Millions of Americans still rely on over-the-air broadcast television, which is free to the public. Local broadcast stations, like WNBC, in New York, are allowed to transmit their broadcasts over public airwaves on the condition that they keep these broadcasts free for viewing. For the past two years, Aereo, the startup backed by Barry Diller (and the subject of a New Yorker video last month), has sought to update the technology behind free, over-the-air television, as well as the image of rabbit ears on a dusty, boxy TV. Aereo grabs local signals using tiny antennas; each subscriber is assigned an antenna, which Aereo uses to stream signals through the Internet. Subscribers can then watch programming—or save it “in the cloud,” to watch later—for a monthly fee of as little as eight dollars. On Tuesday, the Supreme Court heard oral arguments in American Broadcasting Companies, Inc. et al. v. Aereo, Inc., in a case about whether Aereo’s service is lawful. The Justices expressed skepticism about Aereo, while also voicing concerns that a decision against Aereo could harm other companies that store content in the cloud. But what was lost in the argument was the fate of the public airwaves, free to all—whether captured with rabbit ears or computers.

We all have an interest in affordable, accessible broadcast television that provides local news and other information vital to an informed citizenry. In the early days of TV, broadcast stations transmitted their programming over the air, and televisions picked up those signals directly. Television owners paid nothing to watch what appeared on their televisions; the only “cost” was watching the advertising that would interrupt the shows. Cable television interrupted this model by charging for large packages of channels piped directly into homes—the free ones, along with extra channels available only to cable subscribers. Because the traditional broadcast stations had popular programming, they were eventually able to charge cable companies hefty “retransmission consent fees” to air their content as part of these packages. More recently, the Internet has encouraged people to cancel expensive cable subscriptions and instead rely on broadband connections to find television and other content—“cord-cutting,” for short. Aereo’s antennas give people a way to get public broadcasts—the stuff that is meant to be free—over the Internet, too, including the advertising that makes them possible. But, in doing so, the company imperils the business models built around cable TV.

Major television channels—among them ABC, NBC, CBS, and Fox—took Aereo to courts across the country as the startup expanded into new cities. The networks alleged that Aereo’s technology is contrived to evade copyright law and the enormous retransmission fees that cable companies pay them—even though networks’ content has been free, all along, to most anyone with a TV. (Some networks, like NBC, are subsidiaries of cable companies, which gives them an added incentive to fight Aereo.) The networks’ arguments lost in the Second Circuit Court of Appeals, although, in a dissent, Judge Denny Chin memorably described Aereo’s technology as a “Rube Goldberg-like contrivance,” designed to take advantage of legal loopholes.

On Tuesday, the Justices were eager to show their fluency in high-tech issues. Aereo’s counsel, David C. Frederick, argued that the tiny antennas are “assigned to particular users”—just like a TV set that has its own antenna or pair of rabbit ears. He also suggested that Aereo was like other services that store information for people online, in the cloud. He compared Aereo’s ability to add little antennas “like Lego pieces” as the company adds customers to the way other cloud companies scale up with additional servers as they grow. But some Justices appeared skeptical. “Was Judge Chin right when he said there was no technically sound reason to use these multiple antennas?” Justice Ginsberg asked. Still, because Aereo offers its customers the ability to save broadcasts in the cloud for later viewing, the Justices seemed wary that any ruling could harm popular cloud-storage services from companies such as Dropbox, Apple, and Amazon. When the networks’ counsel, Paul D. Clement, suggested that the Court could “just be confident” that these cloud services differed from Aereo, Justice Samuel Alito replied, “I don’t find that very satisfying. I need to know how far the rationale that you want us to accept would go.” Other Justices echoed that concern.

But while the Justices’ were worried about hurting startups that use the Internet to handle content, their comments did not focus on consumers’ right to access the public airwaves. As companies like Comcast acquire both the pipes (Time Warner Cable) and the content (NBCUniversal) required to make TV work, local broadcasters are increasingly owned by cable companies, and have little incentive to compete with them. This leads to higher prices and decreased access to television that should be free to watch. While cord-cutters and antenna users may span a digital divide, what they have in common is their desire for an affordable, convenient way to watch local television broadcasts—something that cable companies are not offering.

Some of the Justices wondered aloud whether Aereo is itself a newfangled version of a cable company. It’s a fair question, from a technological standpoint, having to do with whether Aereo’s antennas more closely resemble rabbit ears (in which case Aereo is less like a cable company) or the infrastructure that makes cable work (in which case Aereo is more like one).

When it comes to the customer experience of Aereo users, though, the distinction seems clearer: by virtue of its low cost alone, Aereo is simply a well-reviewed, and only slightly more expensive, upgrade on the old rabbit ears. The Supreme Court may find a legal way to shut it down. But its loss will come at a cost to competition and the principle that the public airwaves are truly free to the public.

Photograph of Aereo counsel David C. Frederick by Andrew Harrer/Bloomberg/Getty.