• by Wendy Davis  @wendyndavis, September 11, 2013

Online video company FilmOn X is asking U.S. District Court Judge Rosemary Collyer to reconsider her order prohibiting the company from streaming TV shows in all but three states.

FilmOn X argues that Collyer's order -- issued last Thursday -- will harm the company's ability to compete with Aereo, which also streams over-the-air TV shows. Collyer ordered FilmOn X to stop streaming TV nationwide, except for New York, Vermont and Connecticut -- the three states within the 2nd Circuit, where judges have so far found the company's technology legal.

“Aereo, of course, is not subject to any injunction and may continue to operate,” FilmOn X says in its court papers, which argue that Collyer's order places it at a disadvantage to Aereo.

“Preventing defendants from competing with Aereo on an equal footing in this competitive, growing market is clearly a manifest injustice,” FilmOn X argues. The company says that the near-nationwide injunction will cause it to suffer “extreme revenue losses, market share losses, loss of brand recognition, loss of customer loyalty, lost opportunities with vendors and sponsors and lost goodwill.”

The Barry Diller-backed Aereo, which uses the same technology as FilmOn X, is currently expanding throughout the country. But unlike FilmOn X, Aereo so far has defeated TV broadcasters' requests for a shutdown order.

FilmOn X (formerly called Aereokiller) and Aereo allow people to stream over-the-air TV to iPhones and other devices. The services' users also are able to use the service like a DVR by “recording” programs for later viewing.

Both companies are facing litigation throughout the country by TV broadcasters, which argue that the Web-based services illegally transmit copyrighted material without a license. The broadcasters say the startups are “publicly performing” shows -- activity that must be authorized by copyright holders.

But FilmOn X and Aereo say their services merely provide the technology that enables consumers to watch and record free over-the-air TV. Both companies rely on thousands of small antennas to capture the TV broadcasts, then stream shows to users on an antenna-to-subscriber basis.

So far, Aereo has prevailed in federal court in New York, where the 2nd Circuit ruled that the company is not “publicly” performing the TV shows because its antennas stream them on a one-to-one basis.

But FilmOn X has lost in California, where a trial judge issued an injunction banning the company from operating within nine western states. The 9th Circuit Court of Appeals is currently considering whether to lift that order.

Aereo also is facing a lawsuit in federal court in Boston, where Hearst is seeking an injunction against the company. That matter is pending.

FilmOn is asking Collyer to lift the injunction while it appeals her decision, or to modify its scope by limiting it to the D.C. area. “This Court’s injunction is too broad,” FilmOn says in its legal papers. The company argues that the nearly-nationwide injunction effectively denies judges in other jurisdictions the opportunity to make a decision about the technology.