Linear over-the-top video provider FilmOn X is not a cable company and isn't entitled to a license to retransmit broadcast content, a D.C. Circuit Court judge has ruled -- a decision that sits opposite to the opinion of an L.A. Circuit judge who handed the controversial streaming service a victory back in July.
U.S. District Judge Rosemary M. Collyer issued a partial judgment on Friday in favor of the plaintiffs, led by Fox Television Stations, Inc., but dismissed their request for a summary judgment on their claim of copyright infringement by the streaming service. The decision was published in a two-page order as Collyer's full opinion is sealed.
FilmOn CEO Alki David told FierceOnlineVideo he wasn't surprised by the ruling, but "Our arguments over this are really irrelevant. The loser in this is the public. ... It's their airwaves. The broadcasters have built their businesses off the back of these airwaves that belong to the public and now the public have been denied."
The ruling doesn't take FilmOn X out of the streaming game -- the provider continues to stream licensed content from online content sources and approved broadcast networks -- but may set up yet another Supreme Court challenge as to where linear OTT services stand in relation to current rules about MVPD (multichannel video programming distributor) classification. Aereo, a linear OTT service that retransmitted broadcast signals via an antenna-cloud DVR setup, lost its Supreme Court case in 2014, setting the stage for FilmOn's current struggles.
The July ruling is still being appealed in the 9th Circuit by major broadcasters opposing FilmOn's stance that it has a right to a compulsory license.
A FilmOn spokesperson said the decision is an "incorrect statutory interpretation" that overlooks technology advancement in favor of big businesses. "The public's right to employ technology to access free-to-air television was at the center of the California court's ruling issued earlier this year. In that case … Judge Wu applied the plain language of the copyright act, finding that FilmOn X may obtain a compulsory license. In light of the conflicting rulings, this may be an issue that is ultimately resolved by the Supreme Court."
FilmOn X is continuing to stream ad-supported content, the spokesperson said, and "continues to expand" its offering.
A Supreme Court challenge may be averted depending on how the FCC votes on a Notice of Proposed Rulemaking that addresses the current definition of MVPDs. A rule change around that definition would bolster FilmOn's contention that it is, for all intents and purposes, an MVPD, despite distributing broadcast signals in a different way than traditional facilities-based distributors.
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