Opinion
Civil Action No. 03-CV-5632 (WJM).
April 20, 2005
David A. Cohen, Saiber Schlesinger Satz Goldstein, LLC, Newark, New Jersey, Attorney for Plaintiff.
LETTER OPINION
Dear Counsel:
This matter comes before the Court on plaintiff's motion for final judgment by default against defendant Robert Criscione. Defendant Criscione was served the summons and complaint, but failed to answer or otherwise respond to the complaint. On plaintiff's motion, the Clerk of the Court entered default against defendant for failure to appear in the action. The Court, having considered plaintiff's submissions in support of its motion and having heard oral argument, finds as follows:
DIRECTV is a satellite television broadcast provider. It electronically scrambles television programs and distributes them to subscribers via satellite on a pay-per-view basis. The lawful subscriber has equipment that receives and unscrambles the signal for those programs paid for by the subscriber. Here, defendant Criscione, like many other defendants brought before this Court by DIRECTV, purchased over the Internet what is referred to as a pirate access device. This device allowed Criscione to view DIRECTV programming without being a paying subscriber.
DIRECTV's complaint alleges that Criscione's actions violate the Federal Communications Act of 1934, as amended, 47 U.S.C. § 605, and the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510- 2521. For those alleged violations, DIRECTV's complaint requested damages and injunctive relief.
In its motion for default judgment, plaintiff seeks damages in the amount of $10,000 pursuant to 18 U.S.C. § 2520 for defendant's violation of either § 2511 or § 2512. Plaintiff at this time is not seeking damages pursuant to 47 U.S.C. § 605. Plaintiff also seeks injunctive relief against defendant for violating § 605 and §§ 2511 and 2512. Lastly, plaintiff seeks $64.95 in costs and disbursements and $716.70 in attorneys' fees pursuant to those statutes.
Pursuant to § 2520(c)(2), a court may, in its discretion, assess damages for violations of §§ 2511 and 2512. 18 U.S.C. § 2520(c)(2) (stating that in a case such as this, "the court may assess damages") (emphasis added); see also DIRECTV, Inc. v. Brown, 371 F.3d 814, 818 (11th Cir. 2004) (holding that an award of liquidated damages under § 2520(c)(2) is discretionary); Nalley v. Nalley, 53 F.3d 649, 652 (4th Cir. 1995) (same); Dorris v. Absher, 179 F.3d 420, 429 (6th Cir. 1999) (same); Reynolds v. Spears, 93 F.3d 428, 434 (8th Cir. 1996) (same). If a court chooses to assess damages under § 2520(c)(2), it must impose an award which is the greater of actual or statutory damages. The minimum damages a court may award under § 2520(c)(2) is $10,000. That is the damages award plaintiff seeks in this case.
Pursuant to 47 U.S.C. § 605(e)(3)(B), a court may grant injunctive relief and assess damages for violation of § 605(a). If a court chooses to assess damages, it must impose an award not less than $1,000 and no more than $10,000. Within that range, the amount awarded is left to a court's discretion.
When pressed at oral argument why DIRECTV seeks monetary damages under § 2520 instead of § 605, plaintiff responded by arguing that the Court should impose a sanction of $10,000, rather than a potentially lesser sanction under § 605, for both compensatory and punitive reasons. Plaintiff argued that defendant Criscione is highly culpable, having purposefully and knowingly purchased the pirate access device with the sole objective being to circumvent DIRECTV's security measures. The Court, however, is not persuaded by this argument. First, plaintiff's "highly culpable" argument is overly broad. If adopted, it would apply to every individual that purchased a pirate access device regardless of how they used it, i.e., regardless of their true culpability. The Court is not prepared to dole out large liquidated damages awards to DIRECTV regardless of a defendant's actions.
Second, plaintiff's argument presumes that an award of $10,000 is necessary to compensate DIRECTV and punish the defendant for his actions. The Court disagrees. In a case such at this, where the plaintiff has alleged simply that the defendant purchased a pirate access device to view DIRECTV programming without authorization or payment, an award of $10,000 would unjustifiably exceed the goals of compensation and punishment and provide plaintiff with a windfall. See, e.g., DIRECTV, Inc. v. Brown, 371 F.3d 814, 819 (11th Cir. 2004) (concluding that the district court did not abuse its discretion when denying damages under § 2520 and characterizing a liquidated damages award under § 2520(c)(2) as potentially being "gratuitous"). Further, the proposition that at least $10,000 is required to accomplish the complimentary goals of compensation and punishment is belied by the fact that Congress has spoken on the matter in the form of § 605 and determined that those goals may be fulfilled with a lesser monetary sanction. In order for DIRECTV to receive a damages award under § 2520, this Court is of the mindset that DIRECTV would have to demonstrate truly reprehensible conduct on the part of a defendant — something it has not done in this case. Indeed, DIRECTV has not submitted any evidence concerning the severity of defendant's conduct other than the fact that he purchased a pirate access device. As explicated above, that is not enough. Consequently, the Court, in its discretion, denies plaintiff's request for damages under § 2520(c)(2).
This conclusion, however, does not leave plaintiff without recourse. Plaintiff alleged in its complaint that defendant Criscione is liable for damages under § 605(e). Under § 605(e), the Court can award damages between $1,000 and $10,000, an award far more fitting in a case such as this given the paucity of evidence concerning the severity of defendant's conduct. Although plaintiff has only moved for injunctive relief pursuant to § 605 at this time, the Court will consider granting a damages award under that statute upon plaintiff's timely submission of an appropriate motion seeking such relief.
Finally, plaintiff seeks $64.95 in costs and disbursements: $15 for the filing fee paid and $49.95 for the process server fee paid. These amounts are reasonable and therefore will be allowed. Plaintiff also seeks $716.70 in attorneys' fees: $38.70 for preparing and filing the complaint; $170 for filing the default application; and $508 for preparing and filing the default judgment papers. The first two attorneys' fees requested are reasonable and therefore will be allowed. As for the third, because a disproportionate amount of the papers filed (over 75 %) address plaintiff's alleged right to recover damages under § 2520, and the Court has found this claim to be an overreaching on plaintiff's part, the Court will only allow recovery of 25 % of the amount requested, or $127. Thus, the Court will allow a total of $335.70 in attorneys' fees.
An appropriate Order accompanies this Letter Opinion.