The U.S. Court of Appeals for the Tenth Circuit has refused to overturn a preliminary injunction against Aereo granted two weeks ago by a Utah District Court judge, saying they don't think Aereo is likely to win the underlying case.
That means Aereo cannot provide its service in the two markets under the Utah court’s jurisdiction—Salt Lake City and Denver—where it had been operating. They had been allowed to operate under a 14-day extension by the Utah judge pending the Tenth Circuit decision. They are now expected to be off in those markets by the end of the day, said a Fox spokesperson, though Aereo signaled it would not be pulling the plug until Saturday morning.
Aereo appealed that decision and sought an emergency stay in the federal appeals court pending that appeal.
In a 2-1 decision, a three-judge panel of the Tenth Circuit said Aereo has "not made a strong showing that it is likely to succeed on the merits of the appeal" and has not demonstrated any of the other factors in favor of overturning a stay balance in its favor. Those other factors are that Aereo would be irreparably harmed absent a stay, that the stay would not substantially harm the broadcasters (ABC et al.) or that granting the stay—which would allow Aereo to continue to operate—would be in the public interest.
The Supreme Court is scheduled to hear oral argument in that broadcaster appeal April 22. No court has yet to rule on the underlying question of whether Aereo is violating copyright laws.
Broadcasters argue that Aereo is performing copyrighted works without paying for them, while Aereo says it is providing remote access to over-the-air antennas and DVR functionality over the Internet.
The Obama Administration has sided with broadcasters.
Aereo CEO Chet Kanoja told subs that the service would be off the air in Salt Lake city and Denver beginning Saturday morning, March 8, at 8 a.m.
"We are extremely disappointed that the District Court in Utah has chosen to take a different path than every other Court that has reviewed the Aereo technology," he said in an e-mailed statement.
"Consumers have a fundamental right to watch over-the-air broadcast television via a modern antenna and to record copies for their personal use. The Copyright Act provides no justification to curtail that right simply because the consumer is using modern, remotely located equipment."
Thanks to Michael Kilgore of FTABlog.com for passing along the subscriber statement.
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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.