Summary
In Joe Hand Promotions, Inc. v. Dailey, 2003 WL 1342998 at *3 (N.D. Cal. Mar. 13, 2003), in which a pirated program was shown to 50 people at a bar and plaintiff had not established that defendant had used the program to attract customers, this Court awarded plaintiff $2,000 in damages for the violation plus a $5,000 enhancement.
Summary of this case from JOE HAND PROMOTIONS, INC. v. LUOpinion
No. C 01-4219 CRB
March 12, 2003
ORDER GRANTING DEFAULT JUDGMENT
Now before the Court is the plaintiff's motion for a default judgment. Having carefully reviewed the papers submitted by the plaintiff, the Court concludes pursuant to Local Rule 7-1(b) that oral argument is unnecessary. The plaintiff's motion for default judgment is hereby GRANTED.
BACKGROUND
Plaintiff entered into a closed-circuit television license agreement to exhibit the closed-circuit telecast of the January 29, 2000 boxing match between Mike Tyson and Julius Francis, including the preliminary matches ("the Event"). A commercial establishment, such as theaters, arenas, bars, clubs, lounges, and restaurants, could receive and broadcast the Event only after entering into a contractual agreement with plaintiff.
The interstate satellite transmission of the Event was electronically coded or scrambled and was not intended for the use of the general public. If a commercial establishment was authorized by plaintiff to receive the Event it was provided with the electronic decoding equipment and the satellite coordinates necessary to receive the signal. The authorized commercial establishments which contracted with plaintiff were required to pay plaintiff a sublicense fee and to charge patrons an admission fee for attending the telecast of the Event.
Defendant James A. Dailey is the owner of Golden Bear Sports Club, located in OaKland, California. Plaintiff alleges that defendant unlawfully intercepted and intentionally broadcast the Event to approximately 50 patrons.
Plaintiff filed its complaint on November 13, 2001 and defendant was served with the summons and complaint shortly thereafter. Defendant did not answer the complaint and on March 20, 2002, the Cleric of the Court entered his default. Plaintiff subsequently filed a motion for a default judgment and as of the date of this order, defendant has not answered the complaint or responded to the motion for default judgment.
Plaintiff's complaint includes two causes of action and alleges violations of the Federal Communications Act of 1934, 47 U.S.C. § 605 and the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553. Plaintiff requests $60,000 in damages per violation plus attorney fees and costs.
I. PERSONAL AND SUBJECT MATTER JURISDICTION
When a court is considering whether to enter a default judgment; it has "an affirmative duty to look into its jurisdiction over both the subject matter and the parties." In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) ("To avoid entering a default judgment that can later be successfully attacked as void, a court should determine whether it has the power, i.e., the jurisdiction, to enter the judgment in the first place."). Here, defendant is a resident of California, so the Court may exercise personal jurisdiction. Moreover, the Court has subject matter jurisdiction because the plaintiff's claim arises under the Federal Communications Act of 1934, 47 U.S.C. § 605, and the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553.
II. DAMAGES
Whether to grant a motion for the entry of a default judgment is within the discretion of the trial court. See Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956). Generally, upon an entry of default; the factual allegations of the plaintiff's complaint will be taken as true, except those relating to the amount of damages. See Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977).
The Federal Communications Act; 47 U.S.C. § 605 et seq., prohibits commercial establishments from intercepting and broadcasting to its patrons satellite cable programming. See That's Entertainment Inc. v. J.P.T., Inc., 843 F. Supp. 995, 998 (D. Md. 1993). The Act allows an aggrieved party to bring a civil action in federal district court and permits that party to elect an award of either statutory or actual damages. See 47 U.S.C. § 605(e)(3)(C)(I). The statute allows the court to award between $1,000 and $10,000 for each violation of section 605 as it considers just. See 47 U.S.C. § 605(e)(3)(C)(i)(II). The statute allows the court to increase its award by not more than $100,000 when the violation has been "committed willfully and for purposes of direct or indirect commercial advantage or private financial gain." 47 U.S.C. § 605(e)(3)(C)(ii).
