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With the heat of Summer now upon us, the FCC is gearing up for its annual regulatory fee filing window, which usually occurs in mid-September. Like other federal agencies, the FCC must raise funds to pay for its operations (“to recover the costs of… enforcement activities, policy and rulemaking activities, user information services, and international activities.”). For Fiscal Year 2014, Congress has, for the third year in a row, mandated that the FCC collect $339,844,000.00 from its regulatees.

Accordingly, the FCC is now tasked with determining how to meet the Congressional mandate. At its most basic level, the FCC employs a formula that breaks down the cost of its employees by “core” bureaus, taking into consideration which employees are considered “direct” (working for one of the four core bureaus), or “indirect” (working for other divisions, including but not limited to, the Enforcement Bureau and the Chairman’s and Commissioners’ offices). The FCC factors in the number of regulatees serviced by each division, and then determines how much each regulatee is obligated to pay so that the FCC can collect the $339M total.

In its quest to meet the annual congressional mandate, the FCC evaluates and, for various reasons, tweaks the definitions or qualifications of its regulatee categories to, most often, increase certain regulatory fee obligations. FY 2014 is just such an occasion. In FY 2013, the FCC, which historically has imposed drastically different fees for VHF and UHF television licensees, decided that, effective this year, FY 2014, VHF and UHF stations would be required to pay the same regulatory fees. In addition, a new class of contributing regulatees, providers of Internet Protocol TV (“IPTV”), was established and is now subject to the same regulatory fees levied upon cable television providers. Prior to FY 2014, IPTV providers were not subject to regulatory fees.

The FCC’s proposals for FY 2014 regulatory fees can be found in its Order and Second NPRM (“Order”). In that Order, the FCC proposes the following FY 2014 commercial VHF/UHF digital TV regulatory fees:

  • Markets 1-10 – $44,875
  • Markets 11-25 – $42,300
  • Markets 26-50 – $27,100
  • Markets 51-100 – $15,675
  • Remaining Markets – $4,775
  • Construction Permits – $4,775

Other proposed TV regulatory fees include:

  • Satellite Television Stations (All Markets) – $1,550
  • Construction Permits for Satellite Television Stations – $1,325
  • Low Power TV, Class A TV, TV Translators & Boosters – $410
  • Broadcast Auxiliaries – $10
  • Earth Stations – $245

The proposed radio fees depend on both the class of station and size of population served. For AM Class A stations:

  • With a population less than or equal to 25,000 – $775
  • With a population from 25,001-75,000 – $1,550
  • With a population from 75,001-150,000 – $2,325
  • With a population from 150,001-500,000 – $3,475
  • With a population from 500,001-1,200,000 – $5,025
  • With a population from 1,200,001-3,000,000 – $7,750
  • With a population greater than 3,000,000 – $9,300

For AM Class B stations:

  • With a population less than or equal to 25,000 – $645
  • With a population from 25,001-75,000 – $1,300
  • With a population from 75,001-150,000 – $1,625
  • With a population from 150,001-500,000 – $2,750
  • With a population from 500,001-1,200,000 – $4,225
  • With a population from 1,200,001-3,000,000 – $6,500
  • With a population greater than 3,000,000 – $7,800

For AM Class C stations:

  • With a population less than or equal to 25,000 – $590
  • With a population from 25,001-75,000 – $900
  • With a population from 75,001-150,000 – $1,200
  • With a population from 150,001-500,000 – $1,800
  • With a population from 500,001-1,200,000 – $3,000
  • With a population from 1,200,001-3,000,000 – $4,500
  • With a population greater than 3,000,000 – $5,700

For AM Class D stations:

  • With a population less than or equal to 25,000 – $670
  • With a population from 25,001-75,000 – $1,000
  • With a population from 75,001-150,000 – $1,675
  • With a population from 150,001-500,000 – $2,025
  • With a population from 500,001-1,200,000 – $3,375
  • With a population from 1,200,001-3,000,000 – $5,400
  • With a population greater than 3,000,000 – $6,750

