Cbs Broadcasting v. Primetime 24 Joint Venture
| Citation | 48 F.Supp.2d 1342 |
| Decision Date | 23 December 1998 |
| Docket Number | No. 96-3650-CIV.,96-3650-CIV. |
| Parties | CBS BROADCASTING INC.; Fox Broadcasting Co.; Group W/CBS Television Stations Partners, CBS Television Affiliates Association; Post-Newsweek Stations Florida, Inc.; KPAX Communications, Inc.; LWWI Broadcasting, Inc.; and Retlaw Enterprises, Inc., Plaintiffs, v. PRIMETIME 24 JOINT VENTURE, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
David Michael Rogero, Akerman Senterfitt & Eidson, Miami, FL, Lawrence A. Kasten, Wilmer Cutler & Pickering, Washington, DC, Thomas P. Olson, Wilmer Cutler & Pickering, Washington, DC, Jonathan C. Drimmer, Covington & Burling, Washington, DC, Natacha Steimer, James Wrathall, Wilmer Cutler & Pickering, Washington, DC, Jay T. Smith, Covington & Burling, Washington, DC, for CBS, Inc.
Natacha Steimer, James Wrathall, Wilmer Cutler & Pickering, Washington, DC, Jay T. Smith, Covington & Burling, Washington, DC, for Fox Broadcasting Co.
Neil K. Roman, Covington & Burling, Washington, DC, Michael X. Imbroscio, Covington & Burling, Washington, DC, Jonathan R. Galst, Covington & Burling, Washington, DC, Natacha Steimer, James Wrathall, Jay T. Smith, Covington & Burling, Washington, DC, for CBS Television Affiliates Association.
Neil K. Roman, Michael X. Imbroscio, Jonathan R. Galst, Natacha Steimer, James Wrathall, Jay T. Smith, Covington
& Burling, Washington, DC, for Post-Newsweek Stations Florida Inc.
Neil K. Roman, Michael X. Imbroscio, Jonathan R. Galst, Natacha Steimer, James Wrathall, Jay T. Smith, Covington & Burling, Washington, DC, for KPAX Communications, Inc.
Neil K. Roman, Michael X. Imbroscio, Jonathan R. Galst, Natacha Steimer, James Wrathall, Jay T. Smith, Covington & Burling, Washington, DC, for LWWI Broadcasting, Inc.
Neil K. Roman, Michael X. Imbroscio, Jonathan R. Galst, Natacha Steimer, James Wrathall, Jay T. Smith, (See above), for Retlaw Enterprises, Inc.
Natacha Steimer, Wilmer Cutler & Pickering, Washington, DC, James Wrathall, Wilmer Cutler & Pickering, Washington, DC, for all plaintiffs.
David Michael Rogero, Akerman Senterfitt & Eidson, Miami, FL, for ABC, Inc.
David Michael Rogero, Akerman Senterfitt & Eidson, Miami, FL, for ABC Television Affiliates Association.
David Michael Rogero, Akerman Senterfitt & Eidson, Miami, FL, for FBC Television Affiliates Association.
David Michael Rogero, Akerman Senterfitt & Eidson, Miami, FL, for National Broadcasting Company.
David Michael Rogero, Akerman Senterfitt & Eidson, Miami, FL, for NBC Television Affiliates.
Brian F. Spector, Kenny Nachwalter Seymour Arnold Critchlo, Miami, FL, Andrew Z. Schwartz, Foley Hoag & Eliot, Boston, MA, for Primetime 24 Joint Venture.
Leslie Jean Lott, Lott & Friedland, Coral Gables, FL, David Kenneth Friedland, Lott & Friedland, Coral Gables, FL, for National Football League.
Alan Graham Greer, Richman Greer Weil Brumbaugh Mirabito et al., Miami, FL, Manuel Antonio Garcia-Linares, Richman Greer Weil Brumbaugh Mirabito et al., Miami, FL, Jay T. Smith, Covington & Burling, Washington, DC, for DirecTV, Inc.
James Yates, Pearland, TX, for James Yates.
Lois Yates, Pearland, TX, for Lois Yates.
Michael C. Zusman, Evans & Zusman, P.C., Portland, OR, for Michael C. Zusman.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This cause was tried before the Court non-jury on August 10, 1998 to August 19, 1998. Based upon the evidence presented through witness testimony, deposition testimony, documents, and exhibits, and pursuant to Federal Rule of Civil Procedure 52(a), the Court enters the following findings of fact and conclusions of law.
This is a copyright infringement action in which the Plaintiffs1 seek injunctive relief pursuant to Section 502 of the Copyright Act, 17 U.S.C. § 502, and costs and attorney's fees pursuant to Section 505 of the Copyright Act, 17 U.S.C. § 505. The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1338(a).
