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INTERNATIONAL CABLEVISION, INC. v. CANCARI

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

 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.

 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).

 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 ...


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