UPDATE: I just read ABC's final reply brief [1], where they argue that Fortnightly and Teleprompter don't apply because of 17 USC 111(c), drafted by Congress just after those cases.
17 USC 111 says cable companies can retransmit, but only for a fee.
I see three reasonable interpretations of this result:
1. Aereo can retransmit, just has to pay licensing fees.
2. 17 USC 111 does not apply at all to Aereo, because Aereo is not a cable company, therefore the old precedents stand, and Aereo can retransmit without any fees.
3. Congressional action set the precise requirements for anyone to retransmit (ie, you must be a cable operator), and thus Aereo is flat out prohibited from rebroadcasting at all.
All of these seem prima facie reasonable, there's lots of room for judicial interpretation. I think there's a strong case to be made for 2, since Congress only took two years to respond to rulings before. Congress has demonstrated competence here, it can patch its out of date laws without requiring the Supreme Court to start radically reinterpreting "cable operator" to mean "any internet company." The Supreme Court therefore should just interpret as strictly as possible, doing as little work for policymakers as necessary. That means 17 USC 111 doesn't apply to Aereo at all, and we're left with valid Supreme Court precedents to control the case. If Congress doesn't like it, they can explicitly clarify 17 USC 111 at any time.
17 USC 111 says cable companies can retransmit, but only for a fee.
I see three reasonable interpretations of this result:
1. Aereo can retransmit, just has to pay licensing fees. 2. 17 USC 111 does not apply at all to Aereo, because Aereo is not a cable company, therefore the old precedents stand, and Aereo can retransmit without any fees. 3. Congressional action set the precise requirements for anyone to retransmit (ie, you must be a cable operator), and thus Aereo is flat out prohibited from rebroadcasting at all.
All of these seem prima facie reasonable, there's lots of room for judicial interpretation. I think there's a strong case to be made for 2, since Congress only took two years to respond to rulings before. Congress has demonstrated competence here, it can patch its out of date laws without requiring the Supreme Court to start radically reinterpreting "cable operator" to mean "any internet company." The Supreme Court therefore should just interpret as strictly as possible, doing as little work for policymakers as necessary. That means 17 USC 111 doesn't apply to Aereo at all, and we're left with valid Supreme Court precedents to control the case. If Congress doesn't like it, they can explicitly clarify 17 USC 111 at any time.
[1] http://www.americanbar.org/content/dam/aba/publications/supr...