The U.S. Court of Appeals for the Second Circuit has denied
a broadcaster request that the full court review a three-judge panel of that
court's April decision not to stop Aereo from delivering broadcast signals over
the Internet while a lower court considers a broadcaster challenge to the
The ruling was a succinct denial. "[T]here being no
majority favoring in banc review, rehearing 16 en banc is hereby DENIED,"
the court said. But judges Denny Chin and Richard Wesley issued a lengthy
dissent written by Chin, who was the dissenting vote in the panel decision to
deny the injunction.
"This decision upends settled industry expectations and
established law. It should not be permitted to stand, and the Court should have
taken this opportunity to clarify that Cablevision does not provide 'guideposts'
on how to avoid compliance with our copyright laws. Because it declines to do
so, I respectfully dissent."
April, the Court upheld a District Court denial of an injunction filed by
major 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.
Fox, a lead broadcaster in the suit, said at presstime it
was still considering its legal options.
"The Second Circuit's denial of our request for an 'en
banc' hearing, while disappointing was not unexpected," said Fox in a
statement. "We will now review our options and determine the appropriate course
of action, which include seeking a hearing in the U.S. Supreme Court and
proceeding to a full trial on the merits of the case."
"We are not surprised by this decision, given that requests for a full en banc hearing are rarely granted," said National Association of Broadcasters spokesman Dennis Wharton. "We believe that broadcasters will prevail when this case goes to trial, and that Aereo will be declared a copyright infringer."
"We will continue to pursue legal action to stop unauthorized services from profiting from local stations' programming without permission," NBCU said in a statement to B&C. "We believe the views expressed in Judge Chin's cogent dissent will ultimately carry the day in the national resolution of this issue."