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Fox Denied Rehearing in Case Seeking to Shut Down Dish’s Ad-Skipping DVR

Fox Broadcasting has struck out — again — in federal court in its efforts to block the automatic ad-skipping feature of Dish Network’s Hopper digital video recorder.

The U.S. Court of Appeals for the 9th Circuit on Friday unanimously denied a Fox petition to rehear the court’s July 2013 ruling, upholding a lower court’s decision that denied the broadcaster a preliminary injunction seeking to bar the Hopper DVR’s AutoHop function.

Fox said in a statement, “We are disappointed in the decision but recognize that preliminary injunctions are rarely overturned on appeal. This ruling was based on a factual record from more than a year ago. Now that we have gathered more evidence, we are confident that we will ultimately prevail on all of our claims.”

Fox, along with ABC, CBS and NBC, have been fighting the Hopper’s PrimeTime Anytime feature, which records primetime shows on each of the four broadcast nets and saves them for up to eight days and lets users automatically skip through ad breaks. In its suit, Fox alleged AutoHop infringes copyrights in part because the DVR makes “quality assurance” copies of programming to make sure that the featuring is working.

Dish general gounsel R. Stanton Dodge said in a statement: “With this decision, the Court continues to reject Fox’s efforts to deny our customers’ access to PrimeTime Anytime and AutoHop — key features of the Hopper Whole-Home HD DVR. This is a victory for American consumers, and we are proud to have stood by their side in this important fight over the fundamental rights of consumer choice and control.”

In another suit, Fox was trying to shut down the Hopper’s Slingbox-based place-shifting features, which let customers access live TV and DVR recordings over the Internet. The 9th Circuit denied that request last September.

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