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Directv, Inc. v. Jones

United States District Court, W.D. Tennessee
Aug 25, 2003
No. 02-2834 (W.D. Tenn. Aug. 25, 2003)

Opinion

No. 02-2834

August 25, 2003


ORDER PARTIALLY GRANTING AND PARTIALLY DENYING DEFENDANT BOB JONES' MOTION TO DISMISS


Before this Court is Defendant Bob Jones' Motion to Dismiss any and all claims against him by Plaintiff DIRECTV, INC ("Plaintiff or "DIRECTV"). On October 29, 2002, Plaintiff filed the present action, alleging violations of 47 U.S.C. § 605(a), 18 U.S.C § 2511(1)(a), Tenn. Code Ann. § 39-13-601, Tenn. Code Ann. § 39-14-104, Tenn. Code Ann. § 7-59-109, 18 U.S.C. § 2512(1)(b), and a Tennessee common law claim of conversion. For the following reasons, Defendant Jones' Motion to Dismiss is DENIED in part and GRANTED in part.

I. Background

For the purposes of the instant motion, the Court accepts the following facts alleged in Plaintiff's Complaint as true. DIRECTV is a provider of pay satellite television programming. (Compl. ¶ 1.) Defendant Bob Jones is a resident of Memphis, Tennessee. (Id. ¶ 7.) Defendant purchased an alleged "Pirate Access Device," also known as a "Programmer," from DSS-Stuff.com via the mail or a commercial mail center. Id. The "Programmer" is a device which can be used to decode encrypted satellite transmissions, allowing a user to receive programming for free. (Id. ¶ 4.) On October 29, 2002, DIRECTV filed suit to recover damages resulting from Defendant's alleged use of the device. On May 29, 2003, Defendant filed the present Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) averring that Plaintiff's complaint fails to state a viable claim.

II. Analysis

The standard to be applied when evaluating a motion to dismiss for failure to state a claim is very liberal in favor of the party opposing the motion. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). Construing all facts in the light most favorable to the nonmoving party, "[t]o avoid dismissal under Rule 12(b)(6), a complaint 'should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Theobald v. Board of County Com'rs of Hamilton County, Ohio, 332 F.3d 414, 415-416 (6th Cir. 2003), quoting Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993). Thus, "a complaint must contain either direct or inferential allegations with respect to all the material elements of the claim." Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 901 (6th Cir. 2003).

A. Unauthorized Reception of Satellite Signals

Defendant first asserts that his actions did not violate 47 U.S.C. § 605(a). Section 605(a), Title 47 of the United States Code makes it unlawful for any unauthorized person "to receive or assist in receiving any interstate or foreign communication by radio and [to] use such communication (or any information therein contained) for his own benefit or for the benefit of another [unauthorized user]." Courts have repeatedly recognized that satellite television transmission falls within the definition of "radio." See, e.g., National Satellite Sports, Inc. v. Eliadas, Inc., 253 F.3d 900 (6th Cir. 2001).

In the present case, Plaintiffs complaint contains sufficient allegations with respect to all material elements of this claim. Plaintiff asserts that Defendant was receiving and assisting others in receiving unauthorized DIRECTV satellite transmissions for his own benefit. Furthermore, Defendant's possession of the device in question leads to a factual inference, when liberally construed in the light most favorable to Plaintiff, that that the alleged interception could have occurred. Accordingly, Defendant's motion to dismiss Plaintiff's 47 U.S.C. § 605(a) claim is denied.

B. Unauthorized Interception of Electronic Communications

Defendant next asserts that Plaintiff's claim brought pursuant to 18 U.S.C. § 2511(1)(a) should be dismissed because Plaintiff has not established that Defendant used the Programmer or intended either the purchase or use of the device for illegal activity. Section 2511(1)(a), Title 18 of the United States Code provides that anyone who "intentionally intercepts, endeavors to intercept, or procures any other persons to intercept, any wire, oral, or electronic communication" is subject to criminal penalties or suit by the Federal government. Furthermore, 18 U.S.C. § 2520(a) provides that "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate." The courts have interpreted these two statutes together as authorizing the transmitter of the intercepted communication to initiate a private civil action for violations of § 2511 against an unauthorized person who intercepts such communication. See, e.g., Smith v. Cincinnati Post and Times-Star, 475 F.2d 740 (6th Cir. 1973) (affirming dismissal because interception was authorized). Again, in the instant case, the complaint sufficiently alleges all material elements of the crime, and pleads sufficient factual allegations for each element of § 2511(1)(a). Accordingly, Defendant's motion to dismiss Plaintiffs 18 U.S.C. § 2511(1)(a) claim is denied.

C. Unauthorized Interception of Electronic Communications

Defendant argues that Plaintiff's claim brought pursuant to Term. Code Ann. § 39-13-601(1)(A) should be dismissed because Plaintiff has not alleged any knowledge that Defendant used the Programmer illegally. Section 39-13-601(a)(1)(A) of the Tennessee Code Annotated provides that anyone who "intentionally intercepts, endeavors to intercept, or procures any other persons to intercept, any wire, oral, or electronic communication" is subject to state penalties or suit. Plaintiff in the instant case has alleged all material elements of the crime and pleaded sufficient factual allegations for each element. Accordingly, Defendant's motion to dismiss Plaintiff's claim brought pursuant to Term. Code Ann. § 39-13-601(1)(A) is denied.

