People v. Babylon

• Decision Date: 25 July 1985
• Citation: 39 Cal.3d 70,702 P.2d 205,216 Cal.Rptr. 123
• Court: California Supreme Court
• Parties: Previously published at 39 Cal.3d 70 39 Cal.3d 70, 39 Cal.3d 719, 702 P.2d 205 The PEOPLE, Plaintiff and Respondent, v. Harold John BABYLON et al., Defendants and Appellants. Crim. 23440.

Page 123

216 Cal.Rptr. 123

Previously published at 39 Cal.3d 70

39 Cal.3d 70, 39 Cal.3d 719, 702 P.2d 205

The PEOPLE, Plaintiff and Respondent, v. Harold John BABYLON et al., Defendants and Appellants.

Crim. 23440.

Supreme Court of California.

July 25, 1985.

As modified Aug.29, 1985.

Thomas W. Bell, Jr., Jed Scully, Sacramento, and James R. Browning, Fair Oaks, for defendants and appellants.

John A. Dougherty, Dist. Atty., and George M. Hendrickson, Deputy Dist. Atty., for plaintiff and respondent.

KAUS, Justice.

Alarmed by the increasing "piracy" of over-the-air subscription television transmissions and the threat it poses to a burgeoning new industry, the Legislature, in 1980, enacted a protective measure, codified as Penal Code section 593e. As originally enacted, section 593e provided in pertinent part that "[e]very person who for profit knowingly and willfully manufactures, distributes, or sells any device ... with the purpose or intention of facilitating interception or decoding of any over-the-air transmission by a subscription television service made pursuant to authority granted by the Federal Communications Commission which is not authorized by the subscription television service is guilty of a misdemeanor...."

Following a court trial in Sacramento Municipal Court, defendants Babylon and Hyatt were found guilty of violating section 593e. The appellate department of the superior court reversed, finding section 593e unconstitutionally vague and overbroad as applied to these defendants. The case was then certified to the Court of Appeal pursuant to rule 62 of the California Rules of Court. We granted a hearing after the decision of the Court of Appeal.

Originally this appeal confronted the courts with the challenge of interpreting and applying section 593e as enacted in 1980. During the pendency of this appeal, however, the Legislature amended section 593e, ¹ and--whatever may have been the case with respect to the 1980 legislation--it appears that the amended provision does not proscribe the activities of these defendants. Thus, pursuant to the general principle that, absent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal (People v. Rossi (1976) 18 Cal.3d 295, 134 Cal.Rptr. 64, 555 P.2d 1313; In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948), we conclude that the recent amendment requires reversal of the convictions.

I ²

Only two types of entities in the United States are licensed to transmit television program material "over the air." The transmissions of each may consist of commercial programming or of what is commonly referred to as "subscription television."

The most common of these two licensed entities is the commercial television broadcast station, which is authorized by the Federal Communications Commission (FCC) to transmit only on VHF and UHF frequency bands. ³ FCC rules and regulations do, however, allow a licensed commercial television broadcast station to transmit "subscription television service" in addition to the other television program material which, as a licensee, it is required to transmit. ⁴

The other type of entity is licensed by the FCC as a common carrier and is referred to by the FCC as a Multipoint Distribution Service (MDS). This common carrier entity is allowed to transmit only on the frequency band of 2150 to 2162 MH subZ . ⁵

Defendants are accused of selling devices to be used for the unauthorized reception of an over-the-air transmission broadcast by Sacramento Microband (Microband), a licensed MDS. Microband leases space for its microwave antenna on a tower near Sacramento. Utilizing this antenna and a transmitter, Microband transmits Home Box Office (HBO) program material, of which California Satellite Systems (CALSAT) is the exclusive Sacramento area franchisee.

CALSAT, a California corporation which holds no license or permit from the FCC, charges each member of the public who wishes to receive HBO program material an installation fee and a monthly fee for the receipt and personal use of HBO programs. It uses a subsidiary as the installer of the microwave antenna, standard amateur down converter, power supply, antenna mast, and other items considered necessary for the individual's reception of HBO programs. The individual subscriber buys some of the equipment from CALSAT, but leases the microwave antenna, the amateur down converter, and the power supply.

