Second Circuit expressly stated that this court's reading of § 605 and its legislative history was plausible, but that it chose to read the statute and its history differently. Sykes, 75 F.3d at 131. Defendant had the misfortune of having his case serve as the test case for this complex statute. Considering the unsettled state of the law both at the time this case was brought against defendant and at the time plaintiff appealed this court's initial determination, it is difficult to criticize defendant for defending his position on appeal. Thus, in determining what constitutes a reasonable award of attorneys' fees, this court cannot ignore the inherent unfairness in forcing defendant to pay an additional $ 90,000 simply because the statute was not clear.
Although plaintiff had to incur substantial additional expenses in order to prevail on this claim before the Second Circuit, it stands to gain considerably from that favorable ruling. Not only is plaintiff entitled to far greater statutory damages in this specific case due to the Second Circuit's ruling ($ 20,000 as opposed to $ 250), now that the Second Circuit has specified the conduct which triggers § 605, plaintiff can look forward to large damage awards in future prosecutions brought under this statute.
The court will not engage in a detailed analysis of the reasonableness of the time spent by each of plaintiff's separate teams of attorneys and support staff. The court believes that its obligation to award "reasonable attorneys' fees" suggests a broader view of reasonableness. As explained above, the court must take into account defendant's age, his limited financial resources, and his family circumstances in evaluating what constitutes a reasonable award of attorneys' fees. Defendant is already facing a stiff penalty for his misconduct in the form of the mandatory statutory damages. The total bill for costs and attorneys' fees is over five times the size of the damages award. If the court were to award the full fee request, defendant would certainly face financial ruin. As it is, the more limited award will be a severe blow to defendant. The court fails to see how the award of a large amount for attorneys' fees could be reasonable. Plaintiff has not demonstrated that the significant amount of time and money that it devoted to the appeal of this case was necessary for plaintiff's ultimate success. The court does not believe that it was the intent of Congress to bring financial ruin to persons like this defendant.
Finally, because plaintiff has not provided contemporaneous time records of the work performed by its in-house counsel, it would not be entitled to recover the fees it seeks for their work.
4. Investigative Fees
Plaintiff is also seeking to recover $ 1,063.00 for the amount it paid for the investigation of defendant's violations of law (Item 35, P 17(g)). Plaintiff argues that the legislative history of the Cable Communications Policy Act confirms that a court's "power to direct the recovery of all costs under § 605(e)(3)(B)(iii) shall include reasonable investigative fees (related to the action) of an aggrieved party" (Item 36, pp. 8-9). 130 Cong. Rec. S14288 (daily ed. Oct. 4, 1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4750; See also Time Warner Cable, 920 F. Supp. at 332-33 (plaintiff's payment of a $ 4,500 fee to an informant was a cost of plaintiff's investigation and recoverable under § 605(e)(3)(B)(iii)). In conjunction with its request for investigative expenses, plaintiff supplied an affidavit by Darlene Lake, the chief security representative in plaintiff's investigation and prosecution against defendant (Item 38). Ms. Lake was responsible for authorizing investigative operations of defendant's activities in selling pirate television decoders and for plaintiff's payment of such services by private investigators. She attests that a breakdown of the investigative services and related expenditures in this case includes: (1) $ 70.00 for meetings on April 16, 1991, between plaintiff's private investigators and plaintiff's personnel regarding the investigation of defendant and the purchase of pirate descramblers; (2) $ 70.00 for the preparation of the investigation of defendant on April 17, 1991; and (3) $ 923.60 for setting up the investigation and surveillance for the purchase of the descramblers from defendant on April 18, 1991 (Id., P3). Plaintiff has already paid the $ 1,063.60 in full.
Defendant correctly notes that plaintiff has failed to supply contemporaneous time records to substantiate the fee request for this service. The Lake affidavit fails to document (1) the amount of time necessary for the investigation; (2) how much the investigators charged per hour; or (3) why the investigators are qualified to demand the requested rate. This court believes that a request for investigative fees pursuant to § 605(e)(3)(B)(iii) should be subject to the same level of scrutiny to which requests for attorneys' fees are subjected. There is no reason to allow a prevailing party to recover expenses it has incurred for investigative work without having to describe the precise services performed, the time spent, the rate per hour charged for the services, and the standard charge for such services in the district. Plaintiff cannot avoid its responsibility to explain how the bill for such services was computed by arguing that defendant has failed to provide the court with any authority for extending the contemporaneous time records requirement to investigative services. The legislative history for § 605(e) instructs that the court has the power to direct the recovery of investigative fees, not that the court is required to order such an award.
Thus, because plaintiff has failed to supply contemporaneous time records for its investigative fees, the court declines to allow plaintiff to recover these expenses.
For the foregoing reasons, this court denies defendant's motion for a determination that 47 U.S.C. § 605 is inapplicable to the present case (Item 43) and grants plaintiff's motion for enforcement of the Second Circuit's mandate (Item 34). The court awards plaintiff $ 20,000.00 in statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(I)(II), and $ 20,000.00 for attorneys' fees and costs.
JOHN T. CURTIN
United States District Judge
Dated: September 30, 1997