Aereo suspending operations as of 11:30 today

Scott Fybush
Mon Jun 30 14:00:38 EDT 2014

On 6/30/2014 10:24 AM, Mike Ward wrote:

> If Aereo had ever launched here, I'm pretty sure WMFD wouldn't be on the
> list. I don't know where to find the Boston Aereo lineup, but I bet
> stations like WBIN weren't on it.

You are correct. Aereo's Boston lineup was only the signals in the core 
of the market, basically whatever transmitted from the Newton/Needham 
tower farm (2, 4, 5, 7, 25, 38, 44, 48, 56, 62, 68). I know they didn't 
carry the New Hampshire signals, and I don't think they carried 27 and 
66 from out west, either.

I do not think the legality of Aereo was as black-and-white an issue as 
some on the list would make it out to be.

The problem is that we've quietly allowed the role of OTA broadcasting 
in America to change dramatically without ever openly examining or 
re-regulating it.

For more than 60 years, we enjoyed the most robust system of OTA TV in 
the world. Viewers in New York and LA had seven channels of free TV long 
before those in London, Paris or Toronto had even two. Without ever 
establishing a state-funded national broadcaster, the combination of 
robust private enterprise and intelligent regulation meant that at the 
end of the analog era, something close to 99% of the US population had 
access to at least some free OTA TV, and better than 95% had access to 
all three major networks.

Before the advent of retrans consent, it was unambiguously in the best 
interest of any TV station to be able to be seen by as many viewers as 
possible. More potential viewers equaled higher ad rates and higher 
compensation from the networks. And conveniently, the interests of the 
TV stations and the viewers were nicely aligned, too - it's an 
unambiguous good thing to have more free TV channels available, right?

Then came the explosion in video offerings, diluting the importance of 
the mass-audience network programming that sustained OTA TV for all 
those decades. The DTV transition reduced the reach of many OTA TV 
signals and drained the pockets of station owners who had to buy new 
transmission systems. The networks stopped paying compensation TO the 
local stations, and started demanding compensation from the stations, 

And THEN came retrans consent, which completely tilted the playing 
field. It was good for the station owners, because it provided a fat new 
revenue line that helped make up for some of those other revenue sources 
that were lost.(And remember, there are no local station owners these 
days. It's all big conglomerates looking to pay down debt.) Now it's no 
longer in a TV licensee's best interest to be seen widely OTA - in fact, 
it's a negative, because every viewer watching OTA (or on OTA relayed by 
Aereo) represents 50 cents or a dollar a month that it's not getting 
through a cable or satellite provider paying retrans money.

I am not naive enough to think that "public interest, convenience and 
necessity" means much of anything in the media world of 2014. But I do 
think there needs to be a better accounting of how the relationship 
between TV broadcasters and the public has changed. If you lived in 
Fitchburg, let's say, you probably had reasonable free access to a dozen 
TV channels in 1990. In 2014, you'd have to put up a pretty hefty 
rooftop antenna to get most of those same stations.

Aereo at least tried to tip the playing field back to something a little 
closer to level. Unlike a cable company, which bundles OTA content with 
its own proprietary content (and thus can be said to be profiting from 
the OTA content to the extent that its availability helps keep 
subscribers on board for the more lucrative cable-only channels), Aereo 
didn't offer its viewers any content they couldn't already have very 
legally plucked out of the air for free with no additional payment to 
anyone. For a fairly measly $8 a month, a viewer in Fitchburg (or 
Chatham, or Contoocook) could get the same channels that someone in 
Newton could see for free.

There *is* a difference there, and while the majority didn't recognize 
that, Justice Scalia did. His dissent is important to read, because 
while he agreed with the majority that what Aereo was doing was illegal, 
he noted that the logic that "it looks like a cable system and thus 
should be regulated the same way" is slippery indeed.

There was never a point along the slippery slope to retrans consent in 
which any regulator openly said "we want to insert a middleman between 
TV stations and viewers to collect money for what some viewers can still 
get for free."

Did we intend for that to happen? Because it did, and shutting down 
Aereo doesn't make the problem go away.

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