Opinion
01 civ 7595 (HB)
April 17, 2002
OPINION ORDER
Plaintiff Kingvision Pay-Per-View, Ltd. ("Kingvision") brings this action against both the restaurant, 2182 La Caridad Restaurant, Inc., d/b/a La Caridad Restaurant #1 ("La Caridad"), and its owner, Angela M. Melo, individually, claiming joint and several liability for violations of 47 U.S.C. § 553 and 605. Those statutes prohibit the unauthorized interception and reception of cable programming of the kind Kingvision provides. The plaintiff seeks statutory damages and attorney fees.
Kingvision requires commercial establishments like La Caridad to pay a fee to allow customers to view an event that is broadcast via its service. There is also a requirement that the restaurant charge patrons an admission fee, but that requirement is irrelevant here since the plaintiff is seeking only statutory damages. See 47 U.S.C. § 605 (C(i)(II). The defendant restaurant operated a commercial establishment at 2184 Amsterdam Avenue in New York City. The plaintiff alleges that on November 13, 1999, the defendants intercepted and received, or assisted in the interception and reception, of the Lennox Lewis/Evander Holyfield heavyweight championship-boxing bout.
A one-day bench trial was held on April 8, 2002. Plaintiff called as its first witness Patrick McLaughlin ("McLaughlin"), a Detective 2nd Grade, with fourteen years of service in the New York City Police Department. Detective McLaughlin had on three or four occasions acted as a private investigator for the plaintiff, who apparently via subcontractors advertises for investigators over the internet. Detective McLaughlin responded to such an advertisement and was provided with instructions and materials as well as a patrol route for the evening of Saturday, November 13, 1999. The directions from the plaintiff through its subcontractor, Bulletproof, was that Detective McLaughlin patrol the Washington Heights area of Manhattan, to begin at 9:00 p.m. He was to patrol the streets and look through storefront windows to see if there was an operating television. If he found one, he would take his binoculars and attempt to determine what was playing, i.e., if the Lennox Lewis/Evander Holyfield bout was being shown. Detective McLaughlin testified that, if need be, he would enter the premises and collect information about a violation, that is, a commercial establishment that was showing the fight without authorization. He was paid a fee for finding a violation, and he earned an additional fee if he checked twenty-four establishments. Other aspects of his fee arrangement were testified to but irrelevant to this decision.
When Detective McLaughlin reached 2184 Amsterdam Avenue, the address of the defendant restaurant, he saw that the windows were covered with vertical blinds. All he could see was light coming from some height in the corner. He stopped, picked up his binoculars and saw twenty or more people looking at a television screen. He then left his car double-parked and proceeded into the establishment. Once inside, he saw the television set and observed a female behind the bar and, without further adieu, exited the restaurant. McLaughlin testified that he had observed the Lewis/Holyfield fight on the defendants' television, specifically, round five with twenty-nine seconds left to go in that round.
McLaughlin had submitted an affidavit to the plaintiff, subscribed to on November 23, 1999, that recited his observations of November 13, 1999: that Holyfield was wearing purple trunks with red stripes, that Lewis was wearing white trunks with red creases and that there was a Budweiser logo in the center of the ring. Along with the form affidavit, he also had provided a checklist that noted, among other things, that there was no admission fee being charged by the defendant restaurant. With respect to the individual employee, whom he testified to having seen, she was described in the affidavit as "female, light skinned, shoulder length black hair approximately thirty-years old standing behind the counter." Additionally at the trial, McLaughlin identified the outside of the restaurant from plaintiff's Ex. 1 in evidence, and the inside of the restaurant, where he had spent a moment in time, from plaintiff's Ex. 3 in evidence.
On cross examination, it was evident that McLaughlin's memory going back to 1999 was less than perfect and he relied on his affidavit, his checklist and the pictures that were introduced into evidence to refresh his recollection. He did testify that he recalled having returned to his vehicle to immediately make rough notes, which he later finalized as his checklist and affidavit, but which he no longer had. He testified that he had typed up the checklist and the affidavit and forwarded them via the supplied FedEx envelope on or about the 23rd of November.
Additionally on cross examination, McLaughlin told the court that he had applied for the patrol job over the internet and had not been required to answer questions with respect to his qualifications. Rather, after he applied, he would receive e-mails as to fights for which the plaintiff sought a patrol. McLaughlin also said that he is uncertain whether the sound was on when he viewed the television at the defendant restaurant. He looked at additional photos supplied by the defendant and identified another room where there may have been dancing and he testified that there certainly was music from the other room but no projector screen as in defendant's Exhibit "C." However, he never entered any other room but for the main room with the television that he first observed with his binoculars. He made it clear that he had not spent any more time than necessary in the defendant restaurant and had not questioned the female employee who was behind the counter, primarily because he had feared for his safety and was unarmed.