D. Theft of Services

Section 39-14-104 of the Tennessee Code Annotated prohibits a person from intentionally avoiding payment for services by obtaining those services by means of "deception, fraud, coercion, false pretense, or any other means. . . ." As further defined:

A person also commits the theft of services as prohibited by § 39-14-104, who knowingly: (1) obtains or attempts to attain cable television services from a company by trick, artifice, deception, or other fraudulent means with the intent to deprive such company of any or all lawful compensation for rendering each type of service obtained.

Tenn. Code Ann. § 7-59-109(a)(1). Thus, obtaining or attempting to obtain cable television by any means with the intent to deprive the cable television company of any or all lawful compensation constitutes theft of services as prohibited by section 39-14-104. Furthermore, merely possessing a devise designed to descramble a cable television company's satellite signals with the intention of using the device for theft of cable television services constitutes theft of services in Tennessee. Term, Code Ann. § 7-59-109(a)(5)(A). Civil actions by the cable company are authorized by the statute. Tenn. Code Ann. § 7-59-109(c). The Court finds that Plaintiff in the instant case has alleged all material elements of the crime of theft of services under the appropriate statutes and has pleaded sufficient factual allegations for each element. Accordingly, Defendant's motion to dismiss Plaintiff's claim brought pursuant to Tenn. Code Ann. § 39-14-104 is denied.

E. Possession of Electronic Communication Intercepting Devices

Defendant maintains that Plaintiff's claim for violation of 18 U.S.C. § 2512(1)(b) should be dismissed because Plaintiff failed to allege that it has knowledge the at Defendant used the Programmer in an illegal capacity or that he intended to wither purchase or use the Programmer for illegal activity. Section 2512(1)(b), Title 18 of the United States Code prohibits the intentional possession of any device by a person who knows or has reason to know

that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component thereof has or will be sent through the mail or transported in interstate or foreign commerce.

There has been some disagreement by the courts, however, as to whether a violation of § 2512 alone supports a private civil action. Compare Oceanic Cablevision, Inc. v. M.D. Elec., 771 F. Supp. 1019 (D. Neb. 1991) with Directv, Inc. v. Amato, No. Civ. 3:03CV355, 2003 WL 21537306 (E.D. Va. 2003).

This Court finds the reasoning in Amato most persuasive, agreeing with its holding that § 2520 does not impliedly provide for a private civil action under § 2512 because "the mere possession of such a device, as banned by § 2512, creates no harm and, thus, no justification for private recovery." 2003 WL 21537306 at *4. as the Amato Court also noted, possession of the device is necessary to maintain an action based on the interception of unauthorized signals under § 2511, but possession alone does not constitute a basis for a private civil suit. Accordingly, in the instant case, the Court finds that the possession claim under § 2512 should be dismissed for failure to state a claim for which relief can be granted. Accordingly, Defendant's motion to dismiss Plaintiff's claim brought pursuant to 18 U.S.C. § 2512(1)(b) is granted.

F. Conversion

Finally, Defendant asserts that Plaintiff's claim for conversion should be dismissed because Plaintiff did not make a specific allegation of actual use of DIRECTV's signal. Conversion is "in the sense of the law of trover, the appropriation of the thing to the party's own use and benefit, by exercise of dominion over it, in defiance of [the] plaintiff's right." Peeler v. Union Planter's Nat'l Bank, 971 S.W.2d 393, 398 (Term. Ct. App. 1997), citing Mammoth Cave Prod. Credit Ass'n v. Oldham, 569 S.W.2d 833, 836 (Term. Ct. App. 1977). Defendant contends that Plaintiff's conversion claim must fail due to a lack of a defined exercised dominion or control over the signals. Plaintiff did allege, however, in its complaint that Defendants, including Defendant Jones, intentionally and unlawfully converted to their own use and benefit property belonging to DIRECTV which resulted in damages to the Plaintiff. (Compl. ¶¶ 40-42) The Court finds that pursuant to the liberal pleading rule of Fed.R.Civ.Pro. 8(a) Plaintiff successfully pleaded a claim for conversion. Accordingly, Defendant's motion to dismiss Plaintiff's conversion claim is denied.

III. Conclusion

For the foregoing reasons, Defendant's Motion to Dismiss Plaintiff's claims for violations of 47 U.S.C. § 605(A), 18 U.S.C § 2511(1)(A), Term. Code Ann. § 39-13-601, Tenn. Code Ann. § 39-14-104, Tenn. Code Ann. § 7-59-109, and Tennessee common law conversion is DENIED. Defendant's Motion to Dismiss Plaintiff's claim for violation of 18 U.S.C. § 2512(1)(b) is GRANTED.

IT IS SO ORDERED this.


Summaries of

Directv, Inc. v. Jones

United States District Court, W.D. Tennessee
Aug 25, 2003
No. 02-2834 (W.D. Tenn. Aug. 25, 2003)
Case details for

Directv, Inc. v. Jones

Case Details

Full title:DIRECTV, INC., Plaintiff, v. BOB JONES, et al. Defendants

Court:United States District Court, W.D. Tennessee

Date published: Aug 25, 2003

Citations

No. 02-2834 (W.D. Tenn. Aug. 25, 2003)

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