Followers of media technology court battles, who remember Aereo's unsuccessful legal fight against the major broadcasters in the U.S. Supreme Court eight years ago, have recently been watching another big legal showdown pitting a tech startup (Locast) against the Big Four.

Locast, founded two years ago by attorney and former Dish Network executive David Goodfriend, was a live TV streaming service operated by nonprofit advocacy group the Sports Fan Coalition NY. On Sept. 2, Locast suspended operations after suffering a major blow in its lengthy court battle against the Big Four broadcasters. (More on that later.)

The service provided local broadcast signals over the internet in various cities through an app that’s playable on Roku, Amazon Fire TV, Apple TV, Android TV and TiVo devices, as well as iOS and Android smart phones and tablets. With Locast, you can stream programming on the Big Four broadcast networks (ABC, CBS, NBC and Fox), among other outlets.

Also Read: The Five Spot: David Goodfriend

This lighting rod for media tech lawsuits fittingly launched in January 2018 in New York, using a four-foot antenna mounted on the Trump International Hotel in Manhattan. With the announcement of the streaming service's rollout in Pittsburgh on July 23,  Locast was available in 34 markets, including New York, Los Angeles, Chicago, Philadelphia, Dallas, Houston, San Francisco, Boston, Atlanta, Phoenix, Seattle, Denver, Baltimore, Madison, Wisconsin, and Portland, Oregon; along with Washington, D.C.; and Sioux Falls, Sioux City and Rapid City, South Dakota. Locast has also expanded into Puerto Rico. 

Up to the suspension of its services, Locast claimed more than 3 million viewers have signed up for the service.

There was no subscriber cost for Locast, and the platform wasn’t ad-supported, either. Donations, however, were suggested by its nonprofit operator. The nonprofit service launched a GoFundMe page with the goal to raise $500,000. Locast, in addition, had a donate button on its website (the donation button is still there!), suggesting subscribers donate at least $5 per month. If subs don't donate, their streams will be interrupted every 15 minutes with a solicitation for donations.

“There are considerable costs for equipment, bandwidth and operational support that helps run Locast,” according to a statement on the website. “These costs will only go up as we expand our service to new markets, as well as when more and more people cut the cord to become new Locasters.”

Locast's solicitation of "donations" was its Achilles' heel.

Also Read: Gigi Sohn Joins Locast Board

Locast Lawsuit

Few discussions about Locast’s legal underpinnings don’t involve Aereo, entrepreneur Chet Kanojia’s streaming startup that predated Locast by nearly a decade. As you may recall, Aereo ultimately crashed on the rocky shores of the U.S. Supreme Court. 

Launched in 2012, Aereo offered a viewing alternative for early cord cutters looking for a way to replace major broadcast stations in era that lacked platforms like CBS All Access. Aereo’s model let subscribers pay to lease individual, dime-sized antennas situated in local warehouses. But Aereo (like Locast today) didn’t obtain permission from the copyright owners of any programs it transmitted. And in a lawsuit filed against Aereo by a number of the broadcast networks, SCOTUS ruled against the startup. The 2014 ruling effectively put Aereo out of business.

Also Read: Locast Heading to Puerto Rico

So what made Locast think the same thing won’t happen to its service? 

Locast, in contrast, operated under a law written into the Copyright Act of 1976 (17 U.S.C. 111(a)(5) that allows nonprofit translator services to rebroadcast local stations without receiving a copyright license from the broadcaster, and even collect a fee to cover the cost of operations. Locast streamed signals from local TV stations, all positioned to comply with FCC exclusivity rules. Locast claimed it didn't have to negotiate retransmission fees from broadcasters, and was exempt from copyright restrictions, unless it was turning a profit.

Of course, the legal challenge from the major broadcasters was inevitable.

In July 2019, ABC, CBS, FOX and NBC filed suit against Locast, comparing it to Aereo and alleging that the streaming service violates their copyrights by retransmitting their programming without permission and compensation. The lawsuit also accuses Locast of allowing its service to be used as a pawn in broadcast retransmission negotiations with Dish and AT&T, operators of the Dish and DirecTV satellite TV companies, respectively. 

“Locast is simply Aereo 2.0, a business built on illegally using broadcaster content,” the suit contends. “While it pretends to be a public service without any commercial purpose, Locast’s marketing and deep connections to AT&T and Dish make clear that it exists to serve its pay TV patrons.”

Also Read: Locast Seeks Funds for Legal Fight Against Broadcasters

Both AT&T and Dish added Locast apps to their pay TV set-top boxes. (In the case of AT&T, this at the time also included U-verse set-tops.) AT&T also contributed $500,000 to Locast’s aforementioned nonprofit parent company, the Sports Fans Coalition.

“Locast is not a public service devoted to viewers whose reception is affected by tall buildings. Nor is Locast acting for the benefit of consumers who, according to Locast when promoting its purportedly free service, ‘pay too much,’” the lawsuit reads. “Locast is not the Robin Hood of television. Instead, Locast’s founding, funding and operations reveal its decidedly commercial purposes.”

Locast Countersuit

In its countersuit, Locast accused the Big Four broadcasters of colluding against it, claiming the plaintiffs are using their market power to prevent distributors and other platforms from partnering with them, citing virtual MVPD YouTube TV as an example.

“What Disney and the giant broadcasters don’t want the public to know is that they are attacking a tiny non-profit serving the public interest with free local broadcast channels over the internet, and that these companies just want to protect their billions of dollars in profits and fees for channels that are supposed to be free to the public in the first place,” said founder Goodfriend, in a statement. “Now that technology can deliver local broadcast channels over the internet without costing consumers an arm and a leg, Disney and these huge broadcasters will go to any length to shut us down, including through baseless claims, using expensive New York City and Washington, D.C., law firms.”

AT&T, additionally, chimed in with its support.

“Locast offers consumers an innovative new way to access free over-the-air signals,” the telecom said in a statement. “We support technologies that give consumers more choices and better access to this local content.”

In May 2020, Goodfriend said he believes it's now "very likely" that the service will prevail in its defense of a copyright suit filed against it by the major media companies.

September Trial

Locast will face off against the networks in court in a September 2021 trial.

In April, both sides filed letters to U.S. District Court Judge Louis Stanton, who is overseeing the case.

Gerson Zwelfach, a partner at Williams & Connoly LLP who represents the plaintiffs (ABC, CBS, Fox and NBC), argued that because Locast makes it difficult to use the service unless a monthly donation is made, the service is not a public service as it claims under the Copyright Act of 1976.

"Although Locast calls the amounts it extracts from users 'donations,' courts 'look beyond mere formal labels and consider the substance of the transaction,'" wrote Zwelfach in his letter. ”Here, the substance of the transaction is clear: Locast demands users pay a monthly fee in exchange for uninterrupted services.”

Orrick, Harrington and Sutcliffe LLP attorney David Hosp, representing Goodfriend and Locast parent Sports Fans Coalition NY, responded that the streaming service provides "secondary transmissions" transmitted legally via a nonprofit.

