Aereo made the wrong case

Doc Searls Weblog 2014-06-26

esb1I didn’t post anything on the Aereo case while it progressed toward yesterday’s Supreme Court decision, which went against the company. But I did engage in correspondence. Here is one email from May, edited slightly to add links and take out irrelevant personal stuff:

This piece in Barrons does the best job yet of unpacking and making full sense of the Aereo case, and its possible unintended consequences.

One other consideration we might find relevant to the Aereo’s business, or at least interesting: Aereo would not have a business were it not for the 2008 digital TV (DTV) transition. What almost nobody (including Aereo) talks about is that most homes that could receive analog TV can’t receive the new digital kind — and this opened the marketplace for clever hacks like Aereo’s.

The FCC’s maps of “equivalent” coverage after the transition are simply wrong. Text on that page says, “Signal strength calculations are based on the traditional TV reception model assuming an outdoor antenna 30 feet above ground level. Indoor reception may vary significantly.”

“Vary” is pure euphemism. You’re not getting the signal without a good antenna, ideally placed. And nobody’s going to go to the trouble.

In the Analog Age most people got by with a rabbit ears for VHF and a loop or bowtie for UHF — even in apartment buildings.

See, analog TV transmission and reception was forgiving of interference, multipath (which produced “ghosts” in the picture) and shadowing by terrain and buildings. If you lived in an apartment in New York City without a direct view of the Empire State Building (where the signals come from — that’s a picture of it, on the right), you could at least watch a snowy or ghost-filled picture on most or all channels. With DTV, you’ll see nothing without a direct view to the transmitting antennas.

Go to that last link and type in this zip code: 10040. It’s in the north end of Manhattan, where I am temporarily domiciled. You’ll get back a chart showing eleven strong signals, four moderate ones, and four weak ones. Our apartment is in that zip code, and we get nothing. Zip. Even with a directional outdoor antenna. Believe me, I’ve tried. There are a hundred blocks of buildings and plenty of terrain between here and midtown. If we want local over the air (OTA) TV, our only choice is Aereo.

Now type in 93103. That’s our zip code in Santa Barbara. It shows “moderate” reception of two local signals, and that’s it. My highly directional high-gain outdoor antenna receives neither of those (thanks to terrain shadowing) but gets everything from San Diego and Tijuana — but only some of the time. Reception is a grace of weather, because we’re looking across 200 miles of ocean.

Before the DTV transition, when all TV transmission was analog, we also got everything from Santa Barbara to Tijuana, including all signals from Los Angeles and Orange County — perfectly, all day, every day. Such was the advantage of analog, now gone.

DTV is also disadvantaged by being entirely on high-band (channels 7-13) VHF and on UHF (channels 14 and up). And “branded” channels are actually “virtual” ones in most cases. In Washington, for example, WRC-TV/4 is actually on channel 48. WTTG/5 is on channel 36. WJLA/7 and WUSA/9 are on those actual channels, but at lower powers than they used in their analog days.

So, by serving urban areas that got shafted by the DTV transition, Aereo is a perfect example of the marketplace at work: supply fulfilling demand — which happens to have been created by a regulatory change.

Anyway, I know that’s not what’s being argued about. But it matters to the degree that Aereo wouldn’t exist if DTV didn’t drop most over-the-air viewers into darkness.

We can never say, but I am sure that if Aereo had simply met the market demand for lost over-the-air signals, and supplied a DVR app for customers (rather than putting the DVR in The Cloud), they would have had a winnable case. But they didn’t argue that. Instead they stood behind the cloud and argued, in effect, for what they appeared to be: a way of circumventing copyright obligations by using over-the-air reception of signals as a loophole. Even Scalia, in his eloquent dissent, said he wasn’t an Aereo fan: “I share the Court’s evident feeling that what Aereo is doing (or enabling to be done) to the Networks’ copyrighted programming ought not to be allowed.”

In his statement in response to the decision, Aereo CEO Kanojia said,

Consumer access to free-to-air broadcast television is an essential part of our country’s fabric. Using an antenna to access free-to-air broadcast television is still meaningful for more than 60 million Americans across the United States.  And when new technology enables consumers to use a smarter, easier to use antenna, consumers and the marketplace win. Free-to-air broadcast television should not be available only to those who can afford to pay for the cable or satellite bundle.

The Supremes didn’t buy that argument. And, from what I read of the case Aereo made, it wasn’t their main thrust anyway.

I also think the argument no longer holds water. Over the air reception may be “meaningful” for 60 million Americans, but most of those people don’t care any more. And neither do today’s TV content production and distribution systems, which include far more than Hollywood and the broadcast/cable/satellite TV industries. They include you and me.

I believe the result did two things:

  1. Positioned over-the-air transmission as little other than a checkbox requirement for stations to maintain “must carry” status with cable systems. At this point in history, few people are watching antenna-fed TV anyway — and fewer still now that Aereo has been shot down.
  2. Finished positioning cable as little other than a paid distribution system for licensed content. The legal and historical connections to Community Antenna TV have been severed.


Bonus link, with prophesy: TV 3.0.