Opinion
EP-02-CA-0288-DB
September 19, 2003
DEFAULT JUDGMENT
On this day, the Court considered Plaintiff Kingvision Pay Per-View, Ltd.'s "Motion for Default Judgment," "Request for Entry of Default," and "Memorandum of Law in Support of Request for Judgment by Default," all filed on November 27, 2002, in the above-captioned cause. Defendant filed no responses.
Through the instant motions and supporting documents, Plaintiff moves for default judgment against Defendant Jorge Victor Lopez, individually and doing business as Mamacita's Lounge. After due consideration, the Court is of the opinion that the Motion for Default Judgment should be granted as provided below.
Background
Plaintiff, by contract, owned commercial rights to distribute, for a fee, the televised version of the professional boxing match between Felix Tito Trinidad and Fernando Vargas, which took place on December 2, 2000, via closed circuit television and via encrypted satellite signal. Plaintiff alleges that Defendant, without purchasing the right to intercept and exhibit the encrypted signal, nonetheless exhibited the boxing match to his patrons.
On the day of the match, Plaintiff employed auditors to visit commercial establishments during the transmission of the boxing match and later submit affidavits verifying the exhibition of the boxing program at locations not authorized to so exhibit. Richard F. Narro, Jr., an auditor, submitted an affidavit alleging that the boxing match was exhibited at the commercial establishment named in this cause of action.
Plaintiff commenced this action on July 8, 2002, alleging that Defendant unlawfully intercepted and exhibited commercially Plaintiffs satellite programming. Plaintiff alleges violations of section 633 of the Federal Communications Act, 47 U.S.C. § 553, and section 705 of the Federal Communications Act, 47 U.S.C. § 605 ("the Communications Act"). Plaintiff contends that Defendant intercepted the satellite signal and displayed the program willfully and for the purpose of direct or indirect commercial advantage or private financial gain. Accordingly, Plaintiff seeks statutory damages, an increase in the award for having acted willfully, and costs. Although Plaintiff duly served copies of a summons and the Complaint on Defendant, he has failed to appear, answer or otherwise defend against the Complaint.
Discussion
Plaintiff moves for Default Judgment as to Defendant pursuant to Federal Rule of Civil Procedure 55(b)(2), which provides that a party entitled to a default judgment may apply to the Court therefor. Plaintiff claims it is entitled to recover damages under both, section 633 of the Federal Communications Act, 47 U.S.C. § 553, and section 705 of the Federal Communications Act, 47 U.S.C. § 605. Both sections provide for civil and criminal remedies for the unauthorized interception and subsequent transmission of satellite and cable signals. Although several courts have held that the unauthorized interception and broadcast of either satellite or cable transmissions violates both 47 U.S.C. § 553 and 605, see Entertainment by J J. Inc. v. Al-Waha Enterprises, Inc., 219 F. Supp.2d 769, 774 (S.D. Texas 2002), the majority award damages only under § 605 because that provision allows for greater recovery by the plaintiff. Id. at 775. Absent guidance from the Fifth Circuit on this specific issue, the Court sides with the majority of courts and will award damages only pursuant to § 605.
Under 47 U.S.C. § 605(a), Plaintiff seeks maximum statutory damages in the amount of $10,000, increased by $100,000 for willful violation of 47 U.S.C. § 605(a). In general, statutory damages should not be awarded by default judgment unless the Court has a hearing or is provided with detailed affidavits establishing the necessary facts and that the amount claimed is a liquidated sum or one capable of mathematical calculation. See United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5th Cir. 1979). Statutory damage awards serve both a compensatory and punitive function. Hence, "in making a statutory award, the court may consider the likelihood of profits and losses and may take into account the attitude and conduct of the parties." Warner Bros. Inc., v. Dae Rim Trading, Inc., 877 F.2d 1120, 1126 (2d Cir. 1989) (copyright infringement case).
The Court finds that a hearing in this case is unnecessary given the ample supporting documents and affidavits supplied by Plaintiff.
Title 47 U.S.C. § 605 prohibits the unauthorized publication of any intercepted radio communication, including satellite cable programming. Section 605(a) provides:
[N]o person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to forward such communication to its destination. . . .47 U.S.C.A. § 605(a) (West 1991). The statute's prohibition of the unauthorized interception and disclosure of radio communications is also applicable to communications transmitted by means of new technology, including domestic satellite transmissions. See, e.g., United States v. Herring, 933 F.2d 932, 937 (11th Cir. 1991).
Under the Communications Act, an aggrieved party has a private right of action for injuries arising from violation of § 605. 47 U.S.C.A. § 605(e)(3)(A) (West 1991). The Court may award statutory damages for each violation in a sum of not less than $1,000 or more than $10,000, "as the court considers just." Id. § 605(e)(3)(C)(i)(II). If the Court finds that the violation was committed willfully and for purposes of commercial advantage, the Court in its discretion may increase the award of damages in an amount not to exceed $100,000 for each violation. Id. § 605(e)(3)(CX)(ii). The Supreme Court has defined "willful" in the context of civil statutes as conduct showing "disregard for the governing statute and an indifference to its requirements," Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 127, 105 S.Ct. 613, 625, 83 L.Ed.2d 523 (1985), and courts have interpreted the Communications Act consistently with that definition. See, e.g., ON/TV of Chicago v. Julien, 763 F.2d 839, 844 (7th Cir. 1985) (interpreting "willfulness" under § 605 as defined in Trans World Airlines). For purposes of § 605, Courts have found conduct "willful" where there were repeated violations over a period of time, or where there was a sophisticated knowledge of the satellite programming industry and violation of the statutes which regulate it. See, e.g., Cable/Home Communication Corp. v. Network Prod., 902 F.2d 829, 851 (11th Cir. 1990); Home Box Office v. Champs of New Haven, Inc., 837 F. Supp. 480, 484 (D. Conn. 1993).