“No one owns SFCNY,” Hosp wrote. ”It pays no dividends, no distributions, and no salaries. It pays typical, market prices for its costs, such as physical space, equipment, technical upkeep, and internet access. And it defrays those costs by seeking and accepting donations, including donations from viewers, for the actual and reasonable costs of maintaining and operating the secondary transmission service. Plaintiffs cannot dispute any of these facts.”

At the end of August, Judge Stanton ruled on the letters filed by both parties, denying Locast's motion for summary judgment while granting the broadcasters' motion for partial summary judgment.

Judge Stanton's ruling was a major blow to Locast with Stanton shutting down the streamer's claim that it was a nonprofit translator service and therefore exempt from copyright restrictions.

"Based on the undisputed facts, it is clear that the Locast service is not offered without charges other than those 'necessary to defray the actual and reasonable costs of maintaining and operating' its service," wrote Stanton in his ruling. 

"The payments defendants elicit from users are charges assessed on users to avoid constant service interruptions, regardless of whether defendants euphemistically call them publicly 'recommended donations'."

The day after the ruling, Locast dropped its request for contributions to avoid service disruption. That move was then followed by the complete suspension of its service.

Locast has not indicated whether the suspension is permanent or whether it will continue to fight.

Telletopia Foundation, a non-profit start-up streaming video service that debuted in 2013 in San Diego offering a “skinny bundle” of broadcast channels, has shut down after running out of money, according to the San Diego Union-Tribune.

Started by former Comcast and Qualcomm executive Gary Koerper and ecoATM co-founder Michael Librizzi, Telletopia was first formed to provide a streaming bundle of broadcast channels to subscribers. The company had hoped that the Federal Communications Commission would classify over-the-top providers as cable companies – which would have forced broadcasters to do business with them – but when that didn’t happen, the company because a Master Antenna TV service.

Unlike Aereo, which offered a bundled service, including broadcast channels, to subscribers for a fee before it was shuttered in 2014, Telletopia had planned to pay broadcasters retransmission consent fees. 

According to the Union-Tribune, Telletopia provided free streaming access to broadcast channels to customers in a handful of apartment buildings in San Diego. It also offered a cloud DVR service for $10 per month.

According to the paper, the emergence of skinny bundles from larger OTT providers helped sink the service, which was largely being run as a hobby by its founders, who have pumped about $500,000 of their own money int the service over the past four years. Although Koerper told the paper he would restart the service if he finds more funding, for now, the service is shut down. Telletopia’s website is offline and attempts to reach Koerper were unsuccessful.        

FCC Chairman Tom Wheeler said this week that former Aereo founder Chet Kanojia talked to him about his planned Starry competitive wireless Internet access service at the Consumer Electronics Show earlier this month in Las Vegas and the chairman's response was that he was for "competition, competition, competition."

Wheeler talked about the exchange at a press conference following the FCC's Jan. 28 public meeting.

Kanojia unveiled the service this week, which will use so-called millimeter wave bands (above 24 GHZ) to deliver Internet over-the-air from rooftop transmitters (Kanojia is the one who tried to upend the broadcast TV distribution model with mini-antennas, now he is taking on traditional ISPs).

Wheeler said he understood Kanojia may need some waivers to operate in the 38 GHz high-frequency band and the FCC would "look at that appropriately."

The FCC is currently seeking comment on opening up those higher-frequency bands above 24 GHz for wireless broadband and is being pushed to allow for multiple uses on multiple platforms.

On the Internet competition front, using airwaves for Internet access via satellite has yet to reach the 25 Mbps downstream/4 Mbps upstream high-speed threshold that even gets it on the radar when the FCC is looking at broadband deployment.

But using the high-frequency bands, Starry is looking to deliver up to one gig, which would make it competitive with Google Fiber, though Starry points out its buildout costs are a fraction of putting fiber in ditches and on poles.

Asked how the 24 GHz proceeding could help Kanojia's plans, Wheeler said that they key concept in the proceeding was the transition from analog to digital and the ability to slice and dice the spectrum in new and creative ways. "We have always divvied up the spectrum allocation chart based on analog assumptions and 'this is the size of the waveform' [that

phrase was delivered in a sing-song suggesting repeating something by rote]. you get one signal through that space. Now you can get a bunch. That is the kind of decision we are making," though he added that he did not know how that would affect Kanojia's plans.

There’s no shortage of startups and established companies that are launching or developing products that aim to deliver on the promise of the now-defunct Aereo, but do so legally.

We’ve got, by way of example, TiVo, which has an over-the-air/OTT combo DVR and the rights to the Aereo trademarks, and Telletopia Foundation, a non-profit that wants to offer a TV streaming service by making retrans payments. Comcast, meanwhile, is trying out Stream TV, a service for broadband subs that offers the major broadcast networks, HBO, VOD paired with a cloud DVR.

Here’s another to add to the mix: CloudAntenna.

San Diego-based CloudAntenna claims it has “reinvented Aereo” (even its logo looks a lot like  Aereo’s) with a device that receives over-the-air TV signals on a digital antenna, can record shows locally and in the cloud, skip ads, supports an interactive program guide, and ties into the company’s FreeAir.tv service.

Per the startup, the system lets users view up to four live TV channels at the same time and control the experience via an app for smartphones and tablets. Connectivity-wise, it supports wired links, WiFi and a 4G radio, making it mobile. There’s a free option that supports OTA TV, the guide, and a recommendations feature, a “Cloud TV” option for $1.99 per month that starts with 40 hours of recording, and a $9.99 per month World TV service that includes the Cloud TV component plus access to more than 600 international TV channels and a library of about 100,000 international films.

Under a preorder campaign, CloudAntenna is making its product and a year of service available for $79 (the regular retail price will be $299) via crowdfunding site Indiegogo through the end of the year. It’s making 100 units available at that “insider special” price, and 47 have already been claimed, according to the site. CloudAntenna expects to start deliveries by June 2016.

In the meantime, it’s got some work to do on the money front. At last check, it has signed on 79 “backers” via Indiegogo, raising $6,213 -- 2% of a “flexible goal” of $250,000, meaning the campaign will receive all funds even if the goal is not reached.

Update: CloudAntenna founder Vlad Kroutik noted in an email that the company has already developed a device, so it considers the Indiegogo campaign as a “soft launch to test consumer appetite for another device in their living room.” The company has added 4G LTE capabilities and is now working on a VoIP service, he added.

CloudAntenna, meanwhile, has posted a video about the offering, which is obviously targeted at cord-cutters, that includes segments showing people doing some not-so-nice things to the much-maligned set-top box to  Queen’s “I Want to Break Free”:

Roamio, we hardly knew ya. TiVo appears to be closing in on the launch of a new family of products that will succeed the Roamio lineup, according to a bunch of evidence that Dave Zatz of the ZatzNotFunny blog has been uncovering in recent weeks.

