Directv, Inc. v. Cardona

• Decision Date: 08 July 2003
• Docket Number: No. 6:03-CV-675-Orl-22KRS.,6:03-CV-675-Orl-22KRS.
• Citation: 275 F.Supp.2d 1357
• Parties: DIRECTV, INC., Plaintiff, v. Antonio CARDONA, Defendant.
• Court: U.S. District Court — Middle District of Florida

275 F.Supp.2d 1357

DIRECTV, INC., Plaintiff, v. Antonio CARDONA, Defendant.

No. 6:03-CV-675-Orl-22KRS.

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

July 8, 2003.

James A. Boatman, Jr., Viktoria Collins, Stump, Storey, Callahan & Dietrich, P.A., Orlando, FL, for plaintiff.

Louise B. Zeuli, Louise B. Zeuli, P.A., Maitland, FL, for defendant.

ORDER

CONWAY, District Judge.

I. INTRODUCTION

This cause comes before the Court for consideration of the Defendant's, Antonio Cardona, Motion to Dismiss (Doc. No. 6), and memorandum of law in support thereof (Doc. No. 7), filed May 22, 2003, to which the Plaintiff, DIRECTV, Inc. ("Direct Television"), responded (Doc. No. 10) on May 28, 2003. Having reviewed the motion and memoranda, this Court GRANTS IN PART and DENIES IN PART the Defendant's Motion to Dismiss (Doc. No. 6).

II. BACKGROUND

For the purpose of this Motion to Dismiss, the Court accepts the following facts derived from the Plaintiff's Complaint for Compensatory, Statutory, and Other Damages, and for Injunctive Relief (Doc. No. 2, filed May 22, 2003) as true.¹

The Plaintiff, Direct Television, is a California corporation with its principal place of business located in the State of California.² At all relevant times herein, the Defendant, Antonio Cardona, was a resident of the Middle District of Florida.³ This is a civil action brought pursuant to the Federal Communications Act of 1934, 47 U.S.C. § 605, and the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, and the Communications Assistance for Law Enforcement Act of 1994, 18 U.S.C. §§ 2510-22 ("the Wiretap Act").⁴

The Plaintiff, Direct Television, is in the business of providing television programming to millions of subscribers in the United States through a direct broadcast satellite system.⁵ In order to prevent unauthorized and unpaid viewing of its programming, Direct Television encrypts (scrambles) its satellite transmissions and employs conditional access technology.⁶ Conditional access technology consists of "access cards" which, upon activation by Direct Television, decrypts (unscrambles) satellite transmissions, permitting subscribers of Direct Television to clearly view its television programming.⁷

According to the Complaint, despite elaborate security measures, several companies are currently selling illegally modified access cards and other devices ("pirate access devices") that permit the viewing of Direct Television's satellite transmissions without authorization by or payment to Direct Television.⁸ Apparently, many of these companies employ Fulfillment Plus, a mail shipping facility located in Central California, to transact their business.⁹ For this reason, on or about May 25, 2001, Direct Television began executing Writs of Seizure at Fulfillment Plus securing sales records, shipping records, email communications, credit card receipts, and other records evidencing the sale and purchase of pirate access devices.¹⁰

According to the Plaintiff, the aforementioned Writs of Seizure produced evidence indicating that the Defendant, Antonio Cardona, purchased a pirate access device.¹¹ Specifically, the Complaint avers that on or about November 27, 2000 Cardona placed an order with DSS-Stuff for a "Terminator Unlooper with Case", and that he received his order at his address in Orlando, Florida via the United States Postal Service or another commercial mail carrier.¹²

Based on that information, the Plaintiff filed the instant three count lawsuit against the Defendant on May 22, 2003.¹³ Count I of the Complaint alleges that the Defendant received and/or assisted others in receiving Direct Television's satellite signals without authorization, in violation of 47 U.S.C. § 605(a).¹⁴ Count II alleges that the Defendant intentionally intercepted, endeavored to intercept, or procured other persons to intercept or endeavor to intercept Direct Television's electronic communications without authorization, in violation of 18 U.S.C. 2511(1)(a).¹⁵ Finally, Count III alleges that the Defendant manufactured, assembled, distributed, sold, and/or possessed pirate access devices, knowing or having reason to know that the design of such devices renders them primarily useful for surreptitiously intercepting satellite transmissions in violation of 18 U.S.C. § 2512(1)(b).¹⁶

