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Aereo can't operate as cable company, appeals court denies request

updated 11:49 pm EDT, Thu August 21, 2014

Startup will need to take the case district court if it wants to continue fighting

Aereo, the broadcasting startup that allowed users to rebroadcast and time-shift over-the-air (OTA) programming, appears to be running out of ways to stay alive. According to documents acquired by the Washington Post, the United States Court of Appeals for the Second Circuit has denied the company's recent request to reconsider the case.

The company had petitioned the court under the pretense that it should be considered a "cable system" that was entitled to statutory content licenses. In a bid to survive, Aereo submitted a filing last month, backtracking on the argument it presented before that it wasn't a cable company. In the initial case, the company stated that it didn't qualify as a cable provider and wasn't providing a public performance, therefore the rules for Internet retransmission didn't apply. Unfortunately for Aereo, the Supreme Court disagreed.

The Supreme Court believed that the service "is for all intents and purposes a traditional cable system." Aereo shifted tactics, deciding to argue the case to the Appeals Court agreeing with the Supreme Court's view, issuing a letter to the Court of Appeals on July 9 that asked the court to reconsider the case on the idea that it was a cable company . By considering itself a cable company that should have content licenses, Aereo would then pay only royalty fees on broadcasts. It would give the startup a chance to survive while it either changed its business model or continued fighting the case.

The Court of Appeals didn't bite, leaving the preliminary injunction the Supreme Court issued in place. In the court document, it said that if Aereo wants to continue fighting the ruling, it will have to do so in district court. For now, not much changes for Aereo, since it had already shut down voluntarily following the Supreme Court ruling. The refusal to reconsider the case marks another win for broadcasters that originally wanted the service stopped.

If the company chooses not to pursue the case in district court, it will have to think about what direction it can go in the future. Aereo could change the type of services it offers by utilizing over-the-air broadcasts without live streaming or rebroadcasting. The company could focus on some of the technology as well, offering digital video recorders or attempting finding another use for its small antenna arrays.

by MacNN Staff



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