In addition to trademark filings, CableLabs certifications and artwork from TiVo itself, the stars are aligning to show that the DVR pioneer is gearing up to launch new products under the “Bolt” banner.

Adding to the intrigue are some promotions that include a new Roamio OTA for $49.99 and the option for a lifetime service plan for $249, down from a regular price of almost $500. That’s an indication that TiVo might be looking to unload current inventory to make room for a new line of products.

“It’s really quite the deal,” Zatz writes. “However, the TiVo Bolt could be just weeks away…and we do anticipate it will replace the Roamio.”

TiVo launched its initial Roamio product lineup in August 2013, and followed about a year later with the OTA version.

TiVo isn’t commenting on what’s going on with Bolt, though Zatz hears that it will involve a “substantive design refresh.” But TiVo materials do indicate that there will be a flagship product under the “Unified Entertainment System” banner, as well as the TiVo Bolt Aereo Edition.

TiVo, which nabbed the trademarks and the customer lists of the now-defunct Aereo service for about $1 million in March, has been talking up plans to offer a “legal” version of Aereo… and a Bolt-branded product/redesign might be what it has in mind. Back in May, TiVo hinted that it would its announce its new Aereo-related plans sometime in July, and that time has passed.

TiVo’s plan to create a service along the lines of Aereo, but “done legally and better,” as TiVo CEO and president Tom Rogers put it recently, is still murky, though the company is expected to reveal all at an event in San Jose sometime in July.

In a brief interview Wednesday, Rogers wouldn’t let the cat out of the bag, but dropped some hints suggesting that whatever TiVo does have in mind, expect it to build on what it’s started with the Roamio OTA, a new DVR model sans CableCARD slot that's targeted to cord-cutters, enabling them to combine over-the-air TV with over-the-top video and essentially create their own video service bundles.

“We haven’t been very specific about it,” Rogers acknowledged, “but it will certainly build on what we currently are doing in the OTA space, fully recognizing that there are…consumers out there that are going beyond where Aereo was when it came to recording network signals.”

Notably, TiVo acquired only Aereo’s trademarks and customer lists for about $1 million in March following a bankruptcy auction. Other parties snapped up Aereo’s patents and some of the now-defunct company’s equipment and technology. 

We’ll know more this summer, but I think that scenario makes it unlikely that we’ll see TiVo build and operate its own antenna arrays, a la Aereo, to capture OTA signals and redistribute them via the Internet.  Given Rogers’s most recent comments, I’d expect the coming product to include expansions and enhancements to the Roamio OTA, perhaps with a cloud DVR component.  

The Roamio OTA is starting off as a retail product, but Rogers also talked up how it is also being positioned to help MPVDs counter the small but growing cord-cutting threat. 

“Increasingly, we’re hearing from cable operators on this who say, ‘Hey, we need to have some way of relating to the broadband only subs that are not taking our video package…and provide us with a way to do that with a combination of a device and an interface where we as operators don’t have to bear programming costs,’” Rogers said. Cablevision Systems, which is not one of TiVo's MVPD partners, has already begun to market specialized cord-cutter packages. 

That approach, Rogers said, gives MVPDs “a nice way of allowing people to get network signals without their paying retransmission consent in a nice way for consumers to integrate whatever streaming services they want that don’t involve payment by a cable operator for programming.”

Frontier Communications is the first and only MVPD so far to announce plan to market the Roamio OTA to broadband-only subs, but expect more to join the club.  Frontier president and CEO Dan McCarthy told an investors conference last week that a trial with TiVo is underway.

“We have some interesting discussions going on with various operators on that front,” Rogers said. “I think they’re quickly concluding that it’s not a question of encouraging cord-cutting, but that there are people who are going to not want the video package but are going to want broadband. And they [the operators] want to be able to maintain as close relationship as they can.” 

Though it was short on specifics, TiVo confirmed that it is working on a legal version of Aereo, the failed service that sold access to a cloud DVR paired with a system that captured over-the-air TV signals and redistributed them to subscribers over the Internet.

TiVo reasons that OTA, combined with broadband-fueled over-the-top services, presents an opportunity to help its cable partners target a small but growing number of cord cutters who are seeking less-expensive video and TV alternatives but who are also willing to create their own bundles.

“The question is, how do you do that?” Tom Rogers, TiVo’s CEO and president, said during an interview last week at the INTX show in Chicago. “To us, the answer is pretty clear — it’s kind of the Aereo model, done legally and better.”

What’s not as clear is how TiVo intends to pull it off. Aereo used an array of tiny thumb-sized digital antennas to capture digital broadcast signals before processing them into a format it could then distribute to paying customers for viewing on connected TVs, tablets, smartphones and Web browsers.

TiVo promised to share more about its strategy this summer. “Yes, they are currently developing a product and although they are not releasing any details, they plan to hold a significant event in San Jose in late July to discuss it,” a TiVo spokesperson said when asked to clarify TiVo’s plans.

TiVo acquired Aereo’s trademarks and customer lists for about $1 million in March following a bankruptcy auction. Other parties came away with Aereo’s patents and some of the startup’s equipment. Aereo filed for voluntary Chapter 11 bankruptcy last November after shutting down the service last June, soon after the U.S. Supreme Court ruled that Aereo’s delivery of TV station signals to subscribers without paying a copyright fee violated the law.

While it’s not clear if TiVo plans to recreate the Aereo system and agree to pay retransmission fees, TiVo has been developing and testing a cloud DVR platform.

TiVo has also been targeting cord-cutters with the Roamio OTA, a recently launched four-tuner HD-DVR that blends access to over-the-air TV channels with OTT fare from partners such as Hulu, Netflix and Amazon, and wraps it all into a unified interface. It sells for $49.99 (plus a $14.99 per month service fee), though TiVo is also experimenting with an option that sells the device for $300 with a lifetime subscription to the TiVo service.

TiVo has not released sales data on the Roamio OTA, but has published the results of a survey last week finding that most buyers of the Roamio OTA who identify as cord-cutters came by way of a satellite TV provider.

Rogers said he believes that cable operators are well suited to go after cord-cutters who have fled satellite by offering them a bundle that features OTA and broadband. Frontier Communications has already agreed to feature the Roamio OTA in a future offering that will be pitched to broadband-only customers.

“It’s one helluva cheap way for cable operators to have an OTA/OTT device that says, ‘Satellite cord-cutter, I have a broadband package for you with a video component,’ ” Rogers said. “I think it allows them [the cable operator] to own the low-end and win over satellite subscribers.”

Nielsen estimates the U.S. had more than 12.3 million broadcast TV-only homes at the end of 2014.

Rogers said he also thinks MSOs are positioned to reach the high end of the market by integrating their full-freight TV service with OTT.

“Those two pieces, to me, the cable industry should own,” Rogers said.

