Aereo opens the floodgates in New York, while FilmOn comes back around for another run

According to CNET News, Aereo, the "broadcast TV over the Internet" startup partially funded by IAC, is opening its service to anyone in New York City, and has announced new pricing plans, including a free tier. Aereo's original $12/month plan is still offered, with online viewing of most broadcast stations in the New York metropolitan area and 40 hours of HD DVR space. Today, Aereo announced three new plans: An $8/month plan with 20 hours of DVR space, a $1/day plan with 3 hours of DVR space, and a free plan that allows viewing of up to one hour a day, with no DVR space. In addition, Aereo is offering an annual plan with the features of the original $12/month plan, for $80/year. The free plan is a "no-brainer" way for potential subscribers to try out Aereo.

On the West Coast, The Hollywood Reporter writes that FilmOn, which has been in a three-year battle with broadcasters, broadcast and cable networks over its over-the-top Internet service, has entered into a settlement in which the company reportedly agreed to pay $1.6 million and accepted a permanent injunction on FilmOn's service. However, that hasn't stopped company owner Alki David, who claims that he's deployed "more than 2.6 million television antennas and large RAID drives in major cities all over the country," and intends to relaunch the FilmOn service using the same technology and legal arguments as Aereo. David doesn't believe that the permanent injunction covers his new service. In addition, he plans to launch an "over-the-air premium channel" by the end of the year, starting with station KHIZ in Los Angeles.

If David launches his new incarnation of FilmOn before the Aereo case is resolved, it's very likely that the plaintiffs that he just settled with will file for an emergency injunction and request damages, and the court with which the confidential settlement was filed may go after David for contempt of court, which could lead to additional damages and possibly even some jail time. In addition, FilmOn's service may violate some of Aereo's patents.

It's unclear why David doesn't just wait until the New York Federal Court rules on Aereo. If the court allows Aereo to continue in operation, David could safely launch a similar service based on the same principles, so long as it doesn't violate Aereo's patents. If the court shuts down Aereo, FilmOn will likely be shut down as well. I don't want to try to figure out his logic, but he's acting like a rich guy who doesn't really care what U.S. courts say.

Aereo: Another "cable killer"?

Companies have been trying for years to offer cable television-like services over the Internet, without having to either get permission from broadcasters or pay them to retransmit their shows. FilmOn and Ivi are two companies that tried last year, but are both currently "off the air" as the result of court injunctions. Aereo, a New York-based company, is the latest to try. The company launched its service today in New York City. According to the company, Aereo is designed specifically to get around the legal limitations that shut both FilmOn and Ivi down.

Aereo will stream the signals from 20 New York City-area broadcast stations to its subscribers for $12/month, and will include a network-based DVR service that was upheld as legal by the U.S. Supreme Court last year in a case against Cablevision. All the major broadcast networks, including ABC, CBS, Fox, NBC and PBS, will be included, but cable-only networks such as USA, TNT and CNN won't be. That's one big difference between Aereo's service and those of FilmOn and Ivi, both of which offered a selection of basic cable networks. In addition, Aereo will initially only be available in New York City, and Aereo will only carry signals from local television stations--another difference from its predecessors, which made signals from stations in Los Angeles and New York available to subscribers around the U.S.

Aereo is doing one more thing that it hopes will make its service ligitation-proof: For every subscriber, Aereo will install a tiny, thumb-sized antenna in an undisclosed location in New York City. (Correction, February 15, 2012: Aereo is going to allocate each subscriber their own antenna from a pool of antennas while they're using the service, not install a dedicated antenna for every subscriber.) The idea is that each subscriber will receive the signal from their own antenna, not from a "community" antenna, and therefore, Aereo isn't a cable system and isn't bound by cable retransmission rules. It's an interesting way to try to get around the regulations, but whether the courts will agree is an open question.

