Editorial: Turn Out the Lights

Aereo fighting to get compulsory license

Those old enough to remember Don Meredith’s days on Monday Night Football will recall his familiar lament for teams getting blown out: “Turn out the lights, the party’s over,” he would croon.

That ought to be the theme song for Aereo, the TV station public performance delivery system that made a novel end run around copyright laws but got tackled by the Supreme Court short of the goal line. Aereo could negotiate for carriage of content, as other online providers do. In fact, CBS CEO Leslie Moonves signaled last week he was still “open and willing” to talk.

Instead, Aereo, calling an audible, is looking to get a compulsory license that would allow it to carry content for a flat, blanket rate and bypass negotiations.

Aereo had signaled that a decision in its disfavor would likely be the end of the road—which made sense, given the Supreme Court is usually the last stop. But dreams, even ones ultimately based on tech gerrymandering, die hard and this one apparently isn’t dead yet.

At some point, the FCC and Copyright Office and current international treaties may all move in a different direction and decide that over-the-top providers are multichannel video programming distributors, eligible for a compulsory license and retransmission payments; however, they also may not.

Given the rise in video streaming and caching and the migration to an all-IP world, the FCC must eventually open the can of worms that MVPD determination would unleash, including what regs would be applied to Internet content if their distributors were MVPDs.

For now, the Copyright Office, courts and our international partners have made it clear Internet distribution is not the same as facilities-based provision of channels. That may not be the answer Aereo wants to hear, but it doesn’t stop the growing volume of the late Don Meredith’s voice, crooning once more.