• by Wendy Davis  @wendyndavis, May 1, 2017

Handing FilmOn another defeat, a federal appellate court said Friday it will not reconsider its recent decision that the streaming video service is ineligible for a cable license.

The decision means that the 9th Circuit Court of Appeals' original order, issued in March, will stand unless FilmOn successfully appeals to the U.S. Supreme Court.

The order says only that two of the judges on the panel that sided against FilmOn voted to deny the company's request for reconsideration, while the third judge on the panel recommended against reconsideration. None of the other 9th Circuit judges requested a vote on whether to rehear the case.

The move marks the latest development in a lengthy battle over whether FilmOn, owned by billionaire Alki David, can legally stream TV programs to consumers without the broadcasters' consent.

The long-running fight has drawn the attention of a host of outside parties, ranging from digital rights groups -- who side with FilmOn -- to other entertainment companies, who are aligned with the broadcasters.

In 2015, after FilmOn had lost a series of other court cases, U.S. District Court Judge George Wu in the Central District of California sided with the company on a key issue: He ruled that FilmOn may be eligible for a compulsory license, which would allow it to stream TV programs.

A group of broadcasters appealed Wu's decision to the 9th Circuit, where they argued that FilmOn didn't meet the Copyright Act's definition of cable system as a "facility" that receives and retransmits signals. The broadcasters also argued that granting over-the-top services compulsory licenses would strip copyright owners of their ability to control the distribution of their work.

FilmOn countered that the Copyright Act should be interpreted in a "technology agnostic manner to include technologies developed over the last 40 years."

The 9th Circuit judges ruled in favor of the broadcasters. Those judges said in the opinion that they were relying on decisions by the U.S. Copyright Office, which has said that Web-only distributors aren't entitled to cable licenses.

FilmOn then unsuccessfully urged the court to reconsider the case, arguing that the judges shouldn't have deferred to the Copyright Office. The company sought a re-hearing in front of 11 of the 9th Circuit's 29 judges.

In addition to the fight in California, FilmOn has argued to two other appellate courts -- the D.C. Circuit and 7th Circuit -- that it's entitled to a compulsory license. Those cases are still pending.