NAB files amicus brief in Aereo case


NAB / National Association of BroadcastersHere’s an amicus brief filed 3/3 with the Supreme Court by NAB and broadcast network affiliate associations in support of declaring Aereo a copyright infringer. According to the brief:

“Aereo’s wasteful free-riding stands in marked contrast to the genuine innovation being achieved within the framework of the law by services like Netflix and Hulu, as well as by broadcasters themselves. Reaffirming the role of copyright protection for free, over-the-air broadcasting will not harm innovation, which is already happening under Congress’s carefully calibrated legal regime. It is Aereo’s scheme that represents a step backward, both as a matter of law and technology.”

Here’s the filing:

The National Association of Broadcasters, the

ABC Television Affiliates Association, the CBS

Television Network Affiliates Association, the NBC

Television Affiliates, and the FBC Television

Affiliates Association (collectively, the “Broadcaster

Associations”) are associations representing the

interests of television broadcasters. The National

Association of Broadcasters (NAB) is a non-profit,

incorporated association of radio and television

stations and broadcasting networks. NAB serves and

represents the American broadcasting industry,

advocating before Congress, the Federal

Communications Commission, and the courts on

behalf of its members. The majority of NAB’s

members are not large entities; they are local,

independent stations.

The ABC Television Affiliates Association, the

CBS Television Network Affiliates Association, the

NBC Television Affiliates, and the FBC Television

Affiliates Association represent hundreds of local

television stations affiliated with the national ABC,

CBS, NBC, and FOX television networks,

respectively. Together, the Broadcaster Associations’

members serve millions of viewers in every state in

the country.

The Broadcaster Associations have a

compelling interest in promoting adherence to

copyright and communications laws that govern

public performances of television programming and

retransmission of broadcast signals to the viewing

public. Without these laws, broadcasters could not

fulfill their obligation to offer free over-the-air

television programs that meet the needs and

interests of the communities they are licensed to

serve. Unauthorized retransmissions of broadcast

programming siphon viewers away from lawfully

authorized sources, which include over-the-air

broadcasts, cable and satellite subscription services,

and authorized online distributors. As a result, the

Broadcaster Associations’ members lose advertising

revenues and retransmission fees essential to

recouping the significant costs of acquiring,

producing, and distributing local and national

programming. This undermines broadcasters’ ability

to create new and innovative programming and

distribution mechanisms, and threatens existing

programs, such as original local news and

community affairs programming, that are costly to



Quality broadcast television, delivered for free

over the air by local stations, is a public good, as

Congress has long recognized. But free over-the-air

television is not cost-free and cannot be taken for

granted. Aereo seeks to subvert a carefully

constructed legal framework with a technological

gimmick. If the Court were to hold that Aereo’s

deliberately wasteful and inefficient system can

successfully circumvent the plain meaning and

purpose of the Copyright Act, it would strike a

serious blow to the institution of free and innovative

broadcast television. The Court should instead hold

that Aereo’s claimed loophole in the law does not


1. Broadcast stations serve their communities

by delivering quality programming, including local

news programs on which the public relies. Nearly 60

million Americans – including many low-income and

minority households – rely exclusively on over-the-air

broadcast signals to watch television. Many

other Americans watch broadcast programming

through multichannel video programming

distributors (MVPDs). Over-the-air broadcasting

involves substantial costs, including capital

expenses, network affiliation fees, licenses for

popular syndicated programs, and the personnel,

equipment, and facilities needed to produce local

news programs and emergency coverage.

Congress has struck a careful balance that

protects the interests of broadcasters, copyright

holders, MVPDs, and the public. Overriding earlier

decisions of this Court, Congress decided that cable

systems may not retransmit copyrighted broadcast

programs without a license, but created a

compulsory licensing system to facilitate cable

systems’ access to broadcast programs. Separately,

Congress granted broadcasters rights in their

signals, including the right to negotiate with MVPDs

for the ability to retransmit those signals. Together,

this interlocking set of provisions assigns distinct

benefits and burdens to broadcasters, MVPDs, and

copyright owners.

