with the contractual relations between the Condominium and CSC;
and (5) whether CSC breached its contract with the WTA by not
timely notifying the Building Manager about signal leakage. All
of these issues must go to trial.
1. The Unauthorized Reception of Cable Service
Section 553(a)(1) of Title 47 provides that "no 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."
In its Seventh and Eight Causes of Action, CSC contends that
defendants have interrupted Cablevision's communication service
by splicing into its wiring without authorization. It points to
the detection of signal leakage as evidence of this
Defendants respond that 47 U.S.C. § 553 was enacted to deter
theft of cable service. They argue that there has been no
evidence that defendants have been stealing CSC's service or
have interrupted CSC's signal. Defendants also state that "It
would be a sorry and sad abuse of the statute to criminalize a
good faith attempt to make use of the FCC's Home Run Wiring
Rules." (Def.'s Reply Br. at 16.)
Putting aside the fact that defendants could not possibly have
invoked the home run wiring rules in good faith, See supra, at
250, 254-55, I cannot agree with them that, as a matter of law,
§ 553 does not apply to their conduct. While the legislative
history of the Act evidences Congress's interest in deterring
theft of cable services,*fn6 the language of the statute (to
which I must first resort) proscribes any sort of interception
of a cable television signal. Unfortunately, I cannot determine,
as a matter of undisputed fact, whether defendants' splicing
into CSC's wiring does or does not constitute an interception of
CSC's signal. The record is devoid of testimony by any
technically competent person on the subject, and the time for
augmenting the record on these motions has long since expired.
This issue will be determined by the appropriate trier of
Who that trier of fact might be is open to question.
Defendants made a
timely demand for a jury trial in this case, It is questionable
whether it has any such right on the claim brought under § 553.
It should go without saying that no right to a jury attaches to
claims for equitable relief. See Chauffeurs, Teamsters &
Helpers Local 391 v. Terry, 494 U.S. 558, 564, 110 S.Ct. 1339,
108 L.Ed.2d 519 (1990); Curtis v. Loether, 415 U.S. 189, 193,
94 S.Ct. 1005, 39 L.Ed.2d 260 (1974); Daisy Group, Ltd. v.
Newport News, Inc., 999 F. Supp. 548, 550 (S.D.N.Y. 1998). Here,
plaintiff seeks an injunction against further violation of the
statute by Defendants. Plaintiff has ostensibly refrained from
seeking any damages on this claim; however, it does seeks
reimbursement for the cost of restoring its equipment. It is not
clear whether such reimbursement qualifies as "damages" under §
553, or whether it is part and parcel of plaintiffs demand for
equitable relief. Moreover, there is considerable dispute among
district courts over whether there is a right to a jury trial in
an action seeking statutory damages under 47 U.S.C. § 553.
Compare Time Warner Cable of New York City v. Kline, Davis &
Mann, Inc., No. 00 Civ 2897, 2000 WL 1863763, at *3 (S.D.N.Y.
2000); National Satellite Sports, Inc. v. No Frills Rest.,
Inc., 15 F. Supp.2d 1360, 1364 (S.D.Fla. 1998); Joe Hand
Promotions, Inc. v. Blarney Stone, 995 F. Supp. 577, 579
(E.D.Pa. 1998) with National Satellite Sports, Inc. v.
Prashad, 76 F. Supp.2d 1359, 1362 (S.D.Fla. 1999); Storer Cable
Communications v. Joe's Place Bar and Rest., 819 F. Supp. 593
The parties are directed to submit briefs in limine on the
issue of whether defendants are entitled to a jury trial on the
§ 553 claims. Since defendants seek a jury trial, defendants
should make the motion, and plaintiff shall respond.*fn9
2. CSC's Third Cause of Action for Breach of Contract and
Sixth Cause of Action for Interference with Contractual
CSC claims that the both WTA and Westchster Terrace breached
the Access Agreement by restricting CSC's access to the
Building, and that WTA induced Westchester Terrace to commit
that breach. The Access Agreement provides that Cablevision will
have "reasonable access" to install, maintain and remove
Equipment during weekdays from 8 a.m. to 5 p.m. (Except in
emergencies when Cablevision may contact the managing agent to
obtain access) and that the "Superintendent or the managing
agent can authorize Cablevision to enter the premises." By
letter dated August 9, 2001, defendants' attorney imposed
restrictions on Cablevision's access. Whether the WTA's
restrictions on CSC's access to the building were "reasonable"
is a question to be decided at trial. Frankly, the record is
devoid of evidence that would permit me to dispose of this issue
on motion. Since CSC seeks only injunctive relief on this claim,
it will be tried to the Court.