Feature Article

July 02, 2014

Aereo, the Court and the Policy Generation Gap

If I were to insult the Supreme Court I would be joining a long list of Luddites, from Lester Maddox to Ted Cruz. The history of the Court is that sometimes we have to endure generational shifts to arrive at a normative status quo. To wit, Thurgood Marshall and the issues of race are still problematic in our current so-called Post-Racial America. 

So as a technologist I have to ask, “How long do I have to wait for a reversal of a bad decision?”

Cloud services are all around us now, threaded through our collective lives, and it is clear that The Supremes use these systems (or, perhaps, it is their grandchildren who are using them?) based on their free speech decision made the same day. Like so many end-users, though, they probably draw a cloud and see magic.

Aereo is a nothing more than a cloud service that takes things that used to appear at your home — an antenna and a personal video recorder — and put them in a server farm. And for those of us who no longer have access to our roofs, this was a great service. In fact, if Aereo had been designed in the early 1960s it would have been labeled a beautification project since it would have gotten ridden of all those antennas on everyone’s home that made it look like we were all trying to shortwave Tokyo.

Unfortunately, for the sake of this discussion, we do not live in the 1960s. In the early 1970s cable began taking over, and through the decades we went from a broadcast mode and a must-carry rule to the strained relationships we have now, where broadcasters own content producers and hold the cable operators hostage when viewership and contracts change. The broadcasters made it seem like they were noble in this, and it is particularly sad that even PBS joined the broadcasters (assuring that going forward I only donate to NPR).

I tried to convince Aereo to join our Super Wi-Fi event, because while they were not in the RF space, the broadcasters had a two-front war going, and therefore the enemy of their enemy should have been seen as a friend. The broadcasters claimed that they would not participate in the TV Reverse Incentive Auction, that they in effect needed the spectrum, while at the same time declaring they would never broadcast again if Aereo was allowed to continue. And all of this spectrum was granted as a public good, back before the days of deficit reduction by spectrum auctions. That Aereo did not see the value in all of this, I see as their own myopia.

The Supreme Court definitely lost track of the public good on this one, and the lobbying in Congress has made the future of TV White Space much harder to predict. In short, the Court didn’t get the big picture, and I have no doubt that eventually they will reverse themselves as more Internet of Things meet the cloud. The question of the moment, though, is how much other innovation will be stifled by the Aereo decision?

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