The court of appeals’ decision subverts this

balance. It allows Aereo to exploit broadcasters’

creative efforts and investment by retransmitting

their programs and signals for a profit, without

producing anything and without paying broadcasters

(or other copyright owners) anything. Aereo does

this through a technological gimmick, using

thousands of dime-sized antennae and identical

digital copies to simultaneously retransmit live

television programming and signals to its paying

subscribers, while claiming that these are not “public

performances.” As Judge Chin explained, this

system clearly constitutes an unauthorized public

performance under the plain text of the Copyright

Act: it is a “device or process,” used to transmit

copyrighted television programming, i.e., the

“performances,” to “paying strangers,” i.e., “the

public.” The panel majority’s view that the system

is saved by its “technical details” is foreclosed by the

text of the statute and is inconsistent with its

purpose and legislative history.

2. Aereo’s scheme is inflicting grievous and

irreparable harm on broadcasters and, more broadly,

on the system of national and local broadcast

television. As several courts have found, Aereo and

similar schemes:

(i) seriously undermine the value of network

and local advertising, the largest revenue stream

supporting free, over-the-air broadcasting;

(ii) impair broadcasters’ ability to negotiate for

retransmission consent fees, their second-most

important revenue stream;

(iii) interfere with authorized online

distribution of broadcast programming, an

increasingly important issue for broadcasters; and

(iv) threaten to cause a migration of popular

network programming to subscription services, and

present local broadcasters with difficult financial

decisions with respect to costly programming on

which their communities rely.

Aereo’s “Rube Goldberg-like contrivance” is

not a technological innovation, but is instead a

technologically flawed approach designed solely to

circumvent the law. Aereo solves no technological

problem; instead, it is merely a scheme to avoid legal

obstacles to free-riding. Aereo’s technology is also

notably inefficient, using excessive amounts of

electricity and bandwidth.

Aereo’s wasteful free-riding stands in marked

contrast to the genuine innovation being achieved

within the framework of the law by services like

Netflix and Hulu, as well as by broadcasters

themselves. Reaffirming the role of copyright

protection for free, over-the-air broadcasting will not

harm innovation, which is already happening under

Congress’s carefully calibrated legal regime. It is

Aereo’s scheme that represents a step backward,

both as a matter of law and technology.


I. Aereo Subverts Congress’ Careful Balance

Through Technological Contrivance.

A. Broadcasters Provide Important Services

To Their Communities At Substantial Cost.

1. This Court has observed that “the

importance of local broadcasting outlets can scarcely

be exaggerated.” As of December 31, 2013, there

were 1,388 full-power commercial television stations

operating in the United States,5 each licensed by the

Federal Communications Commission (FCC) to serve

the needs and interests of a particular geographic

area. Some commercial broadcast television

stations are owned and operated by the network with

which they are affiliated, but the majority are

independently owned.

The most-watched broadcast television

stations make three principal forms of programming

available. First, most of these stations obtain a

significant amount of their programming from the

national network with which they are affiliated, such

as ABC, CBS, NBC, and FOX. Second, stations

obtain syndicated programming from content

providers. And third, stations broadcast locally-produced

news, sports, public affairs, and related

programming of particular interest to the station’s

community of license.

Broadcasters’ role in delivering the news is

especially significant, and “[i]n many ways . . . more

important than ever,” according to a recent FCC

report. “[L]ocal TV remains a top news source for

Americans, with almost three out of four U.S. adults

(71%) watching local television news.” These

stations increasingly “fill the void” in investigative

journalism left by changes in other media sectors.

And broadcast news plays an irreplaceable role in

emergency situations, when the viewing public as

well as law enforcement authorities rely on the wall to-

wall coverage provided by local stations.

2. Local broadcasters make this programming

available to the general public free of charge through

over-the-air service. Approximately 22.4 million

American households, accounting for nearly 60

million people, rely exclusively on over-the-air

broadcast signals to watch television, including 30

percent of households with annual incomes under

$30,000.15 In addition to lower-income families,

minorities and younger adults rely heavily on free

television, with minority groups making up 41% of

all broadcast-only households.16 As the FCC has

noted, “[f]or many people, free, over-the-air television

is their primary source of news, information and

emergency alerts – not to mention entertainment.”

Millions more watch broadcast television

stations as retransmitted – with authorization – by a

cable system, satellite carrier, or other MVPD to

which viewers pay a monthly fee.

