In a victory for Facebook, but what some legislators call a misinterpretation that could open the robocall floodgates, the Supreme Court has ruled unanimously that its automatic texting regime for informing a user when someone is trying to log into their account from a new device does not violate the Telephone Consumer Protection Act.

Also Read: FCC Adopts Robocall Safe Harbors

Some top Democrats said the court decision was a disaster and they were preparing legislation to reverse it.

Facebook had been the subject of a class action suit over that texting regime alleging that it violated the TCPA because it maintained a database that stored numbers to be automatically dialed. Facebook said it was not using a "random or sequential number generator," which is what the TCPA restricts.

Also Read: Congress Is Looking to Arm Robo Cops

The Ninth Circuit court of Appeals sided with the plaintiffs that dialing automatically stored numbers triggered the TCPA restriction. But the Supremes disagreed.

The decision hinged on grammar, with the Supreme Court concluding that under the TCPA an automatic dialing system must be able either to store a random number using a random or sequential number generator or produce a number with such a generator. Facebook said since it is not randomly generating numbers its autodialer is OK. The Supremes agreed.

"The statutory context confirms that the TCPA’s autodialer definition excludes equipment that does not use a random or sequential number generator," said the court. "Congress’ chosen definition of an autodialer requires that the equipment in question must use a random or sequential number generator. That definition excludes equipment like Facebook’s login notification system, which does not use such technology."

Justice Sonia Sotomayor delivered the opinion, which did not sit with some TCPA fans on the Hill.

In a joint statement, Rep. Anna Eshoo (D-Calif.) and Sen. Ed Markey (D-Mass.) slammed the court's narrow interpretation of autodialer as a disastrous decision and accused the court of abandoning consumers to what will be a flood of robocalls.

Also Read: FCC Tells Robocallers No More Warnings

"It was clear when the TCPA was introduced that Congress wanted to ban dialing from a database. By narrowing the scope of the TCPA, the Court is allowing companies the ability to assault the public with a non-stop wave of unwanted calls and texts, around the clock," they said in a joint statement. 

“Fortunately, we can and will act to make right what the Supreme Court got wrong. We plan to soon introduce legislation to amend the TCPA, fix the Court’s error, and protect consumers. If the Justices find their private mobile phones ringing non-stop from now until our legislation becomes law, they’ll only have themselves to blame." 

Markey and Eshoo had joined in an amicus brief in the case calling on the court to uphold the Ninth Circuit, but that call went unanswered.

Turns out Jan. 19 will be an inauguration day of sorts--inaugurating the Supreme Court's first consideration of an appeal of the FCC's media ownership rule deregulation.

It will be the fourth oral argument of the January session, with one hour of argument scheduled, though that could spill over depending on how the arguments and Justices' questioning goes.

The FCC and the National Association of Broadcasters both challenged the U.S. Court of Appeals for the Third Circuit

Related: Supremes to Hear Broadcast Dereg Case

In September 2019, a three-judge panel of the Third Circuit threw out, or at least threw back to the FCC, Chairman Ajit Pai's effort to deregulate broadcast ownership and address a lack of diversity. The court said the agency "did not adequately consider the effect its sweeping rule changes will have on ownership of broadcast media by women and racial minorities," something the court had said in a previous media ownership ruling that the FCC had to do next time around. 

The court vacated the FCC's elimination of the newspaper-broadcast and the radio-TV cross-ownership rules; its decision to allow dual station ownership in markets with fewer than eight independent voices after that duopoly created an opportunity for ownership of two of the top four stations in a market on a case-by-case basis (the FCC was not calling it a waiver); and its elimination of attribution of joint sales agreements as ownership, as well as its creation of a diversity incubator program. 

Gray to Supremes: Restore FCC Rule Dereg

The FCC and NAB appealed the decision to the full Third Circuit.

In April 2020, broadcasters and newspaper publishers petitioned the Supreme Court to review the Third Circuit decision.

