• by David Goetzl  @dgoetzl, July 17, 2013

If it were an issue divided along strictly partisan lines, Aereo’s ultimate fate might come down to one man. Not Barry Diller or Leslie Moonves or any of the other high-profile combatants battling over the legality of the online streaming service, but Anthony Kennedy.

Judge Kennedy is widely considered the swing vote in the Supreme Court in those 5-4 decisions. But media companies’ desire to shutter Aereo is rooted in copyright law that doesn’t appear to lend itself to the type of predictable voting patterns as some other matters.

So, those reading the tea leaves on how Aereo might fare ultimately will have to take into account how a group of nine judges might feel about its right to exist. A consensus is building that the Supreme Court will decide the matter, mostly because two circuit courts have gone in different directions with decisions.

Major media companies believe Aereo, which streams live TV, is pirating their signals and depriving them of carriage fees and ad dollars.

Based on several rulings, the second circuit in New York has indicated the service is legal, while the ninth circuit in California appears to be leaning the other way. Litigation in both courts continues and some symmetry could result, but that appears unlikely. A new case that has broadcaster Hearst going against Aereo is blooming in the first circuit in Boston, while others could be filed elsewhere, bringing further disagreements.

A ruling Tuesday by an appeals court in New York went Aereo’s way – as have two others in the jurisdiction. It wasn’t unexpected since the court was asked to reconsider a previous ruling.

One clue that the Supreme Court may be the final destination came in a statement from Fox. Instead of offering up that it will simply continue to pursue the case, it said it’s exploring its options, which include the high court.

So, for now, it appears Aereo will keep operating in the New York area and other jurisdictions, but won't be moving into California and other western states anytime soon. Even if the Supreme Court takes the case that could open Aereo up to all 50 states without question, the body doesn’t exactly move swiftly.

A note from Wells Fargo analyst Marci Ryvicker indicated the court is likely to take it up as far down the road as 2015.

Of course, the issue could become moot by then. Aereo will have to build a profitable and viable enough business such that Supreme Court intervention is even needed. The court of public behavior could actually make the final ruling.