Justice Antonin Scalia did not appear to understand HBO’s status as a premium channel in most television packages during Supreme Court oral arguments on Aereo, the service that allows for streaming of live broadcast networks like NBC, CBS, and ABC over the Internet.
Scalia questioned David Frederick, the lawyer for Aereo, on what would stop the service from eventually streaming channels like HBO. Aereo allows users to stream local, over-the-air broadcasts to multiple devices. It does not cover cable channels or premium subscription services like HBO, although Aereo does have a deal that allows it to stream Bloomberg News.
JUSTICE SCALIA: Mr. Frederick, your client is just using this for local signals –
MR. FREDERICK: Yes.
JUSTICE SCALIA: – right now. But if we approve that, is there any reason it couldn’t be used for distant signals as well?
MR. FREDERICK: Possibly.
JUSTICE SCALIA: Possibly what? There is possibly a reason, or it could possibly be used?
MR. FREDERICK: It can’t be used for distance, but it implicates –
JUSTICE SCALIA: What would the difference be? I mean, you could take HBO, right? You could carry that without performing.
MR. FREDERICK: No, because HBO is not done over the airwaves. It’s done through a private service.
Scalia’s confusion hit on a key concern of Aereo and its supporters leading up to the case — that a group of nine, over-50 justices wouldn’t understand many of the core issues relevant to the case.
Of the nine, Justice Sonia Sotomayor came across as the most avid television fan. During oral arguments, she cited the fact she had purchased a Roku, the set-top streaming box.
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