For FM Classes A, B1 &C3 stations:

  • With a population less than or equal to 25,000 – $750
  • With a population from 25,001-75,000 – $1,500
  • With a population from 75,001-150,000 – $2,050
  • With a population from 150,001-500,000 – $3,175
  • With a population from 500,001-1,200,000 – $5,050
  • With a population from 1,200,001-3,000,000 – $8,250
  • With a population greater than 3,000,000 – $10,500

For FM Classes B, C, C0, C1 & C2 stations:

  • With a population less than or equal to 25,000 – $925
  • With a population from 25,001-75,000 – $1,625
  • With a population from 75,001-150,000 – $3,000
  • With a population from 150,001-500,000 – $3,925
  • With a population from 500,001-1,200,000 – $5,775
  • With a population from 1,200,001-3,000,000 – $9,250
  • With a population greater than 3,000,000 – $12,025

In addition to seeking comment on the proposed fee amounts, the Order seeks comment on proposed changes to the FCC’s basic fee formula (i.e., changes in how it determines the allocation of direct and indirect employees and thus establishes its categorical fees), and on the creation of new, and the combination of existing, fee categories. The Order also seeks comment on previously proposed core bureau allocations, the FCC’s intention to levy regulatory fees on AM Expanded Band Radio Station licensees (which have historically been exempt from regulatory fees), and whether the FCC should implement a cap on 2014 fee increases for each category of regulatee at, for example, 7.5% or 10% above last year’s fees. Comments are due by July 7, 2014 and Reply Comments are due by July 14, 2014.

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When the FCC voted at its March 31, 2014 meeting to deem television Joint Sales Agreements involving more than 15% of a station’s weekly advertising time as an attributable ownership interest, it announced that broadcasters that are parties to existing JSAs would have two years to modify or terminate those JSAs to come into compliance. However, the FCC’s Report and Order adopting that change to the rules was not released until April 15, 2014, and noted that the effective date of the rule change would be 30 days after the Report and Order was published in the Federal Register.

The Federal Register publication occurred on May 20, 2014, and the FCC today released a Public Notice confirming that the effective date of the JSA attribution rule is therefore tomorrow, June 19, 2014. At that time, the two-year compliance period will also commence, with the deadline for existing JSAs to be modified to come into compliance with the new rule being June 19, 2016. As a result, subject to any actions the courts may take on the matter, all new TV JSAs must comply with the FCC’s multiple ownership rules from their inception, and JSAs that were already in existence before the rule change can remain in place until June 19, 2016.

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Surprise, surprise, the FCC has instituted yet another application filing freeze! The FCC effectively said “enough is enough” and stopped accepting applications for LPTV channel displacements and new digital replacement translators.

Yesterday, the FCC released a Public Notice indicating that, effective June 11, 2014, the Media Bureau would cease to accept applications seeking new digital replacement translator stations and LPTV, TV translator, and Class A TV channel displacements. The FCC did provide that in certain “rare cases”, a waiver of the freeze may be sought on a case-by-case basis, and that the Media Bureau will continue to process minor change, digital flash cut, and digital companion channel applications filed by existing LPTV and TV translator stations.

According to industry sources, there have been grumblings at the FCC that low power television broadcasters have been using the digital replacement translator and LPTV displacement processes to better position themselves from the fallout of the upcoming spectrum auction and subsequent channel repacking. That appears to be confirmed by the Public Notice, as it states that the freeze is necessary to “to protect the opportunity for stations displaced by the repacking of the television bands to obtain a new channel from the limited number of channels likely to be available for application after repacking….” Setting aside the freeze itself for a moment, it seems clear from this statement that the FCC has no illusions that there will be room in the repacked spectrum for all existing low power television stations.

While there have been myriad FCC application freezes over the years, they have been occurring with increasing frequency. From the radio perspective, absent a waiver, extraordinary circumstances, or an FCC-announced “filing window”, all opportunities to seek a new radio license (full-power, low power FM or translator) have been quashed for some time now.

