defendant argues that it is entitled to file separate statements of account for each of its New York City units which are not adjacent to each other.
b. Defendant's New York City facilities are a single cable system for 17 U.S.C. § 111(d) purposes.
Based on the evidence presented at trial and the arguments put forth by counsel in their post-trial submissions, I find that defendant's New York City systems should not be treated differently than a traditional cable system. Further, pursuant to the definition of a cable system in both 17 U.S.C. § 111(f) and 37 C.F.R. § 201.17(b)(2), I find that defendant is required to file a single statement for all of its SMATV systems. Accordingly, I conclude that defendant's New York City facilities constitute a single cable system for 17 U.S.C. § 111(d) purposes.
Section 111(f) of title 17 provides alternative factors to be considered in the determination of whether a system should be treated as a single system for royalty fee payments. If a cable system is "under common ownership or control or operating from one headend" it is considered a single cable system. 17 U.S.C. § 111(f). Here, defendant qualifies under both alternatives; each of the SMATV systems defendant operates are under common ownership or control and each operates from a single headend.
Although defendant argues that each system it operates at various building sites is the result of a contract negotiated individually with building owners and takes six to twelve months to complete, defendant does not dispute that each contract is negotiated by the same entity, Liberty Cable. Further, defendant does not dispute that a company or entity other than defendant, installs the equipment and cable necessary to transmit broadcasting signals to paying subscribers. It is clear to me that all of defendant's New York facilities are under its ownership or control.
Defendant argues that its buildings are not served by the same headend, yet I find the contrary is true. Judge Preska determined recently that defendant "receives satellite and broadcast signals at its headend facility located on East 95th Street in Manhattan." Liberty Cable Co., Inc., et al. v. The City of New York, et al., 893 F. Supp. 191, 196 (S.D.N.Y. 1995), aff'd. 60 F.3d 961 (2d Cir. 1995). Defendant receives four superstation signals at its East 95th Street headend which are then transformed into a format for local distribution. Tr. at 124. Defendant distributes programming from the single headend to individual buildings and subscribers via feeder, distribution cable and microwave. Tr. at 125, see also, Ex. 57. Thus, I conclude that defendant's broadcast signals originate from its headend, and that this is the centralized point for defendant's distribution network.
It follows, therefore, that pursuant to section 111(d) defendant is required to file a single statement of account with the Copyright Office. The Copyright Office previously addressed the issue of filing requirements for SMATV systems. Subsequent to a rulemaking procedure, the Copyright Office concluded that SMATVs are required to file a single statement of account for all facilities served in the same or contiguous communities. Ex. 51 at 31596.
c. Defendant's failure to file was willful.
I turn now to whether defendant's actions in transmitting to the public plaintiffs' works was willful and repeated. Pursuant to § 111(c)(2)(B), plaintiff must prove by a preponderance of the evidence that the defendant engaged in the "willful or repeated secondary transmission to the public" of television signals carrying plaintiffs' copyrighted works. 17 U.S.C. § 111(c)(2). Specifically, the statute states:
the willful or repeated secondary transmission to the public by a cable system of a primary transmission made by a broadcast station . . . and embodying a performance or display of a work is actionable as an act of infringement, and is fully subject to the remedies provided by sections 502 through 506 and 509 . . .