Deborah D. McAdams /
12.12.2013 05:04 PM
Aereo Won't Fight Broadcast Supreme Court Appeal
Cablevision says broadcast defense threatens cloud computing
WASHINGTON — Aereo chief Chet Kanojila said his company won’t oppose broadcasters bid for a review by the Supreme Court.

“We have decided to not oppose the broadcasters’ petition for certiorari before the United States Supreme Court,” he said in a statement. “While the law is clear and the Second Circuit Court of Appeals and two different federal courts have ruled in favor of Aereo, broadcasters appear determined to keep litigating the same issues against Aereo in every jurisdiction that we enter. We want this resolved on the merits rather than through a wasteful war of attrition.”

Both the Second Circuit and the U.S. District Court in Massachusetts have denied injunctions sought by broadcasters to shut down Aereo while the larger issue of copyright violation is decided. The Massachusetts decision, issued in a lawsuit filed by the Boston-based Hearst-owned ABC affiliate, WCVB-TV, is now on appeal in the U.S. Court of Appeals for the First Circuit in Boston. Meanwhile, courts in Washington, D.C. and Los Angeles have granted injunctions against FilmOn, a service said to mimic Aereo.

The brouhaha began in March of 2012 when Aereo, with the financial support of Barry Diller, launched in New York. Aereo elected not to negotiate carriage deals as other pay TV providers must, and was promptly sued by the TV stations it was offering to resell for $8 a month. Aereo claims its service does not fall under the same “public performance” copyright law that compels carriage deals between cable TV operators and broadcasters.

Aereo instead contends that its service is a “private performance” in the vein of a networked personal DVR a la Cablevision. Cablevision argued and won the right to offer a remote DVR service in 2008 when the Second Circuit deemed it a private performance. TV content copyright law hinges on this private-public performance determination.

While Aereo offers a subscription-based pay TV service to the public similar to cable and satellite providers, it claims to use a technology that does not serve a mass audience.

Aereo allows “consumers to record and watch broadcast programming using an individual antenna and DVR that they control via a laptop, tablet, or smartphone,” the company says in its Supreme Court brief. “A user accesses that equipment by logging onto Aereo’s website with an Internet-connected device and selecting a locally broadcast program just as that user might do using a home DVR. The user causes an antenna assigned solely to that user to tune to the broadcast signal for the station that is broadcasting the selected program.”

It further describes the antenna arrays deployed by Aereo in Boston, Atlanta, Miami, Salt Lake City, Houston, Dallas, Detroit, Denver and on Monday, in Baltimore.

“Each antenna in Aereo’s system consists of a pair of metal loops roughly the size of a dime. Eighty such antennas can be packed on one end of a circuit board, and 16 boards can be stored parallel to one another in a metal housing,” the filing states.

Broadcast engineers say tiny antennas receiving three-foot UHF TV transmission individually, rather than as a whole, defies physics. Aereo says not:

“In a factual finding that petitioners have not challenged on appeal, the district court rejected petitioners’ contention that ‘Aereo’s antennas function collectively as a single antenna.’ The court determined, based on extensive expert discovery and testimony, that ‘each antenna functions independently.’”

While the copyright decision hangs in the balance, the question of its impact grows. Fox’s Chase Carey has said the Fox broadcast networks will become pay TV nets. The National Football League and Major League Baseball filed an amicus brief with the Supreme Court siding with broadcasters, saying Aereo will drive them to pay nets, “adversely [impacting] the more than 11 million households in the United States that do not subscribe to cable or satellite”

Cablevision has weighed in on the case as well, in September of 2012 with an amicus brief supporting broadcasters in the Second Circuit, and more recently with a white paper saying broadcasters are casting too wide of a net in their defense.

“The broadcasters are justifiably critical of the Aereo decision,” it states. “But rather than pursue a measured response tailored to the problem at hand, they seek a massive overcorrection that would wipe out not only Aereo, but also Cablevision and much of the cloud computing industry in the process. Traditional copyright principles already provide more than adequate grounds for holding Aereo’s system unlawful. The public performance right should not be radically expanded to address a need that does not exist.”