The first notable television freeze occurred in 1948 and lasted four years. The FCC instituted a freeze on all new analog television stations applications in 1996. In furtherance of the transition to digital television, the FCC instituted a freeze on changes to television channel allotments which lasted from 2004 to 2008. In 2010, the FCC froze LPTV and TV translator applications for major changes and new stations; a freeze which remains in effect today.

Yet another freeze on TV channel changes was imposed in 2011 in order to, among other things, “consider methodologies for repacking television channels to increase the efficiency of channel use.” And as Scott Flick wrote here last year, still another television application freeze on full power and Class A modifications was launched on April 5, 2013. That freeze remains in effect and effectively cuts off all opportunities for existing full-power or Class A television stations to expand their signal contours to increase service to the public. The volume of application freezes has grown to such an extent that it is difficult to keep track of them all.

In terms of reasoning, yesterday’s Public Notice indicated that since the DTV transition occurred five years ago, the impact of the instant freeze would be “minimal” since transmission and contour issues should have been addressed as part of, or generally following, that transition. The Notice proceeded to say that LPTV displacement and digital replacement applications were necessary after the DTV transition, and up to the FCC’s April 2013 filing freeze, for purposes of resolving “technical problems” associated with the build-out of full-power DTV stations, but that since there have been no “changes” to those service areas because of the last freeze, there should be no need for LPTV channel displacements or digital replacement translators.

Left out in the cold by these cascading freezes are broadcast equipment manufacturers and tower crews. As previously noted by numerous broadcasters and the NAB, the FCC’s frosty view of just about every form of station modification is effectively driving out of business the very vendors and equipment installers that are critical to implementing the FCC’s planned channel repacking after the spectrum auction. As we learned during the DTV transition, the size and number of vendors and qualified installers of transmission and tower equipment is very limited and, given the skills required, can’t be increased quickly. Driving these businesses to shrink for lack of modification projects in their now-frozen pipelines threatens to also leave the channel repacking out in the cold.

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Just two months after assessing nearly $2 million in fines to cable operators for airing ads for the movie Olympus Has Fallen containing false EAS tones, the FCC today granted an 18-month extension of its 2013 waiver allowing the Federal Emergency Management Agency to continue to use false emergency tones in Public Service Announcements.

In this case, the tone being used is not the “broadcast” EAS tone, but the Wireless Emergency Alert (WEA) tone transmitted to cell phones and other wireless devices in an emergency. In the words of the FCC, “[t]he WEA Attention Signal is a loud, attention-grabbing, two-tone audio signal that uses frequencies and sounds identical to the
distinctive and familiar attention signal used by the EAS.”

According to the FCC’s waiver extension order, the FEMA PSAs are a reaction to the public being “startled or annoyed” when hearing the WEA tone for the first time, and then seeking to turn off all future alerts. The PSAs are aimed at teaching the public how WEA works and how their mobile devices will behave when receiving a WEA alert.

Given these facts, on May 31, 2013, the FCC granted an unprecedented waiver of the prohibition on airing false emergency tones to permit FEMA PSAs containing the WEA tone to be aired. However, that waiver was limited to one year. Since that year is about up, FEMA recently sought an extension, and by today’s order, the FCC has extended the waiver for an additional 18 months.

While FEMA indicates that it believes the announcements have been a success, it continues to receive negative media coverage and individual complaints about the WEA alerts. As a result, it wishes to continue distributing the PSAs for airing and needed today’s waiver to accomplish that.

Of course, while FEMA is the party that sought the waiver, it is broadcasters and cable operators that are typically found liable when a false emergency tone airs. Both of those groups should therefore be concerned that the FCC did not grant an unconditional waiver, but instead extended the waiver only to announcements that “mak[e] it clear that the WEA Attention Signals are being used in the context of the PSA and for the purpose of educating the viewing or listening public about the functions of their WEA-capable mobile devices and the WEA program.” As a result, the FCC warned that “leading off a PSA with a WEA Attention Signal, without warning, may be an effective attention-getting device, but it would violate the conditions of this waiver because of the effect that it could have on the listening or viewing public.”

