So when you drive your car, you should have to pay for every toll road in the country, not just the toll roads you use?
Here is the difference between Aero and Cable, and the reason the so called loop hole is valid. Cable collects all the broadcasts signals and retransmitts all those signals along to all subscribers. The fee is the right to collect and retransmit en masse.
There is also and issue of the broadcasters use of the public airwaves. In exchange for this use, it is assumed that the tax payers of this country have access to free programing. Aero is a service that allows us to access that free content. Cable is a service where you buy access to content. Aero is a service where you specify a program to watch, or to record, and that one program is transmitted to you and only you. Cable is a service where all the programs are transmitted to you to be selected in immediate real time, even switch between channels, or channel in channel.
Here is an example, and everyone can decide if this is illegal. Tivo allows a broad range of remote capabilities. Suppose I opened a service in which I filled a warehouse with Tivos and antennas. End users would enter a contract where they would rent a Tivo and antenna. They would use the TIvo interface to control the content. I would have no control over what was being transmitted. Would that be illegal? What if I built a custom DVR and a custom interface? Would that be illegal? What if I used a Tivo and 'shared' each one so that six different users?
This is why the ruling is so bad. It reduces our rights to do as we wish with the content that we have given up bandwidth to receive. In excange for use of the the public airwaves, we have the right to free over the air content. That means content that we collect using an antenna and then consumer for personal use. We can record it to VCR, take that tape with us on a trip, and watch it elsewhere.
The only appropriate thing for the broadcasters to do in response to Aero, it they did not want aero to add a convince for users, is to stop using the public airwaves. Go 100% cable or stream over the internet. This is second major problem with the SCOTUS decision. If broadcasters cannot deal with Aero retransmitted a single show to a single user, and if they have become so dependent on cable, then clearly they are wasting bandwidth that could be used for other purposes. The best thing that could have happened to US, if the broadcasters are as inefficient as it seems, is that Aero put them out of business and then we would have all this bandwidth that can be sold to firms that can use it efficiently. All the SCOTUS has done is save the buggy whip industry.