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TIME WARNER CABLE OF NEW YORK CITY v. BARNES

July 22, 1998

TIME WARNER CABLE OF NEW YORK CITY, a division of Time Warner Entertainment Company, L.P., Plaintiff, against RAYMOND BARNES, LANA AUGUSTIN, JANER BIGIO, TOM BOYAN, JOHN DONOHUE, EDWARD DRUSILOVSKY, JOSEPH FRANCOIS, GLENNA FREEMAN, HAROLD GOLDMAN, MILTON GONZALEZ, NERIDA GONZALEZ, JUSTIN IIGE, HERSHEL KATZ, MARY MERLOCK, RAMON PENA, RAYMON RIVERA, FRANK RODRIGUEZ, SUSAN STREETER, Defendants.


The opinion of the court was delivered by: MOTLEY

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 After an inquest hearing on July 17, 1997, this court makes the following Findings of Fact and Conclusions of Law.

 I. FINDINGS OF FACT

 1. Plaintiff, Time Warner Cable of New York City ("TWCNYC"), is a division of Time Warner Entertainment Company, L.P., a limited partnership organized under the State of Delaware, with offices at 120 East 23rd Street, New York, New York. TWCNYC operates cable television systems in portions of New York City, including the entire boroughs of Manhattan and Queens and parts of Brooklyn, New York.

 2. Defendant Lana Augustin ("Augustin") is an individual who, at all relevant times, resided at 325 West 93rd Street, Apartment 42, New York, New York, 10025.

 3. Defendant Milton Gonzalez ("Gonzalez") is an individual who, at all relevant times, resided at 654 West 161st Street, Apartment 5H, New York, New York 10032.

 4. Defendant Ramon Pena ("Pena") is an individual who, at all relevant times, resided at 444 East 118th Street, Apartment 1, New York, New York 10035.

 A. TWCNYC's Business

 5. Pursuant to its franchise agreement with the City of New York, TWCNYC provides cable television programming and services to homes, businesses and other premises within its franchise areas which request and pay for the same. TWCNYC's cable television programming services are private communication signals, not intended for public use or enjoyment, and are only offered and made available to authorized, paying subscribers by agreement.

 6. TWCNYC provides its cable television services to authorized subscribers via subscription agreements pursuant to which TWCNYC agrees to provide the programming services requested by a subscriber in return for the subscriber's agreement to pay for the same on a monthly basis.

 7. TWCNYC's subscribers pay a monthly fee for the specific level and amount of programming services which each subscriber has selected and purchased from TWCNYC. Each TWCNYC subscriber is entitled to receive the exact level and amount of cable programming and services which that subscriber has selected and for which that subscriber has paid.

 8. TWCNYC offers its cable television programming services in various packages, which include broadcast television channels, individual "premium" programming channels, such as Home Box Office ("HBO"), Showtime, Cinemax or the Disney Channel, and pay per view channels. Each programming service package (other than pay per view programming) which a subscriber has selected and purchased carries a discrete fee which is billed collectively by TWCNYC on a monthly basis. A TWCNYC subscriber's purchase of all "premium programming" channels from TWCNYC (not including any pay per view events, which carry a per event fee) costs approximately $ 80.00 per month.

 9. TWCNYC's pay per view programming is a service which allows an authorized subscriber to purchase individual special programming events, such as championship boxing matches and movies, for separate, additional fees over and above that subscriber's regular monthly bill for the package of programming services which he or she receives. TWCNYC's pay per view events range in costs from $ 3.95 (for first run movies) to $ 49.95 (for special events, such as the Tyson vs. Holyfield championship boxing match). All of the pay per view programs which a subscriber purchases during the monthly billing period are added to and included in the subscriber's monthly bill for cable service.

 10. As part of its cable service, TWCNYC provides each of its subscribers with equipment, known as a converter-decoder, which is necessary to allow each individual subscriber to receive and view the specific level and amount of cable programming that a subscriber has selected, purchased and is thereby authorized to receive. The rental fee for the converter-decoder provided by plaintiff to its subscribers is regulated by the Federal Communications Commission on an actual cost basis and is included on the subscriber's monthly bill.

 11. TWCNYC receives the signals to its cable television programming services, including premium and pay per view programming, in over-the-air transmissions from orbiting satellites and local radio towers. In order to protect its cable programming from theft and unauthorized reception, TWCNYC encrypts or "scrambles" the signals to any programming which a subscriber has not purchased and is not authorized to receive. When TWCNYC's programming is in a scrambled mode, it is distorted and unviewable to the subscriber who has not paid for such programming.

 12. TWCNYC separately authorizes, either by a technical modification or by a computer command, each of the converter-decoders provided to its subscribers so that a particular device will descramble only those scrambled programming channels ...


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