Directv v. Decroce, Civil Action No. 03-5199.

• Decision Date: 19 August 2004
• Docket Number: Civil Action No. 03-5199.
• Citation: 332 F.Supp.2d 715
• Parties: DIRECTV, INC., Plaintiff, v. DECROCE, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

332 F.Supp.2d 715

DIRECTV, INC., Plaintiff, v. DECROCE, et al., Defendants.

Civil Action No. 03-5199.

United States District Court, D. New Jersey.

August 19, 2004.

David A. Cohen, Saiber, Schlesinger, Satz & Goldstein, LLC, Newark, NJ, for Plaintiff.

OPINION

HAYDEN, District Judge.

Plaintiff DirecTV, Inc. ("DirecTV") has filed another motion for default judgment seeking statutory damages, costs, attorneys' fees, and injunctive relief for alleged violations of 47 U.S.C. § 605(a), 18 U.S.C. § 2511(1)(a), and 18 U.S.C. § 2512(1)(b). The basis is DirecTV's claim that defendant Nick Keal purchased and used pirate descrambling equipment to intercept DirecTV's satellite television programming without authorization. Similar lawsuits regularly are filed in this district and others, and DirecTV has been successful in obtaining the type of relief sought in the present application.

Prompted by a growing concern over the magnitude of the damages requested, the Court sua sponte has undertaken a close examination of the statutes involved. It must be noted that in this Court's experience these lawsuits either quickly are settled for unspecified sums, or are presented to the Court in the context of a default judgment application, exactly like the present one, that does not subject DirecTV's claims to the rigors of the adversary system. As a result, the question whether all of these statutes were intended to apply in this particular context has not arisen. There is good reason to ask that question if, as appears to be the case, the United States district courts regularly are being asked to act as a rubber stamp.

After careful review, the Court holds that while DirecTV properly can maintain a claim for a violation of 47 U.S.C. § 605(a), it has no private cause of action for violations of 18 U.S.C. § 2511(1)(a) or 18 U.S.C. § 2512(1)(b) based on the conduct alleged in the complaint. Accordingly, DirecTV's motion for default judgment is granted in part and denied in part.

I. BACKGROUND

DirecTV filed this lawsuit on October 31, 2003, against five defendants, including Keal. The complaint alleges that Keal purchased pirate descrambling equipment and used it to intercept and receive DirecTV's satellite television programming without authorization in violation of 47 U.S.C. § 605(a), 18 U.S.C. § 2511(1)(a), and 18 U.S.C. § 2512(1)(b). (Compl.¶¶ 3, 8, 16, 20, 24.)

The Clerk of Court entered default against Keal for failure to answer or otherwise respond to the complaint. DirecTV now seeks default judgment against Keal pursuant to Rule 55(b), and requests that the Court award injunctive relief, costs, reasonable attorneys' fees, and statutory damages of $10,000.

II. STANDARD OF REVIEW

By virtue of his default, Keal has admitted the factual allegations of the complaint, except those related to the amount of damages. 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2688, at 58-59 (3d ed.1998). But the Court need not accept DirecTV's legal conclusions, because "[e]ven after default [ ] it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law." Id. § 2688, at 63.

III. DISCUSSION

A. 47 U.S.C. § 605(a) claim

47 U.S.C. § 605 is part of the Cable Communications Policy Act of 1984, which amended the Communications Act of 1934. Section 605 states, in relevant part:

(a) Practices prohibited

Except as authorized by chapter 119, Title 18, no 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, (3) to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, (4) to the master of a ship under 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 existence, contents, substance, purport, effect, or meaning 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, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning 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).]

The Third Circuit has interpreted Section 605(a) as providing liability for cable pirates who directly intercept satellite transmissions. See TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 200 (3d Cir.2001).

By operation of his default, Keal admits that he used a pirate descrambling device to intercept DirecTV's satellite television programming. That admission affords a basis for the Court to conclude that Keal violated Section 605(a), entitling DirecTV to default judgment on its Section 605(a) claim. See TKR Cable, 267 F.3d at 200.

Pursuant to Section 605(e)(3)(B)(iii), a party prevailing on a Section 605(a) claim is entitled to recover full costs, including reasonable attorneys' fees. The Court, in its discretion, also may grant injunctive relief, and award actual or statutory damages. See 47 U.S.C. § 605(e)(3)(B)(i-ii), (C). DirecTV has elected to seek statutory damages. See 47 U.S.C. § 605(e)(3)(C)(i). Section 605(e)(3)(C)(i)(II) permits the Court to award statutory damages "in a sum of not less than $1,000 or more than $10,000, as the court considers just."

The Court awards to DirecTV attorneys' fees in the amount of $683.97, which sum the Court finds reasonable, and its costs in the amount of $72.02. The Court also grants DirecTV's request for injunctive relief.

As to damages, the record establishes that Keal purchased one pirate device on October 23, 2001. (Compl. ¶ 8; see also Certification of David A. Cohen Ex. A.) Aside from potentially receiving DirecTV's satellite television programming free of charge for an unspecified period of time, there is no indication that Keal otherwise profited from his conduct. Coupled with the injunctive relief and the award of attorneys' fees and costs, the Court finds that the minimum statutory damages award of $1,000.00 will compensate DirecTV adequately for any loss it suffered punish defendant for his alleged wrongdoing, and serve as a sufficient deterrent to defendant and others. Other courts have awarded the same amount of damages under comparable circumstances. See, e.g., DirecTV, Inc. v. Malizie, Civ. No. 03-403S, 2004 WL 1682827, ^*3-4 (W.D.N.Y. Mar. 15, 2004) (granting default judgment and awarding minimum statutory damages of $1,000 for violation of Section 605(a) where complaint alleged that defendant purchased a pirate device and intercepted DirecTV's satellite television programming); DirecTV, Inc. v. Albright, No. Civ. A. 03-4603, 2003 WL 22956416, at ^*3 (E.D.Pa. Dec. 9, 2003) (same).

B. 18 U.S.C. § 2511(1)(a) and 18 U.S.C. § 2512(1)(b) claims

18 U.S.C. § 2511 and 18 U.S.C. § 2512 are part of the Electronic Communications Privacy Act, which commonly is referred to as the Wiretapping Act. See Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir.1999). The Wiretapping Act imposes criminal liability for a variety of conduct, including intentional interception of any wire, oral, or electronic communications, see 18 U.S.C. § 2511(1)(a), and possession of any electronic, mechanical, or other device with knowledge "that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce," see 18 U.S.C. § 2512(1)(b).

DirecTV maintains that pursuant to 18 U.S.C. § 2520, it is authorized to pursue civil relief for violations of Sections 2511(1)(a) and 2512(1)(b). (See Pl.'s Br. at 5.) Section 2520 states, in relevant part:

(a) In general. — Except as provided in section 2511(2)(a)(ii), any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

[18 U.S.C. § 2520(a).]

1. Section 2512(1)(b)

Section 2520(a) expressly authorizes a civil action to be commenced by any person whose "electronic communication is intercepted" in violation of the Wiretapping Act. 18 U.S.C. § 2520(a) (emphasis added). Section 2520(a) thus creates a remedy for those individuals who actually have been victimized by the theft of their electronic communications. The phrase "to recover from the person ... which engaged in that violation," id. (emphasis added), demonstrates Congress's intent to limit civil liability under Section 2520(a) to the class of defendants who actually intercepted a communication, and not to extend liability for mere possession of pirate devices. Based on the plain language of Section 2520(a), the Court...