The TV industry has already shut down Aereo at the Supreme Court and driven it into bankruptcy, but that’s apparently not enough: now CBS, Fox, NBC and other big broadcasters are asking a judge to block any asset sale that would allow the defunct streaming TV company to reinvent itself as a cloud-DVR service.
According to bankruptcy court filings, the broadcasters believe that an asset sale could deprive them of the ability to collect copyright damages related to Aereo’s services. Aereo allowed consumers to retransmit and record over-the-air TV signals via their mobile devices. The Supreme Court shut down the service this summer after six of the nine Justices concluded that Aereo required a license.
That ruling effectively ended a bid by Aereo’s investors to create an internet-based TV service, and forced the company into bankruptcy. The issue now is whether Aereo can re-emerge from bankruptcy with a new business model that is based just on its remote recording technology. While the Supreme Court ruled that the portion of Aereo’s service that allowed consumers to watch live TV infringed copyright, it declined to rule on whether Aereo’s cloud-based recording service — which operated akin to a VCR — was legal.
As the court filings show, the broadcasters believe a bankruptcy sale would let Aereo escape this question by relaunching as a new corporate operation. Here’s the key passage from a motion filed this week (emphasis mine):
If Aereo elects to sell its assets, Aereo should not be allowed to use the automatic stay to evade resolution of the issue as to the lawfulness of time-delayed retransmissions. If allowed to do so, Aereo would, in effect, be using the automatic stay as a device to obtain option value from a prospective purchaser willing to gamble on whether time-delayed retransmissions are infringing.
As the passage notes, broadcasters fear that an Aereo sale could force them to start their copyright campaign anew, since a transaction borne of bankruptcy court would let a new corporate entity operate unencumbered from existing litigation. A sale would let Aereo would get a second act under a new name, in other words.
A $90–$100 million tax carryover
Overall, the bankruptcy court filing is also consistent with the broadcasters’ ongoing strategy, which has been to try to drive Aereo deep into the ground rather than grant it a license or negotiate other legal avenues to make the service work. According to a person familiar with the case, this strategy has also included taking a hard line on copyright damage demands. This legal exposure has, in turn, made it impossible for Aereo to find new investors or another company to acquire it.
From the broadcasters’ perspective, their damage demands have not been about recouping actual losses, since Aereo never had more than 100,000 subscribers to begin with (and the TV content in question was free and over-the-air). Instead, the lawsuit has been about exerting maximum control over TV at a time when more consumers are seeking entertainment options on the internet instead of via traditional cable and satellite bundles.
Finally, the bankruptcy court filings show that Aereo appears to have burned through $90 to $100 million after losing its big legal bet on the copyright issue. As the broadcasters note, those losses could be a valuable tax credit to a company that acquires Aereo — though the broadcasters, for their part, are doing their best to ensure that never happens:
In its Sale Motion, Aereo notes that it has a “so-called net loss carryover for Federal tax purposes of approximately $90 million to $100 million.” (Sale Motion ¶16.) Aereo describes this “tax attribute” as an “asset that some parties would find of significant value in connection with a reorganization or other transaction that would preserve the future use of that attribute under applicable law.” (Id.). Thus, Aereo’s proposed sale process appears to be designed in a way that will allow the insiders to retain control of the company and to take advantage of the net loss carryover.
Here’s the motion, which the broadcasters filed in Manhattan bankruptcy court on Monday: