The Aereo legal ruling has enormous implications.
“Switching is easy, oh it’s essential. And you know, when you flick it, you can start a new episode.”
The unfathomably loopy lyrics came from a long-forgotten 1975 album by the Dutch band Golden Earring. Doubtful the auteurs of “Radar Love” had television’s must-carry rules in mind as inspiration. But still: There’s a startling symmetry between the lines of an obscure rock song and what once seemed to be an inventive solution to the TV industry’s most vexing legal issue.
The idea, championed by the Reagan-era FCC and its commissioner Mark Fowler, was to solve the high-stakes must-carry riddle with a $5 device known as an A/B switch.
In 1986, after television’s original must-carry rules had blown up in a legal challenge, the FCC turned to the low-tech electronics device as a solution for ensuring U.S. TV viewers could receive over-the-air TV signals regardless of whether they were delivered through cable systems.
The thinking went like this: Viewers who had free A/B switches – “free” in the sense that cable companies were ordered to make them available at no cost – could easily switch from a cable-delivered channel to an over-the-air signal pulled in by a rooftop or set-top antenna. Voila! With the flick of a switch, the nettlesome issue of fairness in the delivery of broadcast TV would be solved. Any stations not carried via cable would be available instantly through the legacy alternative of the airwaves.
“This maximizes the consumer's choice,” said Fowler in a 1987 Los Angeles Times article. “We are giving the subscribers the ability to choose what they will watch, instead of the government determining that.”
The idea was crude. But there was a political calculus behind it. Aiming to mollify the powerful broadcast TV lobby without stifling the promising new media industry darling that was cable TV, Fowler’s FCC used the A/B idea in the same way that liquor stores use free lollipops – as a novelty giveaway that keeps the kids happy.
After all, broadcasters needed something. The new must-carry rule crafted by the FCC after a successful cable industry legal challenge was a watered-down compromise to begin with. Large cable systems had to devote up to 25 percent of their channel capacity to over-the-air stations. After that, it was up to the cable companies to decide which, if any, local stations to carry. Broadcasting companies, which had enjoyed much broader must-carry protection under the old law, hated the solution. The A/B switch took some of the sting away.
But just as quickly, the switch-as-savior idea faded. The cable industry had calculated that the cost of providing free A/B switches over the five years prescribed in the rule would amount to $1.4 billion. Within a year of the FCC’s original order, under intensive pressure from cable, the Commission weakened the directive by requiring cable companies to offer free switches only to new subscribers. Effectively, the potential footprint for cable-provided A/B switches was liposuctioned from 40 million homes to fewer than 4 million – the number of new subscriber households added by the industry in 1987. Further eroding the impact was cable’s tepid approach to “marketing” free A/B switches by burying availability notifications in the fine print of monthly billing statements.
All of this is worth recounting now that over-the-air TV antenna technology once again looms large in television’s picture. Last month’s decision by a U.S. District Court judge denying an injunction against the Internet video start-up Aereo hinged in part on a determination that Aereo’s subscription TV service uses a perfectly legal antenna device to capture signals from the air without violating the copyrights of the originating stations.
The legal ruling has enormous implications for the future. Early interpretations suggested that by siding with Aereo, Judge Alison Nathan provided cable and satellite TV distributors with ammunition to argue that the billions of dollars they pay to retransmit over-the-air signals may be unnecessary under copyright law. A key to proving that argument will be whether the pay-TV providers can classify the equipment they use to deliver signals as a sort of large-scale antenna service. That will be tricky. But a 2011 court ruling affirming the legality of Cablevision Systems’ remote storage DVR service might help. So might a look back at 1986, when the FCC itself embraced a cable-provided derivation of television antenna technology as a perfectly suitable solution for getting over-the-air TV signals on the screen in the multichannel video era. As Golden Earring pointed out, all it took was a flick.