Opinion
Case No. 6:03-cv-1027-Orl-19KRS
September 16, 2003
ORDER
This case comes before the Court on the following:
1. Motion to Dismiss of Dale Miller. Doc. No. 11.
2. Memorandum of Law in Support of Motion to Dismiss of Dale Miller. Doc. No. 12.
3. Plaintiff DirecTV, Inc.'s Response in Opposition to Defendant, Dale Miller's, Motion to Dismiss. Doc. No. 16.
Background
The following is drawn generally from the allegations of Plaintiffs complaint. Doc. No. 2.
Plaintiff, a California corporation, sells specialty television programming to its millions of residential and business subscribers. While Plaintiff produces some of the programming it broadcasts, most of its content is purchased from other providers. This content, organized into hundreds of channels, is transmitted to subscribers from a network of satellites in geosynchronous orbit high above the earth.
Before this content is relayed to the satellites for retransmission to subscribers, the signal is encrypted. As part of their subscription package, subscribers must be equipped with an integrated receiver/decoder and access card. Through the use of this hardware, a subscriber can decode the encrypted incoming transmission. Plaintiff bundles its programming into various packages which allow subscribers to purchase only the viewing they want.
One of the central technical challenges of Plaintiff's business is to prevent non-subscribers from receiving, decoding, and watching DirecTV programming for free. Plaintiff's primary strategy in this regard is to transmit securely encrypted signals that can only be descrambled with authorized equipment and codes. The key in this system is the access card, which tells the hardware what programming to let the subscriber view and notifies DirecTV if a subscriber purchases a pay-per-view program. Piracy of DirecTV satellite transmissions involves using modified access cards to enable non-subscribes to descramble the encrypted content. Plaintiff continually upgrades its security protocols in response to steps taken by pirates. Plaintiff also periodically beams special transmissions, called electronic countermeasures, in order to disable these modified access cards.
On May 21, 2001, Plaintiff executed writs of seizure in another civil case on Fulfillment Plus, a supplier of specialized electronics to a number of companies apparently in the business of satellite piracy. Among the documents Plaintiff collected were bills of sale, credit card receipts, and emails to people who purchased what Plaintiff contends were devices used to intercept satellite signals unlawfully.
Plaintiff alleges that Defendant purchased a series of pirate access devices from Vector Technologies, and had them shipped to his address in Longwood, Florida. Doc. No. 2, ¶ 20. Plaintiff also alleges generally that Defendant illegally intercepted satellite transmissions using the pirate access devices. Id. at ¶ 24.
Standard of Review
For the purposes of a motion to dismiss, the Court must view the allegations of the complaint in the light most favorable to Plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom. Jackson v. Okaloosa County, Fla., 21 F.3d 1532, 1534 (11th Cir. 1994); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Furthermore, the Court must limit its consideration to the pleadings and written instruments attached as exhibits thereto. Fed R. Civ. P. 10(c); GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that Plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Analysis
Count three alleges that Defendant violated a criminal provision of the Wiretap Act, Specifically, Plaintiff contends that Defendant "possesses . . . [an] electronic . . . device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of . . . electronic communications . . ." See 18 U.S.C. § 2512(1)(b). This criminal provision does not itself create a private cause of action. The vehicle for private suits under the Wiretap Act is 18 U.S.C. § 2520. The critical question, therefore, is whether subsection 2512(1)(b) is a proper predicate for a civil lawsuit under section 2520?
Section 2520 specifically limits private rights of action such that they may be brought only against persons or entities which have "intercepted, disclosed, or intentionally used" any "wire, oral, or electronic communication" in violation of the Wiretap Act. Id. at § 2520(a). In the instant action, Plaintiff alleges in count three that Defendant violated subsection 2512(1)(b) by possessing satellite piracy equipment, and it is this alleged violation which ostensibly constitutes the predicate offense. See Doc. No. 2, ¶¶ 26, 37-40.
It is elementary that statutory interpretation begins with the plain language of the statute itself, and where, as here, the law is unambiguous, the Court has a duty to respect what the statute says. Griffith v. United States (In re Griffith), 206 F.3d 1389, 1393 (11th Cir. 2000), cert denied, 531 U.S. 826 (2000) ("Interpretation of a statute begins with the language of the statute itself.") (internal citation and quotation omitted); United States v. McNab, 324 F.3d 1266, 1273 (11th Cir. 2003), modified and reh'g denied, 2003 U.S. App. Lexis 10708 (11th Cir. May 29, 2003) (recognizing that when the words of the statute are unambiguous, the judicial inquiry is complete). Section 2520, by its plain language, creates civil remedies for a specific subset of the conduct proscribed by the Wiretap Act, not for the entire act itself. Subsection 2520(a) reaches only the interception, disclosure, or knowing use of certain communications, ignoring altogether the conduct prohibited by subsection 2512(1)(b). In other words, the simple possession of equipment primarily useful for piracy, though a crime under subsection 2512(1)(b), is clearly outside the scope of subsection 2520(a). Subsection 2512(1)(b), therefore, is not a proper predicate for a civil action under section 2520.
