[opendtv] Re: Aereo: A Cable System, Subject to Statutory License | Multichannel
- From: Craig Birkmaier <craig@xxxxxxxxxxxxx>
- To: "opendtv@xxxxxxxxxxxxx" <opendtv@xxxxxxxxxxxxx>
- Date: Sat, 12 Jul 2014 10:14:54 -0400
> On Jul 11, 2014, at 7:24 PM, "Manfredi, Albert E"
> <albert.e.manfredi@xxxxxxxxxx> wrote:
>
> Craig Birkmaier posted:
>
> http://www.multichannel.com/news/distribution/aereo-were-cable-system-subject-statutory-license/375819
>
> This part is pretty hilarious:
>
> "That is the most important next step, given the Court's ruling that Aereo
> has been violating plaintiff's exclusive rights to publicly perform their
> works for over two years, during which time plaintiffs, as this court held,
> have suffered irreparable harm."
>
> So now, Aereo violated the broadcaster's rights to tranmit their signals? And
> the broadcasters suffered irreparable harm? Does that mean that the
> broadcasters are forver out of business or something, thanks to Aereo? The
> term "drama queen" comes to mind.
>
> Aereo's tactic to now seek this statutory license seems fair enough, given
> that some of the Supremes couldn't figure out how Aereo was different from
> MVPDs, but with it will come the broadcasters' option of asking for "must
> carry" or for "retransmission consent." So this new angle will not make Aereo
> immune to broadcasters' demands by any means.
Even more hilarious was this statement by an attorney for the plaintiffs:
“The Supreme Court clearly did not rule that Aereo was a cable system for
purposes of applying the compulsory license, and even if it had, it still
wouldn't circumvent the need to get retrans consent from the broadcasters Aereo
wants to carry. More importantly, Aereo’s copyright infringement up to this
point carries potential damages awards to broadcasters in the multi-billions of
dollars, making any rescue effort by Aereo too little, too late.
Two years in two markets with very low total subscriber count?
Billions of dollars in irreparable harm...Really?
This is laughable. There is no direct way to measure the FOTA audience, and any
audience measurement via cable systems is not public information. Neilsen is
sampling homes with "meters," and now they are adding the hard data that the
networks and Hulu collect from their OTT portals. If Aereo did anything to
affect audience measurement, it was probably additive, not taking away from the
Neilsen estimates.
The real issue in play here is retrans consent fees, which Aereo says they are
willing to pay if they get the compulsory license.
The more interesting aspect of this is that it tees up the issue of extending
the compulsory license to OTT services delivered by ISPs. Most likely it will
take legislation to make this official, but Aereo could use the SCOTUS decision
to force this to happen.
This in turn raises the larger issue of whether this was the plan all along?
Was Aereo really doing something unexpected, or was this just a cleaver plan to
get the courts to push Congress and the FCC into regulating OTT services so
that the content owners can get their pounds of flesh from a new infrastructure
that will ultimately replace cable and telco MVPD services?
There is one layer of government that could throw a monkey wrench into such a
plan. Local governments that are feasting on cable franchise fees and taxes may
raise strong objections to a new service that is not geographically
constrained. They were pissed off when DBS eliminated geographic restrictions;
a number of states impose taxes on DBS service, but municipalities cannot
because of the laws that allow them to create exclusive local cable franchises.
The broadcast industry was able to protect their market based system via DBS,
and collect retrans fees as well. But local governments may be forced to
survive on whatever revenues they can generate by taxing ISP services.
Bottom line, the content owners are still in control.
Regards
Craig
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