Broadcasters and cable operators will therefore need to screen all FEMA PSAs containing an emergency tone to ensure it is a WEA (and not an EAS) tone, and that the PSA meets the FCC’s waiver conditions and therefore does not pose a risk of confusing the public as to whether an emergency is actually occurring. In other words, if FEMA runs afoul of this requirement in a future PSA, it is the broadcasters and cable operators airing it who will be facing the emergency.

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Earlier today, the FCC held its monthly Open Meeting, where it adopted rules to implement the Broadcast Television Incentive Auction.You can watch a replay of the FCC’s Open Meeting on the FCC’s website.

Thus far, the FCC has released three documents relating to the actions it took today in this proceeding, as well as separate statements from four of the five commissioners, providing at least some initial guidance to affected parties: (1) a News Release, (2) a summary of upcoming proceedings, and (3) a staff summary of the Report & Order.

At the meeting, the commissioners noted that, when released, the Report and Order will contain a number of rule changes to implement the auction. The major takeaways are:

  • The reorganized 600 MHz Band will consist of paired uplink and downlink bands, with the uplink bands starting at channel 51 and expanding downwards, followed by a duplex gap and then the downlink band;
  • These bands will be comprised of five megahertz “building blocks”, with the Commission contemplating variations in the amount of spectrum recovered from one market to the next, meaning that not all spectrum will be cleared on a nationwide basis, and in some markets, repacked broadcasters will be sharing spectrum with wireless providers in adjacent markets;
  • The FCC anticipates there will be at least one naturally occurring white space channel in each market for use after the auction by unlicensed devices and wireless microphones;
  • The auction will have a staged structure, with a reverse auction and forward auction component in each stage. In the reverse auction, broadcasters may voluntarily choose to relinquish some or all of their spectrum usage rights, and in the forward auction, wireless providers can bid on the relinquished spectrum;
  • In the reverse auction, participating broadcasters can agree to accept compensation for (1) relinquishing their channel, (2) sharing a channel with another broadcaster, or (3) moving from UHF to VHF (or moving from high VHF to low VHF);
  • The FCC will “score” stations (presumably based on population coverage, etc.) to set opening prices in the auction;
  • The FCC will use a descending clock format for the reverse auction, in which it will start with an opening bid and then reduce the amount offered for spectrum in each subsequent round until the amount of broadcast spectrum being offered drops to an amount consistent with what is being sought in the forward auction;
  • The auction will also incorporate “Dynamic Reserve Pricing”, permitting the FCC to reduce the amount paid to a bidding station if it believes there was insufficient auction competition between stations in that market;
  • The rules will require repurposed spectrum to be cleared by specific dates to be set by the Media Bureau, which can, even with an extension, be no later than 39 months after the repacking process becomes effective;
  • The FCC will grandfather existing broadcast station combinations that would otherwise not comply with media ownership rules as a result of the auction; and
  • The FCC continues to intend to use its TVStudy software to determine whether a repacked station’s population coverage will be reduced in the repacking process, despite NAB’s earlier protests that the current version of the software would result in reduced coverage for nine out of ten stations in the country.

Finally, the FCC will be asking for public input on numerous additional issues, such as opening bid numbers, bid adjustment factors, bidding for aggregated markets in the forward auction, dealing with market variations, setting parameters for price changes from round to round, activity rules, and upfront payments and bidding eligibility. The FCC will consider in future proceedings ways to mitigate the impact of repacking on LPTV/TV translators, how to address interference between broadcast and wireless operations, and how best to facilitate the growth of “white spaces” devices in the unlicensed spectrum.

Although today’s Open Meeting and these preliminary documents provide some guidance on many complex incentive auction issues, they only scratch the surface, and there are many blanks the FCC will need to fill in between now and the auction. One of those that broadcasters will be watching very carefully is how the Media Bureau will be handling reimbursement of stations’ repacking expenses. That has turned out to be a very challenging issue in past FCC efforts at repurposing spectrum, and the fact that the amount set aside by Congress for reimbursement might well fall short of what is needed has many broadcasters concerned.

