To be or not to be defined as an MVPD, that is the question.

A federal appeals court Friday heard argument in the long-running court battle between TV station content providers and FilmOn and, according to an attorney at the lively and lengthy oral argument, both sides had their adherents.

FilmOn says it is the online equivalent of cable system/MVPD and should be eligible for a blanket compulsory copyright license to stream TV content. Fox and the other Big Four TV networks—with the support of the National Association of Broadcasters—have said FilmOn is not entitled to the license and cannot stream TV content without individually negotiating for the rights.

Hearing the case, Fox Television Stations, Inc. v. FilmOn.TV Networks Inc., was a three-judge panel of the court comprising Chief Judge Merrick Garland (Obama's nominee for the Antonin Scalia Supreme Court seat), and Judges Brett Kavanaugh and Patricia Ann Millett.

According to Cory Andrews, senior litigation counsel with the Washington Legal Foundation who was at the argument (WLF filed an amicus brief supporting Fox et al.), the argument went long--almost two hours--and included some lively questioning.

He said that it appeared from that questioning that Millett was more in line with FilmOn, Garland with broadcasters, and Kavanaugh could be the swing vote assuming there is one.

He said Kavanaugh asked tough questions of both sides and appeared to be grappling with whether it is the proper role of the court to create a new over-the-top cable system, rather than Congress.

Garland, said Andrews, seemed to be the most likely to view the statute as ambiguous, and because it is ambiguous, that it made sense to defer to the Copyright Office interpretation that a cable system is inherently local.

He said Millet did not appear to see the same ambiguity in the statute language as describing MVPDs as wires and cables or other communications means and that the Internet would seem to qualify as wires and cables and was arguably the preeminent communications tool, so that if the statute is viewed as being drafted with enough

flexibility to account for evolving technology, over-the-top video would seem fit under that definition.

All that is with the caveat that it is difficult to gauge a judge's decision from questioning, since they can play devil's advocate in order to probe and test an argument they might actually agree with.

The lawyer for broadcasters, Neal Katyal from Hogan Lovells, argued that what was at stake was property rights, and that the Copyright Act extends broad protections for copyright holders and provides as very narrow exceptions, including the blanket (compulsory) license.

FilmOn is challenging a lower court decision that deferred to the Copyright Office’s advisory that internet-based retransmission services are not eligible for the license available to cable systems.

On the other coast, FilmOn and Fox et al. are awaiting a ruling from the 9th U.S. Circuit Court of Appeals on a decision by a different lower court judge that FilmOn is eligible for a compulsory license, which would allow FilmOn X (formerly Aereokiller) to deliver TV-station programming from the major networks at a government-set rate, rather than having to negotiate for it individually.

How those decisions are ultimately ruled on in those federal appeals courts  could determine whether the Supreme Court gets involved. IF the federal circuits split, one supporting the license the other not, the Supremes would be more likely to take the case if it is appealed there.

The High Court has already ruled in a similar case, ABC v. Aereo that Internet transmissions are public performances and require a copyrightholder's permission, rather than being covered by a blanket license.

The Copyright Office has previously, if tentatively, held that over-the-top services are not subject to the blanket license, but said the FCC could change that if it defined them as MVPDs. Then FCC Chairman Tom Wheeler proposed doing just that, including citing FilmOn as one of the competitive video services such a move would help foster, but he got pushback, including from some in both parties on the Hill, and that definitional initiative was tabled.

FOTV Media Networks is going public with an initial offering of 2.5 million to 3.75 million shares at an opening price of $8 each.

FOTV comprises online streamer FilmOn.TV Networks, virtual reality/holographic image company Hologram USA, transactional VOD arm CinemaNow and online content guide OvGuide.

Related: FilmOn Reels in CinemaNow

Monarch Bay Securities LLC and Network 1 Financial Securities Inc. are underwriting the initial public offering (IPO).

FOTV said it expects to close the offering next month, subject to commitments to the 2.5 million shares minimum.

The SEC signed off on the IPO registration statement Aug. 12, FOTV said.

Online video platform FilmOn TV is adding a new channel to FilmOn.com's children's section.

