Greek Radio Network of America v. Vlasopoulos

• Decision Date: 28 February 1990
• Docket Number: Civ. A. No. 88-9711.
• Citation: 731 F. Supp. 1227
• Parties: GREEK RADIO NETWORK OF AMERICA, INC. v. Gregory VLASOPOULOS and Joyce Vlasopoulos.
• Court: U.S. District Court — Eastern District of Pennsylvania

731 F. Supp. 1227

GREEK RADIO NETWORK OF AMERICA, INC. v. Gregory VLASOPOULOS and Joyce Vlasopoulos.

Civ. A. No. 88-9711.

United States District Court, E.D. Pennsylvania.

February 28, 1990.

COPYRIGHT MATERIAL OMITTED

Michael J. Malloy, Media, Pa., for plaintiff.

Matthew J. Siembieda, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for defendants.

MEMORANDUM

O'NEILL, District Judge.

I. Introduction.

Plaintiff, the Greek Radio Network of America ("GRNA"), is a Pennsylvania corporation whose principal business consists of providing Greek and other ethnic programming to radio subscribers in the Philadelphia metropolitan area and in other areas throughout the United States. GRNA owns and operates radio stations in Media and Reading, Pennsylvania, and in Atlantic City, New Jersey. From these stations, GRNA transmits its programming on separate subcarrier frequencies which cannot be received by the general public. The broadcasts can be received only through the use of special, modified radio equipment which GRNA provides to its subscribers for a yearly fee. GRNA's Complaint alleges that the defendants, Joyce and Gregory Vlasopoulos were and are "engaged almost entirely in the business of illegally modifying radio units, for a fee, in order to allow unauthorized listeners to obtain and enjoy the programming on Plaintiff's subcarrier frequency." Complaint ¶ 5. GRNA contends that these alleged activities are in violation of federal law. In Count One of the Complaint, GRNA claims that defendants' actions violate § 705 of the Communications Act of 1934, as amended, 47 U.S.C. § 605. In Count Two, GRNA claims that defendants' actions violate sections 2511 and 2520 of the Federal Wiretapping statute, as amended, 18 U.S.C. §§ 2511, 2520. In Count Three, GRNA contends that the defendants' activities violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.

Defendants have moved to dismiss GRNA's claims under Federal Rule of Civil Procedure 12(b)(6) on the grounds that they fail to state a claim upon which relief can be granted. In deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), I accept the well-pleaded factual allegations of the Complaint as true. The Complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that GRNA can prove no set of facts in support of its allegations which would entitle it to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Marshall-Silver Construction Co., et al. v. Mendel, et al., 894 F.2d 593, 595 (3d Cir.1990); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir.1988); Labov v. Lalley, 809 F.2d 220, 221-22 (3d Cir.1987); Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir.1985).

II. The Section 605 Claim.

In Count I of the Complaint, GRNA alleges that defendants' actions violate Section 605 of the Communications Act.¹ That Section prohibits the interception or use of interstate radio communications by those not entitled to their benefits. 47 U.S.C. § 605(a). Section 605(a) also contains a proviso (the "§ 605(a) proviso"), which states: "This section shall not apply to the receiving, divulging, publishing or utilizing the contents of any radio communication which is transmitted by any station for the use of the general public...." Id.²

Defendants argue that GRNA's radio transmissions constitute "radio communication ... transmitted ... for the use of the general public" under the § 605(a) proviso, and therefore are exempt from the coverage of § 605(a).³ Defendants' reliance on Functional Music, supra, n. 3, in support of this position is misplaced.

In Functional Music the plaintiff challenged the Federal Communication Commission's regulation of "functional radio programming" in which regular radio stations would broadcast music programming that included a supersonic tone emitted just before each commercial advertisement. Paying subscribers would receive only the music, having deleted the commercials by means of special equipment furnished to the subscribers by the service. The F.C.C. objected to the broadcasting on the grounds that radio broadcasters could not transmit both regular broadcasts and those for the use of limited audiences.

In reversing the F.C.C.'s decision, the Court held that the F.C.C. could not properly regulate the transmissions, and stated that:

broadcasting remains broadcasting even though a segment of those capable of receiving the broadcast signal are equipped to delete a portion of that signal.... Functional programming can be, and is, of interest the general radio audience.... In this light, a finding that the programming of petitioner and broadcasters comparably situated is not directed to, and intended to be received by, the public generally is clearly erroneous.

Transmitted with the intent contemplated by § 153(o), such programming therefore has the requisite attributes of broadcasting.

Id. at 548 (emphasis in original) (footnote omitted).

