Opinion
Case No. 6:03-cv-711-Orl-19DAB
September 9, 2003
ORDER
This case comes before the Court on the following:
1. Defendant's Motion to Dismiss and Memorandum of Law in Support Thereof. Doc. No. 8.
2. Plaintiff DirecTV, Inc.'s Response in Opposition to Defendant, Carlos Rodriguez's, Motion to Dismiss. Doc. No. 9.
Background
The following is drawn generally from the allegations of Plaintiff s complaint. Doc. No. 1.
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 Casselberry, Florida. Doc, No. 1, ¶ 19. Plaintiff also alleges generally that Defendant illegally intercepted satellite transmissions using the pirate access devices. Id. at ¶ 20
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 it to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Analysis
Defendant's motion to dismiss challenges only counts two and three. Doc. No. 8, p. 2.
1. Count Three — Is 18 U.S.C. § 2512(1)(b) a proper predicate for a civil action under 18 U.S.C § 2520?
Defendant contends that counts two and three should be dismissed on the technical ground that they refer to 18 U.S.C. § 2511 and 18 U.S.C. § 2512, respectively. Neither of these criminal provisions, Defendant points out, provide a private right of action. Section 2520(a) of the Wiretap Act is the vehicle for private rights of action, and counts two and three neglect to cite this subsection of the statute. While the Court agrees that the complaint is not artfully drafted in this respect, paragraph 23 of the complaint states that the Court has subject matter jurisdiction pursuant to 18 U.S.C. § 2520(a), and this paragraph was incorporated by reference into each of the two counts. To dismiss the counts one and two simply because Plaintiff did not retype " 18 U.S.C. § 2520(a)" alongside each citation to the relevant criminal provisions of the Wiretap act would be a return to the sort of inordinate formalism that the Federal Rules of Civil Procedure were designed to eliminate.
Count three is defective, nevertheless. Plaintiff's complaint alleges in count three 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).
As noted earlier, 18 U.S.C. § 2520 provides for a private right of action against persons or entities, but only those which have "intercepted, disclosed, or intentionally used" any "wire, oral, or electronic communication" in violation of the Wiretap Act. Id. at § 2520(a). Section 2520, in other words, does not provide a cause of action per se, but is the vehicle for such actions when there is a Wiretap Act violation to serve as the underlying predicate. In the instant action, Plaintiff alleges in its complaint that Defendant violated section 2512(1)(b) by possessing satellite piracy equipment, and it is this alleged violation which constitutes the predicate offense for count three. See Doc. No. 1, ¶¶ 19-20, 33-36.
Section 2512(1)(b) is not a proper predicate, however. It criminalizes, inter alia, the possession of equipment whose primary purpose is to pirate communications. Section 2520(a), on the other hand, allows for a civil cause of action only against those who have "intercepted, disclosed or intentionally used" pirated communications in violation of the Wiretap Act, Simple possession of equipment primarily useful for piracy, though a crime under section 2512(1)(b), is clearly outside the scope of section 2520(a).
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 creates civil remedies for a specific subset of the conduct proscribed by the Wiretap Act, not for the entire act itself 2520(a) reaches only the interception, disclosure, or knowing use of certain communications, ignoring altogether the conduct prohibited by section 2512(1)(b). Section 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. Defendant's motion to dismiss count three is accordingly granted.
2. Count Two
Plaintiffs count two for a violation of 18 U.S.C § 2511, which makes it illegal to intercept signals without authorization, is cognizable. Defendant argues that this count ought to be dismissed because Plaintiff has only generally, rather than specifically, alleged that he intercepted DirecTV signals. Doc. No. 8, p. 5. Defendant contends that it is a "leap in logic" to infer that the mere possession of satellite piracy equipment implies that he unlawfully intercepted transmissions. Id. The Court disagrees. Plaintiff alleges that Defendant purchased specialized electronic equipment, the primary purpose of which is to intercept encrypted satellite transmissions. Though Plaintiff may not be able to allege with specificity when exactly Defendant used this equipment in his home to pirate DirecTV, it hardly taxes the imagination to suppose that such acts of piracy occurred. Under the applicable standard of review, dismissal is warranted only if the Court is certain that Plaintiff can prove no set of facts that would entitle it to relief. Conley, 355 U.S. at 45-46. With the advantage of discovery, it is clearly possible that Plaintiff will be able to develop a case for a violation of section 2511. Defendant's motion to dismiss count two, therefore, is denied.
CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss (Doc. No. 8) is GRANTED in part and DENIED in part. Count three is dismissed on the ground that 18 U.S.C. § 2520(a) does not afford a private right of action for violations of 18 U.S.C. § 2512. Count two is valid, however, because Plaintiff has alleged facts which, while somewhat general, reasonably support the claim that Defendant unlawfully intercepted DirecTV signals.