Constitution Daily

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Do you have a constitutional right to free broadcast TV?

April 11, 2013 by Scott Bomboy


Talk of free Fox and Univision TV shows moving to cable as part of a legal brawl has experts pondering if viewers have any right to ask the FCC to block the moves. The answer may surprise you.

Local Fox affiliate programming
Local Fox affiliate programming.

Fox executive Chase Carey dropped the bombshell at an annual industry event in Las Vegas on Monday, after the national broadcast networks lost another court battle with Aereo, an startup that wants to steam over-the-air TV signals without paying the broadcast networks. Univision's leader soon followed with comments about leaving free broadcast TV.

Aereo is backed by Barry Diller, the media mogul who was the first head of the Fox broadcast network in the 1980s. The company uses banks of tiny antennae to record and stream broadcasts for subscribers and relay them over the Internet to a computer-based device.

Its successful legal strategy, so far, is based on a 2008 ruling in the United States Court of Appeals for the Second Circuit. The case of Cartoon Network, LP v. CSC Holdings, Inc., found that Cablevision had the right to record Cartoon Network programs using a DVR service that Cablevision hosted for the benefit of its subscribers.

In a July 2012 ruling, a U.S. district court denied the broadcasters' request for an injunction against Aereo, which is only marketed in New York City, citing the Cartoon Network decision. The judge in that case said without the Cartoon Network precedent, the broadcasters would have likely gained the injunction, based on copyright laws.

The broadcasters suffered a bigger setback on April 1, when an appeals court also denied the injunction request. The Court of Appeals for the Second Circuit ruled in a 2-1 vote decision, “the district court correctly concluded that Aereo’s system is not materially distinguishable from the system upheld in Cartoon Network LP, LLLP v. CSC Holdings, Inc.”

To be sure, the legal battles over the Aereo case aren’t finished, and there are a good number of industry observers who think the networks could prevail. A similar case in California about a rival service could lead to conflicting rulings—and an eventual date for Aereo and the broadcasters in the Supreme Court.

But for now, if you watch American Idol and Sabado Gigante for free using an antenna, do you have a right to demand government action to keep them on your TV?

The Federal Communications Commission sets the rules that broadcast TV networks operate by, under laws passed by Congress. Five FCC commissioners are appointed by the president and approved by the Senate.

From all accounts, the FCC is following the Aereo case closely, since it approves broadcast TV licenses. According to the FCC’s manual, “FCC rules generally do not govern the selection of programming that is broadcast. The main exceptions are restrictions on indecent programming, limits on the number of commercials aired during children's programming, and rules involving candidates for public office.”

In its guidelines, the FCC also says: “We license only individual broadcast stations. We do not license TV or radio networks (such as CBS, NBC, ABC or Fox) or other organizations with which stations have relationships (such as PBS or NPR), except to the extent that those entities may also be station licensees.”

The FCC also requires broadcast TV stations to make available education children’s programming, ensure its content is accessible by people with disabilities, and to make local public safety information available.

So for now, the FCC can’t force Fox to keep Glee on its free over-the-air broadcast signal.

Where the story gets complicated, using Fox as an example, is how Glee is distributed. News Corp., Fox’s parent, owns 27 TV stations and licenses its Fox-branded content to more than 200 local broadcasters, who sell advertising on local and national programs.

These affiliates have a lot of influence on network decisions. On Tuesday night, the AP spoke with the head of the Fox affiliate board, who offered up a possible solution.

Fox could make two signals available to affiliates: one for over-the-air broadcast that is a “light” version without prime-time programming and sports, and a premium version only available on cable TV.

National Association of Broadcasters president Gordon Smith told the AP that broadcasters wouldn’t choose the nuclear option in the long run.

"I don't think Congress would ever get to a place where it'd be that callous that television would have to be paid for,” he said.

It could be Congress and the National Football League that would pose stumbling blocks. With spending on political campaigns at records levels, politicians may not be keen on seeing ratings tumble for local broadcasts. The NFL also thrives on wide-ranging product distribution and has contracts with the major broadcast networks.

About 10 percent of people still watch TV using an antenna and not cable, which is enough of an audience to make advertising  concerns another critical factor.

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