Opinion
Civil Action 2:08-cv-00605.
April 7, 2010
ORDER
Plaintiff DIRECTV, Inc. ("DIRECTV") brings this action against defendants Roy K. Walls, Jr. individually and d/b/a Jack's Corner Pub for willfully receiving and displaying satellite programming to the public for commercial benefit or financial gain without proper authorization. This matter is before the Court on the parties' briefing on the issue of damages following the Court's granting of plaintiff DIRECTV's motion for summary judgment against defendants Roy K. Walls, Jr., individually and d/b/a Jacks Corner Pub.
On June 23, 2008, plaintiff DIRECTV filed this action against defendants alleging that on or about and prior to September 23, 2007, defendants willfully received and displayed satellite programming, including National Football League games available through DIRECTV's premium "Sunday Ticket" programming, to the public for commercial benefit or financial gain without the authorization of DIRECTV. (Doc. 1 at ¶ 12). Plaintiff alleges that defendants without entitlement, prior permission, authorization, and having paid for the right received, broadcasted, used or displayed DIRECTV's satellite programming in the commercial establishment, Jacks Corner Pub, for the benefit of its customers and employees in violation of 18 U.S.C. § 2511 and 47 U.S.C. § 605, among other statutes. Id. at ¶ 13. Plaintiff alleges DIRECTV has been damaged by Defendants in that it has been denied subscription fees, sales have been reduced by unfair competition with its authorized customers, and its proprietary rights in satellite programming have been impaired. Id. at ¶ 14.
According to defendants, in February 2007, plaintiff Walls purchased Jack's Corner Pub. Shortly thereafter, Walls contacted DIRECTV to have the satellite service and account placed in his name because the previous manager was cancelling his subscription. Walls contends that no one informed him that he was required to have a commercial account or pay a commercial rate. Walls maintains that he never represented to DIRECTV that he was requesting residential service or that his premises were residential in nature.
In March 2007, one of the bartenders arranged to have DIRECTV install a new satellite dish, satellite boxes and cable at the bar. A representative of DIRECTV personally came to the bar to inspect and install the new equipment.
Defendants concede that the bar was open on September 23, 2007 and that it was exhibiting the Indianapolis Colts v. Houston Texans NFL game of the NFL Sunday Ticket program provided by DIRECTV. However, Walls maintains that he had authority to receive and exhibit that programming as part of the satellite service for which he was paying DIRECTV.
Jack's Corner Pub had a seating capacity of 45-60. There are four television screens. On September 23, 2007, there were five customers. The bar had no cover charge and did not serve food. The total sales on September 23 were $167.00.
In October 2007, Walls learned for the first time that he was not paying the commercial rate for the commercial satellite programming he was receiving when he received a demand for $10,000.00 from plaintiff's counsel. Walls contacted DIRECTV to apply for a commercial subscription, and he paid the initial fee. He received the commercial satellite programming for just a few weeks before it was blocked by DIRECTV because of the dispute over the $10,000.00.
The Federal Communications Act, 47 U.S.C. § 605 provides in pertinent part:
No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.47 U.S.C. § 605(a).
It is within the discretion of the court to determine what damages are appropriate. Under § 605(e)(3), an aggrieved party may recover either actual damages or "statutory damages for each violation of subsection (a) . . . in a sum not less than $1,000 or more than $10,000, as the court considers just." Where "the court finds that the violation was committed willfully and for purposes of direct and indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100,000 for each violation of subsection (a) of this section." 47 U.S.C. § 605(e)(3)(C)(ii). Willful conduct is conduct which shows a "disregard for the governing statute and an indifference to its requirements." Transworld Airlines, Inc. v. Thurston, 469 U.S. 111, 127 (1985). "For purposes of § 605, courts have identified conduct as `willful' where there were repeated violations over time, or there was a sophisticated understanding of the satellite programming industry and there was a violation of the statutes that regulate the conduct." Buckeye Cablevision, Inc. v. Sledge, No. 3:03CV7561, 2004 WL 952875 at *2 (N.D. Ohio, Apr. 8, 2004)
Although the Federal Communications Act does not require a knowing violation, the Act further states that "where the court finds that the violator was not aware and had no reason to believe that his acts constituted a violation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $250." 47 U.S.C. § 605(e)(3)(C)(iii); see also Kingvision Pay Per View, Ltd. v. Williams, 1 F. Supp. 2d 1481, 1484 (S.D. Ga., 1998).
Plaintiff seeks the maximum statutory damages of $110,000, but this is not warranted under the circumstances of this case. Here, there is no evidence that defendants repeatedly violated the law over an extended period of time or that they received substantial monetary gain by receiving the plaintiff's satellite programming without its authorization. There is also no evidence that defendants were aware that their acts constituted a violation of this law. Despite plaintiff's assertion to the contrary, there is simply no evidence demonstrating that defendants' conduct was willful, justifying an award of $100,000. See 47 U.S.C. § 605(e)(3)(C)(ii).
Because the Court finds that defendants were not aware and had no reason to believe that their acts constituted a violation of this section, it determines that an award of $500.00 as to each defendant is appropriate.
Plaintiff also seeks its attorney fees and costs incurred in this action. Section 605(3)(3)(a)(iii) provides that the Court "shall direct the recovery of full costs, including awarding reasonable attorneys' fees to an aggrieved party who prevails." Defendants do not challenge the reasonableness of the fees. Rather, defendants maintain that an award of attorney fees is not warranted under the circumstances of this case.
Under the statute, the Court does not have they authority to decide that attorney fees are not appropriate under the facts of a particular case. If the Court had such discretion, this case would be an appropriate one for electing not to grant plaintiff its attorney fees and costs. Here, the damages sought greatly outweigh the damages plaintiff was ultimately awarded. Plaintiff sought $110,000.00 and was awarded only $1,000.00. Once defendant Walls realized that he was not paying the commercial rate for his DIRECTV subscription, he attempted to remedy that mistake. Through its agent, the installer, DIRECTV had notice that Jack's Corner Pub was a commercial establishment, but it did not charge or otherwise notify Walls that he should pay the commercial rate. While it may be arguable that a bar owner should have realized that the rate was too low to be a commercial one, I conclude that DIRECTV has failed to prove that Walls knew he was paying less than what he was supposed to pay. Given the cost of litigation, this is a case that should have been resolved without resorting to a lawsuit. Because the statute provides that plaintiff is entitled to an award of its attorney fees and costs, plaintiff is awarded $2,340.50 in attorney fees and $550.00 in costs.
For the reasons stated above, the Court AWARDS plaintiff $500.00 in damages against each defendant, $2,340.50 in attorney fees, and $550.00 in costs. The Clerk of Court is DIRECTED to enter JUDGMENT for plaintiff DIRECTV. This action is DISMISSED.