Supreme Court to Hear ABC v. Aereo April 22

WASHINGTON—The U.S. Supreme Court has scheduled ABC TV v. Aereo oral arguments for Tuesday, April 22 (not Monday, April 21). The case involves Copyright Act application to streaming of free broadcast TV programs via the Internet to paying customers. Justice Samuel Alito is recused.

Aereo retransmits broadcast TV signals to mobile devices via cloud-based storage priced at $8 for 20 hours a month and $12 for 60 hours. Lawsuits were filed because Aereo does not seek to secure retransmission consent for the TV station signals it offers to subscribers. Federal courts in New York and Boston denied injunctions, triggering a cert petition to the Supreme Court by the plaintiffs. Organizations ranging from Viacom to the National Football League, Major League Baseball and the American Sicety of Composer, Authors and Publishers supported the petition. It was granted Jan. 10. The high court today announced its April schedule, including the oral arguments in the Aereo case.

Aereo beta launched in New York in March of 2012 with financial backing from Barry Diller, chairman of IAC. Diller and Aereo CEO Ken Chet Kanojila claim Aereo is not subject to retransmission consent law because of its technological configuration. Pay TV providers such as cable and satellite services are covered under retrans law in that they take broadcast signals and “retransmit” them to many subscribers, making the configuration a “public performance,” which is subject to retransmission consent fees levied by broadcasters. Aereo is renting tiny, individual antennas to subscribers who access the multichannel service through a cloud-based app, all of which Aereo claims is a “private performance,” akin to the definition laid out in Cablevision, the case that established the legality of the remote, networked digital video recorder.

Aereo has launched in 10 cities—New York, Detroit, Boston, Baltimore, Cincinnati, Salt Lake City, Denver, Atlanta, Dallas, Houston and Miami. San Antonio, Texas, is no deck for a Feb. 19 launch. Recent reports indicate the service ran out of capacity in New York and Atlanta, though Aereo has yet to publish subscriber numbers.