Fox, PBS, Seek Full-Court Review Of Aereo Decision

Say Decision Guts Congressional Directive on Retransmissions; Fox gain Raises Specter of Moving to Cable Delivery Model

Fox and other broadcasters have asked for en banc (full court) re-hearing by the Second Circuit federal appeals court of the decision by a three-judge panel of that court not to prevent Aereo from streaming TV station signals while a district court weighs the broadcasters' challenge to that service.

In the petition for a full hearing--the decision by the three-judge panel was 2-1--Fox, WPIX, WNET, Univision, and PBS said that the decision to deny the injunction "guts" a 1976 decision by Congress to treat all services that retransmit broadcast programming to the public as being engaged in "public performances" and "thus needed a license from the copyright holder, which Aereo does not have.

"Unless reversed," they argued "the decision will wreak commercial havoc by allowing new and existing distributors to design around this license requirement and profit from the delivery of copyrighted programming while paying nothing for it."

They said that unless the full court overrules the panel, the ruling will have created a loophole that will "swallow" the entire retransmission consent regime.

Broadcasters have been increasingly relying on retrans payments as a needed additional revenue stream in competition to a host of new video distribution outlets.

Fox said that Time Warner Cable and Dish are already threatening to partner with Aereo or copy the model. Aereo says it is simply providing remote access to antennas and the free over-the-air signals their subs are entitled to.

Fox also raises the spectre once again of being "forced to consider converting their broadcast networks to subscription-based cable channels."

In an April 1 decision, which was not a joke to broadcasters, the three-judge panel upheld a District Court denial of an injunction filed by broadcasters seeking to stop the company from streaming TV station signals to subscribers without permission or payment. The District court has yet to rule on the underlying broadcaster challenge, but the denial of the injunction means Aereo can continue to stream the signals. It also means that if the broadcasters were to lose in the district court, they would face an uphill battle on appeal, at least on the copyright argument.

In rejecting that injunction, the court also signaled it did not accept yhe broadcasters' arguments that the service violated copyright law. "We conclude that Aereo's transmissions of unique copies of broadcast television programs created at its users' requests and transmitted while the programs are still airing on broadcast television are not 'public performances' of the Plaintiffs' copyrighted works under Cablevision,” the court said.  “As such, Plaintiffs have not demonstrated that they are likely to prevail on the merits on this claim in their copyright infringement action."