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I’ve been on hiatus the past couple of weeks, recovering from a heavy teaching schedule at InfoComm and also celebrating the wedding of my son in late June.

Even so, I steal a glance at the daily headlines now and then. And it was impossible to ignore the 6-3 Supreme Court decision against Aereo in late June. Aereo, as has been well-documented in this space, was a cocky startup that attempted to get around copyright law and retransmission fees by constructing a Rube Goldberg-like system of antennas to receive and distribute broadcast TV signals to subscribers in New York, Boston, and other markets.

The initial court decisions against broadcasters and in favor of Aereo (1st and 2nd Circuits) were offset by an unfavorable decision in the 10th Circuit. So Aereo pushed to have the Supreme Court hear its case (ABC Television Networks vs. Aereo) in late April. And the majority of the Supremes ruled that Aereo was essentially a cable TV system in operation, even though it devised an elaborate technical work-around to avoid such classification.

After squealing like a stuck pig, Aereo execs pleaded with Congress to take up their case and called the SCOTUS decision “a blow against consumer’s rights to watch free television.” Actually, although none of the justices really understood what was going on here – despite their insistence that the Aereo decision had no impact on so-called “cloud” media storage and delivery systems –  they got it right.

Studying Aereo’s patent application showed their attempt to re-define science and established technical terminology, classifying everything in a TV channel receiver system from the antenna, receiver, decoder, and MPEG encoder as an “antenna” and the MPEG network interfaces moving signals from the roof of a building to H.264 encoders and multiplexers as an “antenna transport system.”

Nice try, but no cigar. That’s essentially what a cable TV system does. The converted signal formats might be different, but the process remains the same. So unwittingly, Aereo got called out. But now the story takes a decidedly different turn.

Last week, Aereo did an about-face and filed a petition to 2nd Circuit Judge Alison Nathan, asking that Aereo indeed be classified as a cable TV service provider under Section 111 of the Copyright Act: “If Aereo is a ‘cable system’ as that term is defined in the Copyright Act, it is eligible for a statutory license, and its transmissions may not be enjoined (preliminarily or otherwise).” In a nutshell, this means that Aereo would merely have to pay retransmission fees to all of the stations it carries and it could resume operations as before.

As expected, this filing brought an incredulous response from the likes of ABC and CBS, who expressed disbelief that Aereo, having made such strong arguments that they were not a cable TV system, would now petition the court to determine if they were eligible for a compulsory license – as a cable TV system.

Here’s a quote from the Forbes story: “… it is astonishing for Aereo to contend the Supreme Court’s decision automatically transformed Aereo into a ‘cable system’ under Section III, given its prior statements to this Court (United States 2nd Circuit) and the Supreme Court. It represented to this Court, for example, that it could not qualify as ‘a cable system’ and, therefore, that cases interpreting the application of Section III were ‘irrelevant to the issues here’.”

Two other interested parties, ivi.tv and FilmOn, are watching this part of the proceedings with great interest. Both companies also attempted to set up and operate Internet streaming services to carry broadcast TV channels, but out-of-market. And both were shut down by the courts. Even so, FilmOn has registered with the U.S. Copyright office as a cable TV company and paid for a license to retransmit copyrighted programs.

If nothing else, the Aereo case has provided us with some great theater and entertainment, and also raised valid questions about growing technical illiteracy in this country. But it’s clear that CEO Chet Kanojia and his backers (which include media mogul Barry Diller) aren’t going down without a fight. Hence, the 180 degree-turn in their court strategy.

I’m reminded of a conversation Alice had with Humpty Dumpty in Alice in Wonderland: “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean, neither more nor less.” Apparently Aereo’s lawyers are big fans of Lewis Carroll..

Posted by Pete Putman, July 11, 2014 5:15 PM

About Pete Putman

Peter Putman is the president of ROAM Consulting L.L.C. His company provides training, marketing communications, and product testing/development services to manufacturers, dealers, and end-users of displays, display interfaces, and related products.

Pete edits and publishes HDTVexpert.com, a Web blog focused on digital TV, HDTV, and display technologies. He is also a columnist for Pro AV magazine, the leading trade publication for commercial AV systems integrators.