Is Freely the same as Aereo, just a decade later?
Sports programming continues to be the 800-pound gorilla in innovation
Late last week, Tim Hanlon, whom I know more for his enjoyable Good Seats Still Available podcast, wrote for TVRev about Freely, the United Kingdom’s “a revolutionary new offering that brings live and on-demand content together in one place - without charge to consumers.” In other words, those free-to-air terrestrial signals can arrive directly to your television without the need for a digital antenna or an MVPD (Multichannel Video Programming Distributor) subscription such as Comcast, DirecTV, or Hulu Live (a vMPVD for virtual).
Picture a Netflix-type app preloaded on your Smart TV but instead of paying for content, a consumer can stream live and on-demand television for free. It is similar to what Hanlon characterizes as “faux newscast-only FAST-channel approximations.” (FAST = Free Ad-Supported Television).
The headline to Hanlon’s article asks the simple question, “Why Can't US Audiences Stream Broadcast Channels More ‘Freely’?” The answer is also simple, retransmission consent as authorized by the 1992 Cable Act and the power of media conglomerates. A decade ago, Aereo was a start-up company engaged in a business model similar to Freely. It was so disruptive that broadcast networks sued alleging Aereo was unlawfully transmitting their signals without compensation, a direct violation, the networks argued, of the Public Place and Transmit clauses of the 1976 Copyright Act.
Aereo received a huge lift in its legal arguments from the indirect beneficiaries of retransmission fees, professional sports. The NFL and MLB authored a joint amicus brief threatening that, should Aereo prevail, the only “option for copyright holders will be to move that content to paid cable networks [such as ESPN and TNT] where Aereo-like services cannot hijack and exploit their programming without authorization” (Brief of National Football League and Major League Baseball, 2013, p. 14).
Much of the media narrative about the case echoed the leagues’ brief, with headlines such as “NFL and MLB: Aereo May Kill Sports on Free TV,” while ignoring the fact that retransmission consent had already altered the traditional definition of what constitutes “free TV.” I co-authored a paper about the Aereo case for the Journal of Legal Aspects of Sport. It is linked here.
SCOTUS agreed with the networks (and the leagues) and, after the June 2014 ruling, less than two years after entering the market, Aereo was dead.
Buried along with Aereo was innovation in content delivery which we are now seeing manifest across the pond. Sports broadcasting on Freely, however, seems hit or miss. Perhaps Hanlon will expand on that in his part two piece later this week. A quick search for this weekend shows the ability to watch Women’s T20 Cricket and Premiership Rugby, but no EPL or Football League broadcasts.
Sports, as we know, is the primary reason many households subscribe to an MVPD in the first place. It is fair to say that all households with a bundle pay for content they never consume. The in-development “Spulu” is seen as an alternative to the traditional MVPD bundle, but many questions remain about the service. In other words, until (and unless) politicians and regulators re-examine the evolving content delivery ecosystem, the status quo will persist.
As Hanlon concluded his Part One article, “As the US broadcasting industry faces its own challenges in the streaming era, Freely offers a valuable set of lessons in innovation and adaptability.” I hope regulators are paying attention.