For the third time, legal action from the four largest commercial television networks to shut online streaming service Aereo has been denied.

In a 10-2 decision, with one recusal, the 2nd Circuit Court of Appeals denied an attempt to re-hear the case by the full appellate court.

Following disposition of this appeal on April 1, 2013, Plaintiffs-Appellants filed petitions for rehearing in banc. An active judge of the Court requested a poll on whether to rehear the cases in banc. A poll having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby denied.

Circuit Judge Denny Chin strongly dissented from the majority’s decision, joined by Circuit Judge Richard C. Wesley. Chin firmly took the side of the broadcasters, fearing if Aereo was permitted to continue operating, it could quickly mean the end of free over-the-air television. He believes the service exists only because of a precarious loophole:

“The majority’s decision elevates form over substance. It holds that a commercial enterprise that sells subscriptions to paying strangers for a broadcast television retransmission service is not performing those works publicly. It reaches that conclusion by accepting Aereo’s argument that its system of thousands of tiny antennas and unique copies somehow renders these transmissions “private.” In my view, however, the system is a sham, as it was designed solely to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law….”

Just about every over-the-air network and major station in the New York City area is opposed to Aereo. Among those filing suit against its continued operation:

• Networks: ABC, CBS, NBC, FOX, PBS, Univision, and Telemundo
• Stations: WNET, WPIX, WNJU

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/Bloomberg IACs Diller Says Aereo Is Not a Threat to Anyone 7-10-13.flv[/flv]

Barry Diller, the force behind Aereo, tells Bloomberg News he expected to get sued when he provided viewers with an alternate way to watch television. Diller says networks and stations are simply uncomfortable with change and that Aereo poses no threat to them. (3 minutes)

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/Bloomberg Aereo Not a Blip on Broadcasters Radar 6-27-13.flv[/flv]

Bloomberg Industries director of North American research Paul Sweeney looks at Aereo’s impact on television broadcasters and how it could eventually threaten their revenue streams. He speaks on Bloomberg Television’s “In The Loop.” (2 minutes)

Back in the fall of 2010, British billionaire Alki David fired a salvo against major broadcast networks in the United States and United Kingdom with the introduction of FilmOn, an online cable system offering unlimited viewing of broadcast networks from both countries for around $10 a month. By early 2011, lawsuits from various networks forced the removal of the most-watched channels, and most of the incentive for subscribers to keep paying for the service.

But David has never given up on FilmOn, and borrowing a page from Aereo’s business plan, he has brought back most of the major American networks on his relaunched platform, dubbed AereoKiller.

The company claims it is now using individual over-the-air antennas to receive broadcast stations from the New York or Washington, D.C. area, selling 24/7 streaming access for $9.99 per month or $99 a year. DVR service is sold at prices ranging from $2.95 a month to $190 a year, depending on the number of hours recorded.

Among the stations included:

New York

• WCBS (CBS)
• WNBC (NBC)
• WNYW (FOX)
• WABC (ABC)
• Bounce TV (via WWOR subchannel)
• WPIX (CW)
• WNET (PBS)/WNET-Kids
• WNJU (Telemundo)

Washington, D.C.

• WRC (NBC)
• WTTG (FOX)
• WJLA (ABC)
• WUSA (CBS)

There seem to be no geographic restrictions to prevent out of area viewers from subscribing, and FilmOn offers viewing on the desktop, as well as through iOS and Android apps.

David

FilmOn may have avoided streaming west coast stations because a California court found in favor of broadcasters who sued to shut down the operation three years earlier. But it ultimately will not keep David’s upstart service out of the courts in the east.

Last week, three major television networks and Washington, D.C. station owner Allbritton Communications filed suit against FilmOn for streaming signals from the nation’s capital without permission.

Based on the track record of earlier ventures, customers may want to avoid subscribing at the annual package price. Historically, broadcasters have fought and won temporary restraining orders that block the streaming services until the case makes its way through legal proceedings. Aereo, which streams New York area television stations exclusively to New York City customers has proven the exception and continues to run, at least for now.

Broadcasters consider stopping “dime-sized” antenna farm streaming services like Aereo and AereoKiller a top priority, because networks and local stations earn lucrative retransmission consent rights fees from cable, satellite, and telco-TV providers used by at least 90 percent of the viewing audience. Should these alternative technologies be found legal and not in violation of copyright, pay television providers could potentially license and incorporate similar technology into their respective set-top boxes and avoid paying license fees to station and network owners.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/FilmOn Introduction 5-13.mp4[/flv]

FilmOn’s introductory promotional video features some boastful claims from founder Alki David that are perhaps more wishful thinking than reality, but PlayOn has persisted despite broadcaster lawsuits by creating and distributing original live and recorded programming.  (8 minutes)

Since introducing its version of TV Everywhere more than a year ago, one of the most frustrating aspects of Time Warner Cable’s video streaming service has been it only works within your own home over the cable company’s own broadband service. As of tomorrow morning, that will change. If you own an Apple iOS tablet or smartphone, the cable company’s new version of its TWC TV app (free) will bring streamed and on-demand programming from a handful of cable networks regardless of where you happen to be.

