Commercial Broadcasters Showdown in DC Federal Court to Stop Programming Re-Transmitter

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Same battle, different forum.

 Fox Televisions Stations, Inc., joined by 10 other plaintiffs, has sued Alki David's Aereokiller LLC and FilmOn.TV in the United States District Court for the District of Columbia to stop unlicensed online streaming of commercial television programming. The 23-page complaint, Fox Television Stations, Inc. et al v. Aerokiller, LLC et al (Case No. 1:13-cv-00758) alleges copyright infringement.

Similar to the battle waged against Aereo by broadcasters transmitting content over the public airwaves (see "TUOL" posts 5/17/13, 8/14/12), the plaintiffs have thus far fared better against David's five-year-old digital tv streaming companies. According to a post by The Hollywood Reporter's THR, Esq. Web site, a California federal court this year issued an injunction against Aerokiller, finding a likelihood that the company was infringing on broadcasters' copyrighted programming. Last month, however, broadcasters were dealt a setback by a federal appeals court ruling in New York that refused to halt Aereo from retransmitting programming over the Internet.

'Streaming Mad' Fox Files Copyright & Trademark Suit Against BarryDriller

(Photo credit: Wikipedia)An offensive against television streaming services was launched last week in the United States District Court for the Central District of California via a four-count, 17-page complaint, Fox Television Services, Inc. et al. v. BarryDriller Content Systems PLC (Case No. 12-cv-6921), that alleges copyright and trademark infringement.

According to accounts by CNN Money and THR, Esq., the plaintiffs claim the signal of  KTTV, Fox's Los Angeles affiliate, is being streamed by the defendant without permission. The complaint alleges the defendant is capturing live broadcast programming and then copying the programming and streaming it over the Internet where the public may view it on Web-enabled devices.

The plaintiffs are seeking monetary damages and injunctive relief against the defendant streaming service, which set up shop on August 7 under the aegis of Alki David. BarryDriller charges users $5.95 monthly to transmit the free tv signals to subscribers' personal antennas.

On the East Coast, free tv broadcasters and content owners are waging war against the digital  tv streaming service Aereo (one of whose financial backers is media maven Barry Diller). A New York judge rejected an injunction request against Aereo in a case that turns, in part, on the issue of whether Aereo's one-on-one streaming transmittal to an individual's miniature antenna constitutes public broadcasting.

UPDATE: FCC Petitions 2nd Cir. for Review of Indecency Standards Ruling

Image via WikipediaThe Federal Communications Commission has petitioned for a rehearing en banc by the U.S. Circuit Court of Appeals for the Second Circuit regarding the appellate court's July decision that the FCC indecency policy was unconstitutionally vague and violative of the First Amendment (See "TUOL" post 7/13/10).

The case, Fox Television v. FCC (Case Nos. 06-1760, 06-2750, & 06-5358) overturned the "fleeting expletives" FCC rule that subjected broadcasters to penalties for non-bleeped on-air expletives. Fox, CBS Broadcasting and others said the rule chilled 1st Amendment speech. U-2's Bono, Cher, and Nicole Ritchie at various times dropped F-bombs that were broadcast and resulted in fines.

A three-judge Second Circuit panel in July ruled the indecency policy under the Administrative Procedure Act [5 U.S.C. sec. 706(2)(A)] was arbitrary and capricious.  The FCC said in its petition that the ruling impedes the agency from enforcing federal statutory restrictions regarding indecent material and is seeking a rehearing of the case or that the full Second Circuit address the matter.




The FCC indecency restrictions cover the broadcast period from 6 a.m. to 10 p.m. when children are most likely to be among viewers.

2d Circ. for 2nd Time Rejects FCC Indecency Standard

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The U.S. Court of Appeals for the Second Circuit ruled this week in Fox Television Stations, Inc. et al. v. Federal Communications Commission (Docket Nos. 06-1760, 06-2750, 06-5358) that the FCC's Indecency Policy toward television airwaves is an unconstitutional violation of the First Amendment.

In 2007, a three-judge panel of the 2d Circuit found the FCC's indecency policy "arbitrary and capricious" under the Administrative Procedure Act( ("APA") [5 U.S.C. sec. 706(2)(A)]. The U.S. Supreme Court reversed the ruling  in Fox Television Stations, Inc. v. FCC, 129 S.Ct. 1800 (2009), upholding the validity of  the APA and ordering the 2d Circuit to consider the plaintiffs' constitutional arguments on remand.

The appellate court concluded the FCC's policy: "violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here." The 2d Circuit, noting in its 32-page decision that the Supreme Court protects indecent speech (Reno v. ACLU, 521 U.S. 844 (1997)), said the FCC's current policy fails constitutional scrutiny, but left open the possibility that the agency conceivably could enact indecency rules that might pass constitutional muster.

The 2d Circuit offered an example of the vagueness of the FCC indecency rules, pointing out that the FCC found the use of the word bullshit in an episode of the now-defunct  cop show NYPD Blue patently offensive, but had no problem with the use of the words dick and dickhead in the same episode. Under its 2001 Industry Guidance, the FCC said finding content indecent required determining: 1) a description or depiction of sexual or excretory organs or activities and 2) the broadcast was patently offensive as measured by contemporary community standards for the broadcast medium.

The appellate court granted the plaintiffs' petition for review.