Whatever your take on the Supreme Court’s 6-3 decision in favor of broadcasters over upstart Aereo, it is very clear that the future of how the medium of television evolves will continue to be a tortuous one, as technological innovation and the US legal system ham-handedly attempt to keep pace with each other. The Court’s surprisingly definitive, but ultimately very narrow ruling ensures that broadcasters can continue to harvest the seemingly limitless bounty of MVPD carriage fees without fear — at least in the near term — of the current regulatory system getting in the way.
But the broadcasters’ near-term victory over a scrappy, extremely innovative method of delivering (ostensibly free) over-the-air broadcast television signals to consumers looking for a straightforward way to watch them without the high cost of a multi-channel TV subscription bundle and/or simply more reliably and flexibly than an antenna, should not be construed as the final word on the future of television.
In fact, the decision is merely the murky beginning of the next phase of regulatory re-definition of what the medium of television is, and the legalities of how and where consumers can access and receive it. If anything, broadcasters’ immediate near-term win in this decision is decidedly Pyrrhic, especially over the longer-term course of now-inevitable Congressional scrutiny.
Indeed, it is questionable as to what broadcasters truly “win” in this decision, especially over the shifting winds of the long haul.
The extreme narrowness of the decision undoubtedly ensures a death-knell for Aereo as a standalone business, but oddly (as Justice Antonin Scalia tartly points out in his well-written dissent) does very little (if anything) to provide a guiding standard for how programmers, consumers and TV providers should interpret or apply incremental tech-enabled developments in copyright, recording, and viewing.
Technological challenges to today’s well-defended model of TV delivery will continue to come with increasing velocity (punctuated, ironically, mere hours after the Aereo decision by Google’s announcement of its long-anticipated over-the-top video play called Android TV) — and broadcasters and their doppelgängers who believe they can hold all of it back indefinitely are denying the inevitable.
Strangely and importantly, the Court tackled none of the more foundational issues raised by the arrival of Aereo and its technology (and its likely progeny), but, instead, provided only a rather squishy and limited rationale that because it looks and feels a lot like a cable TV system — as it was defined in 1976— it should be regulated (and broadcaster-protected) as such. In other words, an inductive “duck test” precedent based on a 38-year-old definition of television distribution to determine the legality of modern-day enablements such as remote digital video recording, on-demand video, video placeshifting, over-the-top video, authentication, and, oddly, the very definition of what free, over-the-air, government spectrum-granted “broadcasting” is in this day and age.
Until and unless Congress, of course, takes the bait and begins the long-overdue process of rewriting the rules of television for the modern-day digital era, something effectively not altered since the early 1990s — just as Al Gore was inventing the Internet. Which is the inevitable next step in this tortuous journey. (Just ask anyone in the music business.)
As we have said in the past, consumers are pushing hard against the rigid protective walls of networks, stations and MVPDs for more modern approaches to watching television. The advent of “good enough TV" solutions for a cord-cutting, and increasingly cord-never-ing population is upon us, and the proverbial genie has long left the bottle.
In addition, a very aggressive FCC is similarly pressing forcefully to redefine the use (and value) of broadcast spectrum, and to translate it into a more modern and comprehensive communications blueprint that envisions products and services that do far more than deliver reruns of 50-year-old TV shows.
If anything, the Court’s Aereo decision has simply bought broadcasters perhaps a year’s worth more time before the economic cracks in their collective armor start to grow rust. Conceivably, just enough time to re-invent themselves before Congress and the public more brusquely do it for them.