We will know more about this and many other issues when the Report and Order is released, hopefully in the next week or two, but the real answers are going to reveal themselves only very slowly over the next year or two. The FCC has to hope that they will still have broadcasters’ attention by the time we reach that point.

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May 2014

This Advisory provides a review of the FCC’s political broadcasting regulations.

Introduction
More than ten years after adoption of the Bipartisan Campaign Reform Act (“BCRA”) of 2002, popularly known as “McCain-Feingold,” Congress’ and the FCC’s interest in political broadcasting and political advertising practices remains undiminished. Broadcast stations must ensure that a broad range of federal mandates are met, providing “equal opportunities” to all candidates using the stations’ facilities, affording federal candidates for public office “reasonable access” and treating all candidates for public office no less favorably than the station treats its most favored advertisers. Accordingly, it is imperative that broadcasters be very familiar with what is expected of them in this regulatory area, that they have adequate policies and practices in place to ensure full compliance, and that they remain vigilant in monitoring legislative, FCC, and FEC changes in the law.

In this environment, it is critical that all stations adopt and meticulously apply political broadcasting policies that are consistent with the Communications Act and the FCC’s rules, including the all-important requirement that stations fully and accurately disclose in writing their rates, classes of advertising, and sales practices to candidates. That information should be routinely provided to candidates and their committees in each station’s carefully prepared Political Advertising Disclosure Statement.

Many of the political broadcasting regulations are grounded in the “reasonable access,” “equal opportunities,” and “lowest unit charge” (“LUC”) provisions of the Communications Act. These elements of the law ensure that broadcast facilities are available to candidates for federal offices, that broadcasters treat competing candidates equally, and that stations provide candidates with the rates they offer to their most-favored commercial advertisers during specified periods prior to an election. As a general rule, stations may not discriminate between candidates as to station use, the amount of time given or sold, or in any other meaningful way.

It is also important to note that television stations affiliated with ABC, CBS, NBC, or FOX located in the top 50 markets must keep their political records in their online public inspection file located on the FCC’s website. Beginning July 1, 2014, all other television stations must commence placing new political file documents in the political file section of their online public inspection file as well. This requirement does not apply to radio stations at this time.

While this Advisory outlines some of the general aspects of the political broadcasting rules, there are dozens of possible variations on any one issue. Accordingly, stations should contact legal counsel with any specific questions or problems they may encounter.—Article continues.

A pdf version of this entire article can be found at Political Broadcasting Advisory.

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May 2014

Class A and Full-Power Television Broadcasters in All Markets Regardless of Network Affiliation and Market Rank Must Comply with the Online Retention of Political Programming Materials as of July 1, 2014

The FCC recently published in the Federal Register a reminder that all Class A and full-power television broadcasters must, by July 1, 2014, begin maintaining new political advertising materials mandated by Section 73.1943 of the Commission’s Rules in the station’s online public inspection file.

As previously reported, pursuant to the FCC’s Second Report and Order (“R&O”), adopted in May 2012, Class A and full-power television stations affiliated with the top four networks in the top 50 Designated Market Areas (“DMAs”) have been required to comply with the online political file rule since August 2, 2012.

The R&O stayed the online political file requirement for all Class A and full-power television stations that are not a top four network station in the top 50 DMAs until July 1, 2014. Accordingly, from July 1, 2014 forward, all stations, regardless of network affiliation or DMA, must begin keeping their political file in their online public inspection file. Notably, while political advertising documents created on or after July 1, 2014 must be placed in the online public file, stations should continue to retain hard copies of pre-July 1, 2014 documents in their physical public file to comply with the two-year retention period for political file documents set forth in Section 73.3526(e)(6).

The Federal Register notice can be viewed here.

A pdf version of this article can be found at Client Alert.

