Aereo thought so too. Their business model was based around hosting colocated TV antennas, from which they streamed broadcast TV to users on a 1:1 basis, geofenced by broadcast market. The Supreme Court shot this argument down.
The problem is that this is the business model of broadcast networks in a world of cable TV. The statutory retransmission fees funnel some cable TV revenue back to the broadcasters. It doesn't really make sense from first principles, but it has been a pragmatic compromise.
The messed up thing about Aereo is that after being shot down by the Supreme Court, they tried to get a license to operate as a cable company but were shot down on that front, too.
My guess is the RF tech is a lot easier to deploy when you can plan for some percentile of peak utilization, rather than 1:1 with the user base. Even then, they'd undoubtedly face legal challenges, so they must have made the judgment call that the odds were on their side. Which may have been a reasonable conclusion. A lot of the judgments were actually on their side until the circuit split and the final Supreme Court decision.
After all, one wouldn't imaging that leasing an old-school aerial antenna would be a legal issue.
It was a hot topic on HN several years back. I may be biased, as my wife did PR for Aereo through the firm she works for. But I definitely buy the logic that what they were doing was technical a private performance.
