some way, so as to receive and view the scrambled transmission."
988 F. Supp. at 111. An additional award for willfulness will put
violators "on notice that it costs less to obey the . . . laws
than to violate them," Rodgers v. Eighty Four Lumber Co.,
623 F. Supp. 889, 892 (W.D.Pa. 1985).
Dim Sum Cafe of New York, Inc. was legally connected to Time
Warner's service, although not for the pay-per-view program. I
have found no record of any other theft of cable services or
other intellectual property by this defendant. For the violation
herein I recommend an additional $3,000 be awarded under section
605(e)(3)(C)(ii). A factor of three times the base award should
serve as a reasonable deterrent against future violations. See,
e.g., Wade Communications Partnership v. Grant, No. Civ. A.
94-5848, 1995 WL 217624 (E.D.Pa. April 12, 1995) (trebling
damages where no special circumstances shown); Cablevision
Systems Inc. v. Doudlesox, Inc., supra (trebling damages where
defendant had personal but not commercial subscription to
Shangrila Grill, Inc. was not authorized to receive any signals
at all from plaintiff. In addition to using a de-scrambler it
must also have connected its television monitors to Time Warner's
cable distribution system without authorization. I have found no
record of any other theft of cable services or other intellectual
property by this defendant. For the violation herein I recommend
an additional $12,000 damages under section 605(e)(3)(C)(ii). The
higher factor of four reflects the more aggravated nature of the
offense. See, e.g., Don King Productions/Kingvision v.
Maldonado, No. C-97-3530 WHO MED, 1998 WL 879683 (N.D.Cal. Dec.
11, 1998) (awarding statutory damages of $1250 and award of
willfulness of $5000 where defendant may have intercepted
R Bar of Manhattan, Inc. was also not authorized to receive any
signals from plaintiff. Unlike the other two defendants, however,
this establishment has a record of appropriating property
unlawfully. In Broadcast Music, Inc. v. R Bar of Manhattan,
Inc., it defaulted on a claim of copyright violation. The
inquest resulted in statutory damages of approximately five times
the license fee. 919 F. Supp. at 660. Apparently, that was not
enough. I therefore recommend an award of $8,000 under §
605(e)(3)(C)(ii) to, perhaps, persuade this defendant that it is
not only lawful to obtain property only as allowed, but also less
Plaintiff also seeks relief for claims under New York Public
Service Law § 225.6 and common law. However, as an award under
these claims would be duplicative of that under 47 U.S.C. § 605,
it would violate "the general principle that precludes double
recovery." Vermont Microsystems, Inc. v. Autodesk, Inc.,
138 F.3d 449, 452 (2d Cir. 1998). See Time Warner Cable of New York
City v. Papathanasis, slip op. at 12; Time Warner Cable of New
York City v. Brown, No. 97 Civ. 3411(DLC)(NRB), slip op. at 4 n.
3 (S.D.N.Y. Aug. 5, 1998); Time Warner Cable of New York City v.
Barnes, 13 F. Supp.2d at 549.
Section 605(e)(3)(B)(iii) provides that the court "shall direct
the recovery of full costs, including awarding reasonable
attorneys' fees to an aggrieved party who prevails." Plaintiff
has submitted an affidavit from William B. Jung, Esq., setting
forth the work of the attorneys on the matter and plaintiff's
costs. It requests $795 for Mr. Jung's work, based on 5.3 hours
at a rate of $150 per hour, and $1,035 for the work of Wayne R.
Louis, Esq., based on 11.5 hours at a rate of $90 per hour.
Copies of contemporaneous time records are annexed to the
affidavit. Plaintiff also requests $75 for the costs of serving
the three defendants. My review of the work performed satisfies
me that 16.8 hours was a reasonable amount of time expended, and
I find the rates per hour quite reasonable for such matters in
New York. I therefore recommend that plaintiff be awarded $1,905
in attorney's fees and
costs, to be divided equally among the three defendants.
In sum, I recommend that judgment be entered against Dim Sum
Cafe of New York, Inc. for $4,000, together with $635 in
attorney's fees and costs; against Shangrila Grill, Inc. for
$15,000, together with $635 in attorney's fees and costs; and
against R Bar of Manhattan, Inc. for $9,000, together with $635
in attorney's fees and costs.
November 8, 1999.