Because the most popular local and national television programs

appear on broadcast stations, MVPDs are willing to

pay for the right to retransmit popular stations.

3. Bringing top-quality national and local

programming to the public entails significant costs

for broadcasters. Local stations face substantial

capital expenses for their transmission facilities and

invest heavily in innovation. They pay network

affiliation fees and other compensation to acquire

exclusive rights to popular network programming in

their local markets, as well as licensing fees to

acquire exclusive local rights to syndicated

programming. Broadcasters may pay syndication

fees of up to $2.5 million in barter and cash for a

single episode of top shows such as Modern Family

and The Big Bang Theory. Stations also incur

significant costs to produce local programming,

including hiring reporters and camera crews,

purchasing news vans and other equipment, and

maintaining production facilities. A survey of

television stations reported that, on average, they

spend over $4 million per year in their news

operating budgets and over $700,000 in their news

capital budgets. Finally, stations provide

expensive-to-produce news coverage on which the

public depends, such as commercial-free reporting

during times of emergency.

Broadcast television is available for free over

the air to viewers; it is not and could not be free to all

entities for all purposes. Like any business,

commercial television broadcasters would suffer

devastating harm if other commercial enterprises

could appropriate their product freely and without

compensation. Congress has crafted a

comprehensive statutory scheme to ensure that this

does not happen.

The right to authorize public performances of

a copyrighted audiovisual work is an exclusive right

secured to copyright holders. Prior to 1976, this

Court had held that retransmissions of broadcast

programming by cable systems were not

“performances” of that programming, allowing cable

systems to retransmit broadcast television for free.

Congress concluded that these decisions posed a

serious threat to the broadcast industry and

abrogated them in the Copyright Act of 1976. As

the legislative history confirms, Congress determined

that a “commercial enterprise[]” – like Aereo –

“whose basic retransmission operations are based on

the carriage of copyrighted program material” –

again, like Aereo – should pay “copyright royalties”

to the “creators of such programs.”

At the same time, Congress was concerned

that individual negotiations with every copyright

owner would be “impractical and unduly

burdensome.” It therefore created a narrowly

tailored compulsory licensing regime, not universally

applicable, but limited to cable operators and later

satellite providers. Thus, Congress struck a

balance: copyright holders receive robust protection

that applies to retransmission of broadcast

programming, but select entities – cable and satellite

systems – are granted a streamlined licensing


Distinct from the copyright interests in

broadcast programming, Congress enacted the Cable

Television Consumer Protection and Competition Act

of 1992,32 and the Satellite Home Viewer

Improvement Act of 1999. These statutes created a

separate right for broadcasters in their signals and

allowed commercial television stations to bargain

regarding the right of MVPDs to retransmit those


Together, these interlocking statutory

provisions strike a careful balance designed to serve

the public interest:

• Over-the-Air Broadcasts: Each local broadcast

station receives a license from the FCC to

transmit program services on a particular

frequency, and is required to operate the

station in a manner that serves the public


• MVPDs and Retransmission Consent: Local

commercial broadcast stations have control

over retransmission of their signals by

MVPDs. Because of the demand for the mix of

programming they make available, network affiliated

television stations typically negotiate

compensation from MVPDs for the right to

deliver the broadcast signal to subscribers

(“retransmission consent”).

• Copyright Owners: Copyright holders

authorize broadcasters to publicly perform

their works over the air, but this permission

does not necessarily carry over to other

platforms. Only cable systems and satellite

carriers may bypass direct negotiations with

rights holders through a statutory compulsory

licensing system; other would-be

retransmitters must obtain individualized


C. Aereo’s “Rube Goldberg-Like

Contrivance” Violates The Plain Text Of

The Copyright Act and Circumvents Its


Unauthorized streaming of copyrighted

programming to the public over the Internet is

illegal. To its subscribers, Aereo functions just like

the indisputably infringing services that came before

it. Aereo, however, claims it is different because it

employs a convoluted technological ruse: in making

live television programs available to its subscribers,

it claims to use “thousands of individual dime-sized

antennas” to make identical “unique copies” that it

then transmits simultaneously to as many

subscribers. This “Rube Goldberg-like contrivance,

over-engineered . . . to take advantage of a perceived

loophole in the law,” does not change the basic fact

that Aereo is “publicly performing” copyrighted

works in violation of the Copyright Act.