There are several limitations however:

1. Having access to a Wi-Fi network while on the go will be a big help. Streaming access over 3G/4G service will initially be limited to Verizon Wireless customers, perhaps a fringe benefit of the agreement between Verizon and Time Warner Cable to collaborate in cross-marketing services;
2. Only nine cable networks and one Time Warner Cable-owned news channel will be available for live streaming when the service launches. None of them are particularly compelling. Programmers are fearful that streaming access outside of the home may open up cable programming to non-paying customers with access to a shared password;
3. Fox News Channel and Fox Business were reportedly going to be available as of tomorrow, but Time Warner Cable’s official blog post omits the two networks;
4. Android and desktop users will have to wait until summer to get the upgrade, an annoying prospect considering Android users now outnumber Apple iOS users, who have to wait.

The online programming guide is also being revamped to help users find TV channels and online on-demand content more quickly.

The initial out-of-home On Demand library offers over 1,100 hours of programming from the following providers:

BBC America
BET
CBeebies
CMT
Comedy Central
Cooking Channel
DIY
FEARnet
Food Network
Hallmark
HGTV
Logo
MTV
MTV2
Nick Jr.
Nickelodeon
Palladia
Spike
TeenNick
Travel Channel
Tr3S
TV Guide Network
TV Land
UniMas
Univision
VH1
VH1 Classic

Live TV streaming will be available from the following national networks:

Aspire
BBC America
beIN Sports (English/Spanish)
FearNet
GMC
Pac-12
TVGuide Network

Additionally, all Time Warner Cable local news channels will eventually be available out of home, though all local news, traffic and weather channels may not be available immediately. The following news channels will be available at launch:

NY1
NY1 Noticias
News 14 Carolina
YNN (New York and Texas)

Fox Television’s over the air signal may be scrambled and available “only by subscription” if the courts do not reverse their decision to allow an upstart television streaming service to continue operations while a broadcaster-backed lawsuit works through the legal system.

Aereo has been streaming New York City local stations to area residents that lease a tiny dime-sized antenna and receive the stations via the Internet. Broadcasters consider Aereo an end run around copyright law and retransmission consent fees paid by cable, satellite, and telco-TV operators. With millions in licensing fees at stake, several networks immediately filed suit to force the service to suspend operations.

But the 2nd Circuit Court of Appeals ruled in a 2-1 decision last month that Aereo’s streaming service did not represent a “public performance,” meaning the company was not infringing on the copyrights of broadcasters. Until a final court ruling is made, Aereo can continue operating, the judges ruled.

That decision prompted a hissy fit by News Corporation’s president and chief operating officer, who declared he is considering turning the Fox television network into a subscription-only service, potentially meaning the service would be scrambled and unavailable for free over-the-air in the future.

“Aereo is stealing our signal,” Chase Carey said at the opening of the National Association of Broadcasters’ convention is Las Vegas last night. “If we can’t have our rights properly protected through legal and governmental solutions, we will pursue business solution. One solution would be to take the network and make it a subscription service. We’re not going to sit idly by and let people steal our content.”

[flv width=”640″ height=”380”]http://www.phillipdampier.com/video/Bloomberg News Corp to Take Fox Off Air If Courts Back Aereo 4-8-13.flv[/flv]

Bloomberg Television explores Fox’s “nuclear option” of scrambling its broadcast outlets and forcing all Americans to pay for its content. (2 minutes)

[flv width=”384″ height=”236″]http://www.phillipdampier.com/video/CNN Money Aereo TV 3-13.flv[/flv]

CNN Money explains Aereo and its threat to the traditional broadcast retransmission consent fee system that has made over-the-air networks highly profitable with subscriber fees paid by your cable, satellite, or telco-TV provider and passed on to you in the form of higher cable or satellite bills.  (2 minutes)

Verizon and Redbox will launch an unlimited online video streaming service next year that will undercut Netflix’s monthly subscription price and offer discounts off movies rented from Redbox’s ubiquitous DVD kiosks.

Details emerged about Redbox Instant when GigaOm discovered the online help section intended to assist beta test customers was initially available to the public.

Some of the points GigaOM uncovered:

• Subscriptions start at $6 a month, but the number of movies and TV shows available will be considerably smaller than what Netflix offers. There will also be a considerable amount of title duplication between Netflix, Amazon Video, and Redbox Instant;
• For $8 a month, the service will also bundle four Redbox credits redeemable for kiosk rentals, with movie reservations taken online and through mobile apps. Unused credits expire at the end of the month;
• In addition to online viewing, customers can also watch on Android/iOS devices, Xbox 360 and select Samsung Smart TVs and Blu-ray players;
• Newer titles will be available on-demand starting at $0.99 each;

Redbox is accepting e-mail addresses of potential customers interested in more information about the service. It is very possible the venture will expand its beta test, inviting those pre-registered to try the service before it is formally introduced to the public.

Some investors on Wall Street have gotten increasingly jittery about Netflix’s largest competitors, because all of them operate diverse businesses that can help subsidize entertainment licensing costs and still undercut Netflix pricing. Amazon charges $79 a year for its Amazon Prime + Video service. Comcast offers its service at $4.99 per month. Netflix has already been under pressure to raise prices even before signing an exclusive streaming deal with Disney estimated at a value of $300 million per year.

“That figure is ironic to say the least because $300 million is what Starz demanded of Netflix 15 months ago as condition for renewal of that exclusive arrangement, and Netflix turned that bid down,” said Eric Savitz in Forbes. “Now, it appears Netflix is paying $300 million per year for the Disney-branded content which would have been on Starzplay in the first place.”