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Stations Mum on Locast’s OTT Bite in Big Apple

WHY THIS MATTERS: Like Aereo before it, Locast could become the latest free streamer to battle for survival.

It has been almost two months since the Locast service launched, streaming the signals of New York TV stations without broadcasters’ permission, and yet there has still not been a single cease-and-desist letter or injunction filed, according to Locast founder David Goodfriend.

Goodfriend told B&C he continues to stream 15 New York TV stations online — all the major network stations and noncomms — though he said he has had signal strength issues with some of those.

Locast has a receiver facility on Long Island because it’s cheaper, but Goodfriend said that even though Long Island is supposed to be “smack dab” in the middle of the New York DMA, the facility has struggled to pull in some signals. He said that demonstrates why a streaming service is needed to get those signals to viewers who can’t afford pay TV, or who don’t want to pay for it.

“That just proves our point that broadcasters are not providing their entire community with free service,” he said. “We are just doing what translators have been doing for years.”

The National Association of Broadcasters, which initially signaled that Locast was like the other streamers it has taken to court, declined comment on why it has yet to take any action on behalf of its TV station members, which include the Big Four network-owned stations Locast is carrying.

Asked why he thought broadcasters, particularly the Big Four in New York, had refrained from filing suit or threatening to do so, Goodfriend had a ready response: “I think we are right on the law. As a lawyer, I have studied this part of the Copyright Act for years.”

So if you are a broadcaster, he said, why start a fight you are likely to lose?

The Big Four network owners had no comment at press time on why there’s been no action to date.

Practicing Free Enterprise

A broadcast attorney — not representing network-owned stations, and speaking on background — conceded that if Locast is truly not charging for the service, then arguably under the law it is not a multichannel video programming distributor and can provide that free over-the-top station streaming service. “If they are really not charging, the law is on their side,” he said.

That said, the attorney believes the networks are still contemplating their next legal move, so it’s likely they have not conceded that ground just yet.

But if Locast is charging anything, even simply to cover expenses, he said, then it is an MVPD and must get permission from the station owners. That will likely be the crux of any suit if it is eventually filed.

Broadcasters could also be avoiding giving the service any free publicity in hopes it will eventually go away of its own accord, since it must remain nonprofit and rely on donations to stay on the right side of the copyright law.

Time is on Locast’s side in terms of any swift court action if broadcasters do decide they have a case against it. The longer broadcasters go without, say, filing for an injunction, the less likely a court is to grant it, since one of the tests for granting a preliminary injunction is an “immediate threat.”

But the reticence could also be that not all broadcasters see Locast as a bad thing. For it’s part, Locast has visions of expanding to other markets. With networks making their must-have programming sans local ads available via apps — CBS All Access for $9.99 per month, for example — a stream of network primetime that still includes an affiliates’ local advertising may not sound so bad.

“I think you can argue that,” said the broadcast attorney.

Drawing Aereo Comparisons

The NAB initially responded to Locast’s launch by likening it to the over-the-top services shot down or brought up short by the courts, such as Aereo and FilmOn. Those services, the association said, had tried and failed to find “creative ways” to skirt laws that protect local broadcasters and their viewers.

NAB also said at the time that it didn’t think Locast would survive the same legal scrutiny it gave those predecessors, back when the agency, which represents TV stations and the major networks, joined with the studios to file suit against them.

Studios, meanwhile, have been taking a wait-and-see approach. The Motion Picture Association of America had no comment on its silence to date, letting the NAB take the lead on the issue. Whether the NAB ceases its own waiting remains to be seen.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.