FCC Considering Extending Cable Rules To Internet Players Like Aereo (Though Probably Too Late For Aereo)

from the looks-like-a-duck,-perhaps-we-should-make-it-a-duck dept

Wed, Oct 29th 2014 2:42pm — Mike Masnick

Aereo's most recent effort to stay alive was to take the Supreme Court's "looks like a duck" test and to say, since the Supreme Court said it looked like cable TV (for the sake of declaring its service a "public performance"), "fine, then let us quack like a duck and pay compulsory licenses under Section 111." Only problem? Other courts have said internet services don't qualify as cable systems for Section 111, leaving them in a Schrodinger's CATV situation. Aereo is a cable TV system as far as the Supreme Court is concerned when it's talking about public performance, but it's not a cable TV system when it wants to go to the FCC and copyright office to pay a compulsory license, which is available to cable and satellite providers.

It appears that FCC Commissioner Tom Wheeler may be looking to change that, beginning a process to give internet companies access to those compulsory licenses, letting "over the top" (OTT) video providers get access to network television at compulsory rates:

In 1992 Congress realized that the then-nascent satellite industry would have a hard time competing because much cable programming was owned by cable companies who frequently kept it from competitors. Congress mandated access to cable channels for satellite services, and competition flourished. Today I am proposing to extend the same concept to the providers of linear, Internet-based services; to encourage new video alternatives by opening up access to content previously locked on cable channels. What could these over-the-top video providers (OTTs) supply to consumers? Many different kinds of multichannel video packages designed for different tastes and preferences. A better ability for a consumer to order the channels he or she wants to watch.

Wheeler is clearly thinking of Aereo here, even noting that the company recently came to the FCC to plead for this sort of thing:

In Title VI of the Communications Act, Congress created rules to ensure that cable companies that own video content can’t raise artificial barriers to competition by refusing to let their video competitors have access to the programming they own. That worked for satellite providers, and also helped telephone companies entering the video business. I believe it makes just as much sense – and will have just as positive a consumer benefit – for an OTT.

Such benefits follow from innovation. Taking advantage of this rule, new OTTs may offer smaller or specialized packages of video programming, so consumers will be able to mix-and-match to suit their tastes. Aereo recently visited the Commission to make exactly this point – that updating the definition of an MVPD will provide consumers with new choices. And perhaps consumers will not be forced to pay for channels they never watch.

Of course, this move may be too little, too late for Aereo. The company has been losing in court, and any final FCC rules may take a bit of time. Still, at the very least it can mean that the next Aereo or ivi may actually be able to survive, rather than have to deal with a veto from the TV networks.

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Filed Under: cable tv, copyright, fcc, internet, internet tv, ott, over the top video, section 111
Companies: aereo

21 Comments

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Anonymous Coward, 29 Oct 2014 @ 2:57pm

Aereo has nobody but itself to blame for it's own incompetence. If they had agreed to compensate the broadcasters for the content that they (Aereo) was providing to their subscribers, then they would still be in business.

However, Aereo opted for the "SCREW YOU" approach and tried to assault the broadcasters by fighting them in court, where they eventually lost.

Hate to say it, but Aereo doesn't have anyone to blame but itself for it's massive screwup approach.
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- Anonymous Coward, 29 Oct 2014 @ 3:08pm
  
  Re:
  Aero didn't provide content and didn't need to compensate anyone. The consumers paid for their cable/satellite and also for Aero's service.
  
  "Content" entered the consumer's home through their cable/satellite boxes and left it again, traveling to Aero's systems. Then the timeshifted "content" returned to the consumer's home again.
  
  I- and many others- still find it ridiculous that Aero was treated as a broadcaster. They were not giving consumers access to something they were not paying for, nor were they giving consumers access to new "content."
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- That One Guy (profile), 29 Oct 2014 @ 3:13pm
  
  I'm guessing you didn't bother to read the article, that or you missed this part:
  
  'Aereo is a cable TV system as far as the Supreme Court is concerned when it's talking about public performance, but it's not a cable TV system when it wants to go to the FCC and copyright office to pay a compulsory license, which is available to cable and satellite providers.'
  
  Aereo could not pay, because the law is set up in such a way that despite the SC ruling that they acted like a cable company(a belief Aereo didn't share, and no other court before that did either), they weren't actually treated as a cable company under the law, and therefor didn't qualify for compulsory licensing.
  