The exclusive right to “perform the

copyrighted work publicly” includes the right to

“transmit or otherwise communicate a performance

. . . to the public, by means of any device or process”

(the “Transmit Clause”). The expansive language

of the Transmit Clause makes clear that a

performance is public “whether the members of the

public capable of receiving the performance or

display receive it in the same place or in separate

places, and at the same time or at different times.”

As Judge Chin explained, Aereo fits squarely within

the statute: its “system of thousands of antennas” is

a “device or process,” and it uses that system to

transmit copyrighted television programming, i.e.,

the “performances,” to “paying strangers,” i.e., “the

public.” This common-sense interpretation is also

supported by the legislative history of the Copyright

Act of 1976, which explains that Congress intended

to cover “all conceivable forms and combinations of

wired or wireless communications media,” in order to

anticipate future technological developments.

The court below incorrectly reasoned that the

“technical details” of Aereo’s system allow it to

thwart this straightforward application of the law.

According to the majority, the Transmit Clause

applies only if “‘a particular transmission of a

performance’” can be received by the public; each

“transmission sent by Aereo” to its subscribers is

“generated from [a] unique copy” of the television

program, so that copy is not transmitted to “the

public.” But the Act says nothing about whether

the underlying “performance” is “transmitted” to “the

public” using one copy or multiple (technologically

unnecessary) copies. To the contrary, the Transmit

Clause “does not use the terms ‘copy’ or ‘copies’” at

all.46 Instead, in language that is remarkable for its

comprehensiveness and breadth, the statute applies

to “any device or process,” without regard to whether

the underlying work (i.e., the “performance”) is

transmitted to members of the public “in separate

places” or “at different times.” The lower court has

simply and improperly rewritten the Transmit

Clause to replace “performance” with “transmission.”

Only by departing from the statutory text could the

panel conclude that Aereo’s “technical details” save


Beyond its lack of textual justification,

Aereo’s contrivance plainly subverts the balance

Congress struck. Like broadcasters, Aereo transmits

programming to the public. But unlike broadcasters,

it pays nothing for that programming and has no

duty to serve the public. Like MVPDs, Aereo retransmits

broadcast signals and profits from

charging monthly subscription fees to viewers. But

unlike MVPDs, it does not negotiate with rights

holders, pay any fees, or comply with any of the

statutory conditions Congress imposed upon

MVPDs.48 Like copyright holders, Aereo profits from

valuable programming. But unlike copyright

holders, it does none of the innovation, supplies none

of the creativity, and contributes none of the

financial investment. This is not a legitimate

function contemplated by Congress’s carefully

calibrated regime; it is simply free-riding.

II. Aereo’s Illegal And Inefficient Scheme

Inflicts Serious Harm On The Public.

A. Aereo Undermines Broadcasters’ Ability To Deliver Free And Innovative


In subverting the careful balance Congress

has struck, Aereo inflicts grievous – and, as several

courts have found, irreparable49 – harm on

broadcasters. The harm faced by local stations

points to a broader harm to the system of national

and local broadcast television service that has long

benefited the public.

1. Aereo’s technological contrivance

undermines the largest revenue stream supporting

free, over-the-air television: advertising. Aereo

audiences are “not measured by Nielsen” ratings,

meaning broadcasters cannot command advertising

revenues commensurate with their viewership.50

Since 88 percent of broadcast revenue is derived from

advertising, even small differences in ratings points

can have a huge financial impact on local stations.

Aereo and services like it may further

diminish advertising revenues by diverting viewers

out of their local markets. Aereo’s purported controls

against out-of-market viewing are illusory –

customers are invited to watch programming from

any available market so long as they click a button

that says, “I swear, I am in market.” More

fundamentally, the Second Circuit’s reasoning allows

Aereo and its sister services to offer streaming of out of-

market stations. If an unauthorized streaming

service allows Californians to watch New York

programs – three hours early, and with commercials

for New York car dealerships instead of California

dealerships – it would further “reduce the value

of . . . local advertisements.” Enabling this viewing

of out-of-market television stations would also

destroy local stations’ bargained-for program

exclusivity rights. These are the very harms

Congress sought to prevent in significantly

restricting, and in some cases prohibiting outright,

the importation of out-of-market stations.