Echoing the FCC's petition for review also filed in April, media petitioners said that outdated ownership rules remain in force because a divided panel of the court has prevented the FCC from implementing "necessary adjustments to its ownership rules" that the FCC concluded would serve the public interest.

The FCC said that it has been trying to grant the ownership dereg for 17 years, thwarted by a series of decisions by a divided panel of the Third Circuit. It said the most recent decision to vacate "a host of significant rule changes" was based "solely on the ground that the agency had not adequately analyzed the rules’ likely effect on female and minority ownership of broadcast stations." 

The FCC argues that for those 17 years the court has blocked it from exercising its mandate by Congress to repeal or modify any ownership rule it determines is no longer in the public interest.

The FCC has weighed in with the Supreme Court in defense of its order deregulating local broadcast ownership and in opposition to a lower court's invalidation of that order. 

The crux of the FCC's argument is that the lower court repeatedly prevented the commission from repealing or modifying rules it had concluded were no longer in the public interest.

The FCC is under a congressional directive to make that public interest determination and eliminate/adjust rules that don't pass muster.

The FCC, joined by broadcasters, petitioned the High Court to reinstate the FCC's 2017 local ownership deregulation decision, which was overturned by the U.S. Court of Appeals for the Third Circuit, which concluded the FCC had not sufficiently gauged the deregulation's impact on media ownership diversity.

The National Association of Broadcasters also filed its brief this week in support of deregulation and the FCC.

In its brief submitted Nov. 17, the FCC said the Third Circuit decision "flouts well-established principles of judicial deference to the Commission’s reasonable policy judgments and freezes in place outdated regulations, to the detriment of broadcast markets nationwide."

It said the court rejected the deregulatory moves not based on any challenge to the FCC's conclusions about competition that drove those decisions, but on "the bare possibility that the challenged orders might affect minority and female ownership levels in the broadcast industry."

In the process, said the FCC, the court "impermissibly" substituted its judgment for that of the FCC.

The result, it said, was that "broadcast markets nationwide remain saddled with outdated regulations that prevent struggling traditional outlets from entering transactions that might allow them to retain economic vitality."

The FCC's advice to the court, respectfully: "The judgment of the court of appeals should be reversed."

Judge Amy Coney Barrett, President Donald Trump’s pick to succeed the late Ruth Bader Ginsburg on the Supreme Court, could well help shift the Supreme Court’s view of how much deference to give decisions by agencies like the Federal Communications Commission.

The doctrine of Chevron deference, established by the Supreme Court in the 1984 case of Chevron U.S.A., Inc. vs. Natural Resources Defense Council, established the legal test for when courts should defer to the expertise of a regulatory agency. 

Andrew Jay Schwartzman, a veteran watcher and participant in federal appeals, concedes there is little track record to go on, but said, looking at her general philosophy, “I would speculate that she would likely be willing to consider modifying or overruling Chevron. Similarly, she might be disposed to revisit Supreme Court jurisprudence on nondelegation.” (Barrett’s nomination could lack the necessary votes, given the COVID-19 diagnoses of some Republican senators.)

Chevron doctrine was central to the Supreme Court’s 2005 decision in NCTA v. Brand X Internet Services, which upheld the FCC’s authority to classify broadband as an information service not subject to mandatory access common-carrier regulations. 

In Brand X,  the High Court ruled that Chevron deference trumped an appeals court decision because that appeals court had found the statute vague and, in such cases, the court should have deferred to the federal agency's subject matter expertise, in this case the FCC.  

That finding has left different FCCs to define and redefine internet access, and has prompted calls for Congress to step in and do its duty to clarify the statute.

Potential fellow conservative Justice Brett Kavanaugh is on the record as having issues with Chevron, which gives more weight to an agency’s reading of ambiguous statues given the agency’s subject matter expertise.

