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KINGVISION PAY-PER-VIEW, LTD. v. JASPER GROCERY

July 13, 2001

KINGVISION PAY-PER-VIEW, LTD., PLAINTIFF,
V.
JASPER GROCERY AND JOSE A. CORDERO, DEFENDANTS.



The opinion of the court was delivered by: Francis, United States Magistrate Judge.

MEMORANDUM AND ORDER

Background

On March 7, 1998, Julio Cesar Chavez and Miguel Angel Gonzalez were contestants in a professional prizefight in Mexico City, Mexico (the "fight"). (Complaint, attached as Exh. A to Plaintiff's Submission of Record for Trial ("Rec."), ¶ 7). Kingvision owned the exclusive right to exhibit the closed-circuit telecast of this fight as well as the undercard bouts. (Rec., Exh. A ¶¶ 7, 15). It sublicensed these rights to a variety of business locations throughout New York, such as theaters, bars, clubs, and restaurants. (Rec., Exh. A ¶¶ 7, 10).

In order to ensure limited access to the programming, the plaintiff encoded its transmission of the event. (Rec., Exh. A ¶ 11). The telecast was transmitted by radio signal to a satellite and from there to receivers operated by cable systems. The cable operators decoded the signal, applied their own encryption, and transmitted the telecast by coaxial cable to their customers. Each customer with the appropriate decoder could then watch the fight upon payment of a fee. See generally International Cablevision, Inc. v. Sykes, 997 F.2d 998, 1000 (2d Cir. 1993) ("Cablevision I") (describing technology of cable television).

According to the plaintiff, Mr. Cordero was able to exhibit the fight at Jasper Grocery, located at 694 East 141th Street in the Bronx, New York, without paying the fee. (Rec., Exh. A ¶¶ 12, 14). Patrick McLoughlin, an investigator hired by Kingvision, observed approximately 30 customers who were gathered around a television set inside the grocery store at the time the undercard fight was in progress. (Affidavit of Patrick McLoughlin ("McLoughlin Aff."), attached as Exh. C to Rec.). Kingvision filed this action when it was informed of the unlawful conduct.

Discussion

A. Liability

Section 605 of the Cable Act states in pertinent part: "[n]o person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person." 47 U.S.C. § 605(a). This section applies to transmission of a television signal by radio, whether or not the signal is subsequently carried by coaxial cable. See International Cablevision, Inc. v. Sykes, 75 F.3d 123, 132 (2d Cir. 1996) ("Cablevision II").

In this case, the defendants' conduct included unauthorized interception of radio signals. While Kingvision does not provide much detail on the technology used in transmitting the telecast, it does allege that reception would not have been possible without "electronic decoding equipment and satellite coordinates necessary to receive the signal." (Rec., Exh. A ¶ 13). The reference to satellites indicates that the broadcast originated with a radio transmission, so that the defendants' unauthorized use indeed violated Section 605 of the Cable Act.*fn1

While Section 605 deals with interception of radio signals, Section 553 of the Cable Act is concerned with unlawful interception of cable communications. It states in part that "[n]o person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law." 47 U.S.C. § 553(a)(1).

Here, the broadcast was received as a radio transmission by the licensed cable operator and then retransmitted through the cable system to subscribers. Accordingly, the defendants' interception of the fight also ran afoul of Section 503.

The defendants contend that they did not engage in illegal conduct. Instead, they assert that Denise Scott, a residential cable subscriber who lives next door to the grocery, was responsible for illegally exhibiting the fight. (Plaintiff's Interrogatories to Defendants ("Pl. Interrogatories"), attached as Exh. D to Rec., ¶ 23; Answer to Interrogatories, attached as Exh. E to Rec., ¶ 23). According to the defendants, Ms. Scott paid for the fight herself and then brought a television set out of her apartment and put it on the top of the ice machine located in front of the grocery. (Pl. Interrogatories ¶ 23; Answer to Interrogatories ¶ 23; Defendants Arguments ("Def.Arguments") at 1-2). Yet, they do not present any evidence to substantiate this claim. While the defendants argue that the investigator observed people ...


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