Aereo Update: Second Circuit Nixes En Banc Review

Procedural rejection does not resolve merits of broadcasters’ case.

Put another one in the “W” column for Aereo. The Second Circuit has denied the petition for en banc review filed by the broadcast plaintiffs last April. 

It may be some comfort to the broadcasters that the Court’s decision technically did not address the merits of the case. That’s because of the nature of en banc procedures. As we previously summarized that process, when a petition for en banc review is filed, the petition is circulated to all the active judges on the Circuit. If any of them asks for a vote to be taken on whether or not to grant en banc review, then all the active judges are polled. Note that they’re not polled on the bottom line substantive issue(s) involved; rather, they’re just polled on the limited question of whether the Court should agree to let the parties slug it out before the full Court.

In this case, one active judge (we’re guessing that was probably Judge Chin) did ask for a vote, and the bottom line was 10-2 in favor of not reviewing the earlier panel decision. So there will be no en banc review.

It should come as no surprise to folks who have been following the Aereo case that the two judges who dissented – that is, the two who wanted the Court to take on the case en banc – included Judge Denny Chin. (The other dissenter was Judge Richard Wesley.) Judge Chin, of course, is the judge who dissented from the panel decision in the Aereo case in April. And before that, Judge Chin presided over the trial of the Cablevision case. He held for the broadcasters/program producers in that case, but was reversed by the Second Circuit in 2008, in a decision that his two colleagues on the Aereo panel relied on extensively.

Judge Chin’s 30-page dissent provides the broadcast plaintiffs yet another road map to the Supreme Court. He again takes pains to lay out, in detail, all the reasons why Aereo’s arguments don’t, or shouldn’t, hold water. The fact that he has thus far been unable to persuade any of his colleagues (other than Judge Wesley) of the soundness of his views does not appear to have weakened his commitment to those views.

So where do we go from here?

The broadcasters have a choice. Bear in mind that the Second Circuit’s April decision concerned the trial court’s denial of preliminary injunctive relief. That means only that Aereo was permitted to continue to operate while the trial itself went ahead. The trial is indeed going ahead – it’s still in the discovery phase (which is currently set to wrap up at the end of October) – although Aereo has sought summary decision. In other words, at this point the parties are still probably months away from any disposition on the merits of the broadcasters’ claims in the trial court. 

That being the case, the broadcasters might opt to take no further action in response to the denial of their initial en banc effort, and instead press forward in the trial court, seeking perhaps to assemble a stronger factual showing than before.

Alternatively, the broadcasters might decide to seek Supreme Court review of the Second Circuit’s April decision. While they cannot now claim any “circuit split” on the underlying copyright issues, they could certainly point to the decision of the Federal judge in Los Angeles in the Aereokiller case as an indication that the Ninth Circuit may disagree with the Second Circuit. (By the way, Aereokiller’s appeal of that lower court ruling has now been fully briefed in the Ninth Circuit; oral argument is currently scheduled for late August.) And Judge Chin’s dissents – both to the April panel decision and to the denial of en banc review – also identify issues and arguments that might get the Supremes’ attention.

Petitions seeking Supreme Court review (we call them cert petitions, or petitions for certioriari – feel free to use the technical term to impress your friends) are due within 90 days of the entry of judgment in the Second Circuit, so the broadcast plaintiffs have some time to decide how they want to line up this particular shot. With the Ninth Circuit set to hear the Aereokiller appeal before September, the possibility still looms that a head-on conflict between the Second and Ninth Circuits will indeed materialize. Check back here for updates.

We should also note in passing that at least one broadcaster has sued Aereo in U.S. District Court in Boston – First Circuit territory. But that case is in its earliest stages, and it seems unlikely that we’ll be seeing any decisions out of the Boston court that might influence the immediate decisions of the Second Circuit parties. But you never know.

[Blogmeister's Update: Since the above was posted, we have confirmed that oral argument in the Aereokiller case in the Ninth Circuit has been set for Tuesday, August 27.  The Court has allotted a whopping 20 minutes per side -- a near-eternity when it comes to arguments in the court of appeals.]

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