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Posted by: Anonymous
Fri, 12-13-2013 07:08 AM Report Comment
Quote: "Broadcast engineers say tiny antennas receiving three-foot UHF TV transmission individually, rather than as a whole, defies physics. Aereo says not:" I agree with the broadcast engineers. I don't believe an individual dime sized antenna can receive the three-foot UHF signals let alone the much larger VHF signals. If a dime sized antenna can do this why does the consumer antenna industry use much larger antennas. Wouldn't a home owner love the idea of buying and installing a dime sized antenna at their home to receive broadcast TV signals. The Networks through the court should force Aereo to prove their claim that the individual dime sized antenna works independently for each customer. Not in theory but in fact. The court can order a random selection of an Aereo customer. Now have Aereo direct a neutral engineer to the customer's private individual dime sized antenna and remove it from the array. When the customer's single individual antenna is removed from the array the customer's service should no longer be available. Denny Duplessis
Posted by: Anonymous
Fri, 12-13-2013 01:02 PM Report Comment
Dear Anonymous. While it does seem hard to believe that small antennas could work very well as described, the article does clearly state, and I quote “In a factual finding that petitioners have not challenged on appeal, the district court rejected petitioners’ contention that ‘Aereo’s antennas function collectively as a single antenna.’ The court determined, based on extensive expert discovery and testimony, that ‘each antenna functions independently.’” So there was an investigation, and they said it does work, and none of the broadcasters have contested that part of the suit. Sounds to me like it works as stated. The question I have is, can I put the image from my TV tuner on the web, and give over control to one and only one user, am I breaking any laws? If I do this with multiple tuners, am I required to pay a fee to the broadcaster that is making the shows, and getting their advertisements watched? How many TV tuners can I present before I incur fees?
Posted by: Anonymous
Fri, 12-13-2013 01:42 PM Report Comment
The dime sized antennas are likely not hard wired together. However, they likely work collectively. I would like to see a single dime sized antenna work effectively all on its own.
Posted by: Anonymous
Mon, 12-16-2013 10:53 AM Report Comment
As a broadcast engineer, I can tell you that a single paperclip can work as a receive antenna... BUT it works the UHF and not with VHF. The reason is that as the frequency gets higher, the wave size decreases. An antenna is a "catcher's mit" for the signal. If it's a "beach ball" signal (like channel 2), it takes a big "mit", but if it's a "marble" (like UHF 39), then you could catch it with a thimble. A couple of factors play a major role... height of antenna, line of site, and distance to the transmitter. I was on the 9th floor of a building where my station was located. We were probably 12 miles away from the transmitter/antenna. Our 9th floor had line-of-site to the antenna, so a bent paperclip worked like a champ! Also.. and this is an interesting consideration.. could I received a VHF station with a larger antenna then re-modulate that signal (as a extremely low power TV transmitter.. like the modulator built into cable boxes or old VCR's) but on a higher UHF channel (thus converting -say- channel 2 to channel 30), THEN pick up that channel 39 with my "dime sized antennas"), then be able to use this technology to legally have a "one to one cable system" (as, in essence, this is)? I started working in Cable TV at 14 (local origination TV channel) and later went into broadcast TV. I know both sides of this and both point of views. I have to say that this whole can of worms opened up when the government stepped in and changed things. At one time broadcasters were "must carry" on cable systems and received no compensation. Additionally, broadcasters were PAID by the networks to carry their programming ($ based on market size/audience). The government stepped in and created this "double edge sword" where stations could charge cable companies under the idea that cable companies were making money for something "they were getting for free"). So cable jacked up its rates. Then add in that the cable-only channels (ESPN, CNN, TBS, History, Discovery, etc. etc.) all want more and more money (depending on their popularity). For instance ESPN (Disney/ABC owned) has enough "leverage" that they REQUIRE cable companies to put it on a basic or low tier and MUST pay for EVERY SINGLE HOME that the cable company supplies cable to. So whether you want, like, or watch ESPN, if you subscribe to cable, you are paying about $3 per month (not including cable company "mark-up") for just that channel. This is what drives me bananas! I seriously watch about 7 "cable-only" channels and the local broadcast channel. About 75 of the 90 channels I get (or used to get) were never watched! So as my cable bill finally went past $100 per month, I was done with cable! And one of my BIGGEST complaints is that the cable company passes the HD broadcasters on the "basic cable" in down-converterd, crappy, often incorrect aspect ratios, in standard def. If you want to see these "free, over-the-air, local" channels, you MUST pay for a HD cable box (adding another $4 to $8 per month PER TV). Though they EASILY could rebroadcast these channel in HD on cable WITHOUT a special converter (using their HD technology called Clear QUAM), the opt no to so they can "up sell" (increase revenue) with converters! IF the government feels they should get involved, maybe the first thing they do is REQUIRE any and all local channels to be carried in HD WITHOUT a converter needed!! Here's my idea (and I WISH I were an FCC Commissioner which, by the way, our most recent was a lobbyist for the Wi-Fi industry.. anyone else see this as a serious conflict-of-interest?)