The middle, he said, will be covered by other emerging options such as Sling TV, Sony PlayStation Vue and whatever pay TV service Apple ends up assembling.

But he also said he believes cable now has an opportunity to step up and support more OTT integrations on its video platforms.

“This is getting to be too confusing a landscape,” Rogers said. “There are too many different ways for people to put together their own bundle.”

Rogers said he expects cable operators to continue to experiment with different packages that can counteract new skinnier TV bundles.

“I think the cable operators response on pricing is going to be the thing to watch,” he said. “I would be really surprised if cable operators don’t find a way to come up with a bigger package of channels for $50 or $60.”

While that would cost more than Sling TV, which starts at $20 per month and features $5 add-ons, a package of about 80 channels, he said, would ensure that the customer can still get a decent price without having to sacrifice some channels they like.

More than a month after coming away with the trademarks and customer lists of Aereo for about $1 million, TiVo has begun to market its new Roamio OTA DVR model directly to the former customers of the now-defunct provider of broadband TV and cloud DVR services.

According to the ZatzNotFunny blog, TiVo is pitching those customers the four-tuner Roamio OTA DVR and a TiVo Stream (a Slingbox-like sidecar that streams live and recorded shows to mobile devices) for $19.99 per month, with a two-year commitment. TiVo is billing this as a limited-time bundle that’s scheduled to end on April 27.

TiVo isn’t commenting about its ongoing Aereo-focused campaign beyond the details presented in the initial emailed pitch, which, under the subject line of “Aereo Bankruptcy Resolution,” tells former Aereo customers that they “can once again receive [their] favorite broadcast networks and enjoy DVR capabilities – without having to be a cable or satellite subscriber.” As ZatzNotFunny points out, the Aereo home page remains unchanged.

Following an initial limited edition run on the Roamio OTA, TiVo launched the model tailored for cord-cutters on a nationwide basis in January, selling it for $49.99, plus a $14.99 monthly service fee. Outside of retail, Frontier Communications is the first MVPD that has signed up to offer the Roamio OTA to broadband subs. In addition to supporting over-the-air broadcast TV channels, the new TiVo model also mixes in over-the-top content from sources such as Netflix and Hulu Plus and includes 500 gigabytes of storage.

The U.S. Bankruptcy Court for the Southern District of New York approved the sale of certain assets of defunct online TV/cloud DVR company Aereo on March 11. TiVo nabbed Aereo’s trademarks and customer lists for about $1 million, while RPX Corp. came away with the patents for  $225,000, and Alliance Technology Solutions put up $300,000 for certain Aereo equipment.

In all, Aereo raised less than $2 million via the auction, acknowledging earlier that it was a disappointing result. Aereo filed for voluntary Chapter 11 reorganization  last November and shut down the service last June.

FCC chairman Tom Wheeler has signaled that the FCC's proposed redefinition of over-the-top video providers as MVPDs could indeed help Aereo, or a service like it.

In a speech to the Mid-Atlantic Venture Association Tuesday (Nov. 4), Wheeler also kept the fire going under Title II, likening a hybrid approach to a two-pronged defense of an Open Internet.

"Two weeks ago I proposed to my colleagues that we require of cable operators and broadcasters the same thing that spurred the growth of the satellite video business in the mid-1990s – that competitors should be able to negotiate in good faith for video content, even if it is owned by cable companies and broadcasters," Wheeler said.

"By facilitating access to such content, we expect Internet-based linear programming services to develop as a competitor to cable and satellite," he said. "Consumers will be able to buy the channels they want instead of having to pay for channels they don’t want."

Then he invoked Aereo, which attempted to deliver TV station signals without paying for the content, until broadcasters sued and the Supreme Court sided with broadcasters.

"As you know, a startup called Aereo has already proposed doing this [being an over-the-top video competitor], but the broadcasters were able to stop it in court, in part because of the old rules of the FCC. Aereo wasn’t the reason for the new rules, but the idea that entrepreneurs should be able to assemble programs to offer consumers choices is something that shouldn’t be hindered by the FCC."

Read the full story at B&C.

FCC chairman Tom Wheeler's circulation of a proposal to define some over-the-top video providers as MVPDs with program access rights drew immediate responses from some interested stakeholders.

Aereo, which sees the move as a possible path to a workable business plan for its own over-the-top programming service, was, not surprisingly, pleased by the development.

“This is an important step in the right direction for consumers," said Aereo CEO and founder Chet Kanojia. "Clarifying the definition of MVPD to encompass linear online video distributors will create a stronger, more competitive television landscape for consumers."

"By moving this Notice of Proposed Rulemaking (NPRM) forward, the FCC will provide much-needed regulatory clarity and a clear set of rules for linear video programming systems, which ultimately, will increase investment in the video programming market."

“The way people consume television is rapidly changing and our laws and regulations have not kept pace. By clarifying these rules, the FCC is taking a real and meaningful step forward for competition in the video market. The FCC recognizes that when competition flourishes, consumers win.”

The American Cable Association is still looking for action out of the FCC on program access rule reforms. It did not comment directly on the proposal, but instead used it as a jumping-off point for its call for that reform, a point it made after MultichannelNews first broke the story of the proposal last month.

“With today’s announcement regarding a new technology-neutral definition of a multichannel video programming distributor (MVPD), the American Cable Association is hopeful that FCC Chairman Wheeler will also direct the Media Bureau to finish work on the FCC’s longstanding proposal to reform its program access rules," said ACA president Matt Polka.

“This action is needed to effectuate Congress’ intent that the National Cable Television Cooperative (NCTC) – a cable programming buying group used by nearly all small and medium-sized MVPDs – receives the same program access protections that Chairman Wheeler recognizes are vital to the ability of over-the-top video programming distributors to enter and compete in this market," said Polka.

“Hundreds of small MVPDs that are also broadband Internet service providers  – including dozens of new competitive entrants in the market that joined NCTC in the last few years – would benefit from reform of the FCC's program access rules and, as a result, would be better positioned to continue their broadband deployment efforts," he said.

Marking another victory for major U.S. broadcasters and another setback for Aereo, a U.S. District Judge in the Southern New York region on Thursday granted a preliminary injunction barring Aereo from retransmitting live TV.

The decision from U.S. District Judge Alison Nathan enjoins Aereo’s live TV distribution system, which relied on arrays of small digital antennas, but did not extend to Aereo’s network DVR and general video time-shifting.

Aereo, the ruling stated, is enjoined from "streaming, transmitting, retransmitting, or otherwise publicly performing any Copyrighted Program over the Internet (through websites such as aereo.com), or by means of any device or process throughout the United States of America, while the Copyrighted Programming is still being broadcast."

“We are reviewing the decision and evaluating our options moving forward,” Aereo spokeswoman Virginia Lam said, in a statement.

"Yet again the courts vindicate Fox's position that you can’t get away with stealing our content," said a Fox spokesman.

