Dramatic changes coming to Internet access and broadcast television?? No free SuperBowl?

TV with antennaWill kickbacks and cronyism determine what is available on the Internet? Will only the rich and famous be able to afford the Internet? And more importantly, will we no longer be able to watch the Super Bowl free on broadcast television?!

Two recent cases could have a tremendous impact on how we access the Internet and on the very existence of broadcast television. Too dramatic? CBS and Fox have already said that they would consider becoming cable companies depending on the outcome of the case of American Broadcasting Companies, Inc. v. Aereo, Inc., accepted for review in the United States Supreme Court. As to Internet access, a recent court decision has gutted the concept of net neutrality on the Internet. What is net neutrality and why should we be “freaking out” about changes in it as the Huffington Post says we should? http://www.huffingtonpost.com/2014/01/14/net-neutrality_n_4597831.html

Before January 14, when the DC Circuit Court of Appeals struck down parts of the Federal Communication Commission’s “Open Internet Order”, as it is commonly called, net neutrality was the rule. (Preserving the Open Internet, 76 F.R. 59192 Final Rule) In Verizon v. FCC, the Court blocked those sections of the FCCs rules propounded in the “Open Internet Order” which mandated non-discrimination and disclosure requirements (transparency) for Internet service providers, the very foundations of net neutrality. The non-discrimination provisions of the “Order” provided that Internet service providers cannot block, delay (slow down transmission rates) or discriminate against certain content or content providers in favor of other content or content providers (except, of course, where that content may be illegal) and that people cannot be charged for the bandwidth/time they are “consuming”.

Remember when we first started using the Internet and there was a lot of talk about getting on the information “Superhighway”. Well, net neutrality guaranteed that regardless of income or ability to pay no one could be relegated to the “slow” lane on that highway or be charged regardless of how many times we drove up, down, over and around on that highway. The FCC also ruled that Internet service providers cannot favor one Internet content provider over another for differences of opinion in politics, religion, sex, etc. or for commercial gain.

With the court’s decision in Verizon, that requirement for “neutrality” on the Internet is now gone.CNN.com gives a theoretical example. [Now] “…the providers could also just blatantly play favorites. So imagine AT&T, a major provider, making traffic quicker on the websites of smartphone companies that use its mobile service and slower on the sites of phone makers who don’t. We’re not saying they’d do that, of course.” “Pay to play on the web”, http://www.cnn.com/2014/01/15/tech/web/net-neutrality-explained/

The death of net neutrality could cut off public access to the broadest range of information, to those sites expressing alternative views, to small nonprofit organizations enlisting people to their causes, to individuals expressing their views and to those who want to participate in a creative community online. The Internet was originally envisioned as a democraticizing tool providing education to all its citizens.

Some sources suggest that huge changes will not be imminent, that the FCC has the authority to reestablish net neutrality and that “Solving the net neutrality problem is actually very simple” according to Business Week. Indeed, the court did not deny the FCCs authority to enforce net neutrality just not under the current FCC classification of Internet service providers. In fact, in the Verizon order, the court laid out the solution. The FCC could reclassify Internet service providers to a category which would place it squarely within the FCCs authority to enforce net neutrality. For a detailed explanation see “Net Neutrality is Over— Unless You Want It” in the University of Wisconsin blog Antenna. The FCC could also appeal the decision or congress could pass legislation rectifying the situation.

There is some indication the FCC might take a wait and see attitude and move in on a case-by-case basis if it sees abuses occurring, “FCC chairman signals new approach to Internet regulation”. Many suggest that we are in this “mess” because of lack of political will on the part of the past FCC chairman. The article “Net Neutrality is Over” wonders if even an overwhelming response from the public would sway an FCC beset by lobbyists and political pressures from all sides. Even so, it suggests that if you would like to let the FCC know your views that you “Tell the FCC” by joining the petition at http://act.freepress.net/sign/Internet_FCC_court_decision2/The ACLU has also weighed in with its own petition at http://tinyurl.com/lztkc7y.

In the “signal” case over how we watch television, American Broadcasting Companies, Inc. v. Aereo, Inc., it would not be overly dramatic to say the outcome of this case could mean the end of broadcast television.Some broadcast networks have already said that if the case is decided in Aereo’s favor they will become cable companies.

The battle is over “retransmittal fees” required to be paid to the broadcast television channels, (ABC, NBC, CBS, NPR, Fox and others) when companies, such as cable companies, “retransmit” content from these sources to their own paying customers. It is also profoundly about that part of copyright law that requires copyright owners’ permission for “public performances” of their work. The law defines such performances to include retransmission to the public. Aereo has come up with a unique technology workaround which they say requires them to pay no such fees and that their service provides “private performances” thus skirting the Copyright laws. The networks contend that Aereo’s solution is against the law and that without retransmittal fees, which amounted to about $3 billion in 2013, they will no longer be able to afford to provide content free over the airwaves.

The New Yorker explains Aereo’s technology as “…large antenna arrays, comprising thousands of dime-sized, adorable antennae” [which capture broadcast signals]. Each antenna receives, and transmits over the Internet, the signal for a single Aereo subscriber, who can then watch live over-the-air broadcast television—or record it with cloud storage, which Aereo provides, to view later—on a computer, tablet, or smartphone.” As it is perfectly legal for an individual to set up an antenna to receive free broadcast television, Aereo submits that it is merely providing the setup for each of its thousands of “individual” subscribers. The Second Circuit Court of Appeals agreed saying that “Aereo’s transmissions of unique copies of broadcast television programs created at its users’ requests and transmitted while the programs are still airing on broadcast television are not “public performances”. http://www.copyrightcodex.com/wnet-v-aereo-inc-712-f-3d-676-2nd-cir-2013-streaming-tv-broadcasts-online/2013/06/06

In his dissent, Judge Dennis Chin called Aereo’s system “a Rube Goldberg-like contrivance, overengineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law.” He dismissed Aereo’s “private performance” argument saying, “Aereo’s theory [that], by using these individual antennas and copies, it may retransmit, for example, the Super Bowl “live” to 50,000 subscribers and yet, because each subscriber has an individual antenna and a “unique recorded cop[y]” of the broadcast, these are “private” performances”.

Not only is the Super Bowl at stake but what about the Golden Globe awards, the Oscars, and, more seriously, the current awareness and educational programming provided by PBS, CSPAN and others? Courts in similar cases have taken differing stands so we will have to await the decision by Supreme Court to settle the matter.

Perhaps Aereo has never heard the expression “Be careful what you wish for.” If they force broadcast networks out of existence, what will they transmit on their “dime-sized adorable antennae”?

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