Aereo has one more card to play: One of its investors is IAC, and company Chairman Barry Diller will join Aereo's Board of Directors. Diller is a former VP of development at ABC Television, former Chairman and CEO of Paramount Pictures and former Chairman and CEO of Fox, where he founded the Fox Television Network. At one time he owned USA Network. Diller is one of the best-connected executives in the media industry, and he has the experience in running and working with television networks and movie studios that neither FilmOn nor Ivi had. However, it's unclear if that's going to be of any help if the New York television stations go to court against Aereo.

Update, March 1, 2012: The Hollywood Reporter reports that not one, but two, lawsuits were filed against Aereo today to stop it from launching on March 14th. The first lawsuit, asking for a permanent injunction and statutory damages, was filed by Fox, Telemundo and PBS and their New York affiliates. The second lawsuit, asking for pretty much the same thing, was filed by CBS, NBC and ABC and their local affiliates. The Hollywood Reporter says that the two lawsuits are likely to be consolidated.

If you live in New York, have poor television reception and don't care about cable networks (or can get what you want from Netflix), it may be worth considering Aereo as an alternative to cable. If you live outside New York, don't hold your breath--Aereo's unlikely to spread to other cities until the courts determine whether or not its service is legal.

That sound you hear is TiVo circling the drain

Residents of Alviso, California have reported hearing a strange "swishing" sound for several weeks. That sound has now been identified as TiVo circling the drain. TiVo's fiscal second-quarter financial results were released yesterday, and the company is continuing its long downward spiral:

• The company lost 125,000 subscribers in the quarter, and its total subscriber base stands at 2.5 million vs. 3.1 million last year, down 22%.
• Subscriber churn in the quarter was 1.9%, up from 1.5% a year ago.
• Revenues fell 11% overall to $51.6 million, and the services and technology component of revenues fell 14.2% to $42.1 million.
• The company posted an overall loss of $15.3 million, compared to $2.7 million a year ago.
• TiVo has been claiming for several years that licensing deals with cable and satellite operators would make up the difference, but companies like Comcast have been extremely slow to roll out services based on TiVo's technology.

If TiVo's problems were simply due to the bad economy, you could argue that a turnaround is only a matter of time. However, TiVo's subscriber declines predate the recession, so a macroeconomic turnaround may well not help TiVo enough to make a difference. Companies that fade as long as TiVo has very rarely turn around on their own.

In my opinion, it's time for TiVo to actively begin looking for an acquirer. The company still has some valuable patented technology, but as time goes on, more companies are figuring out ways to get around those patents, so TiVo management needs to move while it still has something to sell. TiVo could be integrated into the businesses of set-top box powerhouses such as Motorola, Cisco and Pace. Its DVR and advertising monitoring technologies could be valuable to Google in the future development of Google TV.

TiVo is forecasting still more losses for the next quarter, and investors have to wonder when, if ever, they're going to see an upside. Given the company's track record, the only likely upside will be when the company is acquired.

Will the Dish/TiVo case kill Sling Media?

Last week, the U.S. Court of Appeals for the Federal Circuit upheld a previous ruling of contempt of court against Dish Networks in the patent infringement lawsuit brought against it by TiVo. According to this article from Multichannel News, Dish could not only be required to shut down as many as eight million of its DVRs within a month, it may also be prohibited from offering its own DVR in the future. That would mean that Dish would have to license technology from or farm out DVR manufacturing to TiVo or another company whose DVR technology doesn't infringe TiVo's patents.

In late 2007, Echostar, Dish Network's parent, split into two separate companies, with Dish Network providing satellite television services and Echostar maintaining the satellites and building the receivers, DVRs and other equipment. When the split took place, Sling Media was moved into Echostar.

Echostar has been trying to expand its set-top box and DVR customer base beyond Dish Network, but to date the company has had limited success. One of the reasons has undoubtedly been the Dish/TiVo litigation, since anyone using the infringing Echostar DVRs would be subject to the same threat of litigation as Dish. If you're in the set-top box business and you can't offer DVRs, you're stuck in the bargain-basement pricing arena that Chinese manufacturers are dominating.

