The opinion of the court was delivered by: GO
REPORT AND RECOMMENDATION
This report pertains to Yury Lokshin.
Plaintiff, Cablevision Systems New York City Corporation (hereinafter referred to as "Cablevision" or "plaintiff"), brought this action against the twenty named defendants
alleging violations of Title 47 of the United States Code. In its complaint, plaintiff alleges that defendants intercepted and received plaintiff's private cable telecommunications signals without plaintiff's authorization through the use of a compatible bootleg cable television decoder, in violation of sections 553(a)(1) and 605(a) of Title 47.
On July 24, 1996, the Honorable Sterling Johnson granted plaintiff's request for entry of default against defendant Yury Lokshin ("Lokshin"), who failed to file an answer or otherwise respond to the complaint, but referred determination of the amount of the judgment to me for report and recommendation. Judge Johnson also enjoined Lokshin from continuing to use the decoder to intercept plaintiff's private cable telecommunications signals.
For the following reasons, I respectfully recommend that plaintiff be awarded statutory damages against defendant Yury Lokshin pursuant to 47 U.S.C. § 553 (c)(3) in the amount of $ 20,000 and attorneys' fees and costs of $ 1,543.06.
The facts pertinent to determination of this motion are set forth in the Complaint; the November 18, 1996 affidavit of Harry Maxwell, the former Director of Security for plaintiff ("Maxwell Aff."); the November 22, 1996 affidavit of James T. Ausili, Esq., plaintiff's counsel; the February 19, 1996 affidavit of service ("Service Aff."); and the September 11, 1996 certificate of default by the clerk ("Certificate of Default"). Lokshin did not file any opposition to plaintiff's application nor respond in any way during the pendency of either this action both before and after being served notice of plaintiff's motion for default judgment. See Service Aff. My findings of fact are as follows:
Cablevision is a cable television operator which has been awarded franchises by the City of New York to construct, operate and maintain cable television systems in parts of Kings County, New York. It offers cable television programming services to subscribers at different monthly charges depending upon the level of services requested. Complaint at P 6; Maxwell Aff. at P 2. "Basic" service allows the subscriber to receive plaintiff's programming services with the exception of premium and Pay-Per-View programming services. "Optimum" service (formerly "Rainbow") service includes basic and all of plaintiff's premium programming services with the exception of Showtime, Cinemax, and Pay-Per-View programming. "Optimum Gold" allows a subscriber to receive "Optimum" level of service plus either Cinemax or Showtime, while "Optimum Preferred" includes "Optimum" level of service plus both Cinemax and Showtime. Maxwell Aff. at PP 4-5. Cablevision also offers Pay-Per-View Programs throughout the day which typically range between $ 4.00 and $ 39.99 per selection. Id. at P 18.
Cablevision transmits the signals for all its cable television services to subscribers' homes through a network of cable wiring and equipment (the "System"). In order to protect its programming services against unauthorized reception, Cablevision encodes or "scrambles" the signals and provides each subscriber with a device known as a "converter" to enable subscribers to receive programs on their television sets. Complaint at PP 10-11; Maxwell Aff. at P 11. Each converter contains a "descrambler" or "decoder" to decode scrambled service so that each subscriber receives only the level of programming services he or she selects and purchases. Complaint at P 9. Programming services not purchased remain scrambled and unviewable on the subscriber's television set.
The agreements between Cablevision and its subscribers forbid unauthorized tampering with Cablevision's equipment. Cablevision however, ordinarily cannot detect use of pirate descramblers without a subscriber's affirmative permission to conduct an on-site inspection. Maxwell Aff. at P 9.
In 1991, the Federal Bureau of Investigations executed a search warrant on the Offices of Global Cable Network ("Global") and obtained its sales records. Id. at P 14. After Global and its principal, Eric Neplokh, were indicted and pleaded guilty to violations of 47 U.S.C. § 302A for the sale of cable television devices in violation of FCC regulations, copies of Global's business records were forwarded to cable operators throughout the United States, including Cablevision. Id. at P 15.
Global's records indicated that on January 16, 1991, Lokshin purchased an unauthorized two-piece cable television decoding device. Maxwell Aff. at P 16. Two weeks after the purchase of the pirate descrambling device from Global, Lokshin downgraded his cable service to "Basic" service, which at the time cost $ 9.95 per month. Id. at P 17.
Lokshin previously received the "Rainbow" level of service, which allowed him to receive all of plaintiff's premium programming services with the exception of Showtime, Cinemax, and Pay-Per-View programming, at a monthly average charge prior to that time of $ 46.95. Id. Lokshin ordered an average of ten ...