Watch Those Commercials — Or Else
Watch Those Commercials — Or Else
Watch Those Commercials — Or Else

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    It’s hard to believe these days, but
    there was once upon a time when TV executives didn’t mind consumers
    taking control over TV sets. There were no lawsuits, like the ones
    recently filed by the TV networks against Dish for its new
    commercial-skipping DVR. (A court has ruled for Dish in a preliminary
    part of the case.)

    This is what NBC said in its complaint
    against Dish in its May 24 lawsuit: “The U.S. broadcast
    networks cannot provide the news, sports and entertainment
    programming they have historically created and offered if the
    revenue-generating ads are systematically blotted out on an
    unauthorized basis by distributors like DISH.” Keep those words
    in mind.

    Once upon a time, there were no cases
    taken to the U.S. Supreme Court to challenge the right of consumers
    to record shows, as in the 1984 Betamax case. These days, of course,
    are different. Our TV overlords continually demand our strict
    attention at the same time as they sue innovative companies out of

    Yes, there was such an innocent,
    pristine time when TV execs would let things go. It was 1955, a day
    gone by when people actually had to get up from their chairs or
    couches, cross a room and turn a dial to change the channel on the TV
    or to adjust the sound. That was before the late Eugene J. Polley
    invented the Flash-Matic, a light-sensor remote control device that
    allowed people to do those activities.

    The device from Zenith was a wonder.
    It was, the ad said, “A flash of magic light from across the room
    (no wires, no cords) turns set on, off or changes channel… and you
    remain in your easy chair.”

    Of course, that wasn’t all the handy
    gadget did. As highlighted in the ad, in capital letters, “You can
    also shut off long, annoying commercials while picture remains on

    1955 Flash-Matic ad

    Did the industry complain? No, of
    course not. Why not? Because that was a very different place and
    time. There were only three networks (a fourth, DuMont, was on its
    way out). There were only 432 TV stations in the entire country in
    mid-1955 — fewer than the choices on any cable system today.
    Washington, D.C., the nation’s capital, had four stations, New York
    City had six and Los Angeles had nine. Many smaller cities had only
    one or two. There was no cable, no Netflix, although for a time
    there was Phonevision. That was another Zenith innovation, one that
    allowed customers to dial-up (literally, through their phones) movies
    to be shown on their TVs in the first pay-per-view model that
    broadcasters thought might save it from declining ad revenues. The
    Interwebs at that point weren’t even a gleam in an engineer’s eye.

    It was the golden age of the Outer
    philosophy of TV: “Sit quietly and we will control all
    that you see and hear.” And it has lasted for quite a while,
    long past the shelf life of the TV show, right up through today.
    Technology has overtaken it, but the entertainment moguls don’t know
    or don’t care. They were in control then and want to be in control
    now. Let’s look at just a partial record, up to the minute.

    While there had always been animosity
    between established entertainment businesses and new models
    (musicians vs radio, movies vs. TV for example), consumers were
    largely left out of it until the whole Betamax kerfuffle. It was, of
    course, the move industry and not TV behind the attempt to outlaw the
    VCR, but the sentiment was the same — TV viewers should do what they
    are told and be grateful. The court upheld Betamax in 1984 on a 5-4
    vote but it hasn’t been smooth sailing since then despite the ruling.

    Ever since then, through lawsuits and
    legislation, the industry has tried, King Canute-like, to stem the
    tide of technology and keep their customers at bay by claiming that
    without our slavish attention to the adverts, we would lose
    commercial-supported TV — sort of ignoring the obvious fact that
    however you look at it, just because commercials are broadcast
    doesn’t mean they are watched. They can be skipped. Channels can be
    changed. Bathrooms may be visited. Snacks may be prepared. No
    matter. Lawsuits must be filed, innovation must be quashed and
    consumers must be threatened. It has ever been thus since the 1980s.

    ReplayTV was one notable victim.
    Introduced in 1999, as a recorder without tape, it featured the
    ability to skip commercials. As SONICblue, the manufacturer pitched
    it: “Topping the charts of user-friendly features, Commercial
    Advance(R) lets you choose to skip commercial breaks all-together
    when you playback recorded shows. No fast forward, no remote control
    interaction at all. Just a split-second “blip” and you’re
    right back into the action.”

    On Oct. 31, 2001, 28 companies
    including the TV networks, studios and cable companies, filed suit
    against SONICblue, charging that the new device allowed consumers to
    make “unauthorized digital copies” of programming “for
    the purpose of — at the touch of a button — viewing the programming
    with all commercial advertising automatically deleted.” This
    commercial skipping deprived the companies of payment and “diminishes
    the value” of copyrighted works, according to the suit, piling
    on that skipping commercials “attacks the fundamental economic
    underpinnings of free television.” On March 23, 2003, SONICblue
    filed for bankruptcy, and the ReplayTV model died.

    Between the time that ReplayTV was sued
    and the time it died came the clearest expression from the
    entertainment moguls of what consumers had the right, and didn’t have
    the right to do. It came from Jamie Kellner, then chairman of Turner
    Broadcasting System, now the head of a small station group. In an
    interview with Staci Kramer, Kellner described commercial skipping as
    “theft.” He said: “Your
    contract with the network when you get the show is you’re going to watch the spots. Otherwise you couldn’t get the show on an ad-supported basis. Any time you skip a commercial or watch the button you’re actually stealing the programming.”

    Kellner conceded to
    a “certain amount of tolerance” for someone to go to the
    restroom during a commercial, adding: “But if you formalize it
    and you create a device that skips certain second increments, you’ve got
    that only for one reason, unless you go to the bathroom for 30
    seconds. They’ve done that just to make it easy for someone to skip a

    Never ones to leave well enough alone, the entertainment industry
    went to Congress and persuaded its friendly legislators in 2004 to
    draft a bill that, among other things, outlawed skipping of
    commercials in TV shows. This was too much for some legislators, and
    it was Sen. John McCain (R-AZ) who held up the bill. In a floor
    statement on Oct. 11, 2004, McCain said: “Americans have been
    recording TV shows and fast-forwarding through commercials for more
    than 30 years. Do we really expect to throw people in jail in 2004
    for behavior they’ve been engaged in for more than a quarter of a

    No, but if one buys the Romneyian
    equivalences, that corporations are people, then the answer is yes.
    The TV networks want to do the moral equivalent of throwing Dish in
    jail on the same trumped-up charges that were made against ReplayTV
    and on the same bases that Kellner outlined.

    Look at the language of the recent
    suits filed in late May. We’ve seen what NBC said. Here’s a
    selection from Fox: “By stealing Fox’s programming to create a
    bootleg video on demand service for all network prime time
    programming, DISH is undermining legitimate consumer choice by
    undercutting authorized on-demand services and by offering a service
    that, if not enjoined, will ultimately destroy the
    advertising-supported ecosystem that provides consumers with the
    choice to enjoy free, over-the-air varied, high quality broadcast

    Does this sound familiar? Of course it
    does. It’s the identical argument, even to the word, that the
    networks have been making for years. Watch what we want you to watch
    or we’ll be destroyed. The networks are great at making threats.
    Viacom threatened in 2002
    to withhold high-definition content without copy controls on
    broadcast signals. Never happened.

    But who wants to take the chance that
    one day, disaster will strike? Perhaps the next generation of TVs
    will come equipped with motion and heat sensors to be activated
    during commercials. That way, our overlords will know who is
    supporting TV by sitting glued to their seats and who wants it
    destroyed by getting up or changing the channel.

    If you think the media moguls should
    keep their hands off of your DVR, sign this letter.