Sling Media is stuck in the middle. Echostar is no longer focusing on direct-to-consumer sales and instead has retargeted the Sling products for the cable, satellite and IPTV service provider market. If service providers don't want Echostar's set-top boxes, they're unlikely to buy the Sling products either. Given the TV Anywhere initiative and similar services being offered outside North America, the need for Slingboxes and similar devices will inevitably diminish. Sling may be a good idea whose time has come and gone.

Flash: It ain't dead yet

Tonight, TiVo announced its new Series 4 DVRs, called Premiere and Premiere XL, which will ship next month. Engadget covered the announcement in New York, so I'll skip the product details. However, one of the most intriguing aspects of the announcement is that the Premiere's user interface is built on Flash, and its performance looked quite smooth. While Apple and Adobe are throwing spitballs at each other over Flash on the iPad, TiVo has just moved Flash front-and-center into the living room. It remains to be seen whether the Premiere will halt TiVo's slide in the DVR business, but at least it indicates that the company isn't giving up on the hardware business.

Disintermediation, again

Kim Masters was on NPR's "Morning Edition" this morning talking about the concerns that motion picture exhibitors (theater owners) have about the movie studios' plans to change their "release windows". Release windows are the order in which movies are released to different channels, and how long each channel has exclusivity. The issue is a seemingly innocuous request made by the studios to the FCC for "selectable output control" on set-top boxes, Blu-Ray players and other devices. Selectable output control would allow the studios to control whether, when and how much a movie or other video program could be played on a compatible device.
Consumer groups and consumer electronics vendors oppose selectable output control because the studios could use it to prevent their content from being recorded on DVRs and other devices. Now, the National Association of Theater Owners (NATO) has filed opposition to the studios' request because they fear that the studios will use selectable output control to make movies available in the home at the same time that they're in theaters.

I don't support selectable output control because it takes away consumer choice and negates thirty years of progress in consumer electronics since the Betamax decision, but the theater owners' opposition to the studios is more an effort to hold back the ocean than a friendly, consumer-oriented action. Extremely few movies make money in theaters today; theatrical distribution is most valuable for promoting films for future sale as DVDs and Blu-Ray discs. As the sales of DVDs erode and Blu-Ray fails to pick up the slack, the studios are forced to look at online digital distribution as a viable alternative. However, for digital distribution to generate the kind of revenue that physical media does, the movies have to be available much sooner, and that means cutting into the theaters' release window.

Whether or not the studios get selectable output control, theaters' release windows are going to erode; it's just a matter of when and how. When theater patrons are forced to go through metal detectors and hand over their cellphones before going in to watch a movie (as shown on a recent edition of CBS's "60 Minutes") in order to prevent piracy, theaters are not long for this world.

The studios are looking for any and every way to increase revenues, including cutting out the middleman, even if the middlemen are movie theaters. The same thing is happening with broadcast television. Comcast is close to buying 51% of NBC Universal from General Electric, which will give it control of the company. NBC has done such a superb job of running its broadcast network into the ground that it may become the first broadcast network to become a cable network. CBS and ABC are beginning to demand a cut of the retransmission payments that cable operators have to pay broadcast stations for the right to transmit their programming. Those retransmission payments have become the only thing keeping some stations on the air in this recession. Add to that the practice of some networks demanding "reverse compensation" from stations: Instead of paying stations to carry the networks' programming, the networks demand that the stations pay for the right to carry the programming.

Network television affiliates are an endangered species, because the networks can make more money, at lower cost, by dealing directly with the cable and satellite operators. For Comcast, the deal becomes almost a no-brainer, since it would control both the network and the cable systems. It will have to sell off the NBC owned-and-operated stations in cities where it has cable systems; the next step would be to take NBC to cable in city after city as network affiliate agreements expire.

Fifteen years ago, we were talking about disintermediation in retail and wholesale distribution brought about by the Internet; now we're talking about it again, this time in media. The future of theatrical motion picture exhibition and free broadcast television hang in the balance.