Kavanaugh had more reason to weigh in as a former member of the U.S. Court of Appeals for the D.C. Circuit, which oversees appeals of agency decisions. Barrett, by contrast, has been a member of the 7th U.S. Circuit Court of Appeals — comprising Illinois, Indiana and Wisconsin and where the issue of Chevron deference does not get a lot of exercise — for only three years. But Barrett is an originalist who could look at the separation of powers and decide, as other legal conservatives have, that Congress is delegating too much power to agencies, helped by courts’ excessive deference.

Justice (and Republican appointee) Neil Gorsuch, a former member of the 11th circuit, has argued that while agencies should get deference for technical expertise in their subject areas, it should be up to the courts to do the clarifying of vague statues. He argues that giving federal agencies that power runs into both equal protection and separation of powers issues. 

The legal doctrine of nondelegation means Congress is not supposed to delegate its power to agencies or private entities without sufficient principles on which to base the exercise of that power.

Conservatives argue that Chevron, combined with insufficient adherence to nondelegation, has contributed mightily to the power of regulators and the ballooning of the administrative state.

Randolph May, president of the Free State Foundation, definitely sees Barrett helping shift the court on the issues. He thinks that is a good thing, but said the shift is likely to be “more modest than melodramatic, with the array of agencies continuing to carry out their core missions.” He also said that was likely to happen whether it was Amy Coney Barrett or some other appointee “in the same mold.”

“I suspect that, in a proper case, the Court will substantially curtail Chevron’s application, if not jettison it completely, and also that it will reinvigorate the nondelegation doctrine,” May wrote for the Yale Journal on Regulation. “But the end result of these jurisprudential changes most likely will be only a modest alteration in the size and scope of the administrative state's present power.”

One thing Barrett definitely knows about is audio and video in federal courts, something C-SPAN and Fix the Court have been pushing the Supreme Court to add for years. Currently the court provides audio, in some special cases, same day, but not live and no video.

The late Justice Antonin Scalia, for whom Barrett clerked, was a big opponent of cameras in the court. Although he supported televising oral arguments when he joined the court, Scalia later said he had concluded that TV would turn court proceedings into unhelpful, uncharacteristic sound bites.

But Fix the Court executive director Gabe Roth noted that in 2018, “Barrett was on the first-ever 7th Circuit panel that allowed cameras in the courtroom.” He also pointed out she was on numerous cases that were live streamed due to the pandemic. 

Scalia was also a big fan of Chevron early on, but softened in later years, Schwartzman said.

If Fix the Court has anything to do with it, look for Judge Amy Coney Barrett to get a question about cameras in the court during her Supreme Court confirmation hearing in the Senate Judiciary Committee, which begins Oct. 12.

Two years ago, Barrett was on the first Seventh Circuit panel that allowed a camera in the court. and has sat on several cases that were livestreamed due to the pandemic, according to Fix the Court, a big advocate for judicial transparency, including allowing cameras. Fix the Court executive director Gabe Roth said the group does not know her views on cameras in the Supreme Court but hope to learn them.

Not leaving anything to chance, Fix the Court has asked senators to pose that question during the hearings.

Barrett's mentor, Justice Antonin Scalia, was famously opposed to cameras in the court and once even asserted a First Amendment right to bar cameras and microphones from his speeches.

The U.S. Supreme Court denied a Comcast appeal in the cable company’s sprawling four-year patent infringement battle with TiVo/Xperi. 

According to Bloomberg Law, the high court declined to review Comcast’s appeal of a March federal court ruling, which in turn, had upheld an earlier ban issued by the International Trade Commission (ITC) on Comcast X1 set-tops that were determined to have infringed on two TiVo patents. 

Also read: TiVo Claims Appeals Court Win Against Comcast

The patents pertaining to this most recent SCOTUS ruling—one of which deals with setting remote DVR recording via smart phones—have expired. But Comcast’s appeal was focused on the process. The ITC ruling banned the importation of CommScope and Technicolor set-tops that allegedly infringe on TiVo patents. Comcast is arguing that its set-tops don’t actually infringe on patents until they’re connected in subscriber homes. 

