Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

INTERNATIONAL CABLEVISION, INC. v. CANCARI

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


January 10, 1997

INTERNATIONAL CABLEVISION, INC., d/b/a Adelphia Cable, Plaintiff,
v.
THOMAS CANCARI, Defendant.

The opinion of the court was delivered by: HECKMAN

REPORT AND RECOMMENDATION

 Plaintiff moves for entry of judgment for seven violations of 47 U.S.C. § 605(a) and for recovery of reasonable attorneys fees and costs against defendant Thomas Cancari. For the reasons set forth below, plaintiff's motion should be granted.

 BACKGROUND

 This action was commenced on February 2, 1996. The complaint seek declaratory and injunctive relief and monetary damages against the defendant for tampering with plaintiff's cable television system and receiving private cable television programming services through unauthorized connection to plaintiff's cable television system, in violation of 47 U.S.C. §§ 553(a)(1) and 605(a). The complaint also alleges pendent state claims for conversion and trespass and for violation of New York Executive Law § 825(6) based on such unauthorized reception. Following service, defendant failed to answer or appear and therefore an entry of default was obtained on July 15, 1996. The matter was subsequently referred to the undersigned on August 29, 1996.

 On September 19, 1996, plaintiff presented evidence in support of its claim for damages at a hearing held before the undersigned. At the hearing, plaintiff demonstrated that defendant Cancari received Adelphia's "Basic", "Cable Plus" and "Home Box Office (HBO)" cable television programming between December 27, 1994 and July 10, 1995 without Adelphia's authorization. Two witnesses testified on behalf of Adelphia. The first was Kenneth Powell. Kenneth Powell is a field inspector with Adelphia Cable. He related that on July 10, 1995 he was doing service in the area of defendant's address at 493 Rambling Road in East Amherst and he discovered that the plaintiff had hooked up cable service through Adelphia without authorization.

 Ann Crowley also testified on behalf of plaintiff. According to her testimony, the signals to Adelphia's "Basic", "Cable Plus" and "HBO" programming are all transmitted over the air from orbiting satellites to Adelphia's cable "head-end". Accordingly, defendant's unauthorized reception of these cable television programming services from Adelphia is a violation of 47 U.S.C. §§ 605(a) and 553(a)(1). She also demonstrated that defendant's unauthorized reception of Adelphia's programming spanned over a seven month time period during which the defendant would have had to make seven monthly payments in order to receive Adelphia's programming with its authorization. Accordingly, Cancari is liable for seven violations of 47 U.S.C. §§ 605(a) and 553(a)(1). According to Crowley's testimony, plaintiff admitted receiving the cable as of December 29, 1994 and stated that he hooked it up himself having called Adelphia and being unable to wait for their arrival.

 DISCUSSION

 It is well-established that if a cable television operator is aggrieved by a defendant's violation of 47 U.S.C. §§ 605(a) and 553(a)(1), it may elect to recover damages under the higher penalties afforded by 605(e)(3)(C) than under 553(c)(3). International Cablevision, Inc. v. Sykes, 75 F.3d 123, 133 (2d Cir.), cert. denied, U.S. , 117 S. Ct. 298 (1996). At the hearing, plaintiff Adelphia elected to recover damages against the defendant in the form of statutory damages for seven violations of 47 U.S.C. § 605(a).

 Under 605(e)(3)(C), an aggrieved cable operator "may recover an award of statutory damages for each violation of [§ 605(a)] involved in the action in the sum of not less than $ 1,000 or more than $ 10,000, as the court considers just. . . ." 47 U.S.C. § 605(e)(3)(C)(i)(II). Adelphia seeks recovery of an award of $ 7,000 for defendant's seven violations of 47 U.S.C. § 605(a), at the minimum floor of $ 1,000 per violation.

 In addition, the aggrieved party is entitled to a mandatory award of its full costs, including reasonable attorney's fees. 47 U.S.C. § 605(e)(3)(B)(iii); International Cablevision, Inc. v. Sykes, supra, 75 F.3d at 134. Copies of contemporaneous time records of the attorneys who prosecuted the case are attached as Exhibits A, B and C to plaintiff's affirmation in support of recovery of attorney's fees (Item 9). According to these records, a total of 13.9 hours were spent prosecuting Adelphia's claims against defendant. The time period for which professional services were rendered span from November 3, 1995 to September 23, 1996. The billing rates are also set forth in the papers. The total feels sought are $ 1,785.00. In addition, plaintiff's counsel had disbursements of $ 120.00 for the filing fee and $ 20.00 for service. Accordingly, the total cost of disbursements and attorney's fees plaintiff seeks from defendant is $ 1,925.00.

 Finally, plaintiff seeks permanent injunctive relief under §§ 605(e)(3)(B)(i) and 553(c)(2)(A). Since plaintiff has shown that plaintiff violated the federal statute at issue, permanent injunctive relief is appropriate. Accordingly, a permanent injunction should issue against defendant Cancari against future violations of 47 U.S.C. §§ 605(a) and 553(a)(1).

  CONCLUSION

 For the foregoing reasons, judgment should be entered in favor of plaintiff and against defendant in the total amount of $ 8,925.00 ($ 7,000 statutory damages plus fees and costs of $ 1,925). In addition, defendant Cancari should be permanently enjoined from future violations of 47 U.S.C. §§ 605(a) and 553(a)(1).

 Respectfully submitted,

 CAROL E. HECKMAN

 United States Magistrate Judge

 DATED: Buffalo, New York

 January 10, 1997

 Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

 ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.

 ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).

 The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not presented to the magistrate judge in the first instance. See, e.g., Patterson-Lietch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).

 Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).

 The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.

 Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the plaintiffs and the attorneys for the defendants.

 SO ORDERED.

 DATED: Buffalo, New York

 January 10, 1997

 CAROL E. HECKMAN

 United States Magistrate Judge

19970110

© 1992-2004 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.