Update, December 5, 2009: According to the December 2nd edition of the Chicago Sun-Times, a patron at the Muvico Theater in Rosemont, IL was arrested and spent two nights in jail for videotaping four minutes of "Twilight: New Moon." She claims that she was actually videotaping her sister's birthday party at the theater, and the video on her camera (a still camera that records video segments) supports her contention. Nevertheless, the theater's managers pressed charges against her under a little-used law designed to punish film bootlegging. She faces up to three years in prison. I've lost whatever sympathy I still had for theater operators after this mind-boggling incident.

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• Studios and theaters clash over FCC waiver (latimesblogs.latimes.com)

Dish Network's TiVo Killer? (Well, maybe a TiVo wounder...)

From Cnet's Crave comes news of Dish Network's new DTVPal DVR, a $250 (after $50 instant rebate) standalone HD PVR with 30 hours of HD or 150 hours of SD storage. The DTVPal works with over-the-air, cable or satellite sources, has a 7-day program guide, and perhaps most importantly, requires no monthly or lifetime subscription fee. The key is the user interface, but Dish has made great progress with its satellite-based PVRs over the years. (The DTVPal DVR also acts as a digital-to-analog converter, but it doesn't qualify for the $40 Federal coupon, which is why Dish is offering a $50 instant rebate.)

The question is whether or not consumers will be willing to pay for a HD PVR if they can get similar functionality from their cable or satellite providers. Probably not, since they'll still have to pay for a set-top box, but the real target for this device is consumers who want to record over-the-air video. For those users, TiVo is the primary option, and an alternative with no subsciption fees will be very tempting.

TiVo and DirecTV: Back Together Again

When News Corporation took operational control of DirecTV a few years ago, it began an agonizing split between DirecTV and TiVo, its supplier of DVR technology. Prior to the split, DirecTV was by far TiVo's biggest market. After News Corp. took over, it demanded a much bigger split of subscription revenues, which TiVo wouldn't agree to. News Corp. called on NDS, a corporate subsidiary, to port DVR software that had already been developed for BSkyB and other services to the DirecTV platform, cutting out TiVo. Last March, DirecTV announced that subscribers wanting HD DVR service had to switch to NDS's set-top box, a decision that's been roundly criticized by many DirecTV users.

However, within days of DirecTV's announcement, John Malone's Liberty Media acquired News Corporation's controlling interest in DirecTV. Liberty Media almost immediately began talks with TiVo to reestablish the relationship between the two companies, and today, both companies announced that TiVo will develop a DirecTV-compatible HD DVR for delivery in the second half of 2009.

The loss of DirecTV as a major customer made TiVo a much stronger company: It completed a distribution deal with Comcast that's in the process of rollout, and it shifted a good deal of its revenues from selling boxes and subscriptions to selling viewing and marketing information to advertisers. Winning DirecTV back can only help the company's bottom line.

A Huge Win for Cablevision (and for consumers)

Earlier today, the U.S. Court of Appeals for the Second District reversed a previous ruling that Cablevision's network PVR service infringed the rights of content owners. In 2006, Cablevision announced its network PVR service, called RS-DVR, which was based on technology from Arroyo Video Solutions, a company that was subsequently acquired by Cisco. The big advantage of a centralized PVR system is that conventional set-top boxes can provide video recording capabilities; in-home PVRs, with their cost and complexity, aren't needed. Network PVRs are the standard in China, India and other countries where subscriber income precludes the cost of in-home PVRs.

Almost immediately after Cablevision's announcement, a flock of content companies, including CBS, Viacom, News Corp., Time Warner, Disney and NBC Universal, filed suit to stop deployment of RS-DVR. In the initial court case, the media companies prevailed and won an injunction that precluded Cablevision from offering RS-DVR. Today's decision by a three-judge panel overturned the lower court's ruling and lifted the injunction. These articles provide more details about the ruling itself.

This is not the last word in the case, of course. The media companies can request that the entire U.S. Court of Appeals for the Second District rehear the case. No matter how that turns out, the losing side can appeal the case to the U.S. Supreme Court, which can (but isn't obligated to) hear the appeal. However, we're a giant step closer to legal network PVR service in the United States, which will likely mean lower costs for consumers.