Broadcasters Out of Luck in Licensing Dispute

     CHICAGO (CN) – The governing body for youth athletic programs in Wisconsin did not violate the First Amendment when it granted a single private company exclusive rights to stream tournament events online, the 7th Circuit ruled.
     The Wisconsin Interscholastic Athletic Association (WIAA) sponsors statewide post-season tournaments for 506 public and private high schools and 117 junior high and middle schools.
     In 2005, seeking to increase exposure to sports like wrestling or swimming that traditionally have received less coverage, the association entered into a 10-year exclusive broadcast agreement with American HiFi.
     American HiFi created and manages WIAA’s web portal, which contains all live broadcasts and sports coverage, through its subsidiary, When We Were Young Productions.
     Other media outlets may not stream more than two minutes of game footage without obtaining consent from the WIAA and paying a fee. They can, however, report on an event as long as they do not engage in “play-by-play” transmission.
     Believing that the policy unconstitutionally infringed on the freedom of the press, Gannett-owned newspapers streamed four high school football tournament games without seeking permission or paying a fee. The WIAA then filed suit, with the Wisconsin Newspaper Association as a co-defendant, to defend its licensing rights.
     Last year, U.S. District Judge William Conley found that media access at tournaments constituted a “nonpublic forum” and that the licensing was reasonable and viewpoint neutral.
     The 7th Circuit affirmed Wednesday, rejecting Garnett’s argument that a state actor cannot enter into exclusive broadcasting contracts with a private company to raise revenue.
     “The implications of Gannett’s arguments are staggering: if it is correct, then no state actor may ever earn revenue from something that the press might want to broadcast in its entirety,” Judge Diane Wood wrote for the three-judge panel. “That is not correct.”
     The court ruled that WIAA’s exclusive contract did not “amount to a gag order on other media outlets,” which are still free to report the events without recording them.
     It had also rejected Garnett’s alternative argument that WIAA had engaged in viewpoint discrimination in granting an exclusive license to American-HiFi.
     “As far as we can tell, Al-Jazeera would have the same right to purchase media access to WIAA’s games as the Christian Broadcasting Network, Comedy Central, Fox, or MSNBC,” Wood wrote. “Gannett has equated viewpoint with exclusivity for the primary contract, but that is really just a global challenge to WIAA’s right to enter into any broadcast agreement at all.”
     The exclusive contract simply allows WIAA to regulate the message of an event that it produced, maximizing efficiency by employing a specialist to stream events on the association’s online channel.
     “Interpreting the First Amendment to provide the media with a right to transmit an entire performance or to prohibit performers from charging fees would take us back centuries, to a time when artists or performers were unable to capture the economic value of a performance,” the 33-page decision states. “Over the long run, this would harm, not help, the interests of free speech. The First Amendment requires no such folly.”
     Gannett and the Wisconsin Newspaper Association have not yet announced plans to appeal.

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