Defendants claim that "Functional Music held that radio broadcasts such as the GRNA's are broadcasts for use of the general public, and, thus, not protected by Section 605(a) of the Communications Act." Defendants' reply memorandum, at 12. This assertion is incorrect. The type of radio transmission involved in Functional Music is fundamentally different from that involved in this case. In the case of functional radio programming, members of the general public, by use of unaltered radio equipment, are able to receive the very same signals as do subscribers to the service; the service merely deletes certain portions of those broadcasts. This case, however, involves "pure" subscription radio services in which the transmissions are receivable only by subscribers using special equipment. Functional Music, therefore, is distinguishable and its construction of § 605(a) is inapposite. See Chartwell Communications Group, 637 F.2d at 463-64; U.S. v. Westbrook, 502 F.Supp. 588, 591 (E.D.Mich.1980); Home Box Office, Inc. v. Pay TV of Greater New York, Inc., 467 F.Supp. 525, 528 (E.D.N.Y.1979). The Court of Appeals for the District of Columbia Circuit has distinguished the holding of Functional Music from cases involving "pure" subscription radio services on precisely this ground. National Association for Better Broadcasting v. F.C.C., 849 F.2d 665, 667 (D.C.Cir.1988).

The substantial weight of authority construing the § 605(a) proviso holds that the crucial factor in determining whether programming is broadcast for the use of the general public "is not whether the content of the programming has mass appeal or mass availability but rather, whether it was intended for the use of the general public." Movie Systems, 710 F.2d at 494 (emphasis in original). Accord ON/TV of Chicago v. Julien, 763 F.2d 839, 842 (7th Cir. 1985); National Subscription Television v. S & H TV, 644 F.2d 820, 823-25 (9th Cir.1981); Chartwell Communications Group, 637 F.2d at 465; Floken, 629 F.Supp. at 1468; American Television & Communications v. Western Techtronics, Inc., 529 F.Supp. 617, 620 (D.Colo.1982).⁴

The Complaint alleges that GRNA's programming "is not intended for the general public but is intended solely for paying subscribers; the ... program cannot be heard by the public in that the only receivers capable of receiving said subcarrier frequency are those leased by Plaintiff...." Complaint ¶ 8. By alleging that GRNA's programming is not intended for use by the general public, the Complaint adequately alleges that GRNA's transmissions do not fall within the § 605(a) proviso. See, e.g., KMLA Broadcasting Corp. v. Twentieth Century Cigarette Vendors Corp., 264 F.Supp. 35, 42 (C.D.Cal.1967); FM Table of Assignments, 61 F.C.C.2d 113, 117-18 (1976); Greater Washington Educ. Telecommunications Ass'n, Inc., 49 F.C.C.2d 948 (1974); WFTL Broadcasting Co., 45 F.C.C.2d 1152 (1974).⁵

Defendants also contend that GRNA has not alleged the requisite elements of a cause of action under § 605(a). To be held liable under § 605(a), a defendant must be shown to have (1) intercepted or aided the interception and (2) divulged or published, or aided the divulging or publishing of, a communication transmitted by the plaintiff. California Satellite Systems, 767 F.2d at 1366 (9th Cir.1985); National Subscription Television, 644 F.2d at 826; Telerate Systems, Inc. v. Caro, 689 F.Supp. 221, 230 (S.D.N.Y.1988). See also United States v. Butenko, 494 F.2d 593, 599-600 (3d Cir.) (en banc), cert. denied 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974). Contrary to defendants' contention, I find that GRNA has pled these elements.

First, the Complaint alleges that defendants "are engaged almost entirely in the business of illegally modifying radio units, for a fee, so as to allow unauthorized listeners to obtain and enjoy the programming on Plaintiff's subcarrier frequency." Complaint ¶ 5. These activities clearly "are assisting third parties in receiving communications to which they are not entitled." National Subscription Television, 644 F.2d at 826. See also Chartwell Communications, 637 F.2d at 466. GRNA has properly alleged that defendants aided the interception of its transmissions.

Second, the act of viewing a transmission that the viewer was not authorized to receive constitutes a divulgement or publication. California Satellite Systems, 767 F.2d at 1366; National Subscription Television, 644 F.2d at 826; Telerate Systems, 689 F.Supp. at 221; Ciminelli v. Cablevision, 583 F.Supp. 158, 164 (E.D.N.Y.1984); Cox Cable, 582 F.Supp. at 380. This rule applies to radio transmissions. California Satellite Systems, 767 F.2d at 1366. Therefore, I find that GRNA has properly alleged publication or divulgement.

I conclude that GRNA's transmissions are not intended "for the use of the general public" within the § 605(a) proviso, and that GRNA has stated a claim for violation of that Section. Defendants' motion to dismiss Count I of the...