Opinion
CIVIL ACTION NO. 03-6482
May 19, 2004
JUDGMENT ORDER
AND NOW, this __ day of May, 2004, upon consideration of plaintiff's Motion for Default Judgment and the related May 18, 2004 assessment of damages hearing, it is hereby ORDERED that:
1. Judgment is entered in favor of plaintiff, and against defendant, in the amount of $10,240.00, which includes $240.00 for costs and fees reasonably incurred;
2. Any pending motion is DENIED as MOOT.
Pursuant to the court's entry of default on March 19, 2004, and following an opportunity for a hearing on May 18, 2004, the above case is before the court for an award of damages.
Plaintiff alleges that defendant purchased and possessed a smart card programmer and two unloopers, the sole purpose of which is to make it possible for the user to intercept and receive plaintiff's proprietary signals without making payment for the signals. In addition defendant possessed a DirecTV satellite dish, despite that fact that neither he, nor anyone at the address of the dish, was a subscriber to the DirecTV network. These circumstances create a strong presumption that the devices were used to intercept and receive plaintiffs signals without authorization. DirecTV v. Karpinsky, (E.D. Mich. July 31. 2003). Such actions constitute a violation of 47 U.S.C. § 605(a), which prohibits the unauthorized reception or interception of proprietary signals.
Plaintiff additionally alleges that defendant has breached 47 U.S.C. § 605(e)(4), which states:
Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment, knowing to having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption of satellite cable programming, or direct-to-home satellite services, or is intended for any other activity prohibited by subsection (a) of this section, shall be fined . . .
Plaintiff argues that defendant modified, assembled, or manufactured an electronic device to import plaintiffs signals. (PL's Compl. ¶ 141.) Plaintiff alleges that this occurred when plaintiff "actively programmed and reprogrammed DirecTV Access Cards and designed electronic systems for use in surreptitiously obtaining DirecTV Satellite Programming [and] by removing and inserting Pirate Access Devices and/or inserting illegally programmed Access Cards into valid DirecTV Receivers. . . ." (Id.) However, 47 U.S.C. § 605(e)(4) is a provision relating to manufacturers and to sellers, rather than to users. Community Television Systems. Inc. v. Caruso, 284 F.3d 430, 435 n. 6 (2d Cir. 2002). Plaintiff has alleged no facts that would allow this court to determine that defendant did anything other than purchase products to decode plaintiffs signal for personal use. As previously discussed, § 605(a) makes this conduct illegal. However, the connection of the components parts that defendant purchased does not elevate the conduct of "manufacturing" or "modification" under the meaning of § 605(e)(4). The purpose of § 605(e)(4) is to place a heightened penalty upon individuals propagating illegal decoding of proprietary signals, through actions such as construction of systems or sale of systems. Here, plaintiff has not alleged such circumstances, and merely indicates that defendant made purchases to create a system for personal use. Accordingly, this conduct is not actionable under § 605(e)(4) and damages will not be granted pursuant to this section.
Based upon defendant's violation of § 605(a), plaintiff now seeks damages pursuant to 47 U.S.C. § 605(e)(C). Section 605(e)(C)(i)(II) states that:
the party aggrieved may recover an award of statutory damages for each violation of sub sec. (a) involved in the action in a sum of not less than $1,000, or more than $10,000, as the court considers just, and for each violation of paragraph (4) of this subsection involved in the action an aggrieved party may recover statutory damages in a sum not less than $10,000, or more than $100,000, as the court considers just.
Here, plaintiff urges that it is entitled to damages under the provision in § 605(e)(C)(i)(II), arguing that the violation was willful and that it resulted in private financial gain to defendant. (PL's Mem. of Law in Supp. of Default at 5.) Accordingly, based upon defendant's conduct and his violation of subsection (a), and to further the deterrent effect of the penalties, this court finds plaintiff is entitled to the maximum amount of damages for this violation, that is, $10,000.
47 U.S.C. § 605(e)(C)(ii) permits enhanced damages, up to $100,000, for a violation of subsection (a) where the court finds that "the violation was committed willfully and was for purpose of direct or indirect commercial advantage or private financial gain. . . ." Despite the language of plaintiff's argument, that defendant acted willfully and for private financial gain, plaintiff does not request enhanced damages pursuant to 47 U.S.C. § 605(e)(C)(ii).
Additionally, plaintiff is granted $240 for reasonable costs and fees, as is permitted by 47 U.S.C. § 605(e)(B)(iii). Plaintiff does not seek attorney's fees.