Aereo Won’t Oppose Broadcasters’ Supreme Court Petition
Aereo won’t oppose broadcasters’ attempt to bring their case against the streaming TV service to the U.S. Supreme Court, the company said in a response Wednesday to the broadcasters’ petition for cert. “While the law is clear and the Second Circuit Court of Appeals and two different federal courts have ruled in favor of Aereo, broadcasters appear determined to keep litigating the same issues against Aereo in every jurisdiction that we enter,” said Aereo CEO Chet Kanojia in a released statement. “We want this resolved on the merits rather than through a wasteful war of attrition.” Cert petitions that are supported by both sides aren’t uncommon at the Supreme Court, said Fletcher Heald appellate attorney Harry Cole, who’s not connected to the case. Cole said it’s not clear that Aereo’s lack of opposition would make the case more attractive to Supreme Court justices. “The trouble is you never know how that’s going to go,” he said. The broadcasters’ cert petition asked the Supreme Court to overturn the decision of the 2nd U.S. Circuit Court of Appeals not to grant a preliminary injunction against Aereo to protect the “viability of over-the-air broadcast television” (WID Oct 15 p6).
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The strain of dealing simultaneously with multiple court challenges in several different states has imposed a “direct financial burden on Aereo” and also created “uncertainty that undermines Aereo’s efforts to expand its footprint and further develop its business,” said Aereo’s filing. A Supreme Court decision for or against Aereo would likely short circuit those other cases, bringing a swift end to the litigation against Aereo one way or another, said Pillsbury broadcast attorney John Hane, who isn’t connected to the case. “If this is illegal, you'd rather find out now,” said Hane. “If the Supreme Court decides this is illegal, they're not gonna be sympathetic to the fact that it’s widely deployed."
Aereo said it also supports the cert petition because the previous cases have provided “a well-developed factual record.” Though none of the cases against Aereo has proceeded to the trial stage, Cole said the timing of a Supreme Court case is good for Aereo now because they have all gone in Aereo’s favor. If cases against competing service FilmOn in the U.S. Courts of Appeals for the D.C. Circuit or the Ninth Circuit lead to a circuit split with the 2nd Circuit Court of Appeals that ruled in Aereo’s favor, the record might not be as positive from Aereo’s standpoint, Cole said. If the Supreme Court takes up the case, it should limit its consideration to the questions of copyright and law rather than the facts of Aereo’s system, Aereo said. “The district court’s detailed findings of fact were not challenged before the court of appeals and therefore should not be subject to dispute before this Court,” said Aereo’s filing.
The Supreme Court should take up the case because it concerns rapidly changing technology, Aereo said. “Because of rapid technological development, this case raises an important issue of law that is better resolved by this Court now than later,” said the filing. Broadcasters’ efforts to stop services like Aereo’s “will stifle further innovation” unless stopped by a court decision, Aereo said. The speed aspect of that argument might prove persuasive to the justices, since the case involves an area where tech is advancing faster than legal processes can move, Cole said.
The only objection to the broadcaster cert petition raised in Aereo’s response concerns the way it characterized the service. Though the broadcaster filing characterized Aereo as retransmitting a broadcast to thousands of subscribers, Aereo has always argued that its system of antennas works on an individual basis, with subscribers controlling and watching their own individual broadcasts. The facts established in the lower court proceedings “make clear that Aereo’s users, not Aereo, exercise volitional control over the functioning of Aereo’s system,” said the filing. “Consumers have the right to use an antenna to access the over-the-air television,” said Kanojia. “Eliminating a consumer’s right to take advantage of innovation with respect to antenna technology would disenfranchise millions of Americans in cities and rural towns across the country.” -- Monty Tayloe (mtayloe@warren-news.com)