The future is not today, at least for potential subscribers in six Mid-Western states of Utah, New Mexico, Wyoming, Colorado, Kansas, and Oklahoma. The 19 February verdict in favour of broadcasters had its roots in a case which launched last October, when broadcasters challenged Aereo in the 10th Circuit after its launch in Salt Lake City in August 2013 and Denver in November 2013.
This is the first real blow to the company which has enjoyed victories in the North East, in both 1st District (Massachusetts, Maine, New Hampshire, Rhode Island) and the 2nd District (New York, Vermont, Connecticffut). The victories were predicated on the Cablevision nDVR decision of 2008. Prior to the Utah decision, Aereo had not been defeated in court, but then again, this was the first case for the company West of the Mississippi. It was not the first defeat of the technology, however.
In September2013, FilmOn X, a startup with a similar business model to Aereo, suffered the same fate when it was enjoined from operating outside of the 2nd District by the District Court of Washington D.C.
The fate for the two companies is intertwined in the sense that they share the same problem of public versus private performance, and relying on the Cablevision nDVR decision which has not been widely adopted as precedent in this situation. The latest ruling makes the count three victories and three defeats for the combined cases of the two companies, two of which were in the 2nd Circuit. Regardless of what the ruling from the Supreme Court is (trial set to begin in April), it is likely that the issue will be far from forgotten.