Aereo shut down its service in June – labeling it as “just a pause” – after The Supreme Court ruled that Aereo's delivery of TV station signals to subscribers without paying a copyright fee violates the law, a decision that reversed and remanded a Second Circuit Court of Appeals refusal to block the service while the underlying case was argued in a lower court.

Aereo has since argued that the SCOTUS ruling enabled it to obtain a compulsory license and obtain cable operator status, but Judge Nathan wrote that the High Court “did not imply, much less hold, that simply because an entity performs publicly in much the same way as a CATV system, it is necessarily a cable system entitled to a compulsory license.”

Aereo has recently been keen on an FCC Media Bureau proposal that would define some over-the-top video providers, such as Aereo, as MVPDs.  

Online TV station distributor Aereo has shut down its service and will refund customers for the last month's service, but says it is "just a pause." "Aereo is consulting with the court and mapping out next steps," said a spokesperson for the company.

That message came in a letter to subscribers Saturday (June 28) from company founder Chet Kanjoia.

The Supreme Court ruled last week that Aereo's delivery of TV station signals to subscribers without paying a copyright fee violates the law, reversing and remanding a Second Circuit Court of Appeals refusal to block the service while the underlying case was argued in a lower court.  The court found Aereo was effectively a distributor of a public performance, like a cable system, not a facilitator of online access to free TV station signals and fair use copying.

Investor Barry Diller has said that decision means the service is likely history, though Kanojia has said he might consider paying that fee to broadcasters.

"We want to encourage Aereo customers to keep their voices loud and sign up for updates at ProtectMyAntenna.org, as our journey is far from done," said the spokeswoman.

"The Supreme Court has quite definitively spoken on the legitimacy of Mr. Kanojia's business model. We respect its verdict," said the National Association of Broadcasters in response to Areo's announcement.

The Kanojia letter to subs is below:

“The world hates change, yet it is the only thing that has brought progress.” --Charles Kettering, inventor, entrepreneur, innovator & philanthropist

"A little over three years ago, our team embarked on a journey to improve the consumer television experience, using technology to create a smart, cloud-based television antenna consumers could use to access live over the air broadcast television.

"On Wednesday, the United States Supreme Court reversed a lower court decision in favor of Aereo, dealing a massive setback to consumers.

"As a result of that decision, our case has been returned to the lower Court. We have decided to pause our operations temporarily as we consult with the court and map out our next steps. You will be able to access your cloud-based antenna and DVR only until 11:30 a.m. ET today.

"All of our users will be refunded their last paid month. If you have questions about your account, please email support@aereo.com or tweet us @AereoSupport.

"The spectrum that the broadcasters use to transmit over the air programming belongs to the American public and we believe you should have a right to access that live programming whether your antenna sits on the roof of your home, on top of your television or in the cloud.

"On behalf of the entire team at Aereo, thank you for the outpouring of support. It has been staggering and we are so grateful for your emails, Tweets and Facebook posts. Keep your voices loud and sign up for updates at ProtectMyAntenna.org – our journey is far from done."

According to a study from research firm Peerless Insights, 46% of online respondents want Aereo to win its court battle with broadcasters, while only 15% said they thought the Supreme Court should rule in broadcasters' favor. The rest had no answer.

Actually only a little over a third of the respondents (35%) said they thought Aereo should win in court, though only 20% said broadcasters should win. Again, the balance said they did not know.

That suggests that either side could theoretically claim a majority if they could educate enough "don't knows" and recruit them to their side, though clearly Aereo has the edge.

The Supreme Court is expected to rule by the end of the month whether Aereo's delivery of TV station signals via mini-antenas is a violation of copyright. Aereo does not pay broadcasters, arguing they are simply providing a remote antenna service and DVR functionality.

Although only a third (34%) said they would sign up for Aereo if it is available, 40% of Millenials said they would.

“We designed this study to understand the consumers’ interest in the Aereo service and how they perceive the current copyright laws,” said Peerless Insights co-founder Young Ko (see below) . “We found that the majority of people surveyed want Aereo to prevail, but that doesn’t mean they’re leaving broadcasters out to dry.”

Ko says that Peerless provided the description of Aereo to the respondents (also see below) and asked how likely they would be to sign up at the $8 and $12 price points.

"Following the case background, we asked them their perceptions on the agree/disagree scale and then the forced choice questions about who they would want to win vs. should win."

Ko told Multichannel News that no stakeholders paid for the study, which is based on a survey of 1,231 adults polled May 27-30. It has a margin of error of plus/minus 3 percentage points with 95% confidence (basically how confident the researcher is that the margin is right).

The following is how the study described Aereo and the court case.

Aereo: Watch live TV online. Save shows for later. No cable required.

With Aereo, you can watch real, live TV through a tiny remote antenna you control over the Internet — from home or anywhere in your home.

Until now, watching free, over-the-air television required a giant rooftop antenna or awkward rabbit ears. Aereo changed all that.

Now, your TV antenna is unbelievably small. So small it can fit on the tip of your finger. But it still gets awesome HD reception.

Your antenna is in the cloud. With lots of other antennas, all connected to DVRs and super-fast Internet connections.

It's incredibly easy to use. Simply launch Aereo on any compatible device (computer internet browser, iPad/iPhone, Android Smartphone/Tablets, Roku, AppleTV) and watch from anywhere in your home coverage area.

You control from afar – Access your Aereo antenna with your favorite device. From home or around town.

•         Aereo works on phones, tablets, and computers. There's no new hardware to buy or install. See all compatible devices. And if you have an AppleTV or Roku, you can watch Aereo on the big screen!

•         No more rushing home for kick-off! Tune into the game from your mobile device. Pause and rewind so you don't miss a thing. Then switch to the big screen when you get home.

•         Save your favorite shows for later. Aereo includes a remote DVR. Schedule recordings from your phone and watch later on your computer or TV.

Basic monthly membership is just $8 a month, plus tax. That gets you 20 hours of DVR space to record your shows. Or, for $4 more, you can upgrade to 60 hours of DVR space and the ability to record two shows at once.

This is how Peerless framed the legal debate:

US Supreme Court Case Background

At the heart of the case is the fact that Aereo doesn't pay the broadcast TV companies (e.g., ABC, NBC, CBS, Fox, etc.) for storing and delivering their shows to consumers.

Also, while over-the-air TV is free, the Copyright Act of 1976 distinguishes between “public performances” and “private performances.”

•             Private performances, such as watching a TV show in your living room, are allowed.

•             Public performances, such as cable or satellite companies retransmitting channels to its customers en masse, are protected under copyright, and are required to pay a fee.

RANDOMIZE ORDER OF AEREO’S AND BROADCAST TV COMPANY’S SIDE PARAGRAPHS

Aereo’s Side

Aereo argues that its service isn’t “public performances” because the company is simply setting up individual antennas and DVRs on behalf of customers, and allowing them to watch them using the internet. Key Aereo arguments include:

•             Aereo is not retransmitting “public performances” because each antenna is controlled by the individual, and the broadcast that is watched or recorded is a “private one,” controlled by a single customer.

