US v. Scott
Decision Date | 13 February 1992 |
Docket Number | No. CRE91-91-S.,CRE91-91-S. |
Citation | 783 F. Supp. 280 |
Parties | UNITED STATES of America, Plaintiff, v. Robert Calvin SCOTT, Jr., a/k/a Sonny Scott, Robert Calvin Scott, III, a/k/a Scotty Scott and Donna W. Scott, Defendants. |
Court | U.S. District Court — Northern District of Mississippi |
Robert Q. Whitwell, U.S. Atty., John Marshall Alexander, Asst. U.S. Atty., Oxford, Miss., for plaintiff.
Steve Shankman, Memphis, Tenn., Barry Teaque, Montgomery, Ala., for defendants.
This cause is before the court on defendants' joint motion to dismiss the indictment for failure to state a crime against the laws of the United States. The court conducted a hearing on this matter and is now prepared to issue its ruling.
Defendants, who own S & S Satellite, a retail business in Iuka, Mississippi, were indicted for manufacturing, assembling, modifying, selling, and distributing descrambler devices in violation of 47 U.S.C. § 605(e)(4). Also included in the indictment is a conspiracy count. It is alleged that the descrambler device at issue, the VideoCipher II, would, upon modification, descramble, or decrypt, all satellite cable programs, allowing the user to receive these programs through his home satellite dish without paying any subscription fees.
Subsection (e)(4), which was part of the 1988 amendments to 47 U.S.C. § 605, provides:
Any person who manufactures, assembles, modifies, imports, exports, sells, or distributes any electronic, mechanical, or other device or equipment, knowing or having reason to know that the device or equipment is primarily of assistance in the unauthorized decryption of satellite cable programming, or is intended for any other activity prohibited by subsection (a),1 of this section, shall be fined not more than $500,000 for each violation, or imprisoned for not more than 5 years for each violation, or both.
"Satellite cable programming" is specifically defined as "video programming which is transmitted via satellite and which is primarily intended for the direct receipt by cable operators for their retransmission to cable subscribers...." 47 U.S.C. § 605(d)(1). Defendants' motion rests upon this definition.
Defendants argue that given the statutory definition of satellite cable programming, § 605(e)(4) does not criminalize the conduct with which they are charged. Rather, according to them, the statute is directed at prohibiting, among other things, the modification of commercial descramblers, such as the VideoCipher IIC, which are used by cable operators to descramble television signals before retransmittal by wire to their cable subscribers. Defendants, in a conclusory manner, contend that this statute is ambiguous and thus, under the rule of lenity, must be interpreted in their favor.
Although this particular subsection of § 605 has been alluded to by two federal courts of appeals, see United States v. Hux, 940 F.2d 314 (8th Cir.1991); United States v. McNutt, 908 F.2d 561 (10th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 955, 112 L.Ed.2d 1043 (1991), no court has addressed the precise issue now presented or otherwise interpreted or applied this subsection. This court therefore has little guidance, besides certain well established rules of statutory construction, to aid it in resolving this question.
Id. (quoting United Stated v. Brown, 333 U.S. 18, 25-26, 68 S.Ct. 376, 380, 92 L.Ed. 442 (1948)).
As it existed before the 1988 amendments which added subsection (e)(4), section 605 provided that "the importation, manufacture, sale, or distribution of equipment by any person with the intent of its use to assist in any activity prohibited by subsection (a) of this section shall be subject to penalties and remedies...." 47 U.S.C. § 605(d)(4) (pre-1988 amendment). Congress clearly intended this subsection "to leave undisturbed the case law that had developed confirming the broad reach of section 605 as a deterrent against piracy of protected communications." 1984 U.S.Code Cong. & Admin.News 4655, 4746.
There is absolutely no doubt that the conduct with which the instant defendants are charged was prohibited under § 605 as it existed before 1988. See United States v. Herring, 933 F.2d 932, 936-37 n. 19, 937 (11th Cir.1991). The question is thus whether, by amending § 605, Congress intended to decriminalize activity which had so clearly been found prohibited.
A review of the legislative history of § 605(e)(4) reveals the following under the heading, "Piracy of Satellite-Delivered Cable Programming":
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