Porter County Cable Co., Inc. v. Moyer, S 82-172.

• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
• Citation: 624 F. Supp. 1
• Docket Number: No. S 82-172.,S 82-172.
• Parties: PORTER COUNTY CABLE COMPANY, INC., Plaintiff, v. Charles MOYER, and Charles Moyer, d/b/a F.A. Distributors, Defendants.
• Decision Date: 13 January 1983

624 F. Supp. 1

PORTER COUNTY CABLE COMPANY, INC., Plaintiff,
v.
Charles MOYER, and Charles Moyer, d/b/a F.A. Distributors, Defendants.

No. S 82-172.

United States District Court, N.D. Indiana, South Bend Division.

January 13, 1983.

624 F. Supp. 2

F. Joseph Jaskowiak, Valparaiso, Ind., for plaintiff.

Alban L. Smith, Michigan City, Ind., William L. Hoehner, Valparaiso, Ind., Charles G. Nightingale, Portage, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This case is before the Court on plaintiff's Motion for Summary Judgment filed December 9, 1982. No response has been filed within the time limits fixed by Rule 7 of the local rules of this Court. The allegations of plaintiff's Motion for Summary Judgment stand before this Court without dispute and disclose that plaintiff is entitled to judgment as a matter of law.

I.

On April 21, 1982 plaintiff, Porter County Cable Company, Inc., filed its complaint against defendants, Charles Moyer and Charles Moyer d/b/a F.A. Distributors. On that same day, plaintiff filed a Motion for Temporary Restraining Order and for a Preliminary Injunction and a Memorandum in Support of Application for Temporary Restraining Order. Along with that Motion and Memorandum, plaintiff also filed two affidavits, one by Ronald Ellis and one by Debora Butterfield. Neither Mr. Ellis nor Ms. Butterfield are currently employed by plaintiff. All depositions filed are ordered published. On May 5, 1982, plaintiff's motion was continued indefinitely, as a result of a tentative agreement to settle the case. On June 28, 1982 the Court granted the withdrawal of defendants' counsel, Murphy, Burns and McInerney, P.C. Defendants are presently represented by Attorney Alban L. Smith. On July 14, 1982, the deposition of Charles T. Moyer was taken by plaintiff's counsel.

Porter County Cable Company, Inc., (hereinafter Porter Cable) provides cable television service only to those customers who pay subscription fees. Ronald Ellis, Affidavit, filed on April 21, 1982, par. 2-5. The programs offered by Porter Cable are not intended for use by the general public, but are intended only for the use of paying subscribers. Ellis, Aff. par. 2-5. The customers must pay an additional fee to view each of two premium channels — "Showtime" and "Cinemax". Ellis, Aff., par. 5. Defendants have made available to Porter Cable customers devices which allow the customers to decode "Showtime" and "Cinemax" transmissions so that they may be viewed without paying the additional fee. Ellis, Aff., par. 11-13; Debora Butterfield, Affidavit, filed on April 21, 1982; Charles T. Moyer, Deposition, July 14, 1982, p. 8 1. 18-20 & p. 11 1. 5-8.

In his deposition, defendant, Charles T. Moyer, described an advertisement, which defendants had placed in a newspaper, and which stated in part: "This unit a Jerrold System decoder will pay for itself in approximately ten months." Moyer, Depo., p. 50 1. 9-25, p. 51 1. 1 & p. 51 1. 7-24. In explaining what this portion of the advertisement meant, defendant stated that it would pay for itself within ten months because a basic cable subscriber would not have to pay any additional fee to view any of the premium channels offered through plaintiff if the subscriber purchased a decoder from Moyer, through his business. Moyer, Depo., p. 53 1. 10-15, p. 54 1. 19-25 & p. 55 1. 1-6. Defendant, Charles T. Moyer, admitted that he, through his business, sold decoding devices to Porter Cable subscribers. Moyer, Depo., p. 8 1. 18-20 & p. 11 1. 5-8. See Orlo H. Jackson Affidavit.

In addition, defendant stated that he had previously "sold equipment that was illegal for the customer to use" and that he considered these sales of unauthorized decoder boxes to be "the same." Moyer, Depo., p. 54 1. 9-18. Moyer concluded his deposition by stating that although neither he nor F.A. Distributors were in the business of selling decoder devices at the time of the deposition, "they may be in the future". Moyer, Depo., P. 68 1. 3-9.

The issues here presented are:

624 F. Supp. 3

1. Were defendants' actions in selling and otherwise making electronic decoders available to Porter Cable subscribers a violation of the laws of the United States?

2. Were defendants' actions in selling and otherwise providing unauthorized decoder boxes to Porter Cable subscribers a violation of the laws of the State of Indiana, which provide relief in the form of treble damages and attorney fees for such violation.

II.

Defendants actions in selling and otherwise making electronic decoders available to Porter Cable subscribers is a violation of Section 605 of the Communications Act of 1934, 47 U.S.C. § 605. That act provides, in pertinent part:

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; and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; ....

Id. The Courts have recognized the existence of a private right of action under Section 605. Chartwell Communications Group v. Westbrook, 637 F.2d 459, 466 (6th Cir.1980); Reitmeister v. Reitmeister, 162 F.2d 691, 694 (2d Cir.1947).

Further, Section 605 has served as the basis for injunctive relief in cases almost identical to the present one. In Chartwell Communications Group v. Westbrook, the operator of an over-the-air subscription television service sued to enjoin the defendants from selling equipment that would enable non-subscribers to receive the plaintiff's programs. Chartwell, 637 F.2d at 460-62. The Chartwell court noted that "Section 605 protects radio communications, (which include television communications, ...) from unauthorized reception, interception, divulgence, publication, etc." Id. at 462. The court held that selling decoders constituted assistance to third parties in receiving communications to which they were not entitled. Id. at 466. These activities were found to be a violation of the Communications Act. Id.

A similar result was reached in National Subscription Television v. S & H TV, 644 F.2d 820 (9th Cir.1981). The owners and operators of a subscription television service sued the makers and distributors of decoding devices which were not authorized by the service. Id. at 821. The decoding devices enabled television sets to decode and unscramble the services' encoded and scrambled signals, without the use of a decoder leased from the service. Id. The court held that the distribution of unauthorized...