Plaintiffs own exclusive rights in copyrighted network television programs that PrimeTime 24 Joint Venture ("PrimeTime") is retransmitting via satellite to its subscribers nationwide. Plaintiffs claim that PrimeTime's retransmissions violate Plaintiffs' copyright in its network television broadcasts. The principal issue is whether PrimeTime's actions are permitted by the Satellite Home Viewers Act ("SHVA") 17 U.S.C. § 119, which provides a limited statutory license to satellite carriers.2 The license in the SHVA permits PrimeTime to transmit network programming only to "unserved households".
An "unserved household" is defined in 17 U.S.C. § 119(d)(10) as
a household that —
(a) cannot receive, through the use of a conventional outdoor rooftop receiving antenna, an over-the-air signal of grade B intensity (as defined by the Federal Communications Commission) of a primary network station affiliated with that network, and
(B) has not, within 90 days before the date on which that household subscribes, either initially or on renewal, to receive secondary transmissions by a satellite carrier of a network station affiliated with that network, subscribed to a cable system that provides the signal of a primary network station affiliated with that network."
17 U.S.C. § 119(d)(10) (emphasis added).
The principal dispute between the parties is over the meaning of the phrase "over-the-air signal of grade B intensity (as defined by the [FCC])" in Section 119(d)(10)(A) and what remedy the Court should impose to ensure compliance with the statute.
The Court previously issued several rulings that resolve many of the legal and factual issues presented by this lawsuit. The Court's prior written rulings include the May 13, 1998 Order Affirming In Part and Reversing in Part Magistrate Judge Johnson's Report and Recommendation (the "May 13, 1998 Order"); the July 10, 1998 Sealed Order (filed on August 13, 1998 in redacted form); the Order Denying Defendant's Motion for Summary Judgment (July 26, 1998); the Order dated August 12, 1998 resolving various motions in limine, and the Report & Recommendation ("R & R") issued by Magistrate Judge Johnson on July 2, 1997. In addition, the Court issued numerous oral rulings during pretrial hearings and during the trial. Rather than repeat all of its prior rulings, the Court incorporates by reference all pertinent findings and conclusions from the earlier rulings.
On June 26, 1998, Plaintiffs moved for summary judgment. Due to the proximity of the trial date and the complexity of the issues, the Court deferred the motion in order to permit the parties to develop a full and complete record with respect to certain issues as to which PrimeTime claimed there existed a factual dispute.
In issuing the findings and conclusions set forth below, the Court has relied on a voluminous factual record, the parties' Pretrial Stipulation, and the parties' detailed legal briefing. Among other things, the Court has available to it testimony from nine days of evidentiary hearings: four days of testimony before Magistrate Judge Johnson in June 1997,3 see Fed. R.Civ.P. 65(a)(2) (), and five days of trial before the Court in August 1998.4 The Court has also admitted in evidence hundreds of exhibits offered by the parties; in most cases, the parties have stipulated to admission of the exhibits. The parties have also filed extensive deposition testimony from this and other cases against PrimeTime, and trial testimony from one of the parallel cases. The findings and conclusions set forth below are based on all of the above materials, and on the record as a whole.
In a parallel copyright infringement action filed by ABC, Inc. against PrimeTime in the U.S. District Court in the Middle District of North Carolina, a final judgment has been issued against PrimeTime. See ABC, Inc. v. PrimeTime 24 Joint Venture, 17 F.Supp.2d 467 (M.D.N.C. July 16, 1998); ABC, Inc. v. PrimeTime 24 Joint Venture, 17 F.Supp.2d 478 (M.D.N.C. 1998). As discussed in detail below, the rulings by the ABC, Inc., court are fully consistent with this Court's May 13, 1998 Order and with the rulings below.
The Court notes that on November 17, 1998, the FCC initiated an expedited rulemaking proceeding on the way it defines, measures, and predicts the strength of television signals in light of the SHVA. The FCC has placed this proceeding on an accelerated track so that it may completed by February 28, 1999. Although the Court delayed imposition of the preliminary injunction in light of the FCC's proposed rulemaking, the Court has chosen not to delay the issuance of its Findings of Fact and Conclusions of Law. Due to the complexity of the issues involved, the Court has determined that any further delay in issuing its findings would not promote finality and certainty, which is the goal of judicial decision making. As in all issues before the judiciary, the Court must resolve the action before it in light of what has been presented by the parties. However, the Court reserves the right to issue a supplemental order after the FCC has resolved the rulemaking issues pending before it relative to this lawsuit.
Plaintiffs CBS Broadcasting Inc. ("CBS"), and Fox Broadcasting Co. ("Fox") are two separate national television broadcast networks. The remaining Plaintiffs consist of several individual CBS network stations and a trade association of CBS affiliate stations. CBS and Fox own exclusive rights in copyrighted network television programs such as "60 Minutes" and "The Simpsons." Pretrial Stip.5 ¶¶ 5(B)(8)-(9). CBS and Fox broadcast their network programs nationwide through local television stations that, in turn, transmit the network's programming to viewers in their local markets. Id. at ¶¶ 5(A)(1)-(2). Some of the local CBS and Fox stations are owned by the CBS or Fox networks or by sister companies, but most local...
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