Aereo Cert Day - January 13, 2014?

Supreme Court docket listing suggests decision on whether or not to take the Aereo case is imminent.

OK, it’s obviously way too early for your office’s Final Four pool or even the Super Bowl® pool, but no problem: the time is just right for organizing an Aereo Cert pool!

Will the Supreme Court agree to hear the broadcasters’ appeal of the Second Circuit’s denial of their efforts to put a temporary kibosh on Aereo’s operations in the Big Apple or not?  According to the Supremes’ docket listings, that question is currently scheduled to be considered by the Justices in their closed-door conference on January 10, 2014 – which means that it’s très très likely that we’ll find out the answer mid-morning on January 13 (the next day on which the Court will be sitting).  So get that pool started because time is short!

Regular readers will recall that, when last we left the Second Circuit phase of the Aereo saga, broadcasters had tried three separate times – first before the presiding U.S. District Judge, then before a three-judge panel of the Second Circuit, and finally before the Second Circuit en banc – to get Aereo shut down at least until their copyright infringement lawsuit against it can be completed.  The broadcasters got nowhere in any of those three fora.

You might think that, having whiffed three times, the broadcasters would be out – but they had one more chance: the Supreme Court.

So they submitted a petition for writ of certiorari ( “cert petition” to the cognoscenti) to the Supremes, asking it to review the case.  The problem is that the Court routinely denies the vast majority of such petitions (about 99%, according to the Court’s website), usually with nothing more than a terse unsympathetic-but-direct order (reading, in toto, “The petition is denied”). So the odds against the broadcasters are probably long.

But then Aereo told the Court that it, too, would like the Court to take the case now.  As the Swami observed, while that development does not by any means guarantee the Supremes will grant the cert petition, it certainly doesn’t hurt the chances.  Neither, presumably, do the eight (count ‘em, eight!) amicus briefs by the likes of the NAB, the NFL, MLB, the Copyright Alliance (along with “Various Professors”) and ASCAP.

One more thing you should know about the cert process before you opt in or out of the pool: even though there are nine Justices on the Supreme Court, it takes only four votes to get a cert petition granted.  And a wild card: we don’t know for sure that all nine Justices will participate, since one or more recusals are always possible.

So let the fun begin!  The most obvious point of contention will be on the yes-or-no question of whether cert is granted.  But the possibility of side action exists. If cert is denied, will any justice dissent (and if so, which one(s))? If cert is granted, will the case be heard on an accelerated basis so that it can resolved this term (i.e., by the end of June), or will it be set for argument next fall?  Whichever way the cert decision goes, how long will it take the prevailing party to formally pass that word along to the judges presiding over broadcaster-vs.-Aereo litigation in the various other jurisdictions – and will such notification have any effect on the progress of such litigation?

Check back here for updates.  We’ll report the news as soon as we get it – possibly by January 13.

[Blogmeister’s Note: This post should NOT be interpreted as encouraging gambling of any sort. Rather, it is an educational effort to introduce our readers to the arcane world of Supreme Court litigation through the suggested mechanism of a friendly competition-based approach intended to interest and enlighten.  Void where prohibited.  No purchase necessary.  Not a flying toy.]

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Comments (1) Read through and enter the discussion with the form at the end
annoanalyst - January 2, 2014 11:37 PM

The cable, the satellite and the telcos are a threat to broadcast segment and not Aereo.

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