Aereo also directly jeopardizes

retransmission consent fees, broadcasters’ second most

important revenue stream. These fees

represent a “substantial and growing revenue source

for the television programming industry.” The

threat to this revenue comes not only from Aereo,

which retransmits broadcast signals for profit

without paying these fees; large MVPDs are already

exploring ways to take advantage of a legal regime in

which paying for signals is apparently optional.

Aereo’s very existence gives cable companies

“leverage to negotiate deals with broadcasters on

more favorable terms.” The fundamental

economics of broadcast television are already being

undermined by the need to bargain in the shadow of

the Aereo threat.

3. Aereo is also undermining broadcasters’

negotiating position with respect to authorized

online distribution. Ensuring that broadcasters have

the exclusive “first run” of popular programming

ahead of Internet sources is an important point of

negotiation between broadcast television stations

and their programming suppliers, including the

networks with which they are affiliated.

“[N]egotiated Internet retransmissions – for

example, on – typically delay Internet

broadcasts so as not to disrupt plaintiffs’ broadcast

distribution models, reduce the live broadcast

audience, or divert the live broadcast audience to the

Internet.” Aereo subverts the carefully negotiated

balance between first-run live broadcasts and

authorized Internet viewing.

4. In combination, the harms described above

will reduce broadcasters’ ability to continue offering

costly and diverse national and local programming

free over-the-air. Aereo’s free riding creates a

substantial danger that quality programming will

migrate from broadcast television to pay services.

Local broadcasters will also face difficult choices. As

entities licensed to serve their local communities,

broadcasters strive to avoid scaling back

programming on which the public depends.

However, with both advertising and retransmission

consent revenues jeopardized, expensive-to-produce

local news coverage, such as wall-to-wall emergency

reporting, faces clear financial challenges.

B. Aereo’s System Does Not RepresentTechnological Innovation, But Is Rather A Flawed And Inefficient Tool For Circumventing The Law.

Some previous copyright cases have involved a

balance between “supporting creative pursuits

through copyright protection” on the one hand, and

promoting “technological innovation” on the other.

This is not such a case. Aereo’s free-riding scheme is

deliberately wasteful and inefficient; it is

“innovative” only in the realm of legal artifice, not in

the realm of technological progress. It is

broadcasters and authorized retransmitters who are

making societally beneficial innovations within the

framework of the copyright laws and the

comprehensive legal architecture that Congress has


Aereo does not solve any technological

problem; it only aims to “solve” a legal obstacle that

would otherwise prevent its free-riding scheme. Far

from benefiting society, this law-office innovation is

tremendously inefficient. Aereo’s convoluted

“technology” requires disproportionate consumption

of electricity, demanding enough power in New York

alone to light two football stadiums. Aereo also

requires considerable bandwidth for its inefficient

operations, and has recently confronted problems in

various markets related to unspecified “capacity”

issues.65 This prodigious consumption of resources

serves no technological purpose. In fact, Aereo

appears to deliver a product that is technologically

inferior to the legitimate services it seeks to


Aereo’s wastefulness stands in marked

contrast to the genuine innovation being achieved

within the framework of the law. Services like

Netflix and Hulu, which lawfully acquire the rights

to deliver copyrighted programs over the Internet,

deliver vastly more content than Aereo at a lower

price to subscribers. Broadcasters themselves, in

addition to their continued innovation in

programming, also devote considerable effort to

innovation in content delivery, including the live

streaming of their station signals and content over

the Internet.

Reaffirming the role of copyright protection as

a pillar of the free, over-the-air broadcast model will

not harm technological innovation. That innovation

can and will happen – and is already happening – in

lawful ways pursuant to Congress’s carefully

calibrated regime. Aereo’s scheme, by contrast, is a

step backward not just as a matter of law but as a

matter of technology as well.


For the foregoing reasons, as well as the

reasons set forth in petitioners’ brief, the decision of

the court of appeals should be reversed.

Respectfully submitted,

Jane E. Mago

Jerianne Timmerman

Benjamin F. P. Ivins