Time Warner North Carolina offer the station as part of the analog tier. Time Warner refused, a move many saw as a way of protecting its own sports networks.

January 2008: An FCC arbitrator agreed with MASN and ordered Time Warner North Carolina to carry the station across the state. Time Warner appealed.

October 2008: The FCC Media Bureau upheld the arbitrator’s decision, and gave Time Warner 30 days to comply. Time Warner appealed again.

January 2009: The item was placed “on circulation,” and remained unresolved for almost two years.

December 2010: The FCC granted Time Warner the right to appeal, and then reversed the previous two decisions, saying Time Warner refused carriage for “legitimate and nondiscriminatory reasons.” This allowed Time Warner to exclude MASN from all cable packages. MASN appealed to the U.S. Fourth Circuit Court of Appeals.

May 2011: The FCC released a brief arguing its side.

January 2012: Oral arguments were held on the 26th (page 21, PDF). A decision is pending. The losing side will have the option to appeal to the Supreme Court. For what it’s worth, the Fourth Circuit is a notoriously conservative court, which legal commentator, and White House counsel during the Nixon administration, John Dean even called “the most conservative circuit court in modern American history.” It’s unlikely that the Richmond-based court will overturn a decision handed down by the FCC in favor of a corporate giant like Time Warner. The same makeup and likely outcome also applies to the Supreme Court.

It’s difficult to ascertain the real villain in this debacle. It would be easy to blame Time Warner (and believe me, nothing would please me more), and the standoff is clearly motivated, in part, by the desire to protect its own interests. On the other hand, if the FCC brief can be believed, MASN rejected “alternative proposals” from Time Warner that would have allowed the station to be carried on the analog tier in eastern North Carolina (where I live, and which includes the areas that are blacked out only for the Orioles and Nationals) and on the basic cable tier in the western parts (where two more teams, the Braves and, bizarrely, the Reds, are also blacked out). MASN wouldn’t settle for this compromise.

The FCC used that justification to uphold Time Warner’s appeal, along with the idea that “the sparse demand in North Carolina for MASN’s programming (principally baseball games of the Baltimore Orioles and Washington Nationals) did not justify the cost of carrying the network on MASN’s terms.” Offering this next opinion may be going well beyond my level of expertise and ignoring MASN’s basic rights, but it is true that North Carolina is more of a basketball and football state, and maybe it would have been wise of MASN to accept the limited deal, especially since it offered analog coverage in the most populous part of the state.

That being said, the focus shifts to MLB. What can Major League Baseball do to support customers who are willing to pay to watch the games? The cable dispute, with all its unresolved complexities, raises a basic question: Why can’t MLB just lift the Extra Innings and MLB.TV blackout in areas where the games are unavailable on cable? The league can’t be blamed for the legal battle between Time Warner and MASN, but the “white knight” solution seems like a fairly logical resolution. I tried to contact MLB on Tuesday afternoon and this morning. There were three questions I wanted to ask. First, and most obvious, why not lift the blackout? Second, if that’s not an option, shouldn’t the price of the MLB.TV and Extra Innings packages be reduced by the percentage of games that are unavailable? And third, don’t blackout policies like this hurt the product?

I spoke with five different people at MLB, but as of noon ET, I couldn’t get anybody to comment.

Until the situation is resolved, non-coverage in North Carolina will continue. The only recourse available to state residents is satellite television, which comes with its own pitfalls (shoddy reception in bad weather and in the presence of natural obstructions, to name two), or watching every game in a bar, which isn’t a feasible option for most fans. Beyond that, we’re at the mercy of a Kafka-esque bureaucratic farce, with no end in sight.