With respect to attorney fees, Mr. Genzano, the attorney for the plaintiff, testified that he was an associate whose time was charged at $200 per hour and that he had ten years experience in this particular specialty. He outlined in some detail how much time was spent on each aspect of the case for a total often hours, or $2,000, prior to the trial and that the trial would add an additional two hours.
The plaintiff rested and the defendant put a Mr. Soto on the witness stand who opined that he was the night manager at the defendant restaurant, that he was forty-nine years of age, married with three children and that he had never been convicted of a crime. Unfortunately, this was pretty much all he had to say other than that when his attention was directed to the evening of November 13, 1999, he testified, "I don't remember anything." The second and final witness for the defendant was Mr. Juan Cabrera, who it turned out was married to Angela Melo and her partner in the ownership of La Caridad. They have owned the restaurant for the last twelve years. Mr. Carbrera tried mightily to describe the various rooms in the restaurant and I found his testimony incomprehensible. However, when asked if he showed boxing in November 1999 in the restaurant, he was clear that his answer was no.
Both sides rested.
The facts as I find them lead unalterably to the conclusion that the restaurant did in fact show the Lewis/Holyfield bout and did so without a license. The credibility of Detective McLaughlin was essentially undisputed or, put another way, the defense never laid a glove on him. While he was unclear in some respects as to what transpired two-and-a-half years ago in what can only be described as a frolic and detour from his day job, there was no evidence that the affidavit and the checklist were fabricated, and there was no evidence of any inaccuracy. Meanwhile, although credibility hardly entered into an assessment of the defendants' witnesses and their testimony, it should be emphasized that they were not only without significant recollection of the events of November 13, 1999, but unable to even describe the layout of the restaurant, despite a certified interpreter in attendance at trial. Plaintiff carried its burden of proof.
Both §§ 553 and 605 allow a plaintiff to choose between actual damages or, as the plaintiff seeks here, statutory damages. Statutory damages range from $1,000 to $10,000 for ordinary violations of § 605, 47 U.S.C. § 605(e)(3)(c)(i)(II), but may be enhanced up to $100,000 for willful violations or reduced to $250 for unintentional ones. 47 U.S.C. § 605 (e)(3)(C)(ii)-(iii). Section 553 allows recovery in the range of $250 to $10,000 for ordinary violations, 47 U.S.C. § 553 (c)(3)(A)(ii), but may be increased to $50,000 for willfulness or decreased to as little as $100 for unwitting violations. 47 U.S.C. § 553 (c)(3)(B)-(C).
Where, as here, there is a violation of both statutes, an aggrieved plaintiff may only recover pursuant to one of them. Kingvision Pay-Per-View. Ltd., v. The Body Shop. et al., 2002 WL 393091, at *4 (S.D.N.Y. March 13. 2002) (Swain, J.,); Kingvision Pay-Per-View. Ltd., v. Jasper Grocery, 152 F. Supp.2d 438, 441-42 (S.D.N.Y. 2001) (Francis, M.J.,); see also Int'l Cablevision, Inc. v. Sykes, 75 F.3d 123, 129 (2d Cir. 1996). Additionally, the court should grant the plaintiff's request for damages under § 605 instead of finding the lesser damages available under § 553. See Sykes, 75 F.3d at 127.
Having examined the statutes and listened to the plaintiff's lawyer who argued that a finding of willfulness was essential, I note that there was no evidence in the record that indicated how the telecast was acquired. The plaintiff argues that by virtue of the defendants' ability to access the telecast, they did an affirmative act that demonstrates a purposeful violation of some sort. This may be so, but as noted, there is no evidence in the record to this effect and I decline to find any.
The other argument proffered by the plaintiff focused on the deterrent value of an award, specifically, that the seriousness of not acquiring a license and showing the bout caused a loss of good will in the community as other establishments in the neighborhood would be unlikely to pay for a license once they realized that La Caridad had shown the bout for free. Again, there was no evidence at the trial on this score.
For the foregoing reasons, while I conclude that there was a violation of § 605, minimum fines seem appropriate — $1,000. In addition, attorney fees, which are mandatory under § 605, will be assessed at $2,400 for a total of $3,400. Enter judgment.