Comcast is predicting that TiVo will win future ITC rulings over other patents. 

Also read: TiVo’s New Holding Company: Merger Will Have ‘No Impact’ on Comcast Litigation

TiVo, which inherited the disputed patents when it merged with Rovi Corp. in 2015, has been battling Comcast in multiple legal jurisdictions, over dozens of patents, since 2016 in an effort to force the No. 1 U.S. pay TV operator to resume paying it technology licensing fees. 

Despite the ongoing legal costs, TiVo believes Comcast’s holdout, which began in March 2016, is an existential threat to its intellectual property business. TiVo’s expressed legal strategy has been to battle Comcast over as many patents as possible, winning as many fights as is necessary to make the operator settle. 

TiVo Corp. was just acquired by technology company Xperi in a $1.1 billion merger, and much of the TiVo corporate counsel that has led the legal fight against Comcast, including chief intellectual property officer Arvin Patel, have been given golden parachutes. 

But the newly combined Xperi Holdings, which will operate a TiVo-branded technology products business separately from an IP operation that controls 11,000 patents, plans to keep battling Comcast in court. 

“There will be no impact,” an Xperi rep said in a terse one-sentence statement, when asked earlier this month by Next TV how the merge might affect Xperi’s ongoing legal strategy. 

The U.S. Supreme Court’s first attempt at broadcasting oral argument audio live went swimmingly on May 4. Someone must've forgotten to cue the fire and brimstone.

Remind me — why they haven’t been doing this all along?

Concerns over technical glitches proved to be overblown. Justice Sonia Sotomayor was on mute for an extra moment during her first round of questions and Justice Stephen Breyer at one point had a few seconds of raspy audio. But that was it, as tens of thousands of Americans finally had the opportunity modern technology has afforded us for decades to listen to the country’s top jurists weigh in on a case, live and unfiltered. The days of restricting the court's proceedings to VIPs, the press and a few dozen members of the public are over.

Now that we know with certainty that live audio does not impair its functioning, there’s no reason for the court to return to its outmoded policy of week’s-end audio releases once we're past the pandemic.

Patent Office Led Off

After Chief Justice Roberts called the first case, Justice Department attorney Erica Ross, representing the U.S. Patent and Trademark Office in PTO v. Booking.com, began the historic arguments by citing a 2nd U.S. Circuit Court of Appeals patent opinion by Judge Henry Friendly — for whom Roberts clerked — with two minutes, 21 seconds of uninterrupted time before Roberts broke in with a question about the trademark statute. After all nine justices asked questions, Lisa Blatt, arguing for Booking.com and who was speaking from a lectern atop her dining room table, The Washington Post reported, kicked her turn off by discussing the situations under which generic words may be trademarked. Roberts broke in after two minutes, 18 seconds.

Ross and Blatt — skilled SCOTUS advocates both — parried the queries with a style both conversational and intellectual that made it clear why this argument was chosen to be the first one ever live-streamed. Even Justice Clarence Thomas, who’d previously only asked questions in two oral arguments since 2006, asked questions of both attorneys. During the 77-minute exercise, Justice Elana Kagan asked the most queries with six, followed by Roberts, Neil Gorsuch and Ruth Bader Ginsburg with five apiece. No justice asked fewer than two questions.

One could make the argument that the typically boisterous bench was more subdued than usual, given Roberts’s role as traffic cop. Our research indicates that the public would see that as but a small concession to make given the overwhelming support for real-time streaming.

A link to an audio file of the argument is expected to be posted on SupremeCourt.gov shortly, which makes this not only the first live argument but also the 28th for which an audio recording was provided to the public on an argument day.

