It's just a month until Opening Day, but the New York Yankees are a long, long way from getting their games aired on Cablevision Systems.
The Yankees Entertainment & Sports Network is facing a second baseball season locked out of Cablevision's 3.4 million metro New York homes, and the optimism that YES executives expressed two months ago has devolved into rounds of nasty advertising and a tough lobbying fight.
The battle has taken an odd turn into the New Jersey State Legislature, where YES executives are pushing a bill they hope will give them greater leverage. Federal law prohibits states and cities from mandating what programming a cable system can and cannot carry.
So the YES bill takes aim at Cablevision on antitrust grounds. The bill would make it a violation of the New Jersey Antitrust Act for a vertically integrated cable operator owning cable networks, sports teams and arenas to refuse to carry a competing service or demand different financial terms or conditions than it grants its own networks. A parallel bill is winding through the New Jersey Senate.
The legislation is aimed at Cablevision's demand to carry YES not as a basic-cable channel available to all its subscribers but as a pay channel like HBO, which YES would have to sell one subscriber at a time. That's expensive and deprives the network of occasional viewers.
"We're very grateful to the leadership of the Assembly and the Senate of New Jersey," said YES CEO Leo Hindery. "It gives the state the ability to determine on behalf of consumers if discrimination has taken place."
Cablevision wouldn't comment beyond its oft-repeated offers to carry the network as a pay service. But commercials running on its own systems encourage subscribers to demand that legislators focus on economic, education and unemployment issues, "not legislation for YES Network and its wealthy investors."
However, sponsor Assemblyman Paul Sarlo was scrambling last week to amend the bill. For example, to keep it from seeming to dictate carriage of certain networks, instead of targeting a cable operator that refuses "to enter into a distribution agreement with a program provider," one clause was changed to "refuse to deal with a cable company."
That's probably not good enough. The Assembly's Office of Legislative Services issued a letter last Thursday advising that even recent revisions were likely to run afoul of federal cable and antitrust statutes and possibly the First Amendment.