•             Aereo is similar to an equipment provider that sells a consumer an antenna and a recording device to make legal personal copies of free over-the-air programming.

•             Aereo is like 1980s-era video recorders that allowed consumers to record copies of programs to be viewed at home. In 1984, the US Supreme Court ruled that recording programs at home for later viewing did not violate copyright laws.

Broadcast TV Companies’ Side

The broadcast TV companies argue that Aereo's service is clearly the same as a “public performance” like that of a cable or satellite company, and should be required to pay a copyright fee like other cable and satellite companies. Key broadcast TV companies arguments include:

•             Federal law requires that anyone retransmitting what is known as “public performance” must pay copyright fees.

•             Aereo takes the broadcast TV companies’ copyrighted material, profits from it but does not pay the copyright holders.

•             Aereo is no different from cable and satellite companies that are required to pay fees to retransmit the broadcast TV company’s shows.

Los Angeles – In a wide-ranging discussion at The Cable Show on Tuesday, a handful of the cable’s top tech and engineering execs said technologies such as DOCSIS 3.1 position them well to offer Gigabit-level broadband services as they  increasingly find themselves matched up with competitors such as Google Fiber and AT&T and the potential expansion of the telco’s fiber-based “U-verse with GigaPower” platform.

Time Warner Cable, which is pairing off with Google Fiber in Kansas City, is wary of that competition, but has found that the new entrant has had limited success and that some customers are coming back because they like TWC’s video service better.

Google Fiber “is certainly a worthy competitor, if they’re going to overbuild us,” but that they offer “nothing dramatically different”  than what TWC can bring to bear, Mike LaJoie, TWC’s executive vice president and chief technology and network operations officer, said.  “Their product works. Our product works just as well.”

Cable’s incremental economics are generally better than someone who is entering the market in a greenfield situation and looking to cherry pick, Tony Werner, Comcast’s EVP and CTO, said, noting that Comcast has raised its speeds 13 times in the last 12 years and has begun to make 100 Mbps (downstream) its main flagship product in the Northeast and will look to continue that trend.

Competition has sharpened the focus on launching faster services, but “it hasn’t changed our priorities,” Kevin Hart, the EVP and CTO of Cox Communications, said, noting that the MSO is on a path to offering 150 Mbps to 200 Mbps services across its footprint.

Looking ahead, cable will be looking to compete with even faster speeds enabled by DOCSIS 3.1, a next-gen platform that will put cable on a path toward 10 Gbps down and at least 1 Gbps upstream. The cable industry announced that it will use "Gigasphere" as the consumer-facing name for the services that will be enabled by DOCSIS 3.1.

“You’ll see us being aggressive buying 3.1 product,” said Werner, who expects one chipmaker to have initial silicon ready and built into D3.1 modems by the second quarter of 2015, with two other suppliers to follow suit by the third or fourth quarter of next year.  On the cable modem termination system side, vendors are telling him they’ll be ready for downstream  trials in 2015, and full-fledged products ready by 2016, paving the way for initial deployments.

The “hardware seems to be on a very good path,” Werner said.

As part of its preparation for DOCSIS 3.1, Cox, Hart said, has initiated an all-digital initiative that will allow it to reclaim analog spectrum for use toward other services. He expects Cox to complete its all-digital project by 2016.

Semi-Bullish On 4K

Panelists were generally bullish about 4K/Ultra HD, believing that the eye-popping format represents the next HD, which was a hit, more than the next 3D, which was a complete dud.

“There’s less friction” with 4K, which doesn’t require consumers to don special glasses, Balan Nair, Liberty Global's chief technology officer, said, hopeful that Liberty Global will have devices in hand before the 2016 Olympic games in Rio de Janeiro, Brazil.

Werner said he expects 4K adoption to occur at a slower pace than HD, but that it is poised to be a bigger success than 3D-TV.

4K has promise, but any rollout will have to be tied to High Efficiency Video Coding (HEVC), Yvette Kanouff, EVP, corporate engineering & Technology at Cablevision Systems, said, referring to an emerging codec that is 50% more efficient than H.264/MPEG-4.

Weighing In On Aereo

Panelists were also asked to weigh in on the Supreme Court case involving Aereo, the startup that relies on an array of thumb-sized antennas and a cloud-based infrastructure to deliver live TV and DVR services.

Cablevision has expressed an opinion to the Supreme Court that while it agrees with broadcasters that Aereo's service is an illegal violation of copyright, it likewise believes the broadcasters’ position could jeopardize cloud-based storage, which Cablevision relies on for its network DVR service.

 “I think after last week [when the Supreme Court heard the case] we feel pretty strongly about our position on what cloud services can offer and where we are,” Kanouff said.

Werner, who was present at the hearing, said the lawyers on both sides made good arguments, and that the justices will have a “tough job” as they weigh their final decisions.

“What’s clear to me is they were concerned about how it relates to cloud computing and cloud storage,” he said, adding that it will be interesting to see how they can “thread the needle.”

Noting that Liberty “nearly invested” in Aereo, a bad outcome for the startup might simply delay the sort of service that cable might not yet be ready to compete with.  “It delays the inevitable,” he said. “But the cable industry could probably use that breathing room.”

The Supreme Court Tuesday heard oral argument in the case of ABC [and many other broadcasters] v. Aereo, with the fate of the over-the-top TV station delivery service, and perhaps the future of broadcast TV and cloud storage, hanging in the balance.

The time was evenly divided, with Paul Clement, a partner at Bancroft PLLC and former solicitor general, getting 20 minutes to make the case for broadcasters and deputy solicitor general Malcolm Stewart getting 10 minutes to buttress that case. David Frederick had 30 minutes to make Aereo's argument. Frederick is a partner with Kellogg, Huber, Hansen, Todd, Evans & Figel, and was himself once an assistant to the solicitor general.

The Justices hammered both sides with tough questions. Justice Stephen Breyer appeared particularly concerned about the impact of the decision on cloud computing and the First Sale doctrine. One veteran broadcast attorney, who has argued before the court, called the potential outcome a coin flip but said the Justices were clearly struggling with the impact of that decision on cloud computing.

Justice Elena Kagan jumped in early with a question about why Aereo was not essentially a cable system. Other Justices appeared also to be wrestling with the distinction. Frederick said Aereo was clearly not a cable service because it provided technological access to private performances by its users while cable pushed content to its subs. Frederick suggested this was a case about reproduction rights, as in the fair use right to make copies, masquerading as a copyright case.

Clement said it came down to a business model where strangers paid to watch tv online. David Frederick, picking up on the concern over cloud computing, said that a decision against Aereo was definitely a threat to cloud storage.

