Opinion
Case No. 03-2285-GTV
April 22, 2004
MEMORANDUM AND ORDER
Plaintiff DIRECTV alleges that Defendants surreptitiously intercepted and decrypted DIRECTV's satellite signals using devices intended for that purpose, ultimately to gain free viewing of satellite television programming. The case arises out of Plaintiffs acquisition of shipping records of distributors of devices intended for satellite television signal interception and decryption. Plaintiff brings five Counts against each Defendant in its Complaint. Counts One and Four of Plaintiff's Complaint concern violations of the Cable Communications Policy Act. Count Two alleges interception and disclosure of DIRECTVs electronic communications in violation of 18 U.S.C. § 2511. Count Three alleges possession, manufacture, and/or assembly of devices used for surreptitious interception of electronic communications in violation of 18 U.S.C. § 2512, and Count Five alleges civil conversion.
The case is before the court on Defendant William Choate's motion to dismiss (Doc. 36). Defendant Choate asks the court to dismiss all Counts of Plaintiffs complaint. For the following reasons, the court grants Defendant Choate's motion in part and denies it in part. Specifically, the court dismisses Count Three, but all other Counts remain in the case.
I. Standard for Judgment
Defendant Choate presumably moves to dismiss Plaintiffs complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Defendant Choate indicated in his motion to dismiss that he had attached exhibits to his motion, but such exhibits were not filed with the court. If Defendant Choate later wishes to file a proper motion for summary judgment and attach exhibits, the court will consider the motion, but because such exhibits have not yet been filed, and because Defendant Choate's motion does not comport with summary judgment standards, the court will review the motion as a motion to dismiss.
A Rule 12(b)(6) motion to dismiss will be granted only if it appears beyond a doubt that the plaintiff is unable to prove any set of facts entitling him to relief under his theory of recovery. Conley v. Gibson. 355 U.S. 41, 45-46 (1957). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true."Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The court must view all reasonable inferences in favor of the plaintiff, and the pleadings must be liberally construed. Id.; Fed. R Civ. P. 8(f). The issue in reviewing the sufficiency of a complaint is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fiztgerald, 457 U.S. 800 (1982).
II. Factual Background
Plaintiff has filed numerous cases in this court and around the nation, alleging similar facts against each defendant in each case. The specific facts of this case are not important to the resolution of the motion before the court, but the court will recount the general background of Plaintiff's claims against the defendants in this case and in other cases. The facts as relayed here should not be relied upon for any particular case; they are only intended as general background information.Plaintiff is in the business of distributing satellite television broadcasts to customers throughout the United States who have paid a subscription fee. Subscribers use a satellite dish to receive Plaintiff's satellite signals and an access card to unscramble the signals. The access cards are electronically programmed by Plaintiff to block or unblock television channels and specific programs depending on the customers' subscription level and individual pay-per-view programming choices. While Plaintiffs scrambled satellite signals can be received by any satellite dish, Plaintiff controls the use of these signals through the access cards.
On various dates, Plaintiff obtained the shipping records, email communications, credit card receipts, and other records of several distributors of devices used to receive and decode satellite signals. Plaintiff then filed suit against the persons identified by the distributors' records, alleging that the only use of the devices is to illicitly decrypt satellite programming, and that the defendants used these devices to display Plaintiffs programming without authorization from Plaintiff.
III. Discussion
Defendant Choate's general argument with respect to all of Plaintiffs claims is that Plaintiff only has evidence that Defendant Choate purchased and possessed the decryption devices, and that such evidence is insufficient to state a claim under the relevant statutes. The problem with Defendant Choate's argument is two-fold: (1) Plaintiff has alleged far more than mere purchase and possession of the devices at issue; and (2) the court only reviews the allegations in the Complaint at this stage of the litigation, not the parties' evidence.A. 47 U.S.C. SS 605(a) and 605(e)(4)
Defendant Choate first argues that Counts One and Four fail to state a claim because neither 47 U.S.C. § 605(a) nor § 605(e)(4) prohibit the purchase or possession of any device. But Plaintiff has not alleged mere purchase or possession. Plaintiff has alleged as follows:
[Defendant Choate] illegally and without authorization, intercepted, received and exhibited, or otherwise assisted in the unauthorized interception, reception, or exhibition of Satellite Programming transmitted by DIRECTV. . . .
[Defendant Choate] knowingly manufactured, assembled, or modified an electronic, mechanical or other device or equipment knowing, or having reason to know, that the device or equipment is used primarily in the assistance of the unauthorized decryption of Satellite Programming, or direct-to-home satellite services, or is intended for any other prohibited activity.
These allegations mirror the language of §§ 605(a) and 605(e)(4). The court concludes that Plaintiff has stated a claim under each of the statutes.
B. 17 U.S.C. $1201(a)(1)
Defendant Choate next argues that a person does not violate 17 U.S.C. § 1201(a)(1) merely by purchasing or possessing a device. Plaintiff has not asserted a claim under § 1201(a)(1), so there is no need to address Defendant Choate's argument.
C. 18 U.S.C. $2511
Defendant Choate next argues that Count Two fails because the mere purchase or possession of a device is not enough to state a claim under 18 U.S.C. § 2511. Again, Plaintiff has not alleged mere purchase or possession. Instead, Plaintiff has alleged as follows:
[Defendant Choate] intentionally intercepted, endeavored to intercept, or procured other persons to intercept electronic communications from DIRECTV. [Defendant Choate] further disclosed or endeavored to disclose to others the contents of electronic communications knowing, or having a reason to know, that the information was obtained through the interception of electronic communications in violation of 18 U.S.C. § 2511. Upon information and belief, [Defendant Choate] further intentionally used or endeavored to use the contents of electronic communications knowing, or having reason to know, that the information was obtained through the interception of electronic communications in violation of 18 U.S.C. § 2511.
The court need not decide whether mere purchase or possession of a device is enough to state a claim under § 2511 at this time. Plaintiff has also alleged that Defendant Choate intercepted electronic communications, which is sufficient to plead a cause of action.
Defendant Choate also argues that 18 U.S.C. § 2520, the statute that provides a private right of action for violations of § 2511, does not provide a private right of action for merely endeavoring to intercept. The fact that Plaintiff alleges that Defendant Choate "endeavored to intercept" Plaintiffs signals does not mean that Count Two fails to state a claim. As noted above, Plaintiff also alleges that Defendant Choate intercepted its signals, sufficiently meeting the pleading requirements of 18 U.S.C. § 2520. It is immaterial at this point of the litigation that § 2520 does not mention "endeavoring to intercept." It might become material later, if it becomes clear that Plaintiffs evidence supports only the "endeavoring" claim, and not the actual "interception" claim.
D. 18 U.S.C. $2512
Defendant Choate next moves to dismiss Count Three of Plaintiff's complaint, the claim under 18 U.S.C. § 2512. Defendant Choate argues that, as a matter of law, no civil cause of action exists for violations of 18 U.S.C. § 2512. This court has already addressed the issue inDIRECTV, Inc. v. Hosey, 289 F. Supp.2d 1259 (D. Kan. 2003). For the reasons fully discussed in Hosey, the court grants Defendant's motion with respect to Count Three.
E. Conversion Claim
Defendant Choate seeks dismissal of Count Five, the conversion claim against him, without offering any factual or legal basis for dismissal. The court will not dismiss the claim in the absence of such basis.
IT IS, THEREFORE, BY THE COURT ORDERED that Defendant Choate's motion to dismiss (Doc. 36) is granted in part and denied in part. Count Three is dismissed against Defendant Choate.
Copies or notice of this order shall be transmitted to counsel of record.
IT IS SO ORDERED.