• by Wendy Davis  @wendyndavis, October 18, 2013

Online video company FilmOn TV says it conducted a brief test of its service in New England last week, despite an injunction prohibiting the company from streaming TV programs in that part of the country.

FilmOn X CEO Alki David makes that statement in a declaration filed on Thursday with U.S. District court Judge Rosemary Collyer, who earlier ordered the company to refrain from streaming over-the-air TV programs. David says that FilmOn X began testing its technology in New England last week, shortly after a federal judge in Boston allowed Aereo -- which uses similar technology as FilmOn X to continue operating.

“The testing was only done within the geographic limits of the First Circuit periodically over a span of two to three days, and only so that defendants could begin offering their services immediately if the order was modified,” David writes. The 1st Circuit includes Massachusetts, New Hampshire, Maine and Rhode Island.

On Tuesday, Collyer rejected a request by FilmOn X to modify her order, which bans the company from streaming TV shows throughout the country except for three states within the 2nd Circuit: New York, Vermont and Connecticut. The reason those states aren't included in the ban is that the 2nd Circuit ruled that Aereo doesn't appear to infringe broadcasters' copyright.

FilmOn X unsuccessfully argued that the states within the 1st Circuit also should be exempted from the ban. Collyer disagreed, ruling on Tuesday that a separate judge's order in favor of Aereo doesn't require her to lift her ban on the company. Collyer also said that FilmOn X appeared to be violating the injunction by “retransmitting plaintiffs’ copyrighted broadcast programming in the Boston area.” She directed the company to explain why it shouldn't be held in contempt.

The company said in court papers filed on Thursday that it “has consistently acted in good faith and has taken prompt steps to ensure ongoing compliance with this court’s preliminary injunction.”

The company is once again asking Collyer to reconsider her order banning the company from operating in New England. “The practical effect of this Court’s nationwide injunction is to prohibit FilmOn X from operating in the First Circuit where a sister court has issued a ruling that allows FilmOn X’s competitor, Aereo, to engage in the exact same conduct,” the company argues.

Like the Barry Diller-backed Aereo, FilmOn X allows people to stream over-the-air TV programs to iPads, iPhones and other devices. The companies also enable subscribers to record shows and stream them later.

TV broadcasters have sued the services for allegedly infringing copyright by transmitting TV shows without licenses. But both companies say their services are legal due to their design, which relies on thousands of antennas to capture over-the-air broadcasts and stream them to users.

The case in front of Collyer is one of five pending lawsuits against Aereo and FilmOn X. So far, courts have sided with Aereo in New York and Boston. A third lawsuit against Aereo in Utah hasn't yet resulted in any decisions.

FilmOn X has so far lost in trial courts in Los Angeles and Washington, D.C. FilmOn X is appealing both of those rulings. The upshot of the recent rulings is that Aereo can roll out its service in most of the country, but FilmOn X isn't allowed to operate anywhere except for New York, Vermont and Connecticut.

The company's admission that it tested its service last week isn't likely to help its case, says University of Maryland law professor James Grimmelmann. “FilmOn could easily have avoided this by not testing with the plaintiffs' channels, or -- better yet -- by not testing at all,” he tells Online Media Daily. He adds that FilmOn's testing, conducted on the assumption that Collyer would modify her ruling, “does not exactly show the right level of respect for the court's order.”

He says: “I can't imagine that this will help FilmOn's attempt to have the injunction modified.”