Chief Justice John Roberts repeatedly expressed concerns that the Aereo technology had no other justification other than to get around copyright laws. Frederick argued that they were simply trying to reproduce the user experience at home. The technological regime was a way to scale up modularly the way cloud businesses do. He said Aereo was simply providing technology that users access for their own private performances, distinct from cable, which pushes video to the customer.

Justice Breyer asked why Aereo was not like a record store sending out copies of phonograph records. If that is a performance, he said, then there is no more first sale doctrine, which allows for secondary distribution of copyrighted works. Clement said the difference was that clearly the record store was not providing a performance, while Aereo was.

Justice Kagan was looking for the distinction between cloud storage and Aereo. Clement used the analogy of a car dealership (Aereo) and valet parking (cloud storage), where one was selling you a product and the other was storing your property.

Chief Justice Roberts asked why Aereo should not be likened to a public garage, where they rent the remote space that can be used as needed.

At one point Kagan asked Clement what the consequences of a decision against Aereo would be and whether that would mean it would go out of business. Clement said that if Aereo was providing innovative technology, it could license content. If not, it would go out of business and "no one should shed a tear."

“We’re very happy to be in court today and we’re pleased with the way the court considered the arguments," Clement said after the argument. "The justices understood the technology. They understood the stakes in the case. And they were focused principally on the interpretation of the statute. We conveyed to them a relatively straightforward position, which is that a service cannot provide live TV over the internet to thousands of paying strangers without engaging in a public performance. The statute protects public performance rights and the issue here is that Aereo’s technology and service clearly violates those public performance rights. It’s as simple as that.”

Following the argument, Frederick said Aereo was confident in its argument and ”cautiously optimistic, based on the way the hearing went today, that the Court understood that a person watching over-the-air broadcast television in his or her home is engaging in a private performance and not a public performance that would implicate the Copyright Act.”

Gary Shapiro, head of the Consumer Electronics Association, whose members include Aereo, said he thought the questions were perceptive and said that “the fact that the broadcasters and Solicitor General effectively admitted you would have to reverse the Cablevision decision rationale in  order to find for them was important.”

He said that the Justices clearly were “struggling with Aereo as a service compared to cable.” Justice Kagan probed extensively on that point, jumping into Clements argument within only a few seconds to suggest that Aereo seemed like a cable service.

“On the other hand,” said Shapiro, “even if they found against Aereo they were struggling for a way that they could not reverse the Cablevision case [the finding that accessing remote DVR’s are not public performances], not reverse the Sony Betamax case and also not have a definition which encompasses cloud computing. So, they have a tough decision ahead of them.”

Shapiro said there appeared to be different takes on the court, some concerned more about choking off innovation and others concerned about broadcaster signals being taken without compensation.

Both the broadcasters and Aereo supported the Supreme Court weighing in to resolve the dispute, which revolves around whether Aereo is providing subscribers remote (Internet) access for a fee to free TV signals and recording functions they are entitled to and with which they create their own unique, private, performances, or whether it is delivering a TV signal and a public performance of copyrighted material without compensation in violation of copyright.

Broadcasters—most notably ABC, Fox, CBS, NBC and PBS—had sought the appeal after the Second Circuit Court of Appeals, citing its earlier ruling in the Cablevision case, refused to block Aereo from operating while a district court heard the underlying copyright challenge.

Other, lower courts, have upheld injunctions, setting up the court split the Supremes will be looking to resolve. No lower court has yet weighed in on the underlying merits of the case and are now holding off until the Supreme Court weighs in. When it does that will be the controlling decision to the degree that it reaches those merits.

Aereo has tied its case to the Second Circuit Court of Appeals’ 2008 Cablevision decision, in which the court ruled that providing a transmission to a single subscriber using a unique copy via remote DVR functionality—produced only for that sub—is not a performance and therefore does not infringe on the performance right. But the appeals court also said that its decision did not “generally permit content delivery networks to avoid all copyright liability by making copies of each item of content and associating one unique copy with each subscriber to the network.”

Cablevision actually argues that Aereo is a violation of copyright, but says broadcasters' argument against the service is “overreaching and damaging” because it could erode the legal underpinnings of Cablevision’s remote-storage DVR (RS-DVR) and other cloud-based storage services. Broadcasters say they can win without it being a threat to cloud storage.

The Obama Administration's Justice Department backed broadcasters in an amicus brief, calling Aereo a copyright-infringing business model but saying the infringement could be stopped without putting the cloud at risk.

Aereo investor Barry Diller has said that a defeat in the High Court would likely spell the end of Aereo.

Not every broadcaster opposes Aereo. A handful of owners of small and independent TV stations, mostly low-power stations, including Block Communications, Cocola Broadcasting, and Soul of the South, filed an amicus brief in support of Aereo. Those are stations that almost certainly wouldn't be in a position to demand payments from Aereo even if it were paying stations but do like the idea of the additional reach and profile Aereo's online service gives them.

The D.C. Federal Appeals court has also delayed a decision on an injunction against FilmOn, which also provides TV station signals online using remote antenna technology. Like Aereo, FilmOn argues it does not have to pay a copyright fee for broadcast programming because it is not transmitting a performance, but instead providing technology that allows users to remotely access a recording of broadcast TV station signals that they are free to access without payment.

A decision from the court is expected in early summer.

Aereo, the embattled provider of broadband TV and cloud DVR services, fired on all fronts last week as it braced for its Supreme Court showdown with broadcasters this week.

The multifaceted media blitz, which comes ahead of Aereo’s defense that gets underway on Tuesday (April 22), included Aereo’s launch of a website that advocates its position, as top executives and investors made appearances on TV and talk shows or stated their positions in high-profile publications.

On the Web, Aereo launched ProtectMyAntenna.org, a site emphasizing its position that its service merely provides remote access to antennas that capture free over-the-air digital TV signals — not performances which, as the broadcasters claim, are subject to copyright payments.

“We remain steadfast in our conviction that Aereo’s cloud-based antenna and DVR technology falls squarely within the law,” Aereo founder and CEO Chet Kanojia said in a letter to subscribers. “We have every hope and confidence that the court will validate and preserve a consumer’s right to access local over-the-air television using an individual antenna, make a personal recording with a DVR, and watch that recording on a device of their choice.”

Kanojia also offered some choice words on C-SPAN’s Communicators series last week, holding that broadcasters’ arguments are baseless and even “insane” in their characterizing of Aereo as a Rube Goldberg contraption set up to circumvent the law.

Kanojia deflected questions asking why cable operators should have to pay for broadcast signals, but Aereo does not, arguing that MSOs don’t pay a copyright fee for “in-market” transmissions and that Aereo is not a program distributor but a company that provides a technology platform.

“There is a distinction between cable companies, who are monopolies, and equipment providers, whose job it is to build equipment that adds value to a consumer’s life,” Kanojia said.

IAC chairman Barry Diller, the former head of Fox and one of Aereo’s minority investors, defended the company in an op-ed piece in The Wall Street Journal, chastizing the Obama administration for taking the broadcasters’ side.

