American Television and Communications v. Floken, 84-498-CIV-ORL-18.

• Citation: 629 F. Supp. 1462
• Decision Date: 14 February 1986
• Docket Number: No. 84-498-CIV-ORL-18.,84-498-CIV-ORL-18.
• Parties: AMERICAN TELEVISION AND COMMUNICATIONS CORPORATION, d/b/a Orange-Seminole Cablevision of Central Florida; Home Box Office, Inc.; Entertainment and Sports Programming Network, Inc.; Southern Satellite Systems, Inc., Plaintiffs, v. FLOKEN, LTD., a limited partnership d/b/a Howard Johnson's Motor Lodge; Center City Corporation of Orlando, Gainesville P-H Properties, Inc., d/b/a Days Inn Orlando and Days Inn Kissimmee; Parkmount Properties, Inc., N.V., d/b/a Rodeway Inn; Frontier Motel, Inc., d/b/a Best Western-Kissimmee Frontier, a/k/a Ramada Inn East; etc., et al., Defendants.
• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida

629 F. Supp. 1462

AMERICAN TELEVISION AND COMMUNICATIONS CORPORATION, d/b/a Orange-Seminole Cablevision of Central Florida; Home Box Office, Inc.; Entertainment and Sports Programming Network, Inc.; Southern Satellite Systems, Inc., Plaintiffs, v. FLOKEN, LTD., a limited partnership d/b/a Howard Johnson's Motor Lodge; Center City Corporation of Orlando, Gainesville P-H Properties, Inc., d/b/a Days Inn Orlando and Days Inn Kissimmee; Parkmount Properties, Inc., N.V., d/b/a Rodeway Inn; Frontier Motel, Inc., d/b/a Best Western-Kissimmee Frontier, a/k/a Ramada Inn East; etc., et al., Defendants.

No. 84-498-CIV-ORL-18.

United States District Court, M.D. Florida, Orlando Division.

February 14, 1986.

Terry S. Bienstock and Philip J. Kantor, Frates, Bienstock & Sheehe, Miami, Fla., Anne E. Stern, American Television & Communications Corp., Englewood, Colo., and Frank Kruppenbacher, Swann & Haddock, P.A., Orlando, Fla., for plaintiffs.

Hal K. Litchford, Davis, Litchford, Downing & Christopher, Orlando, Fla., for Kon-Tiki.

Lawrence J. Pino, Orlando, Fla., for Gala.

Joseph E. Foster, Akerman, Senterfitt & Eidson, Orlando, Fla., for Floken, Ltd., Gainesville P-H Properties, Inc., Frontier Motel, Inc., Friendship Development Corp., Southern Motel Management Co., Inc. and Altamonte Lodges, Inc.

Denise G. Morris, Burton Bruggeman, III, Orlando, Fla., for Chopra, Gupta & Singh.

Marvin L. Beaman, Jr., Winter Park, Fla., for Center City Corp. Orlando and Claytons.

Michael J. Appleton, Winter Park, Fla., for Caravey Inns.

Ronald M. Hand, Kissimmee, Fla., Barry L. Miller, Orlando, Fla., for Gulf South Resources and Econo Lodge Main Gate East.

ORDER

GEORGE KENDALL SHARP, District Judge.

This case is before the Court upon plaintiffs' motion for preliminary injunction. Plaintiffs have settled with defendants Parkmount Properties, Inc., d/b/a Roadway Inn, and Colonial Motor, Inc., d/b/a Colonial Motor Lodge, and the Court granted a motion for summary judgment by defendant Gold Key Investment Fund, Ltd., d/b/a Gold Key Inn. The remaining defendants in this action are: Floken, Ltd., d/b/a Howard Johnson's Motor Lodge (Floken); Center City Corporation of Orlando, d/b/a Howard Johnson's Motor Lodge (Center City); Gainesville P-H Properties, Inc., d/b/a Days Inn Orlando and Days Inn Kissimmee (Gainesville P-H Properties); Frontier Motel, Inc., d/b/a Best Western-Kissimmee Frontier, a/k/a Ramada Inn East (Frontier); Kon-Tiki Investors, Ltd., d/b/a Kon-Tiki Village Resort Hotel (Kon-Tiki); Caravey Inns of Florida, Inc., d/b/a Caravey Inn (Caravey); Gala Amusements, Inc., d/b/a Gala Vista Motor Inn (Gala Vista); Gulf South Resources, Inc., d/b/a Econo Lodge Main Gate East (Gulf South Resources); C.W. Clayton and W.M. Clayton, d/b/a Diplomat Motor Inn (Diplomat); Friendship Development Corporation, d/b/a Tropicana Motel (Tropicana); Mohan S. Chopra, Rajinora P. Gupta, Mehemora P. Gupta, Pabitor Singh, and Daljeet Singh, d/b/a Travelodge Main Gate East (Travelodge); Southern Motel Management Company, Inc., d/b/a Southern Sun Inn (Southern Sun); and Altamonte Lodges, Inc., d/b/a Ramada Inn Central (Altamonte Lodges).