Originating in New York, HBO program material is transmitted to a satellite and is received by Satellite Networks Incorporated (SNI), an FCC licensed common carrier located near Rancho Cordova, California. SNI, in turn, transmits HBO material to Microband's receiver/transmitter tower facility. Microband then transmits this material omnidirectionally--that is, on a 360 degree basis, as opposed to a point-to-point basis. CALSAT pays Microband a fee for this over-the-air transmission.

During the period relevant to this case, Microband also transmitted program material which originated in Atlanta, Georgia, on Channel 17--commonly known as "Ted Turner's Super Station," WTVS. Unlike HBO, this material contained commercials.

In 1982 there were about 20 varieties of "dish"-type microwave antennae on the market. All received the frequency band of 2150 to 6215 MH subZ , which--as noted--includes the band on which the HBO material is broadcast. The standard amateur tuneable down converter used by CALSAT has been available on the open market for some 20 years and CALSAT has used at least 8 different manufacturers of down converters as sources for the coverter it leases to its customers. All of these converters received transmissions in the frequency band of 2000 MH subZ to 2700 MH subZ and "down convert" (reduce) these transmissions to the frequency of 54 MH subZ to 890 MH subZ , which is then down converted further by the television set itself into an intelligible signal. Finally, the power supply which CALSAT leases to its customers is simply a device capable of transforming household current into the type of current necessary to operate the down converter; indeed, a 12-volt battery would suffice as a power supply.

On December 10, 1980, Investigator Dodd attempted to purchase an "HBO system" from defendant Babylon. Babylon told her that he was not allowed to sell the system for HBO use and that if she told him she was going to use it for HBO, he would not sell it to her. He added that there was no law against her owning or using it. When asked what other programs the system would receive, Babylon replied that the only signal received by the system "around here" was HBO. After explaining and demonstrating the system, Babylon sold her the dish antenna, the amateur down converter, and the power supply for $190.75. Dodd then informed Babylon that she was from the district attorney's office, at which point Investigator Sihner entered the store and issued Babylon a citation for violation of Penal Code section 593e. Sihner had been in the store the day before. Babylon had refused to sell him the "system," stating that if Sihner told him he was going to use it for HBO, he would not sell it to him.

On December 15, 1980, investigators purchased from defendant Hyatt the following items: a down converter, dish antenna, cozx cable, brackets, transformers and a power supply unit. The $320 purchase included a pamphlet entitled "microwave antennas accessories earth stations." At the site of the proposed installation, Hyatt advised the investigators that the equipment--as he proposed to install it--would receive HBO when the antenna was pointed in a certain direction and that receiving HBO was the intended use of the "system."

Both Babylon and Hyatt have stipulated that they knew at the time of the sales that the equipment was capable of receiving the "HBO program material" transmitted by Microband, that it was going to be used for that purpose, and that they did not have the consent of CALSAT to sell the equipment to their customers for profit.

We should note, also, that the "scrambling" or "encoding" of MDS signals is authorized by 47 Code of Federal Regulations, section 21.907(e). Because a "decoder" is required to render such signals intelligible, encoding provides increased protection from unauthorized interception and use. The transmission at issue in this case was not encoded. Babylon and Hyatt are not accused of selling the decoders or "descramblers" which are sold by many dealers. Penal Code section 593e--old and new--clearly prohibits the unauthorized manufacture, distribution, and sale of such decoders. The antennae and standard amateur down converters involved in this case merely receive and reduce microwave transmissions--they do not decode or unscramble the signals. In effect, we are being asked to decide whether the language of section 593e is broad enough to extend beyond the obviously targeted decoders to encompass devices which merely receive microwave transmissions. ⁶

II

Defendants argue that the now superseded Penal Code section 593e is, as applied to them, vague, ambiguous, and overbroad. They also challenge it on the theory that it is preempted by the Federal Communications Act of 1934 (47 U.S.C. ch. 5, §§ 151-610). We need not address questions concerning the proper construction of former section 593e, as we have concluded that the amended statute does not proscribe the defendants' activities in this case. Thus, even if it were assumed that these activities did constitute a violation of former section 593e, as already noted the judgment must be reversed under the well-established principle that, absent a saving clause, a defendant is entitled to the benefit of a more recent statute which mitigates the punishment for the offense or decriminalizes the conduct altogether. (People v. Rossi, supra, 18 Cal.3d 295, 134 Cal.Rptr. 64, 555 P.2d 1313; In re Estrada, supra, 63 Cal.2d 740, 48 Cal.Rptr. 172, ...