The company said it is teaming up with iRead2Know founder Nancy Hahn to stream the Chidren's Reading Channel.

It is just the latest addition to the FilmOn platform, which the company says has already added close to 50 channels in 2016 alone.

“We are all about positive change at FilmOn and studies show that engaging children in reading is the surest way to effect social change in the world,” said FilmOn TV Networks CEO Alki David in a statement.

FilmOn has 800 free channels plus premium cable offerings.

RELATED:Cable Comes Out Swinging [subscription required]

Online video platform FilmOn is looking to punch up--and kick up--its lineup with the addition of a 24/7 mixed martial arts (MMA) fan channel.

MMA Now TV, which launches today (March 3), will include live, original content from UFC 196's Conor McGregor, Nate Diaz, Holly Holm, Miesha Tate and others, according to the company. McGregor v. Diaz and Holm v. Tate are on the UFC 196 main card March 5.

The channel is the creation of Kim Hurwitz, chief content officer; Carl Dawson, chief marketing officer; and MMA “insider” David Kano, who will host many of its shows, according to FilmOn.

Content will include documentaries, reality and talk shows, and live events including UFC 196 open workouts, interviews, weigh-ins and post-fight press conferences. There will be an option for VR 360 access as well.

FilmOn CEO Alki David said he has been a fan of MMA for a decade and saw it as an opportunity to serve the sport's "true fans."

RELATED:FilmOn Adds Buzz60 Channels

The National Association of Broadcasters has told the U.S. Court of Appeals for the Ninth Circuit just what it thinks of a district court decision favoring FilmOn, and it doesn't think much of it.

California district judge George Wu ruled last summer that online video distributor FilmOn was entitled to a compulsory license. Fox, joined by other broadcasters, challenged that ruling in the Ninth Circuit Court of Appeals and NAB has weighed in with an amicus brief in support of that challenge.

A compulsory license would allow FilmOn to deliver TV station programming from the major networks at a below-market rate and without having to negotiate for it individually through retrans deals. That's because it is not defined as a cable operator by the FCC, and so is not subject to retransmission consent requirements.

"FilmOn currently faces no regulations requiring it to respect the local program exclusivity arrangements between stations and their program suppliers," said NAB. "While it claims to have adopted its own voluntary measures designed to protect local exclusivity, there is no assurance that FilmOn will maintain them absent FCC mandate. And the record shows that FilmOn’s self-imposed restrictions will be ineffective. Granting an entity like FilmOn a compulsory license to broadcast content could therefore have a devastating impact on local broadcasting. The district court should be reversed."

The courts are hardly in agreement on FilmOn and the license. In November, another U.S. District judge, Rosemary Collyer, ruled that FilmOn, which streamed on demand and day-and-date video online, was liable for infringing the plaintiff's (Fox and other broadcast networks) performance right under the Copyright Act and was not eligible for the compulsory license.

A federal court judge ruled Thursday that upstart streaming service FilmOn is potentially entitled to a compulsory license to stream content from broadcasters over the Internet, which if held up under appeal could force CBS, Fox, ABC and NBC to sell programming at below-market rates.

U.S. District Court Judge George Wu’s opinion comes less than a year after Aereo shut down in the wake of a debilitating Supreme Court ruling. In that case, the Court said Aereo, which streamed broadcast signals via a series of tiny antennas leased to subscribers, provides a public performance, not a private one as the company had asserted and was more like a cable company than the equipment provider it claimed to be. Aereo had argued that it merely leased antenna space to subscribers who used that equipment to access content and therefore was not subject to the regulations multichannel video programming distributors are held to.

The most recent ruling is surprising because it counters a Second Circuit Court of Appeals ruling against streaming service Ivi, which had been seeking to access the compulsory licensing system. In that ruling, the court said “Continued live retransmissions of copyrighted television programming over the Internet without consent would...threaten to destabilize the entire industry."

A compulsory license forces a copyright or patent owner to sell its intellectual property to a third party at a price that is either set by law or determined through arbitration. In general, under a compulsory license a company can use someone else’s intellectual property without the rights holder’s consent and at a set price. In the broadcasting realm, FilmOn would technically be able to retransmit a broadcaster’s signals without paying a retransmission consent fee.

