National Football League v. McBee & Bruno's

• Decision Date: 13 September 1985
• Docket Number: No. 84-2692 C (5).,84-2692 C (5).
• Citation: 621 F. Supp. 880
• Court: U.S. District Court — Eastern District of Missouri
• Parties: NATIONAL FOOTBALL LEAGUE and St. Louis Football Cardinals, Inc., Plaintiffs, v. McBEE & BRUNO'S, Jerrald Guttmann, Michael Badalamenti, Frank & Frank, Inc. and Talayna's of South St. Louis Inc., Defendants.

621 F. Supp. 880

NATIONAL FOOTBALL LEAGUE and St. Louis Football Cardinals, Inc., Plaintiffs, v. McBEE & BRUNO'S, Jerrald Guttmann, Michael Badalamenti, Frank & Frank, Inc. and Talayna's of South St. Louis Inc., Defendants.

No. 84-2692 C (5).

United States District Court, E.D. Missouri, E.D.

October 2, 1985.

Order September 13, 1985.

COPYRIGHT MATERIAL OMITTED

Robert E. Wallace, Jr., Jim J. Shoemake, David W. Harlan, Guilfoil, Petzall & Shoemake, St. Louis, Mo., John Vanderstar, Margaret Alexander, Covington & Burling, Washington, D.C., for plaintiffs.

Barry S. Ginsburg, Clayton, Mo., John L. Sullivan, Joanna O. Quinley, Francis M. Nevins, Jr., St. Louis, Mo., for defendants.

MEMORANDUM OPINION

LIMBAUGH, District Judge.

This civil case, in which injunctive relief is requested, is now before the Court on the merits and the parties have exhaustively briefed and argued the issues. Plaintiffs, in alternate theories, claim defendants have no authority to intercept transmissions of live telecasts of professional football games played in St. Louis, Missouri between the Cardinals and other National Football League teams and show such telecasts at their restaurant or tavern establishments. Plaintiffs allege defendants violate plaintiff's copyright authority, 17 U.S.C. § 101, et seq., and violate, as well, certain provisions of the Federal Communications Act of 1934, as amended. 47 U.S.C. § 151, et seq. Plaintiffs request permanent injunctive relief and statutory damages under the Copyright Act. Plaintiffs also assert contempt claims against some defendants for alleged violation of the Court's preliminary order.

Defendants deny any violation of either act and assert numerous affirmative defenses. In addition, they claim damages are due from plaintiffs in a variety of counterclaims.

Trial and a decision on the issues presented by the counterclaims and the contempt assertions are reserved and will not now be dealt with.

On November 19, 1984, the Court entered a temporary restraining order, restraining defendants and their agents from intercepting from satellite, or from any other means, a transmission of a live telecast of the professional football game scheduled to be played in St. Louis, Missouri on November 25, 1984 between the Cardinals and the Philadelphia Eagles, the performance of which game was to be telecast on November 25, 1984 by CBS Sports, Inc.

After a hearing, the Court, on December 7, 1984, issued a preliminary injunction following the general terms of the temporary restraining order, except that another professional football game showing was also enjoined. This was the 1984 season final home game scheduled to be played between the Cardinals and the New York Giants, on December 9, 1984. The basis of the preliminary injunction was that defendants had infringed plaintiffs' copyrights in National Football League ("NFL") game programs and there was a reasonable likelihood defendants had violated the provisions of the Federal Communications Act, as well.

Although certain findings of fact were made in the preliminary injunction, many will again be restated or changed in view of new testimony adduced at the trial on the merits.

Plaintiff National Football League is an unincorporated, non-profit association constituted under the laws of New York, with its principal place of business in New York City. The association is composed of 28 member clubs that are engaged in the business of exhibiting professional football games. The clubs are divided into the National Conference and the American Conference. Through the NFL, the member clubs schedule games against each other and manage their affairs as a league.

Plaintiff St. Louis Football Cardinals is a Missouri corporation organized under the laws of the state of Missouri, with its principal place of business at St. Louis, Missouri. The Cardinals is a member club of the National Football League and is a member of the National Conference.

Defendant McBee & Bruno's, Inc. ("Panama Reds") is a Missouri corporation that owns and operates Panama Reds, a bar and restaurant located at 2245-7 South Grand in St. Louis, Missouri 63104.

Defendant Frank & Frank, Inc. ("Sandrinas"), is a Missouri corporation that owns and operates Sandrina's, a bar and restaurant located at 5098 Arsenal in St. Louis, Missouri 63139.

