Opinion
05 Civ. 10203 (LBS) (DFE), This is an ECF case.
August 11, 2006
REPORT AND RECOMMENDATION TO JUDGE SAND
Plaintiff Kingvision Pay Per View Corp. Ltd. ("Kingvision") brought this action under 47 U.S.C. § 605 and § 553, alleging that the defendants illegally intercepted and exhibited plaintiff's October 2, 2004 closed circuit exhibition of the Felix Trinidad v. Ricardo Mayorga ("Trinidad v. Mayorga") boxing match and its related bouts.
On June 1, 2006, Judge Sand entered a default judgment against defendants Las Copas Bar Restaurant Pizzeria, Inc. and Rafael Dogenes Rodriguez. He then referred the case to me to conduct an inquest into damages, and to write a Report and Recommendation as to the amount of damages to be awarded to plaintiff plus reasonable attorney's fees, if any, pursuant to 47 U.S.C. § 605 and § 553.
On June 12, 2006, I issued a Scheduling Order directing: (1) plaintiff to send me an inquest memorandum by June 30, 2006; (2) defendants to send me any opposing papers within two weeks after receipt of plaintiff's inquest memorandum, and in no event later than July 21, 2006; and (3) the parties to notify me by July 21 if they wanted me to hold an inquest hearing on July 28, 2006.
In a letter to me dated July 26, 2006, plaintiff's counsel, Richard Klass wrote:
With regard to the above action, please be advised that the plaintiff has no further documents supporting the inquest other than those documents previously submitted on the motion for a default judgment as against the remaining defendants, Las Copas Bar Restaurant Pizzeria, Inc. and Rafael Dogenes Rodriguez. Accordingly, it is respectfully requested that the court determine the same based upon such documents and waive the necessity of a hearing.
Those previous documents were served on the defendants on April 27, 2006. The defendants have filed no opposition papers as of August 10, 2006.
BACKGROUND
Kingvision entered into a closed circuit television license agreement to exhibit the closed circuit telecasts of the October 2, 2004 Trinidad v. Mayorga boxing match to commercial establishments for a licensing fee. To prevent unauthorized users from viewing its program, Kingvision scrambled and distorted its satellite signals. Commercial establishment subscribers to Kingvision's programming paid a fee based on $20 times their maximum fire code occupancy, and then they were given either a decoder to view the event or, if they had a satellite dish, the satellite coordinates necessary to receive the signal. The defendants were not authorized to receive or broadcast the Trinidad v. Mayorga match. (Compl. ¶¶ 11-26; 4/3/06 Corwin Aff. ¶¶ 3-9.)
On October 3, 2004, Charles Carita, an auditor hired by plaintiff to investigate establishments that unlawfully exhibited its program, entered Las Copas Bar Restaurant Pizzeria, Inc. at 12:01 a.m. He observed one television displaying an advertisement of an upcoming November 13, 2004 fight between Morales and Barrera III, as well as a "white oak sign in the window advertising the Trinidad and Mayorga fight." The defendants' restaurant did not have a cover charge, and there were approximately 25 people inside the restaurant. (11/1/04 Carita Aff.) Plaintiff says in its memorandum of law that, based on the maximum fire code occupancy of the defendants' establishment, plaintiff would have charged a sublicense fee of approximately $3,000 to view the Trinidad v. Mayorga match. (Pl. Memo. p. 9.) Plaintiff does not, however, provide any evidence that defendants' maximum fire code occupancy was 150 people. To the contrary, Kingvision's "attorney-in-fact" Marcus Corwin merely gives the $3,000 figure as an example:
Authorized commercial establishments which contracted with Plaintiff were required to pay to Plaintiff a sublicense fee to receive the Event. This sublicense fee was based on the capacity of the establishment. The fee was based on $20.00 times the maximum fire code occupancy of the commercial establishment purchasing the Event. For example, if an establishment had a maximum fire code occupancy of 150 persons, the fee would have been $3,000.00.
4/3/06 Corwin Aff. ¶ 7.
DISCUSSION
Upon the entry of a default judgment, the Court accepts as true all of the facts alleged in the complaint, except those relating to the amount of damages. See Au Bon Pain Corp. v. Artect Inc., 653 F.2d 61, 65 (2d Cir. 1981). An inquest is then conducted to determine the amount of damages.
