On April 22, the Supreme Court will hear a case that has the potential to change the future of broadcast television. At issue is the right of a service called Aereo, which uses antennas to pull local television signals and then stream them to subscribers, to continue transmitting content from the public airwaves without getting permission from the networks. And networks like Fox have said that, unless services like Aereo are shut down, they might consider getting out of the broadcast television business and moving behind the cable paywall.
A brief filed with the Supreme Court on February 24 explains how the networks believe that Aereo, which charges $8 per month for service, acts as an end run around their business model. Because, unlike a service like Netflix or Amazon Prime, Aereo licenses none of the content it’s helping customers access, it will always be able to charge much less than cable for the content it’s making accessible to consumers.
“If that is the world in which broadcasters must live, then they may be forced to reconsider whether they can afford to continue making the same quantity and quality of programming available to the public for free in the first place,” Paul Clement, the former Solicitor General, who along with a group of other lawyers, is representing the television networks against Aereo. “That consequence of Aereo’s legal theory would be most unfortunate…Millions of Americans still rely on free over-the-air broadcasts to receive television programming.”
We’ve heard this argument before, particularly from Fox president Kevin Reilly. But, reading the brief, there was a surprising new entrant listed among the petitioners: the Public Broadcasting Service. It’s hard to imagine that PBS would leave the public airwaves, or that it could without becoming a radically different entity entirely. And Jan McNamara, the senior director for corporate communications at PBS confirmed that the Service has no plans to leave the public airwaves.
“Universal access is the cornerstone of our public service mission,” she wrote in an email. “PBS and our 351 local member stations are committed to providing our full schedule of programming through free, over-the-air broadcasting to all Americans, regardless of geography or the ability to afford a subscription to a pay service. We know that over-the-air households rely on PBS and we will continue to serve them. You are correct that we function very differently than commercial broadcast networks. PBS is participating in this brief because we believe there are fundamental copyright and fairness issues inherent to this case.”
PBS may not suffer from the pressures of the business models that their for-profit counterparts experience. But that doesn’t mean that PBS, which produces a very large original programming slate in addition to shows it imports from other countries, including Downton Abbey and Sherlock is thrilled by the prospect of Aereo making a profit off the Service’s investments in content, without negotiating the same distribution deals that other outlets do. And in an era of near-constant quibbling over public funding for the arts, it makes sense that PBS would be particularly attentive to all possible streams of revenue.
It’s worth considering, though, what PBS might have to gain if some of its broadcast counterparts moved inside the walled garden of cable. Downton Abbey is a bona fide hit: 8.5 million viewers tuned in for the season finale, outpaced only by the closing ceremonies of the Winter Olympics, The Walking Dead, and the running of the Daytona 500. Sherlock is still strong, and could be stronger if PBS could air it simultaneously with its debut in the United Kingdom, and it’s a genuine conversational phenomenon, one of the few to exist outside of cable. Ken Burns is setting his slate for years to come. That’s a more reliable creative future than some of the struggling broadcast networks can count on.
If Fox actually does withdraw to cable, and if it takes some of its counterparts with it into an increasingly crowded pay television market, PBS’s commitment to stay on the public airwaves could make it increasingly valuable to audiences trying to keep their entertainment bills low. That’s the sort of public service that makes PBS seem more earnest and less dangerous than its cable and pay-cable counterparts. But it could also give the Service’s stations an opportunity to demonstrate what increasing numbers of viewers seem to be discovering: that serving the public doesn’t mean PBS is staid.