Defendant Jerrald Guttmann ("Guttmanns") owns and operates, Guttmann's, a bar and restaurant located at 3609 Juanita in St. Louis, Missouri 63166.

Defendant Michael Badalamenti ("Mr. B's") owns and operates Mr. B's, a bar and restaurant located at 5800 Southwest Avenue in St. Louis, Missouri 63116.

Defendant Talaynas of South St. Louis, Inc. ("Talaynas") is a Missouri corporation that owns and operates Talaynas, a bar and restaurant located at 3123 Watson, in St. Louis, Missouri 63139.

Each defendant restaurant and bar is equipped with a satellite dish antenna capable of receiving satellite transmissions.

In 1982, the NFL, on behalf of the member clubs, entered into contracts with the three major networks, ABC, CBS and NBC, to provide for the telecasting of live television programs of NFL regular season and post-season games for five seasons commencing in the fall of 1982.

By these contracts, each network obtained exclusive rights to televise certain NFL games, subject to contractual limitations, among them the requirement that unsold out games are not to be broadcast live; that is, that they be blacked-out in the home club's home territory which is the area within a 75-mile radius of the club's home playing site. In addition, all of the clubs away games must be broadcast live back to the home city.

All of the defendants' establishments are located within 75 miles of Busch Stadium which is in the City of St. Louis, Missouri and is the home site of plaintiff St. Louis Football Cardinals.

These exclusive contracts, with their limitations on broadcast rights, serve the NFL and its member clubs' economic interests in controlling the distribution of the sports entertainment product that the clubs and the NFL create. The contract limitations also foster development of a local following for individual clubs.

The Cardinals played regularly scheduled home games at Busch Stadium during the 1984 season against other clubs including the Los Angeles Rams game on November 4, 1984, the Philadelphia Eagles game on November 25, 1984 and the New York Giants game on December 9, 1984. The Rams, Eagles and Giants' games were all telecast by CBS to other areas but were blacked out and not shown by the St. Louis CBS affiliate, KMOX TV in the greater St. Louis area.

Each of the Cardinals' home games are telecast following a regular process. Network cameras in the Stadium capture the video images of the game while the network announcers, team players and others simultaneously create the audio portions of the telecasts. The audio and video signals of the telecasts referred to, which constitute the program, are then transmitted to an earth station located outside the stadium. The earth station then transmits the program to a satellite in geostationary earth orbit at a point on the celestial equator where the satellite is located.

A transponder on the satellite receives the signal and on another frequency transmits it to a network control point in Long Island, New York. This transmission is broad enough that it can be received, with proper equipment, in large portions of the earth in the vicinity of the satellite, including much of the United States. The signal from the earth station to the satellite is called an uplink and that going from the satellite to Long Island is a downlink. At this stage the downlink signal contains no commercials and is occasionally referred to as a clean feed.

On receipt of the clean feed down link at the network control point, the network inserts program material consisting largely of commercials and other sports commentary. The signal is then transmitted from the New York control point back to the original transmitting satellite or to a different satellite also in geostationary orbit. This uplink signal is referred to as a dirty feed because of the insertion of new materials. The dirty feed is then transmitted from the satellite to the same large portions of the earth in the vicinity of the satellite and is then received by the network's affiliated television stations and broadcast pursuant to the terms of the agreement between the networks and the NFL.

An uplink signal transmitted from an earth station to a satellite is a focused signal with strength directed toward the satellite. The downlink is more of a difused signal which permeates a large area. The satellite downlink signals, whether clean feeds or dirty feeds are transmitted in the so-called C-Band frequency consisting of 3,700 to 4,200 megahertz. Accordingly, downlink signals, intended for a network control point or authorized television stations, can be intercepted with equipment that is now available to the public such as dish antennaes. It is not possible for these transmissions to be intercepted by ordinary home television equipment.

Although satellite dish systems are becoming popular, they are not commonly used in private homes and their use is generally confined to commercial establishments such as hotels, bars and restaurants and to residential areas that are so situated that access to network television stations by standard television antennae is poor. A dish system can be purchased for $1,500.00 but the more sophisticated reliable systems cost much more. Defendants' systems cost as much as $3,000.00 to $6,000.00 each. There are 125 to 130 million residential television sets in the United States as compared to 1 million or less satellite dish systems.

All defendants have dish antennaes or earth stations capable of receiving either a clean or dirty feed downlink signal. By the use of this equipment, they can receive the signal and convert it to a frequency so that it...