The Court may not award damages under both 47 U.S.C. § 605 and 47 U.S.C. § 553. International Cablevision, Inc. v. Sykes, 75 F.3d 123, 129 (2d Cir. 1996), cert. denied, Noel v. International Cablevision, Inc., 519 U.S. 929, 117 S.Ct. 298 (1996). If a defendant has violated both sections, then the Court should award damages only under Section 605, which has more severe penalties than Section 553. Sykes, 73 F.3d at 129. Thus, I will discuss only Section 605 and the plaintiff's remedies under it.
47 U.S.C. § 605(a) states, in part:
No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance . . . of such intercepted communication to any person. No person not being entitled thereto shall receive . . . any . . . communication by radio and use such communication . . . for his own benefit or for the benefit of another not entitled thereto. . . .47 U.S.C. § 605(e)(3)(C)(i)(II) provides that an aggrieved party may recover an award of statutory damages for each violation of subsection (a), in an amount between $1,000 and $10,000 as the Court considers just. The statute further provides that the Court "in its discretion may increase the award of damages . . . by an amount of not more than $100,000" where the Court finds that the defendant's violation "was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain." See 47 U.S.C. § 605(e)(3)(C)(ii).
On August 2, 2006, Judge Baer's chambers informed me that almost all of the Kingvision cases involving the October 2, 2004 Trinidad v. Mayorga boxing match had been assigned to him. See Kingvision Pay-Per-View Ltd. v. Padilla, 05 Civ. 5227 (consolidating 10 cases) and Kingvision Pay-Per-View Ltd. v. Cabral, 04 Civ. 10022 (consolidating 47 cases). Judge Baer used the following formula for each case in which a default judgment had been entered: $50 per patron, plus $1,000 for each willful violation, plus attorneys' fees and costs. See Kingvision Pay-Per-View Ltd. v. Pares, 05 Civ. 827 (12/16/05 order awarding $5,750 for 95 patrons and one violation); Kingvision Pay-Per-View Ltd. v. Vasquez, 05 Civ. 3681 (12/30/05 order awarding $2,000 for 20 patrons and one violation); Kingvision Pay-Per-View Ltd. v. Padilla, 05 Civ. 5227 (3/29/06 order awarding $1,500 for 10 patrons and one violation).
I recommend that Judge Sand use Judge Baer's formula. Plaintiff has submitted no evidence to show that defendants in the case at bar ever pirated any other closed-circuit events. Accordingly, under 47 U.S.C. § 605(e)(3)(C)(ii), I recommend, as the first component, an award of $1,000 for the defendants' willful violation of the law. In addition, plaintiff's investigator reported that there were approximately 25 people in defendants' establishment. At $50 per patron, this equals $1,250. I find that a total award of $2,250 would be adequate and fair.
Pursuant to 47 U.S.C. § 605(e)(3)(B)(iii), plaintiff is entitled to full costs, including reasonable attorney's fees. I have reviewed the April 27, 2006 affidavit of plaintiff's attorney, Richard A. Klass, Esq., which details 2.2 hours spent by him on this case and his hourly rate ($250). (See ¶¶ 3 and 4.) I find these figures to be reasonable. At ¶ 9, however, he erroneously asks for $1,050 for 4.2 hours of work. I find that plaintiff should be awarded only $550 for attorney's fees. In addition, I recommend that plaintiff's claim for costs of $150 be granted. Plaintiff has not specified what those costs involved, but I note that the Court's filing fee as of the complaint's filing date was $250.)
CONCLUSION AND RECOMMENDATION
For the reasons set forth above, I recommend that Judge Sand award plaintiff: (1) statutory damages in the amount of $2,250; (2) attorney's fees in the amount of $550; and (3) costs in the amount of $150 — for a total of $2,950 to be awarded against the two defendants, jointly and severally.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, any party may object to this recommendation within 10 business days after being served with a copy (i.e. by August 30, 2006), by filing written objections with the Clerk of the U.S. District Court and mailing copies (a) to the opposing party, (b) to the Hon. Leonard B. Sand, U.S.D.J. at Room 1650, 500 Pearl Street, New York, NY 10007 and (c) to me at Room 1360, 500 Pearl Street. Failure to file objections within 10 business days will preclude appellate review. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), and 6(e). Any request for an extension of time must be addressed to Judge Sand.