To our disappointment, though, Roberts went right into argument after the marshal’s cry, whereas courts that have offered expanded broadcast access have chosen to explain to those listening live what they were about to hear.

Some appellate judges who have live-streamed arguments from their courtrooms were quick to chime in with some encouragement, albeit cheekily. Chief Justice of the West Virginia Supreme Court of Appeals Beth Walker tweeted: "Congratulations, SCOTUS, on broadcasting the audio of oral arguments live today. The Supreme Court of Appeals of West Virginia has been doing it since the late 1980s."

Fix The Court surveyed the 50 states’ top courts and the 14 U.S. Courts of Appeals and found that, as of today, 29 of the former and 13 of the latter (all but the 1st Circuit) have conducted remote arguments since the president declared a national emergency on March 13. Another 10 state supreme courts plan to go remote in the coming weeks.

The most popular argument format we found was similar to what the Supreme Court followed: attorneys uninterrupted for a certain number of minutes, followed by rounds of questions from judges in order of seniority, with the chief sometimes waiting to go last. For example, when the D.C. Circuit conducted remote en banc arguments on April 28 on whether the U.S. House may compel testimony from executive branch officials, for which a live audio feed was provided to the public via YouTube, Chief Judge Sri Srinivasan gave each attorney three minutes for opening statements followed by questioning by the eight other judges in order of seniority, though Srinivasan himself waited to ask questions until the end. Judges were then given a second round of questions before moving to the next attorney’s opening statement, and attorneys were allotted a brief time for rebuttal.

A three-judge panel in the 10th Circuit, meanwhile, was “not planning to stream [its April 30] arguments since that would just complicate our first attempt at completely remote arguments,” according to a court source. “But then we decided to follow the approach the D.C. Circuit uses,” regarding timing and questions, which worked well and will again be employed for this week’s arguments. This format was also followed by the Massachusetts Supreme Judicial Council for its remote arguments on April 6.

Different Courts, Different Formats

It remains an open question whether the format the Supreme Court has adopted for remote arguments this week will stay the same throughout the May sitting. The Chicago-based 7th Circuit, for example, decided that after a handful of telephone-only arguments in April, some of its hearings this month may take place over Zoom. The Supreme Court of Ohio also moved to Zoom last week after the initial video platform it used was so “awful” that they “only posted the audio,” according to a court source.

With live remote arguments having been successfully conducted in 11 of 14 U.S. Appeals Courts (all but the 1st, 3rd and 6th Circuits), the argument could be made, to paraphrase Justice John M. Harlan’s famous dissent in Estes v. Texas, that the day has come when live audio “will have become so commonplace an affair [...] as to dissipate all reasonable likelihood that its use in courtrooms may disparage the judicial process.”

Gabe Roth is executive director of Fix the Court, a nonpartisan watchdog group focused on “fixes” to make the federal courts more open and accountable.

At about the same time that Chief Justice John Roberts was being sworn in to preside over the Senate impeachment trial of Donald Trump, a pair of legislators, one a current and one a former House impeachment manager, were introducing a bill that would turn the Supreme Court into the Stream Court.

The Eyes of the Courts Act would make the default setting that "real time or near-real time [access] on the internet," either audio or video, of all appeals courts, including the highest court in the land, would be allowed. It would also permit other electronic coverage of federal appeals courts--TV, radio, still photography, though in all cases the judge would preserve the discretion to disallow it.

Related: Congress Looks at Cameras in the Court

To date the Justices have declined to allow video of their oral arguments or reading of opinions, and any move by Congress to force that would prompt the separation of powers debate that has characterized the tension between judges and the legislators who view video as a way to put technological teeth into the requirement for public trials.

The bill was introduced by current impeachment manager Jerrold Nadler (D-N.Y.), chairman of the House Judiciary Committee, and Rep. Steve Chabot (R-Ohio), former Clinton impeachment manager and former chair of the Judiciary Subcommittee on the Constitution.