... First.. Broadcasters get no more fees from cable companies. It's free for viewers.. so keep it that way from start to finish (no matter how it gets to the viewer). Second... all providers capable of picking up that broadcaster (cable company or satellite company.. any), MUST carry the broadcaster's programming IN HD and on the most basic cable level AND without the need for a converter (Clear QUAM). And lastly (and hugely important)... cable companies MUST provide free basic cable to ANY house their cable passes. I'd suggest the cable company can charge a fee to connect (regulated.. maybe $50 and $10 per additional TV), but the basic cable is free to the homeowner. Basic cable would then be ALL channels served by broadcasters (over-the-air TV broadcasters) available through receiving at the cable companies "headend" (the central receive point in the community) or what is considered "local stations" (by Nielsen) on this "basic cable". In return, cable companies can add home shopping channels, "per-inquiry" and public access channels, and photoclassified advertising channels to pay for the very basic cost of supplying this free signal to the house. In fact, the cable company makes money for any item sold on any of those shopping channels within their zip code (based on the order), yet we somehow "pay" for these channels now?? So let that money from the shopping channels (and other channels which directly generate revenue for the cable company) be their basic income. The "added benefits" include the following: Cable WILL very likely be in more house (and since currently declining, increase the cable subscribers), thus giving the cable company ample opportunity to "up sell" other services and channels (since they now have "more eyes" seeing the basic channels. Certainly they could have a couple of channels in the "basic free tier" that does nothing but promote their own cable (and other) services. Second.. the FCC is desperately wanting to take the broadcaster's transmitters away. At the very least, combine them onto just two or three channels where they all share (but most reduce the quality and go to standard def to fit the spectrum). This might allow a way for broadcasters to still hit a majority of their audience while giving up their spectrum/channel. (Again.. side note but VERY irritating.. the new FCC commission is a former lobbyist for the very same group that wants the broadcaster's spectrum!!) Third.. this helps "wire our nation" by ensuring more people still have cable available. Who won't like it as much? Broadcasters. Their "make or break revenue" is no longer advertising (except political years) but that fee the cable company pays them. This WILL increase the number of people capable of receiving them (the "free basic tier cable"), but they'll really NEED to WORK on EARNING the viewer! This should help improve programming/coverage (at least local) and probably "weed out" cheap broadcasters who do just the basic minimum service to the community. It's likely to actually increase and improve local programming (more local events like sports, parades, etc.) as they'll truly be competing with each other. And to fill in one blank that many people don't know: In the earlier days of TV (and into the '90s), networks ONLY had viewers if they had affiliate TV stations. So the networks built themselves by paying these stations to carry their programming. As the "tides started turning", networks felt (and probably rightfully so) that the stations NEEDED THEM and couldn't survive without the net programming. So the payment fees started dropping and dropping to the affiliates until "the tide turned" in about the late 90's. At that point the networks said "you can't live without us, but we can certainly live without you since we can create our own cable channels and get our content and ads to people via the internet, so if you want to be a affiliate, you will pay US!". As time has moved forward, that fee has continued to increase (while network viewership and.. according to many.. quality of network programming had decreased). So we're at a true "crossroads" in broadcasting, cable, and TV viewing habits. What will happen? I think a lot depends on these old "war horse networks and affiliates" getting new/young/forward-thinking leadership and making adjustments. They can NOT be what they were and expect to survive. You can only beat your head against the door that closed so many times before figuring out a new way to open it! The audience (and their desires) are NOT what our was. We could "sit around and wait" for a show to start or something good to come on the set. The younger audience knows how to get the show they want and when they want it. This is a huge change in the viewership model. William Paley (who ran CBS years ago) really said it best when he said "Content Is King"! The winning factor still floats back to content. If a funny video shot with a $39 HD camcorder gets over 3M views on YouTube, yet a network show doesn't see 1/3rd of that (yet that show cost $200,000 per episode), this might be saying something. But all this is just my opinion.
Posted by: Anonymous
Mon, 12-16-2013 12:23 PM Report Comment
"Tiny antennas don't work?" Nuts. In the city of license, in clear location, I have used partially unfolded paperclips to receive local UHF *and* VHF for over 20 years. DYV is a little more of a struggle (FCC messed up power levels to replicate coverage, IMO) but it still functions. I work in broadcasting. I installed my present employer's transmitters, in fact. We're going to have to come to terms with Aereo's business model, since it's unlikely we will be able to quash them.