  Now you may say, 'Well why didn't they go to the broadcasters individually, and sign deals with them directly then?', to which I would point out that without the compulsory licensing, they would have no reason to agree to any offer Aereo made, given Aereo was presenting a competing service, and they naturally wouldn't want to undercut their own offerings.
  
  And then of course you've got the little bits like the fact that Aereo was transmitting free broadcasts, and their 1-1 antenna/customer system making them little more than a complex antenna rental service.
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  - PaulT (profile), 30 Oct 2014 @ 1:18am
    
    Re:
    I swear, I can understand the paid shills and pathological liars needing to twist this to fit the fictional narrative they need to make their masters look like the good guys. I just can't understand how they're so bad at it that the very articles they're commenting on prove them wrong before they've typed a word.
    
    They don't even try to counter or disprove the things they disagree with, they just pretend they don't exist and hope nobody notices. Between the personal attacks and farmyard impressions, you'd have thought they'd realise that lying about words 3 inches above their comment is not a winning strategy.
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- Anonymous Coward, 29 Oct 2014 @ 3:46pm
  
  Re:
  Just because the Supreme court rules a certain way doesn't mean they are actually correct. They are wrong frequently as they were in this case. It doesn't even pass the common sense test.
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  - That One Guy (profile), 29 Oct 2014 @ 3:52pm
    
    Re: Re:
    But it did pass the duck test, and that's all that mattered.
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    - Anonymous Coward, 29 Oct 2014 @ 5:04pm
      
      Re: Re: Re:
      If only the duck test were a real test, then a lot of people wouldn't be able to get away with the shit they do.
      
      Lobbying? It looks like bribery and corruption.
      NSA? It looks like a mass violation of the constitution.
      Congress? It sure looks useless.
      etc.
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Anonymous Coward, 29 Oct 2014 @ 3:10pm

So... am I the only one finding some glimmer of hope due to Wheeler's involvement with the FCC?
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mr. sim (profile), 29 Oct 2014 @ 3:30pm

the exact moment the supreme court published the duck anology that should have super seceded the fcc's policies.
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Anonymous Coward, 29 Oct 2014 @ 3:52pm

Looking for the silver lining but realizing there has to be a catch.
Somewhere in this mess is a memo from big cable we haven't seen as of yet, but there has to be an angle for big cable and/or ISP's, I'm still not sold on the beacon of hope that Wheelers trying to portray himself as, I just don't trust these guys to actually do the right thing.
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Anonymous Coward, 29 Oct 2014 @ 3:54pm

Extending cable rules to services like Aereo sounds fine until the rules are extended beyond Aereo-type services into other types of Internet-based services.
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- Anonymous Coward, 29 Oct 2014 @ 6:53pm
  
  Re:
  No, it still sounds fine then.
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Anonymous Coward, 29 Oct 2014 @ 5:20pm

The FCC moves to treat Aereo i.e. OTT like Cable and could regulate "the Facility" like Cloud Lisence Server to provably retransmit the Free OTA Broadcast over the Internet.

Now is the Time for activating Tivo, Sling and Nimble to participate in this new Competion for protecting Copyright while ensuring Fair Use.
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Anonymous Coward, 29 Oct 2014 @ 5:57pm

Well good fucking riddance. The less of these shitty companies the better.
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- Anonymous Coward, 29 Oct 2014 @ 6:53pm
  
  Re:
  I want more companies like this. I'll pay money if I get better service than I get from not paying money.
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Anonymous Coward, 29 Oct 2014 @ 6:49pm

So no more weird antenna arays
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Anonymous Coward, 29 Oct 2014 @ 8:04pm

So i guess my comment never made it.
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Anonymous Coward, 30 Oct 2014 @ 12:03am

Looks like average_joe's Tor IP addresses are in full force today.
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Ninja (profile), 30 Oct 2014 @ 3:01am

This could speed up the process of cord cutting and actually provide better availability for sane prices for everyone. The cable companies are shaking in fear.
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Insurgence (profile), 30 Oct 2014 @ 9:30am

The rules just need to be re-written. The fact that it had to be done for satellite and now internet should be proof of that. They need to realize that it should be an encompassing rule that is worded in a way that welcomes emerging technologies, not worded in a way that it specifies allowed technologies.
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- John Fenderson (profile), 30 Oct 2014 @ 10:15am
  
  Re:
  These particular rules should just be done away with entirely. They only exist in the first place as a result of political gamesmanship -- and are narrowly tailored to a specific technology for that reason -- not to settle or resolve any real issue.
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