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Back in March, the FCC’s Public Safety and Homeland Safety Bureau (PSHSB) issued a Public Notice seeking to update the record on a 2005 Petition for Immediate Interim Relief regarding proposals to make fundamental changes to the FCC’s EAS Rules with respect to requiring broadcast stations to air multilingual EAS alerts. Yesterday, the PSHSB released a Public Notice extending the comment deadlines in the proceeding. Comments are now due by May 28, 2014 and replies are due by June 12, 2014.

The March Public Notice seeks comments on a number of issues, but the most-discussed issue is the Petitioner’s proposal to have the FCC adopt a so-called “designated hitter” requirement for multilingual EAS.

The Public Notice quotes the Petitioner in describing the proposal:

Such a plan could be modeled after the current EAS structure that could include a “designated hitter” approach to identify which stations would step in to broadcast multilingual information if the original non-English speaking station was knocked off air in the wake of a disaster. Broadcasters should work with one another and the state and/or local government to prepare an emergency communications plan that contemplates reasonable circumstances that may come to pass in the wake of an emergency. The plan should include a way to serve all portions of the population, regardless of the language they speak at home. One market plan might spell out the procedures by which non-English broadcasters can get physical access to another station’s facilities to alert the non-English speaking community – e.g. where to pick up the key to the station, who has access to the microphones, how often multilingual information will be aired, and what constitutes best efforts to contact the non-English broadcasters during and after an emergency if personnel are unable to travel to the designated hitter station.

The March Public Notice asked for comment on a number of questions related to this proposal. The Commission also acknowledged in the March Public Notice that broadcasters have raised concerns that a multilingual EAS requirement using the designated hitter approach would require them to hire additional personnel capable of translating emergency alert information into one or more additional languages.

Given that there is a nine year record in this proceeding and that any multilingual EAS requirements will have wide-ranging implications, those wishing to file comments in the proceeding now have some additional time to make that happen.

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Yesterday, the U.S. Supreme Court heard oral arguments in the Aereo case, providing the first indication of how the Justices view the case pitting Aereo against content providers, particularly broadcast networks. For background on Aereo’s technology and the previous lower court cases, Scott Flick of our office has written extensively on the subject, and a variety of his writings on Aereo can be found here. While trying to read the Court’s mind solely through the questions asked by the Justices can be risky, it is fair to say that Aereo encountered some skepticism on its claim to be an innovator and not a copyright infringer.

Given the significant amount of lower court litigation preceding Tuesday’s oral arguments, there wasn’t much in the way of surprises in the arguments made, many of which focused on the question of whether Aereo engages in a “public performance” when it transmits content to paying subscribers requesting that programming. A transcript of the proceeding can be found here. A number of the Justices focused on the question of whether Aereo’s fabled sea of mini-antennas served any purpose beyond seeking to circumvent the Copyright Act of 1976. Chief Justice Roberts noted that Aereo’s system seemed designed specifically “to get around the copyright laws,” and Justice Ginsburg asked Aereo’s counsel if there is any “technical reason” Aereo needed to have 10,000 dime-size antennas to operate, or if it was merely designed that way to “avoid the breach of the Copyright Act.”

What was a bit of a surprise was the extent to which the Justices’ questions focused on Aereo’s strategic effort to cloak itself as just another provider of cloud services. A number of the Justices indicated concern that there might not be an elegant way of ruling against Aereo without risking a ripple effect to cloud-based services, and it was obvious that none were interested in seeing that happen. Justice Kagan sought clarification regarding how Aereo could be distinguished from other cloud service companies, asking:

What if –­­ how about there are lots of companies where many, many thousands or millions of people put things up there, and then they share them, and the company in some ways aggregates and sorts all that content. Does that count?

