Supreme Court to Hear Aereo Appeal

The Supreme Court has agreed to hear broadcasters appeal of the denial of its injunction request against Aereo.

The court held a conference Friday on what appeals to hear, and did not take long in making the decision

"The petition for a writ of certiorari is granted," the court said without elaboration. Justice Samuel Alito took no part in the decision.

Aereo had joined broadcasters in saying the court should resolve the issue, which is whether it is simply providing remote access to TV station signals or is retransmitting a performance without compensation in violation of the copyright laws.

The Second Circuit Court of Appeals refused to grant an injunction and suggested Aereo was on solid legal footing. The case has yet to be decided in the lower courts, but broadcasters argue that the service should be blocked until that lower court decision is reached because it threatens their business.

So far, no other federal appeals court has weighed in, so there is no split in the federal circuit. But district courts have differed, and the Ninth and D.C. federal appeals courts have been asked to weigh in.

Commenting on the prospects of the Supreme Court taking the case, National Association of Broadcasters President Gordon Smith had told B&C/Multi earlier in the day that the court was "almost bound" to take it and that its decision would be "hugely important in terms of over the top and whether copyright means what it historically meant."

"We are pleased the Court has agreed to hear this important case," said the broadcaster plaintiffs of the courts' decision. "We are confident the Court will recognize that this has never been about stifling new video distribution technologies, but has always been about stopping a copyright violator who redistributes television programming without permission or compensation."

Cablevision Systems has argued that Aereo’s service violates copyright laws, but it is not happy that broadcasters tied Aereo to the legality of the MSO’s remote-storage DVR service, which it says could  “cripple cloud-based innovation in the U.S.,” a point seconded by Charter. ““Cablevision remains confident that while the Aereo service violates copyright, the Supreme Court will find persuasive grounds for invalidating Aereo without relying on the broadcasters’ overreaching -- and wrong -- copyright arguments that challenge the legal underpinning of all cloud-based services.”,” the company said Friday.

But if Aereo is found to be legal, it could provide an impetus for cable operators to migrate to an over-the-top model that allows them to deliver TV stations without compensation.

It could also hasten the move of big ticket sports to pay TV.

The NFL and Major League Baseball have warned that if Aereo wins and doesn't have to pay for delivering signals, the so-called high value, nonsubstitutable sports events—Super Bowl, World Series—would be moving to pay TV.

Smith is particularly concerned about the MVPD angle. “Our hope is that the court will affirm that you can’t take over the air stuff and sell it to other people without triggering copyright protections.”

“We said from the beginning that it was our hope that this case would be decided on the merits and not through a wasteful war of attrition,” said Aereo CEO and founder Chet Kanojia (pictured). "We look forward to presenting our case to the Supreme Court and we have every confidence that the Court will validate and preserve a consumer's right to access local over-the-air television with an individual antenna, make a personal recording with a DVR, and watch that recording on a device of their choice.”

The grant of cert (the court's technical term for hearing the appeal) now triggers a briefing schedule and likely a hearing of the case in April, according to one attorney. That means court watchers will be looking for a decision in June,

There were arguments against the court taking the case, including that there was no split among the federal appeals courts, or at least not yet. But there were also arguments for it. It was high profile, both sides wanted it heard, and the conflict in the lower courts.

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.