The only decision dealing with cable equipment other than decoding or descrambling devices for the interception of cable programming, Shenango Cable TV, Inc., 631 F. Supp. 835, held that a mechanism which restored the possibility of taping a cable program on one channel while viewing another cable program, and which also restored remote channel control for the subscriber, did not violate either 47 U.S.C § 553 or § 605. The court wrote that ". . . the Cable Communications Policy Act unequivocally establishes that [there is liability only when there is the intent] that the equipment be used for the interception or pirating of cable signals. . . ." Shenango Cable TV, Inc., 631 F. Supp. at 838.
MCTV has proffered no persuasive argument or authority as to why § 553(a)(1) should be read more broadly than the cited decisions discussed have done. As stated above, the Cable Policy Act aims to promote competition and minimize unnecessary regulation of the cable industry. That aim mandates a narrow interpretation of this provision. In addition, the House committee report explicitely states that § 553 aims to regulate devices that allow the interception of cable programming by descrambling the signal and there is reason to believe that Congress did not intend to extend regulation farther.
C. N.Y. Executive Law § 825(6)
Section 825(6) provides that:
Any cable television company may initiate a civil proceeding . . . to collect any rates, charges, or fees duly imposed in accordance with applicable law, or to enjoin the procurement or reception of cable television services from the facilities of such cable television company without its consent, or to enjoin the sale or distribution, to anyone other than the provider of a telecommunications service for its own use in the provision of its service, of any electronic decoder or descrambler . . .
Plaintiff argues that Cable Doctor's activities violate § 825(6) because "only MCTV may authorize the installation of an additional outlet to a subscriber. . . [and] the viewing of a transmission from the unauthorized outlet, which the subscriber was not authorized to receive, amounts to the proscribed [conduct]." (Pl's Mem. Opp. at 7). However, the argument misses the mark because it begs the question whether Cable Doctor's activities are covered by the statute.
Cable Doctor argues that the purpose of § 825(6) is merely to provide a cause of action to collect "rates" from subscribers and hence has no application to its activities. It also contends that § 825(6) covers only the procurement or reception of cable services "from the facilities of such cable television company," and that the installation of a second outlet is not covered by this provision. (Def.'s Reply Mem. at 11).
Section 825(6) creates two civil causes of action. First, it authorizes the collection of rates from non-paying customers and the injunction of reception of cable services by non-paying users. Second, it provides a cause of action against sellers of electronic decoders or descramblers which enable the unauthorized reception of cable programming. The text of § 825(6) makes clear that an additional outlet, such as Cable Doctor installs, is not a decoder or descrambler, which it defines as
[devices], a principal function of which defeats a mechanism of electronic signal encryption, jamming or individually addressed switching imposed by such company to restrict the delivery of its service . . .
Moreover, the Memorandum of the New York Assembly Rules Committee states that:
The newly clarified description of the equipment which would be restricted from sale or distribution is designed to make sure that no one will sell to the general public a device that decodes or descrambles a secured telecommunications transmission . . ., but that sales will continue to be permitted for more innocent devices traditionally available to the public, such as TV receiver sets . . . and standard channel converter boxes . . . .
Mem. of Assembly Rules Ctee., N.Y. St. Legis. Annual 1983 at 231.
There is no basis for interpreting the statute to cover Cable Doctor's activities. Cable Doctor is neither a customer of MCTV nor a party receiving MCTV's cable services without paying for them, nor is Cable Doctor selling or distributing decoders or descramblers within the meaning of § 825(6). The installation of a second outlet falls into the group of "more innocent devices" which are permitted by the legislation.
Defendants' motion is granted. The complaint is dismissed.
It is so ordered.
Dated: October 8, 1992
New York, New York
Morris E. Lasker
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