Opinion
No. C 01-4242 MMC
July 25, 2002
ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT; VACATING HEARING
Before the Court is plaintiff Entertainment by JJ, Inc.'s motion for default judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure. Defendants Jose Montecinos and Gladis Mireya Vega have not filed opposition. Having considered the papers submitted in support of the motion, the Court deems the motion appropriate for decision on the papers, VACATES the hearing scheduled for July 19, 2002, and rules as follows.
1. Having reviewed the affidavits of Skip Klauber and Paul R. Anderson, Jr., and having considered the facts stated in the First Amended Complaint which are deemed true as a result of the entry of default, see Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978), the Court finds that defendants, having no license to do so, intercepted the transmission of an encrypted closed-circuit telecast on September 18, 1999, in violation of 47 U.S.C. § 605 (a). See Kingvision Pay-Per-View, Ltd. v. Scott E's Pub, Inc., 146 F. Supp.2d 955, 958-59 (holding unauthorized interception of encrypted closed-circuit telecast violates § 605(a)).
Plaintiff also alleges that defendants interception of the broadcast constitutes a violation of 47 U.S.C. § 553(a) (prohibiting unauthorized interception of "any communications service offered over a cable system). Where a plaintiff establishes that a defendant has violated both § 553(a) and § 605(a), in the absence of "unusual or particularly egregious circumstances," district courts have imposed damages under § 605 only. See Kingvision Pay-Per-View. Ltd. v. Backman, 102 F. Supp.2d 1196, 1197 (N.D. Cal. 2000). Here, because there are no unusual or particularly egregious circumstances, the Court will award damages under § 605. See id. Accordingly, the Court does not reach the issue of whether defendants have violated § 553(a). See Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 349 n. 1 (9th Cir. 1999) (noting "[t]here are potentially intricate issues of overlap and distinction" between §§ 553 and 605).
2. Plaintiff, having elected statutory damages under § 605(a), is entitled to a "sum of not less than $1,000 or more than $10,000, as the court considers just." See 47 U.S.C. § 605(e)(3)(C)(i)(II). A common approach to determining statutory damages is to estimate either the loss incurred by the plaintiff or the profits made by the defendants. See Kingvision Pay-Per-View. Ltd. v. Body Shop, 2002 WL 393091, at *4 (S.D. N.Y. March 13, 2002). Here, according to plaintiff, had defendants paid a license fee to plaintiff, the fee would have been calculated by multiplying the sum of $20 by the maximum fire code occupancy of the establishment. (See Klauber Decl. ¶ 7.) Plaintiff, however, offers no evidence as to the maximum occupancy of defendants' establishment. Rather, plaintiff offers evidence that 35 persons were present therein during the telecast, and that defendants charged a cover of $10. (See Anderson Aff.) Defendants' profit thus appears to have been $350 from the cover charge, plus an unknown amount for food and beverages sold to patrons. District courts commonly award a plaintiff statutory damages in the amount of $1,000 where the apparent financial benefit to the defendants does not, as here, exceed $1,000. See, e.g., Kingvision Pay-Per-View. Ltd. v. Chavez, 2000 WL 1847644, at *3 (N.D. Cal. December 11, 2000) (imposing $1,000 statutory fine where 40 persons were present in defendant's establishment and defendant had charged a $10 cover). Accordingly, plaintiff is entitled to statutory damages in the amount of $1,000.
3. Where a violation of § 605(a) is "committed willfully and for the purposes of direct or indirect commercial advantage or private financial gain," the court may enhance the damages award by up to $100,000. See 47 U.S.C. § 605(e)(3)(C)(ii). Here, on the evening of the telecast, an individual stood outside defendants' establishment "recruiting people to come in and watch [the telecast]," and, as noted, defendants charged those persons entering a cover. (See Anderson Aff.) Consequently, the Court finds that defendants acted willfully, for commercial advantage and for private financial gain. To deter future willful violations, enhancement damages in the amount of $5,000 is appropriate. See Joe Hand Promotions. Inc. v. Pete, 1999 WL 638215, at *2 (N.D. Cal. August 17, 1999) (awarding enhancement damages of $5,000 "to deter future piracy of pay-per-view' events).
4. Plaintiff is-entitled to its costs and to reasonable attorneys' fees. See 47 U.S.C. § 605(e)(3)(B)(iii). Plaintiff seeks to recover $196.00, the amount incurresto file and serve the summons and complaint. Plaintiff also seeks to recover the sum of $1,787.50 for services rendered by its attorneys. Having reviewed the declaration of Ruth Elm Auerbach, the Court finds the costs and fees sought to be reasonable, and thus awards plaintiff the sum of $1,983.50.
Plaintiff additionally seeks $275.00 for estimated attorneys' fees to attend the hearing on the instant motion. As the Court vacated the hearing, no such fees were incurred.
CONCLUSION
For the reasons stated above, plaintiffs motion for default judgment is hereby GRANTED. Plaintiff shall have judgment in the amount of $6,000 in damages, plus costs and attorney's fees in the amount of $1,983.50, for a total of $7,983.50.
The Clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been-tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED plaintiff's motion for default judgment is hereby GRANTED. Plaintiff shall have judgment in the amount of $6,000.00 in damages, plus costs and attorneys' fees in the amount of $1,983.50, for a total of $7,983.50.