Broadcasters were understandably up in arms about the ruling.

According to several reports, Fox Networks said in a statement that the ruling “contravenes all legal precedent,” and vowed an appeal.

Wu is aware of the controversial nature of his ruling – he immediately authorized an automatic appeal to the Ninth Circuit Court of Appeals because the legal issues involved have a “significant commercial importance.” He also upheld a previous injunction on FilmOn prohibiting them from airing broadcast content pending the appeal.

FilmOn was started by Internet entrepreneur Alki David and primarily streams Internet video, old TV series like The Lucy Show and the Andy Griffith Show, sports from around the world and music. The service boasts that viewers can watch more than 200 Live TV channels, 500 VOD channels and 45,000 Web TV titles for free over the Internet.

WASHINGTON — Over-the-top video provider FilmOn said it has struck a deal with the Arena Football League to stream its games free to FilmOn's 47 million unique users outside the U.S., according to a copy of the announcement obtained by Multichannel News. The deal is expected to be announced today (June 15).

FilmOn will stream all games of the 20-week season, six games per week, leading up to and including the Arena Bowl on Aug. 29.

 It is not the first partnership for the pair. FilmOn teamed up with the Arena Football League in 2012 on “AFL Classic”, a channel of archived games.

 “Every professional sports league has the goal of becoming a global brand,” said AFL commissioner Scott C. Butera. “Arena Football has a history of playing games overseas and we believe FilmOn will be a strong partner in delivering our content to the world.”

FilmOn Networks CEO Alki David said: “Live Stream Arena Football League games are exactly what FilmOn users want — gritty action and immediate gratification. Our huge international audience has already voiced demand for AFL’s games.”

FilmOn said the games AFL games will also be available 20 million homes via FilmOn’s Sky Channel 237 in the United Kingdom and via Freesat in Europe.

CBS Sports Network and ESPN are the AFL’s U.S. rights holders.

In advance of the Supreme Court oral argument in the Aereo case, the online TV station delivery service has launched a web site, ProtectMyAntenna.org, to emphasize its point that it is just providing remote Internet access to an over-the air antenna, rather than a performance subject to copyright payments.

In a note to its subs, Aereo CEO Chet Kanojia said that the site was in response to questions from customers about the case. Broadcasters have sued Aereo for copyright infringement and the Supreme Court has agreed to take their challenge of the Second Circuit Court of Appeal's denial of a preliminary injunction against Aereo and its suggestion the company's remote antenna system does not violate copyright.

"On April 22, Aereo will present our case to the United States Supreme Court," Kanojia said in the letter. "We remain steadfast in our conviction that Aereo’s cloud-based antenna and DVR technology falls squarely within the law. We have every hope and confidence that the Court will validate and preserve a consumer's right to access local over-the-air television using an individual antenna, make a personal recording with a DVR, and watch that recording on a device of their choice."

The site will provide "court briefs, amicus briefs and court decisions related to the Supreme Court case," according to the letter. Web surfers can also sign up for periodic updates. The Supreme Court is expected to rule by late June.

In an interview with Katie Couric for Yahoo News this week, Kanojia echoed Aereo investor Barry Diller in saying that if Aereo loses, the company will try to figure something out, but may have to go out of business.

The "figure something out" could be an effort to come up with a technical work-around, according to BernsteinResearch anaylst Todd Juenger, either by Aereo or someone else.

"If the Court says 'Aereo is patently illegal and must be shut down,' we believe it will only be a matter of months before some new Aereo-like service emerges, with a work-around specifically designed to adhere to the Court's ruling, and the process starts all over again  (Although Barry Diller contends Aereo won't pursue that path, saying recently 'if we lose, we're finished'," said Juenger in note to investors. "We suspect he might change his mind if his engineers show him a work-around path."

Also implicated in the case is FilmOn, an online, which also delivers TV station signals online via remote antennas. A court decision on the fate of an injunction against that service, also sought by broadcasters, has been put on hold until the Supreme Court decides the Aereo case.