Judges would still have plenty of discretion.

It would allow judges to exclude that coverage if they decided, on their own initiative or in response to a petition, that such coverage threatened due process or was not otherwise in the interests of justice. Such a finding would not be appealable.

“That next week’s impeachment trial will be broadcast live, while the audio of this week’s Supreme Court arguments has yet to be released, is a significant and unnecessary discrepancy in public access among our branches of government,” said Fix the Court executive director Gabe Roth, who has long pushed for more electronic access. “The work of the Supreme Court and other federal appeals courts has broad implications for the country, and real-time access to their proceedings ought not be limited to the few who can travel to a courthouse and spend hours waiting to get in.”

The ranking member of the House Energy & Commerce Committee wants some answers from social media giants after reports of Russian-linked efforts to affect the nomination of Brett Kavanaugh to the Supreme Court.

In a letter to the CEOs of Google parent Alphabet, Facebook and Google, Rep. Frank Pallone (D-N.J.) pointed to a report in The Washington Post about a Russian-linked Facebook account attempting to exploit the sexual assault allegations against Kavanaugh (“Confirm Judge Kavanaugh (Enough is enough)”) had previously focused on boycotting Nike and driving Republican voters to the polls.

He also pointed out that the German Marshall Fund’s project that tracks Russian influence said "Kavanaugh, Trump, the Federal Bureau of Investigation, and Dr. Christine Blasey Ford" were the top four issues discussed on Russian-linked accounts.

Related: Ex-WJLA Weatherman Enters Kavanaugh Nomination Picture

By no later than Oct. 18, Pallone wants answers to the following questions.

1. "Have your companies discovered any foreign links to any anomalous behavior related to activities focusing on Judge Kavanaugh or Dr. Blasey Ford, Deborah Ramirez or Julie Swetnick, including the practice of co-opting unrelated social media groups?"

2. "Are your companies working with third-party researchers and firms to identify accounts or pages with foreign links focusing on Judge Kavanaugh or Dr. Blasey Ford, Ramirez or Swetnick?"

3. "Do your efforts to combat foreign influence include reviewing emerging divisive issues in American political and social life, such as the allegations of sexual assault against Judge Kavanaugh?"

Senate Majority Leader Mitch McConnell (R-Ky.) has called for a cloture vote Friday, which is a vote to end further debate and proceed to a floor vote on the nomination, which could happen as early as Saturday. Kavanaugh has already been confirmed by the Judiciary Committee on a party-line vote.

WASHINGTON — Critics of Republican Federal Communications Commission chair Ajit Pai have been pressing him to commit fully and unequivocally to not regulating issues based on the content of speech. However, a supporter of his network neutrality stance is using that same argument to justify Pai’s planned rollback of Title II-based rules.

Specifically at issue is the Open Internet order’s allowance for one type of discrimination — family-friendly filtering — and not others. A Supreme Court ruling made since the order was adopted would appear to make that allowance an unconstitutional content-based restriction — difficult to justify in court.

After President Donald Trump tweeted his suggestion that news outlets running stories he didn’t like should perhaps have their licenses challenged and revoked, Congressional Democrats and media activist groups, joined by journalists and many others, were up in arms. The idea that the content of speech should determine its regulatory protection, or the lack of it, ruffled many a feather.

But Brent Skorup, a research fellow at George Mason University’s Mercatus Center, in a meeting with FCC officials earlier this month, said content-based regulation was just what the agency had attempted to do in the Open Internet order, and does not withstand the strict constitutional scrutiny such speech-based regulation demands.

The key is a 2015 U.S. Supreme Court ruling, Reed vs. Town of Gilbert, having to do with an ordinance that allowed for different treatment of signs — religious, political, directional — based on content.

The court concluded, “A law that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motive,” in this case allowing for discrimination on the basis of family friendliness.

