undercover purchases paints a vivid picture of an extensively, if not exclusively, illegal operation.
Most telling is the defendants' failure to challenge plaintiff by introducing any evidence suggesting certain sales were legal -- not one invoice, not one purchaser, not one affidavit, not one record of any kind establishing legitimate sales to an authorized distributor, or anyone. And when plaintiffs turned to the defendants Neyir and DeGirmenci for their explanations, these defendants invoked their fifth amendment privilege against self-incrimination.
Essentially, the issues are as follows: whether uncontested evidence of fraudulent intent with respect to at least 17 sales by defendants Stargaze and Video-Link over a limited period of time is sufficient to support an inference that extensive sales of decoders or combination units were made with similar intent, and if so, whether such an inference is so compelling that the Court can conclude that no genuine issue of material fact exists and plaintiff is entitled to judgment as a matter of law.
In Anderson v. Liberty Lobby, Inc., the Supreme Court emphasized that, once the moving party has properly supported its motion for summary judgment, Rule 56(e) requires the nonmoving party to proffer evidence to establish that a reasonable jury could rule in his favor: "The movant has the burden of showing that there is no genuine issue of fact, but the [nonmovant] is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict." 106 S. Ct. 2505, 2514 (1986). See also, Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569 (1968). The nonmovant may not rest solely on the allegations or denials in his pleading; he must present specific facts showing that there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e). Anderson, 106 S. Ct. at 2514.
The defendants have simply not produced any evidence of legitimate sales of decoders or combination units. Their failure to present any evidence of legitimacy, in the face of Cablevision's convincing presentation, including evidence that there is no legitimate retail market for the decoders and combination units, leads the Court to conclude that there is no genuine issue of fact with respect to the legitimacy of sales of single decoders or combination units to individuals.
Admittedly, the Court's decision to limit summary judgment to sales of single devices may appear somewhat arbitrary, particularly in the face of such evidence and the defendants' telling demurrer. Nevertheless, the Court is aware of the drastic nature of summary judgment and must at the same time acknowledge the possibility, however improbable, that certain sales of more than single devices may have been accomplished under circumstances that leave the intent of the sellers somewhat in doubt.
With counsel's assistance, the court has identified 373 sales of single decoders or combination units to purchasers residing within Cablevision's authorized franchise areas, in addition to the 17 sales that defendants concede were illegal. With respect to these 390 sales, the Court concludes that defendants have failed to demonstrate any genuine issue of material fact regarding their legitimacy and that Cablevision is entitled to judgment thereon.
III. Applicability of Section 605
The only remaining question is the measure and amount of statutory damages to which Cablevision is entitled. There are arguably two statutory provisions that prohibit defendants' conduct -- 47 U.S.C. § 553(a)(1) and 47 U.S.C. § 605(e)(4). As a preliminary matter, it is clear that the sale of the decoders violated section 553(a)(1). Cablevision contends, however, that the defendants' actions violated section 605(e)(4) as well. The Court must therefore examine section 605 to determine whether defendants' conduct violated section 605(e)(4), thereby triggering section 605's more severe statutory damages provision.
Section 605(e)(4) makes it illegal for any person to sell or distribute:
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) of this section.
The first issue presented is whether the decoders and combination units the defendants sold were "intended for any other activity prohibited by subsection (a)" of section 605.
Section 605(a) provides in relevant part that:
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. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.