Courts Will Also Judge Online Video’s Status


WASHINGTON — The courts could also play a key role in determining how over-the top video providers will compete with traditional multichannel video program distributors, for whom broadcast-station carriage is a key offering.

Aereo: The Barry Diller-backed subscription service Aereo TV won a big victory in July when a federal judge denied broadcasters request for a preliminary injunction and refused to shut the service down, indicating Aereo would likely prevail in a lawsuit against it brought by major broadcasters.

Broadcasters have sued the service, arguing that the company was “misappropriat[ing]” copyrighted material and retransmitting it over the Internet without compensation. Judge Alison Nathan of the U.S. District Court for the Southern District of New York, in denying the preliminary injunction, disagreed.

The judge agreed with Aereo that it was providing individual antennas and found no appreciable difference between Aereo’s model and Cabelvision’s remote Remote Storage-DVR product, which the 2nd U.S. Circuit Court of Appeals found to not be in violation of copyright law.

Ivi: In a decision three weeks ago that went in broadcasters’ favor, the 2nd Circuit upheld a preliminary injunction against streaming service ivi, preventing it from distributing TV station signals over the Internet.

In that case, the court said, “continued live retransmissions of copyrighted television programming over the Internet without consent would … threaten to destabilize the entire industry.”

Net neutrality: On a separate track — but one that could run into over-the-top access issues — the FCC is battling cellphone providers Verizon Wireless and MetroPCS in court over its network-neutrality rules.

The FCC last week filed its brief in defense of those rules.

One of the reasons the FCC cited for adopting the rules was so that ISPs would not be able to discriminate against the delivery of online content by competitors.


The FCC last week told the U.S. Appeals Court for the D.C. Circuit just why it should uphold the commission’s network-neutrality rules, which have been challenged by Verizon and MetroPCS:

1. The commission was reasonable in interpreting that it had direct authority to implement open Internet rules.

2. The FCC reasonably determined that the rules would advance its statutory mandate to protect innovation, investment and competition.

3. The FCC properly determined that its rules do not treat broadband providers as common carriers.

4. The rules do not violate the First or Fifth Amendments.

5. The rules are based on “substantial evidence.”

SOURCE: Federal Communications Commission