In this action, plaintiffs seek damages, preliminary and permanent injunctions, and further relief as necessary or proper for alleged violations of § 605 of the Federal Communications Act of 1934, 47 U.S.C.A. § 605, the Copyright Act of 1976, 17 U.S. C.A. §§ 101-810, the Lanham Act, 15 U.S. C.A. §§ 1051-1125, and Florida statutory and common law. Plaintiffs seek relief for defendants' unauthorized and willful interception, reception, exhibition, and public performance of copyrighted and otherwise protected audiovisual programming through the use of satellite reception dish antennas at their hotels and/or motels. Pursuant to Federal Rule of Civil Procedure 52, the Court enters the following findings of fact and conclusions of law on plaintiffs' motion for preliminary injunction.

FINDINGS OF FACT

Plaintiffs have filed a verified complaint and affidavits by a corporate vice-president and an investigator. This evidence is supplemented with discovery filed by several defendants. The Court has determined the facts based upon this information.

American Television and Communications Corporation (ATC), distributes subscription television, and owns and operates cable television systems in, inter alia, Orange and Osceola counties. ATC does business as Orange-Seminole Cablevision, Kissimmee Cablevision, and Cablevision of Central Florida. ATC contracts with basic programming services who supply programming, the copyrights of which are owned by basic service suppliers or their program originators. Through various contractual arrangements, ATC has acquired the rights to exhibit, perform, and retransmit such programming to its customers. ATC pays the originators of the programming for such exhibition and performance rights, and pays copyright fees to the Copyright Royalty Tribunal and licensing fees to the satellite programmers. ATC is authorized to receive programming services directly by satellite antennas, and to distribute such television programming to customers through its local cable distribution system. ATC retransmits the programming services which it has acquired to subscribers by a coaxial cable and related equipment which it owns and maintains. ATC has expended substantial sums for marketing, promoting, and servicing its cable television systems in Orange and Osceola Counties. The monthly charge paid by ATC's customers for the basic and premium programming is the primary source of revenue for ATC's cable systems and services.

ATC provides a basic cable service to subscribers for a monthly fee. The basic cable service includes local broadcast stations, television programming imported from other markets, and special programming services. ATC also offers premium programming, including Home Box Office (HBO) and Cinemax, to its subscribers at an additional charge. This premium programming consists primarily of feature films, sports events, and special entertainment events, the copyrights to which are owned by entertainment programming service companies such as HBO or their programming suppliers.

HBO produces private, commercial-free pay television entertainment services, known as "Home Box Office" and "Cinemax." Home Box Office and Cinemax feature movies, special events, and sports programming, some of which are copyrighted under the copyright laws of the United States. Entertainment and Sports Programming Network, Inc. (ESPN), produces private, television entertainment services which primarily feature amateur and professional sports events. ESPN programming is copyrighted under the copyright laws of the United States. HBO and ESPN acquire distribution and public display rights for their programming from authors, producers, event organizers, or distributors, and distribute such works in an entertainment programming service. HBO and ESPN program services are delivered in the United States by means of satellite transmissions or "feeds." HBO and ESPN contract with subscription television operators, such as ATC, to receive their satellite feeds and to distribute their programming services to the local operator's customers by means of cable television, master antenna, direct satellite reception, or microwave distribution service. The customers of these services receive the signal by means of satellite antenna dishes or "earth stations." Cable system operators pay a fee to HBO for each customer who subscribes to the Home Box Office and Cinemax services, and pay a subscription fee for the right to include ESPN in their cable, master antenna, and microwave transmissions. ESPN and its affiliated operators share commercial announcement time integrated into ESPN's network feeds. HBO has registered its trademark and trade name in order to identify and to distinguish its products from those of competitors.

Southern Satellite Systems, Inc. (SSS), is a resale communications common carrier licensed by the Federal Communications Commission (FCC) to lease channels of communication to others. SSS transmits via satellite the signal of WTBS, an independent television broadcast station in Atlanta, Georgia, which broadcasts sports, movies, variety programs, and news full time. The FCC has authorized SSS to establish and to operate one leased channel of communications via RCA Americom's SATCOM satellite to specified locations through the contiguous forty-eight states, Alaska, Hawaii, Puerto Rico, and the United States Virgin Islands for the point-to-point multipoint distribution (MDS) of television and associated audio signals of independent broadcast station WTBS to various customers. SSS retransmits the television signal of WTBS to local cable operators, including ATC, which have contracted for its carrier signal services and which pay fees for the right to receive the WTBS signal via satellite.

The entertainment programming services offered by HBO, ESPN, SSS and ATC, via its cable systems, provide their customers with services different from those provided by "free" standard broadcast television. The signals transmitted via satellite to ATC, other cable system operators, and other fee-paying distributors cannot be received in their transmitted form by conventional television sets and antennas. The satellite dish antennas or earth stations employed by defendants to intercept the signals are not receivers of the kind commonly used in private homes. However, the television programming transmitted by plaintiffs HBO, ESPN, and SSS and intended for ATC and other fee-paying distributors can be received by anyone with the proper equipment. Although plaintiffs vigorously promote their services and seek to maximize the number of fee-paying customers, the signals they transmit and receive are intended for use only by paying customers, and are not intended for the benefit of or use by the general public.

All of the defendants operate hotels or...