Over-the-Top TV Heads Back to Court

Oral arguments are scheduled for March 16 in Fox Television Stations, Inc. v. FilmOn

The question of whether internet retransmitters of TV station signals are eligible for the compulsory license that cable multichannel video programming distributors can access will go before an appeals court this week. It’s the next step in what has been a years-long legal battle in multiple courts over the status of over-the-top delivery of TV stations.

Oral arguments are scheduled for March 16 in the U.S. Court of Appeals for the D.C. Circuit in Fox Television Stations, Inc. v. FilmOn. TV Networks Inc.

FilmOn is challenging a lower court decision that deferred to the Copyright Office’s advisory that internet-based retransmission services are not eligible for the license available to cable systems, a license that allows them to carry broadcaster signals under a blanket license—which is, somewhat confusingly, separate from the local content of those signals, which cable operators must negotiate for individually in retrans deals.

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The Copyright Office advisory came with the caveat that the FCC could resolve the question by clarifying the definition of MVPD, and FCC chairman Tom Wheeler proposed defining internet video services such as FilmOn as MVPDs. But that effort fizzled out.

A compulsory license would allow FilmOn X (formerly Aereokiller) to deliver TV-station programming from the major networks at a government-set rate, rather than having to negotiate for it individually.

FilmOn X has said it is the equivalent of a cable system and should have the same compulsory license that MSOs can get.

Fox and the other Big Four TV networks—with the support of the National Association of Broadcasters and many others—have said FilmOn is not entitled to the license.

On the other coast, FilmOn and Fox et al. are awaiting a ruling from the 9th U.S. Circuit Court of Appeals on a decision by a different lower court judge that FilmOn is eligible for a compulsory license.

If the 9th Circuit upholds that decision in favor of FilmOn and the D.C. circuit upholds the decision against it, there would be a split circuit, in which case the Supreme Court would likely have to weigh in to resolve it.