The Federal Cable Communications Policy Act; amended by the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553, prohibits the unauthorized reception or interception of communications offered over a cable system. Like section 605, section 553 creates a civil cause of action for an aggrieved party, and permits the plaintiff to choose between actual and statutory damages. See 47 U.S.C. § 553(c)(3)(A). The Court may award between $250 and $10,000 as it considers just. See 47 U.S.C. § 553(c)(3)(A)(ii). The statute also gives the Court discretion to increase the damages award by not more than $50,000 when the violation has been "committed willfully and for purposes of direct or indirect commercial advantage or private financial gain." 47 U.S.C. § 553(c)(3)(B).
Plaintiff's broadcast transmissions are communications protected by sections 553 and 605. Defendant's alleged receipt and broadcast of those transmissions to its customers without authorization constituted a violation of sections 553 and 605, giving rise to this action
When a court finds that a defendant has violated both sections 553 and 605, it is unclear whether it should impose cumulative damages under the two sections. The Second Circuit addressed this question in International Cablevision v. Sykes, 997 F.2d 998 (2d Cir. 1993). In Sykes, the court concluded that where liability exists under both sections 553 and 605, the district court should impose damages pursuant to section 605 instead of imposing the lesser damages available under section 553. See Sykes, 997 F.2d at 1009. While other courts have not universally followed the Second Circuit's reasoning, it is the most persuasive due to its extensive review of the legislative history. Other courts in this district have reached the same conclusion. See, e.g., Joe Hand Promotions, Inc. v. Pete, 1999 WL 638215 (N.D. Cal.) (Walker, Dist. J.);Don King Prods. v. Maldonado., 1996 WL 682006 (N.D. Cal.) (Henderson., Dist. J.). Therefore, the Court will not assess damages under section 553.
Plaintiff urges the Court to assess statutory damages at $10,000.00 plus a $50,000.00 enhancement in order to deter defendant and others like him from intercepting broadcasts in the future. However, "[i]n the absence of unusual or particularly egregious circumstances under which a defendant broadcast the fight;" the Court will not award the statutory maximum in damages. Don King Prods. v. Maldonado, 1998 WL 879683 (N.D. Cal.) (citing Joe Hand Promotions v. Burg's Lounge, 955 F. Supp. 42, 44 (E.D. Pa. 1997)). Plaintiff has made no showing here that the circumstances were either egregious or unusual. While its memorandum refers to a "cease and desist" letter and to previous violations, the affidavits submitted in support of the motion do not support such allegations.
Rather, this case appears to be similar to several other cases in this district. In Joe Hand Promotions, Inc. v. Pete, 1999 WL 638215 (N.D. Cal.), this same plaintiff requested default judgment against a bar owner for intercepting and broadcasting a fight. The Honorable U.S. District Judge Vaughn Walker awarded $1,000 in statutory damages with a $5,000 enhancement. Very little in Pete serves to distinguish it from the present case. The plaintiff sued the owner of a bar for illegally broadcasting a fight to eight patrons, none of whom had paid a cover charge to watch the broadcast. After the defendant defaulted, the court found a section 605 violation and exercised its discretion under the statute to award $6,000 in damages. See also Don King Prods., 1998 WL 879683 (awarding $1,250 in statutory damages plus a $5,000 enhancement).
The single violation at issue here is similar but not identical. The investigators reported that there were approximately 50 people at the bar. Plaintiff has not established that defendant advertised the Event or used it to attract customers.
In accordance with other default judgments involving similar facts, and taking into account the number of patrons at the bar, this Court hereby imposes $2,000 in damages for the violation plus a $5,000 enhancement; for a total award of $7,000.
III. FEES AND COSTS
Finally, plaintiff requests costs and attorney's fees. Section 605 provides that the court "shall direct recovery of full costs, including the award of reasonable attorney's fees to an aggrieved party who prevails." 47 U.S.C. § 605(e)(3)(B)(iii). In a declaration filed with the Court, counsel for the plaintiff indicated that his fees for this action total $1,787.50 and that plaintiff's costs total $176.00.
CONCLUSION
As defendant has not answered the complaint; and as the recovery sought is readily ascertainable and certain, the motion for default judgment is hereby GRANTED in the total amount of $8963.50. This amount consists of $7,000 for the violation of 47 U.S.C. § 605, $1,787.50 for attorney's fees, and $176.00 for costs.