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The NAB might have won a case, but it has apparently run out of arguments to justify the lack of an AM/FM performance right. After the Supreme Court rightly shut down Aereo for publicly performing copyrighted programs without paying for them, we pointed out the inconsistency between NAB TV's position on Aereo (using programming without paying for it is bad) and NAB radio's position on performance rights (using music without paying for it is just fine):

           "In their radio business, NAB members commit the exact sin that they condemn in Aereo  they use music as the foundation of their programming, yet refuse to pay the artists and labels who created the music a cent.  NAB members twist the copyright laws to deny creators fair pay just as Aereo did, only on a vastly greater scale."

The Hill's intrepid Kate Tummarello asked about this contradiction, and NAB's spokesman said the difference is that Aereo was charging viewers while AM/FM radio is free:

            “Radio stations do not resell music — working with record labels, we make this music available for free to 245 million listeners every week.”

I don't know how to read this except to mean that if Aereo didn't charge subscribers (if it didn't "resell" TV but instead "made it available for free" to viewers) it would be OK in the eyes of the NAB.  But NAB radio members earn $17 billion a year in advertising revenues — the implication seems to be that Aereo would be just fine if it also switched to an ad supported model . . .

Now obviously, musicFIRST doesn't support this modest proposal — and I don't think NAB does either. (And, if Aereo is getting any ideas, I'd point out that the Supreme Court decision wouldn’t appear to either.)

But it does suggest that NAB needs a better explanation for why it's use of music without paying is OK while Aereo's use of TV programming is not.

(And before you say it NAB, Aereo airplay can also promote the shows it airs, right?)