Opinion
Civil Action No. 05-3873 (JLL).
March 13, 2006
Wayne D. Lonstein, Esq., VIA U.S. MAIL ELECTRONIC FILING, Lonstein Law Office, P.C., Ellenville, NY, Counsel for Plaintiff.
LETTER-ORDER
Dear Mr. Lonstein:
The Court has received Plaintiff's motion for default judgment. Although Plaintiff has asserted in its motion for default judgment that it is seeking judgment under 47 U.S.C. § 605(a), Plaintiff is also seeking damages under 47 U.S.C. § 553. For the following reasons, the Court is ordering a hearing.
The Complaint and Plaintiff's motion for default judgment clearly have two inconsistent allegations:
• a violation of 47 U.S.C. § 605(a); and
• a violation of 47 U.S.C. § 553.
Section 553 of the Act prohibits unauthorized interception of cable signals. 47 U.S.C. § 553. A violator of § 553 entitles the aggrieved party to statutory damages "in a sum of not less than $250 or more than $10,000 as the court considers just," 47 U.S.C. § 553(c)(3)(A)(ii), and in cases involving a violation that "was committed willfully and for purposes of commercial advantage or private financial gain, the court in its discretion may increase the award of damages, . . . by an amount of not more than $50,000," 47 U.S.C. § 553(c)(3)(B). Violations of section 605(a) include receiving and/or assisting others in receiving satellite transmissions of television programming without authorization. 47 U.S.C. § 605(a). A violator of § 605(a) entitles the aggrieved party to statutory damages "in a sum of not less than $1,000 or more than $10,000, as the court considers just," 47 U.S.C. § 605(e)(3)(C)(i)(II), and where "the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, . . . by an amount of not more than $100,000 . . .," 47 U.S.C. § 605(e)(3)(C)(ii). Each of these provisions, while certainly involving differing methods of interception, also permit varying amounts of statutory damages.
Plaintiff asserts that Defendants unlawfully obtained access to Plaintiff's broadcast, "which originated via satellite uplink and then [was] re-transmitted via satellite or microwave signal to various cable and satellite systems," through one or more of the following:
• use of an illegal satellite receiver;
• intercepting plaintiff's signal; and/or
• use of an illegal cable converter box or device.
(Compl. ¶ 16). The Piracy Affidavit submitted by Jose Torres, an independent auditor hired by Plaintiff, does not indicate which of these methods was used to pirate the November 27, 2004 Barrera/Morales boxing event, nor does any other affidavit submitted on behalf of Plaintiff.
In light of the 2001 decision by the Third Circuit in TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 206 (3d Cir. 2001), this Court cannot adequately evaluate whether Defendants' actions were a violation of either §§ 553 or 605 without facts describing the manner in which the Barrera/Morales boxing event was allegedly pirated. The Court cannot conclude, without a hearing with witnesses and evidence, that Defendants violated either of these statutory provisions or determine the appropriate damages under the circumstances. Moreover, this Court will not impose the higher statutory damages associated with section 605 merely because that is the section under which Plaintiff has chosen to seek default judgment. See, e.g., Comcast Cable Cmmc'ns v. Adubato, 367 F. Supp. 2d 684 (D.N.J. 2005). Therefore, a hearing has been scheduled for this matter and Defendants are being copied on this Letter-Order should they choose to appear and defend themselves.
Since Defendants have not answered or otherwise appeared, the Court does not have an address of record for Defendants. In an effort to be assiduous, the Court is sending this Letter-Order to Defendants at the address on the Certificate of Service. (CM/ECF Docket Entry #10).
The parties, and their witnesses, are now scheduled to appear before this Court at Courtroom 5D of the U.S. District Court, District of New Jersey, in the Martin Luther King Building, on the 18 th day of April, 2006 at 2:00 p.m. Please provide the Court with copies of any exhibits or documentary evidence that will be relied on at the hearing and a list of the witnesses, no later than one week prior to the date of the hearing. Kindly mark your calendars accordingly and please respond to the Court with a confirming letter.
SO ORDERED.