FilmOn X Fires Back

Online video streamer FilmOn X continues its push to get a compulsory license and access to broadcast video.

A compulsory license would allow FilmOn X to deliver TV station programming from the major networks at a government-set rate, rather than having to negotiate for it individually.

FilmOn X, which filed its opening brief back in July, this week filed the reply brief in its challenge to a November 2015 U.S. District Court dismissal of its request that the court rule its online TV station streaming service is a cable service entitled to that compulsory license.

A California District Court judge ruled that FilmOn X was such a service and qualified for the license, which the broadcast networks challenged. Neither case has been resolved, so FilmOn X is asking the D.C. court to stay the U.S. District Court decision until that California challenge is resolved in the Ninth Circuit.

FilmOn had also asked the U.S. District court to stay its decision until the California case was resolved but was unsuccessful. The company says that court abused its discretion by denying the stay.

"The [U.S.] district court failed to examine the close relationships between the plaintiffs in the two parallel actions, which would have revealed no meaningful differences between them," FilmOn X said this week. "The district court then abused its discretion when it refused a stay on the ground it might decide this case 'slightly differently' than the California court. The district court reached the opposite conclusion. To alleviate that conflict, this Court should vacate the district court’s order and stay this action pending final resolution of the California Action. In any event, FilmOn X is eligible for a cable system license."

In the U.S. District Court decision, Judge Rosemary Collyer ruled that FilmOn X, 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.

The issue is whether 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 they aren’t eligible but also saying that could change depending on what the courts and the FCC decide. The FCC is mulling defining some over-the-top distributors as MVPDs and FCC chairman Tom Wheeler has pointed to the need to prevent “old rules” from hampering online video competitors like FilmOn. But the FCC has also put that decision on the back burner while the marketplace develops.

California district judge George Wu ruled last year that FilmOn X was entitled to the compulsory license. Fox et al. challenged that ruling in the Ninth Circuit Court of Appeals and the National Association of Broadcasters slammed the decision.

Oral argument has not yet been scheduled in the D.C. appeals court. FilmOn is represented by Baker Marquart.

Opposing FilmOn's bid are Fox, Sinclair, CBS, NBC's WRC-TV Washington, Disney/ABC, and Tegna.

(Photo via Tori Rector's FlickrImage taken on July 21, 2016 and used per Creative Commons 2.0 license. The photo was cropped to fit 3x4 aspect ratio.)

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.