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Court Order Backing FilmOn Isn’t End of the Story

WASHINGTON — FilmOn founder Alki David calls his over-the-top video provider’s recent court victory a “huge ruling” that benefits everyone. Broadcasters see it rather differently.

U.S. District Court Judge George Wu of the Central District of California on July 16 ruled that, at least as far as he was concerned, FilmOn, which streams on demand and day-and-date video online, should get a compulsory license to deliver broadcast TV network programing, just as multichannel video programming distributors (MVPDs) have.

He did so in issuing a summary judgment for FilmOn and against the major broadcast networks, led by Fox.

The issue is whether or not online video distributors are effectively MVPDs eligible for the statutory license that allows them to avoid negotiating for individual network broadcast content.

That issue is unsettled, with the Copyright Office saying that online video distributors aren’t MVPDs but also saying that could change, depending on what the courts and the Federal Communications Commission decide.

The FCC is currently pondering defining some streaming- video providers as MVPDs. FCC chairman Tom Wheeler has pointed to the need to prevent “old rules” from hampering new online video competitors such as FilmOn and the now-defunct Aereo.

David pushed the FCC to endorse FilmOn in its decision defining some over-the-top providers as MVPDs and said last week he expected that would be the case.

Wu’s ruling conflicts with a decision by the 2nd U.S. Circuit Court of Appeals that OTT providers are not eligible for a compulsory license, which Wu recognized in authorizing an immediate appeal of his own decision to the 9th Circuit federal appeals court.

Fox has indicated it would indeed be appealing.

Wu stayed the effective date of his summary judgment pending the outcome of that anticipated 9th Circuit appeal, but, in the meantime, the 2nd Circuit ruling that FilmOn does not merit a compulsory license stands.