Judge Alison Nathan for the New York District Court for the Southern District last week denied Aereo's request for immediate consideration of its preliminary injunction "issues," saying that unless it is allowed to resume its service "in the immediate future, the company will likely not survive....the company is figuratively bleeding to death."
The court agreed with broadcasters that the "appropriate step" was for Aereo to prepare an order "consistent with the Supreme Court's decision" and gave Aereo two weeks from July 31 to make its case in that order.
The New York Southern District Court is the court that initially denied the preliminary injunction, only to be overturned by the Second Circuit Court of Appeals, which was then overturned by the Supreme Court's June 25 decision that Aereo's delivery of TV station signals over the Internet was a performance that violated copyright law since Aereo had not paid a fee. The Supreme Court remanded it to the lower court.
The Supreme Court said that Aereo was like a cable system in that it also provided a public performance. Aereo, which had argued it was not like a cable system, latched onto that and asked the Copyright Office to grant it a compulsory license. The Copyright Office said it still believed that Internet retransmissions were not subject to the compulsory license, but would hold the request in abeyance in case the courts or regulators came to a different view.
The FCC has also tentatively concluded that over-the-top services lack the facilities to qualify as MVPDs, and appears in no hurry to make the definitive call.
In its emergency petition, Aereo argued that it was now clear that it was a cable system and broadcasters were unlikely to prevail in their argument that the service was illegal. It can still make that argument, but on the court’s timetable.
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.
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