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Appeals Court Denies Aereo's Request for New Hearing

The digital TV company wanted to present its "cable system" argument

 Aereo CEO Chet Kanojia - P 2013
Aereo CEO Chet Kanojia

Aereo is officially on the ground floor again.

On Thursday, the 2nd U.S. Circuit Court of Appeals told Aereo that further proceedings in the TV broadcasters' lawsuit will take place at the district court. There, broadcasters are aiming to have the judge impose a broad injunction that would stop the digital company from "streaming, transmitting, retransmitting, or otherwise publicly performing any Copyrighted Programming over the Internet … or by means of any device or process throughout the United States of America."

After the Supreme Court dealt Aereo a crushing blow on June 25, the company attempted to save itself in a July 24 letter to the 2nd Circuit asking for "further consideration of the preliminary injunction issues," specifically, whether Aereo is a "cable system" entitled to a statutory license.

But on Thursday, the 2nd Circuit made it official by vacating the district court's old order denying the preliminary injunction. In a short mandate, the 2nd Circuit denied Aereo's request, stating, "We leave it to the district court to consider whether the issues are properly raised in these cases and, if so, to rule on the issues in the first instance."

Aereo will soon respond to the broadcasters' new motion for preliminary injunction and has signaled its intent to argue that it should be treated as a cable operator since the Supreme Court likened it to one. The defendant hopes that this means it should be able to attain retransmission rights under Section 111 of the Copyright Act.

However, it's an uphill argument since U.S. District Judge Alison Nathan will have to read Supreme Court Justice Stephen Breyer's opinion broad enough to have overturned or not implicated 2nd Circuit precedent (WPIX v. ivi) holding that Section 111 is meant to encompasses services that are "regulated as cable systems by the FCC," and not Internet retransmissions.

Email: Eriq.Gardner@THR.com
Twitter: @eriqgardner