The Defendant now moves this Court for an order dismissing the case for failure to state a claim upon which relief can be granted under 47 U.S.C. § 605(a) (Count I), 18 U.S.C. § 2511(1)(a) (Count II), and 18 U.S.C. § 2512(1)(b) (Count III).¹⁷

III. THE DEFENDANT'S ARGUMENTS

The Defendant argues that this Court should dismiss Counts I and II of the Complaint because although "47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a) permit private causes of action . . . [the] Plaintiff has plead mere conclusory allegations as opposed to specific facts."¹⁸ According to the Defendant, the "Plaintiff has not plead any connection between [the] Defendant's alleged purchase of this device . . . and any facts that [the] Defendant actually used the device to obtain unauthorized reception and/or interception of Plaintiff's satellite transmission of television programming."¹⁹ Nor, says the Defendant, has the Plaintiff "plead any connection to this Defendant and others whom he allegedly assisted in receiving and/or interpreting [Direct Television's] satellite transmission of television programming."²⁰ Likewise, the Defendant argues that Count III fails to state a claim upon which relief can be granted because "18 U.S.C. § 2512 does not provide [for] a private right of action."²¹

IV. STANDARD OF REVIEW

In deciding a motion to dismiss, the court must accept as true all the factual allegations in the complaint, drawing all inferences derived from those facts in the light most favorable to the plaintiff. Brown v. Crawford County, 960 F.2d 1002, 1010 (11th Cir.1992). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Little v. N. Miami, 805 F.2d 962, 965 (11th Cir.1986). A count may not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of a claim for relief. See Lopez v. First Union Nat'l Bank, 129 F.3d 1186, 1189 (11th Cir.1997), reh'g denied, 141 F.3d 1191 (11th Cir. 1998), cert. denied, 531 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559 (2000). The threshold of sufficiency for a complaint to survive a motion to dismiss is exceedingly low. See Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 703 (11th Cir.1985). Nevertheless, dismissal is appropriate where a court cannot "identify each of the material elements necessary to sustain a recovery under some viable legal theory." See Roe v. Aware Woman Ctr. for Choice, Inc. 253 F.3d 678, 684 (11th Cir.2001), reh'g denied, 273 F.3d 395 (11th Cir.2001), cert. denied, 534 U.S. 1129, 122 S.Ct. 1067, 151 L.Ed.2d 970 (2002) (internal citation omitted). Moreover, a court should grant a motion to dismiss where the factual allegations in the plaintiff's complaint present a dispositive legal issue precluding relief. See Marshall County Bd. of Educ. v. Marshall County Gas. Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).

V. LEGAL ANALYSIS

A. THE MOTION TO DISMISS COUNTS I AND II

In Count I of the Complaint, the Plaintiff charges that the Defendant received Direct Television's satellite transmissions in violation of 47 U.S.C. § 605(a). In relevant part, that statute provides as follows:

(a) Practices Prohibited

[N]o person receiving, [or] assisting in receiving . . . any interstate . . . communication by wire . . . shall divulge or publish the . . . contents . . . thereof, except through authorized channels of . . . 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, (3) to proper accounting or distributing officers of the various communication centers over which the communication may be passed, (4) to the master of a ship of whom he is serving, (5) in response to a subpoena issued by a court of competent jurisdiction, or (6) on demand of other lawful authority. No person not being authorized by the sender shall intercept any radio communication and divulge or publish the . . . contents . . . of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. No person having received any intercepted radio communication or having become acquainted with the contents . . . of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the . . . contents . . . of such communication (or any part thereof) or use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.

47 U.S.C. § 605(a).

Title 47 U.S.C. § 605(e)(3) provides that any "person aggrieved by any violation of subsection (a) . . . may bring a civil action in a United States district court or in any other court of competent jurisdiction."

Similarly, in Count II of the Complaint, the Plaintiff charges that the Defendant intercepted Direct Television's satellite transmission in violation of 18 U.S.C. § 2511(1)(a). In relevant part, that statute provides as follows:

[A]ny person who . . . intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication . . . shall be . . . subject to suit.

18 U.S.C. § 2511(1)(a).

Having...