Opinion
Case No. 03 C 50502.
December 10, 2004
ORDER
DIRECTV, Inc. ("DIRECTV") filed suit against Dawn Leonard ("Leonard") alleging violations of the Federal Communications Act, 47 U.S.C. § 605, the Wire and Electronic Communications Interceptions Act, 18 U.S.C. §§ 2510- 2521, and civil conversion. Leonard was personally served on January 28, 2004, at her residence. As of December 8, 2004, Leonard has not answered or plead to the complaint. On September 30, 2004, DIRECTV filed a Motion for Default Judgment. For the following reasons, it is the Report and Recommendation of the Magistrate Judge that DIRECTV's Motion for Default Judgment be allowed. However, this court does not recommend that DIRECTV's motion be granted for a sum certain.
DIRECTV alleges that Leonard violated 47 U.S.C. § 605 by "modifying or assembling devices primarily of assistance in the unauthorized decryption of satellite programming." (Pl.'s Mot., at III. A.) DIRECTV also alleges that Leonard violated 18 U.S.C. §§ 2510- 2521 by assembling or possessing "at least one device shipped to Defendant through the mail . . . primarily useful for the purpose of surreptitious interception." ( Id.). Leonard allegedly purchased her decryption device (a "T6 PS2 Wave Plus Complete") from "Computer Shanty" on November 23, 2001.
DIRECTV's Motion for Default Judgment seeks relief, for a sum certain, against Leonard for $12,018.25 plus interest. The breakdown of this amount is as follows: $10,000 for the principal amount, $151.25 for costs, and $1,867.00 in attorney's fees, plus post-judgment interest as provided by law. This court has some concerns with DIRECTV's assertion that the judgment is for a sum certain.
DIRECTV seeks damages against Rath pursuant to, among other things, 47 U.S.C. § 605(e)(C)(i)(II) which states:
the party aggrieved may recover an award of statutory damages for each violation of subsection (a) of this section 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.
Paragraph (4) of the subsection states:
Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment . . . shall be fined not more than $500,000 for each violation, or imprisoned for not more than 5 years for each violation.47 U.S.C. § 605 (e)(4).
DIRECTV, as indicated in their complaint, is alleging that damages should be awarded under 47 U.S.C. § 605 (e)(4) because Leonard effectively imported an illegal communication device through the mail, and, by removing, inserting, and actively programming the device, engaged in unlawful assembly or modification. This court questions whether Leonard's actions fall within the language of 47 U.S.C. § 605 (e)(4). Thus, this court recommends a hearing be held to determine which damages section of the Act applies to Leonard.
Therefore, it is the Report and Recommendation of the Magistrate Judge that a default order be entered against Leonard and that a hearing be held to determine the amount of damages and whether Leonard should be deemed a "person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment" under 47 U.S.C. § 605(e)(4).