“[B]roadcasters claim Aereo is ‘stealing’ their content,” Diller wrote. “Why is the industry pushing to punish those who wish to receive their television through airwaves, which are not owned by broadcasters? The answer is obvious: Broadcasters make more money when consumers are steered away from over-the-air program delivery and toward cable and satellite systems that pay the broadcasters retransmission fees.”

Kanojia also gave an interview to Katie Couric of Yahoo News, echoing Diller’s earlier position that Aereo has no real Plan B, and may have to go out of business if it loses the case.

In a research report, Bernstein Research analyst Todd Juenger suggested that if Aereo loses, it won’t be long before it and others develop technologies and methods that work around the court’s ruling.

Nine justices will hear the case, and the high court is expected to announce its judgment in June.

The Wall Street Journal, whose parent, News Corp., also owns Fox, gave IAC chairman Barry Diller -- former head of Fox -- op ed space Thursday to defend Aereo, the online TV station delivery service Fox is opposing as a copyright infringer.

Diller is a minority investor in Aereo, and he took aim at the Obama Administration for not backing Aereo.

Diller's piece comes days before the Supreme Court is to hear oral arguments in the case on April 22.

In the piece, Diller says that broadcasters don't own the airwaves and shouldn't be allowed to keep viewers from watching free TV on the device of their choice via an "antenna in the cloud."

"[B]roadcasters claim Aereo is "stealing" their content. Why is the industry pushing to punish those who wish to receive their television through airwaves, which are not owned by broadcasters? The answer is obvious: Broadcasters make more money when consumers are steered away from over-the-air program delivery and toward cable and satellite systems that pay the broadcasters retransmission fees."

Diller took aim at the Administration for backing broadcasters in the fight. "Broadcasters have now corralled the White House into joining their efforts to crush any innovation that challenges the status quo and the industry's lucrative business model," he said.

The Solicitor General's office filed a friend of the court brief in support of broadcasters saying Aereo's delivery of over-the-air TV signals via the Internet without payment is a public performance in violation of copyright.

The SG's office also agrees with broadcasters that the Supreme Court can rule against Aereo without calling into question the entire cloud storage regime.

"No one has offered any coherent factual or legal basis that justifies the broadcasters'—and now the administration's—attempts to condemn consumers to the use of an antenna from a bygone era," asserted Diller. "It is unfortunate that the broadcasters and the administration have aligned themselves against competition, choice and the consumer. The Supreme Court should set them straight."

In advance of the Supreme Court oral argument in the Aereo case, the online TV station delivery service has launched a web site, ProtectMyAntenna.org, to emphasize its point that it is just providing remote Internet access to an over-the air antenna, rather than a performance subject to copyright payments.

In a note to its subs, Aereo CEO Chet Kanojia said that the site was in response to questions from customers about the case. Broadcasters have sued Aereo for copyright infringement and the Supreme Court has agreed to take their challenge of the Second Circuit Court of Appeal's denial of a preliminary injunction against Aereo and its suggestion the company's remote antenna system does not violate copyright.

"On April 22, Aereo will present our case to the United States Supreme Court," Kanojia said in the letter. "We remain steadfast in our conviction that Aereo’s cloud-based antenna and DVR technology falls squarely within the law. We have every hope and confidence that the Court will validate and preserve a consumer's right to access local over-the-air television using an individual antenna, make a personal recording with a DVR, and watch that recording on a device of their choice."

The site will provide "court briefs, amicus briefs and court decisions related to the Supreme Court case," according to the letter. Web surfers can also sign up for periodic updates. The Supreme Court is expected to rule by late June.

In an interview with Katie Couric for Yahoo News this week, Kanojia echoed Aereo investor Barry Diller in saying that if Aereo loses, the company will try to figure something out, but may have to go out of business.

The "figure something out" could be an effort to come up with a technical work-around, according to BernsteinResearch anaylst Todd Juenger, either by Aereo or someone else.

"If the Court says 'Aereo is patently illegal and must be shut down,' we believe it will only be a matter of months before some new Aereo-like service emerges, with a work-around specifically designed to adhere to the Court's ruling, and the process starts all over again  (Although Barry Diller contends Aereo won't pursue that path, saying recently 'if we lose, we're finished'," said Juenger in note to investors. "We suspect he might change his mind if his engineers show him a work-around path."

Also implicated in the case is FilmOn, an online, which also delivers TV station signals online via remote antennas. A court decision on the fate of an injunction against that service, also sought by broadcasters, has been put on hold until the Supreme Court decides the Aereo case.

The scary headline a couple of days ago noted a hyperbolic plea by big time Aereo investor Barry Diller, to the effect that if the U.S. Supreme Court (SCOTUS) turns thumbs down on the Aereo service after oral arguments the morning of Tuesday, April 22, that the Aereo service is essentially “dead.”

Frankly, I find that ridiculous. Indeed, that’s just poppycock! (Maybe Barry D. thought it was April 1, and this was his version of an April Fool’s joke.)

Years ago, by way of explanation, former ABC TV vice president Rich Wolf, made a brilliant and quite perceptive comment about Aereo, which was to the effect of “Why didn’t a broadcaster unveil an Aereo-like service first, before Aereo did?” His implication was that such a move by a broadcaster would have worked, and would have been the “right way” from the beginning to implement a new technology like Aereo’s.

Wolf (now EVP of The Switch) made a very important question and implication, suggesting a very easy solution to the Aereo dilemma: Aereo needs to either sell its entire operation to a broadcaster or broadcasters (so that the broadcasters and their value chain can control the Aereo ecosystem); or Aereo, at least, needs to let the broadcasters become a part of the operation, and thus the revenues.

I am reminded of a meeting I was a part of years ago (before Aereo launched), when a broadcaster asked me, “Where’s my compensation when Aereo re-telecasts my content?” and I didn’t have an answer for him. But his Q also implied the obvious: make the broadcaster and the content owner a part of the mix, and you’ve probably got a great new animal, ready to range and roam successfully, in the hyper-competitive world of modern video!  

This is important, because, my best gut feeling is that Diller’s SCOTUS concern is well-placed: the U.S. Supreme Court is going to tell Aereo that it cannot operate as it is currently doing, which leaves the broadcaster distributors and content owners almost completely out of the loop, so to speak. And meanwhile, under the current scheme, Aereo takes the distributors’ and content owners’ copyrighted material and resells it to consumers at a profit to Aereo, and very nearly (depending upon how you measure the effectiveness of advertising these days) to Aereo only. That just doesn’t make sense.

But figure out a way to get some valid compensation to those TV distributors, and their partners, the content owners, and you are on your way.

Call it Aereo 2.0, post-SCOTUS, and Aereo survives, or perhaps, even thrives!

Jimmy Schaeffler is a telecom author and chairman and CSO of the Carmel-by-the-Sea-based streaming, broadcast and pay TV/video consultancy, The Carmel Group (www.carmelgroup.com).