Skorup said he thinks the FCC’s 2015 Open Internet order, which treated ISPs as common carriers under Title II of the Communications Act , has a rocky First Amendment road. “The Supreme Court clarified its standard for what is content-based,” he said, “and I think the rules and the order discriminate against different types of content.”

Pai is crafting a rollback of the rules, and legal defense, likely for a vote in December. He almost certainly has the two other GOP votes to pass it. But a reversal of the previous FCC decision will be challenged in court, so the more ammunition the chairman has to support that course change, the better.

Regulatory agencies are free to amend their rulings, something obviously more likely to happen under a change in administration. But to survive legal challenge, the FCC must demonstrate that the change was not arbitrary and capricious, and that it was a reasonable decision based on the record, which is required whether it is an initial decision or a changed one.

A record that includes violating the First Amendment would be a strong legal card to have in reserve.

Cable and telco operators, satellite-TV providers, TV networks, programmers and a host of other media and communications companies have come out in force at the Supreme Court in support of marriage equality.

Cablevision, Comcast, Cox, Verizon, AT&T, CBS, DirecTV, Google and Twitter are among the 379 organizations joining in an amicus brief in the High Court review of Obergefell v. Hodge, in which the court has the chance to rule that all states should both permit and recognize same-sex marriages as legal.

"More than 70% of Americans live in a state that celebrates and recognizes same-sex marriages," the brief says. "But many states continue to prohibit same-sex couples from marrying, and decline to recognize the valid, existing marriages of citizens married to a spouse of the same sex. This fractured legal landscape harms employers and employees alike."

The companies argue that marriage bans adversely impact their ability to "attract and retain a talented workforce." Additionally, given that some states recognize same-sex marriages and others don't, such a bifurcated regime imposes "unnecessary costs and administrative complexities on employers, and requires differential employer treatment of employees who are similarly situated save for the state where they reside."

Verizon, in a blog signalling its support of the brief, said, "Calling on the Supreme Court to finally make clear that all couples share the right to marry is consistent with our long-standing commitment to diversity and our support of the LGBT community."

The Supreme Court is scheduled to hear oral argument in the case April 28. The two questions at issue, according to scotusblog.com, are whether a state has to license marriage between two people of the same sex and whether a state has to recognize such marriages performed by other states.

Here's a list of all the companies signing on to the brief.

Marking another victory for major U.S. broadcasters and another setback for Aereo, a U.S. District Judge in the Southern New York region on Thursday granted a preliminary injunction barring Aereo from retransmitting live TV.

The decision from U.S. District Judge Alison Nathan enjoins Aereo’s live TV distribution system, which relied on arrays of small digital antennas, but did not extend to Aereo’s network DVR and general video time-shifting.

Aereo, the ruling stated, is enjoined from "streaming, transmitting, retransmitting, or otherwise publicly performing any Copyrighted Program over the Internet (through websites such as aereo.com), or by means of any device or process throughout the United States of America, while the Copyrighted Programming is still being broadcast."

“We are reviewing the decision and evaluating our options moving forward,” Aereo spokeswoman Virginia Lam said, in a statement.

"Yet again the courts vindicate Fox's position that you can’t get away with stealing our content," said a Fox spokesman.

Aereo shut down its service in June – labeling it as “just a pause” – after The Supreme Court ruled that Aereo's delivery of TV station signals to subscribers without paying a copyright fee violates the law, a decision that reversed and remanded a Second Circuit Court of Appeals refusal to block the service while the underlying case was argued in a lower court.

Aereo has since argued that the SCOTUS ruling enabled it to obtain a compulsory license and obtain cable operator status, but Judge Nathan wrote that the High Court “did not imply, much less hold, that simply because an entity performs publicly in much the same way as a CATV system, it is necessarily a cable system entitled to a compulsory license.”

Aereo has recently been keen on an FCC Media Bureau proposal that would define some over-the-top video providers, such as Aereo, as MVPDs.