Plaintiffs citation to district court cases such as Oceanic Cablevision, Inc. v. M.D. Elecs., 771 F. Supp. 1019 (D. Neb. 1991), is unavailing. The Oceanic court's construction of the Wiretap Act is simply not consistent with the unambiguous wording of the statute. Furthermore, Oceanic's holding that Flowers v. Tandy Corp., 773 F.2d 585 (4th Cir. 1985), was superceded by statute on this issue is again belied by the plain language of section 2520(a). Not only, in other words, does the Wiretap Act unequivocally support the conclusion that no private right of action exists for violations of section 2512(1)(b), the only relevant appellate case made the same determination. See Flowers, 773 F.2d at 588-589.
Since Defendant filed its motion to dismiss, though before Plaintiff responded with its memorandum, a district court in Chicago, see DirecTV, Inc. v. Perez, 2003 U.S. Dist. Lexis 14929 (RD. Ill. August 27, 2003), has held, under a novel approach to the statute, that section 2520 does create a private right of action under subsection 2512(1)(b). Though Plaintiff did not raise this argument, the Court anticipates that Perez's unique contribution to the burgeoning, nationwide controversy over subsection 2512(1)(b) will be quickly adopted by Plaintiff in future proceedings both here in the Middle District of Florida and elsewhere. Therefore, in the interest of fairness and judicial economy, it is sensible for the Court to explain why it does not find Perez persuasive.
The reasoning in Perez also seems implicitly to be at the heart of the numerous cases cited by Plaintiff in which Florida federal judges have concluded that subsection 2512(1)(b) does afford a private right of action.
Perez reasoned that section 2520 is analogous to a standing requirement. Id. at *6. In other words, as long as DirecTV alleges that its signals were intercepted, it can proceed civilly against the signal pirate under any provision of the Wiretap Act, not simply the one that prohibits interception. On the other hand, according to Perez, if a plaintiff like DirecTV were only alleging that someone possessed pirate access devices, but not that those had been used to intercept signals, then that plaintiff would not have standing to sue under any provision.
This Court disagrees. Apart from the fact that Perez is unfaithful to the plain language of subsection 2520(a), it fundamentally misunderstands the concept of standing. Private causes of action are designed to redress individualized harm, which a plaintiff like DirecTV suffers only when someone unlawfully intercepts its signals. A plaintiff has standing to sue, in other words, only when it has an actual, rather than hypothetical, injury. What injury does DirecTV suffer when someone merely possesses a pirate access device? There is no injury at all. Indeed, there is no set of circumstances in which the simple possession of pirate access devices gives rise to any individualized harm to DirecTV. The Perez court, in other words, got it exactly backwards because a standing analysis under subsection 2512(1)(b) leads to the conclusion that DirecTV has no standing at all. While it is reasonable for Congress as a matter of public policy to criminalize possession of pirate access devices because their acquisition is a precondition to illegal interception, DirecTV, acting as its own private attorney general, is only authorized to redress actual injuries to itself. Therefore, this Court's literal reading of section 2520, as opposed to the Perez court's approach, is the only construction of the statute that is consistent both with sensible public policy and the fundamental rules of tort. See also Flowers, 773 F.2d at 589.
Even if Plaintiff were permitted to proceed civilly for a violation of 2512, how could its actual damages ever be more than zero? And if zero damages is the theoretical upper limit to what it could recover, what would be the point of suing? To be sure, subsection 2520(c)(2)(B) allows for statutory damages when actual damages are hard to ascertain, but subsection 2520(a) clearly establishes that the sort of individualized harm, or presumption thereof, warranting a private right of action only arises when there has been unlawful interception, not just unlawful possession of interception equipment. Furthermore, statutory damages are meant to create an adequate deterrent for unlawful behavior when the actual damages (the loss of a pay-per-view fee, for example) would be too low to do so. There is no reason to believe, and it would be contrary to one of the basic principles of tort law, that Congress intended statutory damages to apply in circumstances such as the instant case in which, with respect to 18 U.S.C. § 2512(1)(b), there has been literally no harm to Plaintiff.
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss count three (Doc. No. 11) is GRANTED.DONE and ORDERED