Counsel for the broadcasters and the Justice Department attempted to respond to this concern, largely reiterating the position taken in the DOJ’s amicus brief:

The proper resolution of this dispute is straightforward. Unlike a purveyor of home antennas, or the lessor of hilltop space on which individual consumers may erect their own antennas . . . [Aereo] does not simply provide access to equipment or other property that facilitates customers’ reception of broadcast signals. Rather, [Aereo] operates an integrated system–i.e., a “device or process”–whose functioning depends on its customers’ shared use of common facilities. The fact that as part of that system [Aereo] uses unique copies and many individual transmissions does not alter the conclusion that it is retransmitting broadcast content “to the public.” Like its competitors, [Aereo] therefore must obtain licenses to perform the copyrighted content on which its business relies. That conclusion, however, should not call into question the legitimacy of businesses that use the Internet to provide new ways for consumers to store, hear, and view their own lawfully acquired copies of copyrighted works.

The catchphrase for this idea in the oral arguments became a “locker” in the cloud, where consumers could safely store their lawfully obtained content, but which would cross the copyright line if stocked for the consumer for a fee with infringing content by a commercial service like Aereo. While a useful analogy, it did not appear to put an end to the Justices’ concern that the line between a fair use and infringement might not always be clear in the cloud. That is certainly true, but it is also true outside the cloud, where copyright questions are notoriously complex and difficult.

Of course, the most interesting aspect of the Court’s diversion into an examination of cloud services is that it is technically irrelevant to the case at hand. It is safe to say that when Congress enacted the Copyright Act of 1976, cloud computing wasn’t even a distant dream. Imputing an intent on the part of Congress to draft the law in 1976 so as to neatly exclude such services from what might have then been considered copyright infringement is an unrealistic expectation. As a result, courts have always been faced with the task of applying existing copyright law to evolving applications of technologies, with the understanding that Congress will need to step in and change the law if the results cease to be satisfactory.

Having said that, it is the policy of the Supreme Court to narrowly rule on questions before it wherever possible, and drafting a decision addressing only Aereo without reaching the broader question of copyright law in the cloud is certainly the judicious approach, and what most expect the Court to do when a decision is released this summer.

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Oral arguments before the Supreme Court are less than a week away in the Aereo case, and broadcasters are feeling pretty good about their chances. With the Department of Justice, Professor Nimmer (who, along with his father, quite literally wrote the book on copyright), and a host of other luminaries filing in support of the broadcasters’ position, the storyline looks a lot like broadcasters have portrayed it from the beginning: that this is a simple case of copyright infringement hidden behind a veil of modern technological obfuscation.

Sensing that such a storyline is fatal to its prospects, Aereo has responded by casting this case as an attack on consumers’ use of the cloud, and has attracted some allies based on that storyline. However, it is a pretty thin storyline, as few think that the country’s highest court is so careless as to draft a broadcast retransmission rights decision that accidentally destroys the world of cloud computing. The two are not tough to distinguish, and even if the Court secretly disliked cloud computing, it hardly needs to opine on the copyright implications of cloud computing to decide the Aereo question.

Still, lower courts have disagreed on these issues, and only a fool enters the Supreme Court certain that the court will rule in his favor. There are many moving parts, and if a case were easy to decide, it would not have made it to the Supreme Court. That is why both sides will be anxiously watching the oral arguments for hints as to where the various justices stand on the matter.

As of today, however, broadcasters have one less reason to sweat about the outcome. The Court announced yesterday that Justice Alito, who had previously recused himself from the case, is now able to participate. This is a significant development for broadcasters. Because the 2nd Circuit decision being appealed was in Aereo’s favor, Alito’s earlier recusal meant that the case would be heard by the remaining eight justices. That created the risk of a 4-4 tie, which would leave the adverse 2nd Circuit decision in place.

In that scenario, broadcasters would need to win 5 of the 8 possible votes in order to overturn the lower court decision. That can be a tall order, and impossible if it turns out that four justices are firmly on the Aereo side of the fence. With Alito no longer recused, broadcasters now have an additional avenue for scoring that fifth vote. In other words, it’s easier to attract 5 votes out of 9 than it is to get 5 votes out of 8. That means broadcasters are unlikely to find themselves losing on a tie vote, and if the rest of the court should split 4-4, Alito’s entry into the fray effectively gives broadcasters a free throw opportunity at the buzzer to score his vote and break that tie. Now broadcasters just need to convert on that opportunity.