Posted by: Anonymous
Mon, 12-16-2013 01:51 PM Report Comment
The issue isn't whether a paper clip can function as an antenna. Given sufficient signal strength, clearly it can. The issue is whether in these arrays of hundreds of dime sized antennas, they're truly independent and assigned to specific customers. Let them demonstrate pulling out one antenna at random, and shutting down only the specific customer it supposedly serves. That's the massively bogus basis of aereo.
Posted by: Anonymous
Fri, 12-27-2013 01:11 PM Report Comment
The premise of Aereo being able to tune in local channels on individual antennas, while revolutionary to the industry, is still simple physics. Yes, each individual antenna is doing it's own work. Anyone who says otherwise hasn't read up on how they're doing it. Sure, if you're 25 miles from the TV antenna, you're not going to be able to tune in much of anything on a paperclip sized lead stuck into your tuner. But that's not how Aereo works. They're putting their facilities (in each major market they're operating in) as close as possible to the broadcast transmit antennas physical location (in some cases within a city block of the local master antenna). It's the proximity that makes the whole thing work. At that distance, it doesn't matter if their antenna is full-sized, silver dollar sized, or dime sized... the signal is so completely saturating whatever bit of metal is there that the size and impedance doesn't matter in any meaningful sense. Sure, the baseband rx is pretty dense and dirty at that point, but digital filtering and tuning allow their tuners to get each channel out of the mix without issue. (Same technology is in use in some of the better FM receivers out there today. It works, period.) With the receive side accounted for (proximity trumping resonance in the frequencies that matter here), the only remaining factor left to explain is the distribution. That's also quite easily done. Since this is being delivered by IP, routing is a given. Signal comes in, gets decoded, and that antenna (Z) gets added to a database of available signals. User Y logs in, selects channel X, request for channel X goes to database, database links User Y with channel X via Antenna Z. Once that link is done, no other user will be able to use Antenna Z so long as that connection remains active. User Y changes channels (to Channel B), the database releases Antenna Z back to the common pool, database links User Y to an available antenna (A) that's on record as tuning Channel B, now Antenna A is exclusive to User Y. User Y logs out of the service, Antenna A is released back to the common pool, and all is well. The only limiting factor is the number of simultaneous requests for the same channel... but then Aereo would be able to calculate that pretty easily by looking at total user activity, ranking the available channels by popularity, cross-referencing against known traditional tuning habits to account for popular events (superb-wl, final four, etc...) and the relative increase in popularity for the effected channels, etc... all simple formulas to tell them at any given time in any given market how many antennas they would need to have on hand and powered up. So there's the truth of the matter. At any given time, a single antenna is exclusively available to a single user. But because all of this is switched digitally, the convenient mental image of wires connecting a specific antenna permanently to a specific tuner is no longer valid... that's a remnant of a different era. In fact, if you were to go into one of their facilities and snip off or otherwise deactivate an antenna, within a matter of miliseconds the signal loss would be detected and the affected user would have a new antenna's feed routed to them... because of buffering, the affected user would most likely never know that anything had happened. You'd have to deactivate enough antennas all at once to drive the number of total available antennas below the number of total user demands for channels... only at that point would some users lose service, by virtue of not having any antenna available for thier use. But the switching and tuning is all very rapid, highly dynamic, and completely within the digital domain. For what it's worth, I'm a broadcast engineer with a background in digital distribution, traditional RF transmission/reception, and systems engineering. After reviewing what Aereo has published for public review, what others have observed about their operation, and their publicly available patent filings, the operation of their system is readily apparent and (barring some unnecessary corner-cutting behind the scenes) completely feasible. There's no black magic here, beyond what's able to be done digitally these days (that others are also doing). Aereo's overall approach is disruptive to the market, but it doesn't require smoke & mirrors in any way for successful operation. Also, for what it's worth, I have no relationship whatsoever with Aereo, I have not done any work on their behalf, I don't know anyone who works for them or who has done any work on their behalf, and I'm not a subscriber to their service. The closest I've ever come to having any contact Aereo was when they mailed me a USB charger with their logo on it. That's it, that's all. I'm as unbiased as they come. I just happen to have taken the time to understand what they're doing and how their doing it, which it seems, makes me unique.

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