Here, although Plaintiff asks for maximum damages, the Court finds that awarding the highest statutory damages is inappropriate as to Defendant. Plaintiff has provided no documentation or other competent evidence showing any significant actual damages or, conversely, substantial unlawful monetary gains by Defendant. The case law suggests that under similar circumstances and in the absence of egregious violations, courts have refused to award the highest possible damages. See, e.g., Home Box Office, 837 F. Supp. at 484 (holding that under the Communications Act and Copyright Act, maximum statutory damages in amount of $250,000 imposed on owner of sports bar was excessive and would be reduced to $10,000 where there were no allegations of repeated violations, substantial gains by defendants or significant actual damages to the plaintiff); see also Joe Hand Promotions v. Burg's Lounge, 955 F. Supp. 42 (E.D. Pa. 1997) (holding that in the absence of evidence suggesting especially egregious circumstances under which tavern owners exhibited copyright broadcast of heavyweight boxing fight without authorization, $20,000 damage award was unwarranted). Inasmuch as the amount of statutory damages under § 605 is discretionary, the Court finds that the appropriate amount of statutory damages under the circumstances presented is $2,000.
Plaintiff also seeks damages based on Defendant having committed the alleged act "willfully and for purposes of direct or indirect commercial advantage or private financial gain," pursuant to § 605(e)(3)(C)(ii). Given that the Defendant exhibited the boxing match in a commercial establishment, they were sure to benefit financially from the unauthorized interception of the satellite transmission. Moreover, the Court finds that an award under this section of the statute is warranted insofar as Defendant acted in disregard or with indifference to the governing laws. While Defendant may not have been well-versed in the statutory restrictions on the unauthorized interception of satellite transmissions, the Court finds that there must have been some knowledge on the part of Defendant that such interception could not be had for free. The Court, however, is unwilling to make an award at the statutory maximum of $100,000. Defendant runs a small establishments and, as noted above, he is likely not familiar with statutory requirements of satellite broadcasting. Cf. Network Prod., 902 F.2d at 851 (awarding $20,000 for multiple, willful violations of Copyright Act and $110,000 for separate willful violations of the Communications Act where the defendant flagrantly violated statutory requirements with which he was familiar given his knowledge of the industry). In this case, the Court is of the opinion that an award of $10,000 will further the goal of deterrence without putting Defendant out of business.
Plaintiff also seeks $1,500 as reasonable attorney fees, the total sum based on an hourly rate of $150. Additionally, Plaintiff seeks to recover the costs of bringing suit in the amount of $235. The Court finds this accounting reasonable and is of the opinion that Plaintiff is entitled to such an award. See, e.g., Time Warner Cable of New York City v. Olmo, 977 F. Supp. 585 (E.D.N.Y. 1997) (awarding prevailing party, a cable television operator, reasonable costs and attorney fees in the amount of $1,586 based on hourly rates ranging from $110 to $190). The Court is of the opinion that pre-judgment interest at the rate of 6% per annum as compensation for lost use of the money due as damages during the lapse of time between the accrual of the claim and the date of judgment is warranted, in addition to post-judgment interest at the legal rate in effect at the time of entry of Judgment. See Williams v. Trader Publ'g. Co., 218 F.3d 481, 488 (5th Cir. 2000) (holding that "[a] district court has discretion to impose a pre-and post-judgment interest award to make a plaintiff whole" at the rate determined by the court); see also Hansen v. Continental Ins. Co., 940 F.2d 971, 984 (5th Cir. 1991) (holding that "it is within the discretion of the district court to select an equitable rate of prejudgment interest."). Accordingly, after due consideration, the Court is of the opinion that the following orders should enter:
IT IS HEREBY ORDERED that Plaintiff Kingvision Pay Per-View, Ltd.'s "Motion for Default Judgment" is GRANTED.
IT IS FURTHER ORDERED that Default Judgment is ENTERED in favor of Plaintiff and against Defendant Jorge Victor Lopez, individually and doing business as Mamacita's Lounge as follows: (1) statutory damages in the amount of $2,000 pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II); (2) additional damages in the amount of $10,000 for "committ[ing] [the alleged act] willfully and for purposes of direct or indirect commercial advantage or private financial gain," pursuant to 47 U.S.C. § 605(e)(3)(C)(ii); (3) interest thereon at the rate of 6 percent per annum on the sum of $2,000 from the 2nd day of December, 2000, to the date of entry of this Judgment; (4) court costs related to prosecution of this matter totaling $235; and (5) post-judgment interest thereon at the rate of 1.22 percent per annum.