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April 21, 2014 4:01 PM End Times For Broadcast?

By Ed Kilgore

If you’re only interested in court decisions that affect you personally, you might want to watch tomorrow’s SCOTUS oral arguments in the case of American Broadcasting Companies v. Aereo, which could theoretically doom broadcast television as we know it. Here’s how The Week’s Andrew Cohen explains it:

[T]he justices will decide whether an enterprising company that uses a raft of tiny antennas in a single location to transmit over-the-air TV programs to paying subscribers in that city may continue to do so without paying broadcasters or owners of the copyrighted shows….
A year ago, a panel of the 2nd U.S. Circuit Court of Appeals, in a divided 2-1 ruling, sided with the upstart company, Aereo, Inc. Before that ruling, and the trial judge’s ruling that preceded it, broadcast executives presumed that federal copyright law protected their interests by precluding Aereo from charging customers for a television product for which it had no license to charge.

As the New York Times’ David Carr notes, Aereo is betting on the precedent set when the courts legalized cable-based DVR’s:

[Aereo] is a crafty workaround to existing regulations, which rides on the Cablevision court ruling in 2008, which held that consumers had the right, through their cable boxes, to record programming. But then, cable companies pay broadcasters billions in so-called retransmission fees while Aereo pays them exactly nothing. (And the case is not just about Aereo — it opens the gate for cable companies or others to build a similar service and skip the billions in payments to the networks.)

Carr predicts than an adverse ruling (which would upset the current betting) might lead the broadcast networks to abandon broadcasting altogether, and instead become companies selling content to the cable giants just like, say, AMC. Such a decision the decision could also lead cable companies to move even more aggressively than they already are into online streaming, and would probably represent death for local broadcasting outlets.

Ah, the long-awaited “convergence” could be on the horizon! But even if Aereo loses at SCOTUS, the existing configuration of forces is probably doomed by future “workarounds” based on new technologies.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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