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CABLEVISION SYSTEMS NEW YORK CITY CORPORATION v. BROWN

April 2, 2003

CABLEVISION SYSTEMS NEW YORK CITY CORPORATION, PLAINTIFF
v.
MARCUS BROWN AND BEAUTY SALON SUPPLY, DEFENDANTS



The opinion of the court was delivered by: Kevin Nathaniel Fox, United States Magistrate Judge

REPORT AND RECOMMENDATION

I. INTRODUCTION

In this action, Cablevision Systems New York City Corporation ("Cablevision") alleges that defendants Marcus Brown and Beauty Salon Supply engaged in the illegal interception of cable television programming signals, in violation of the Cable Communications Policy Act ("Communications Act"), as amended, 47 U.S.C. § 553(a)(1) and 605(a). Plaintiff also alleges that the defendants violated New York State Public Service Law § 225.6.

Upon the defendants' failure to file an answer or otherwise respond to the Complaint, your Honor ordered that a default judgment be entered against defendant Beauty Salon Supply. Thereafter, your Honor referred the matter to the undersigned to conduct an inquest and to report and recommend the amount of damages, if any, to be awarded against that defendant.*fn1

The Court directed Cablevision to serve and file its proposed findings of fact and conclusions of law, and an inquest memorandum setting forth its proof of damages, costs of this action, and its attorneys' fees. Defendant Beauty Salon Supply was directed by the Court to serve and file any opposing memoranda, affidavits and exhibits, as well as any alternative findings of fact and conclusions of law it deemed appropriate. Defendant did not file any papers in opposition to plaintiff's submissions. Plaintiff's submissions aver that it is entitled to $10,000 in statutory damages, as well as compensatory and punitive damages, in an amount to be determined by the Court, pursuant to New York State Public Service Law, and $3,688.00 in costs and attorneys' fees.

For the reasons set forth below, I recommend that Cablevision be awarded $4,596.80: statutory damages pursuant to 47 U.S.C. § 605 in the amount of $2,757.30, attorneys' fees in the amount of $1,689.50, and costs in the amount of $150.

II. BACKGROUND AND FACTS

Based upon the submissions by plaintiff, the Complaint filed in the instant action — the allegations of which perforce of defendant's default must be accepted as true, except those relating to damages, see Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) — and the Court's review of the entire court file in this action, the following findings of fact are made:

Cablevision is a corporation organized and existing under the laws of the state of Delaware, which is authorized to conduct business in New York State. Cablevision has its principal office at 1111 Stewart Avenue, Bethpage, New York. Complaint, ¶ 4, at 2. Defendant Beauty Salon Supply is a commercial business located at 585 East 168th Street, Bronx, New York. See id., 65, at 2.

Pursuant to franchises awarded to it by New York City, Cablevision is authorized to construct, operate and maintain cable television systems in parts of Kings County and all of Bronx County. The defendant was located in Bronx County at all times relevant to the instant action. See id., ¶¶ 5, 6, at 2.

Cablevision offers cable television services to subscribers who request and pay for them. See id. ¶ 6, at 2. Cablevision provides various tiers of programming services. "Basic" service is a level of service to which an individual can subscribe at a monthly rate and receive enhanced quality reception of broadcast stations, as well as a small number of additional programming services. See Affidavit of Charles Carroll in Support of Damages Inquest ("Carroll Aff."), ¶ 3, at 2. "Family" service is a higher level of service to which a customer can subscribe at a monthly rate and receive all of Cablevision's programming services, with the exception of its premium and pay-per-view programming services. Family service is offered to individual subscribers at a monthly rate of approximately $37.15. See id.

Cablevision's residential subscribers may also elect to subscribe to one or more premium services such as Cinemax, Home Box Office or Showtime, for an additional monthly charge per service, or pay-per-view programming, which includes movies, sporting events and other entertainment, for a per-event fee. See id., ¶¶ 4-5, at 2.

Premium services cost an average of $10.95 per month per service; packages of premium services, not including pay-per-view events, cost approximately $71.95 per month. Cablevision's pay-per-view service includes selections which range in price from $4.50 to $49.95 per selection, and are offered continuously over a 24-hour period. See id., ¶ 5, at 2. The aggregate value of each individual pay-per-view event offered over a typical month, assuming each pay-per-view event is viewed only once, is hundreds of dollars. See id.

Cablevision provides its cable television service to subscribers by way of subscription agreements. Cablevision agrees to provide the programming services requested by a subscriber in return for the subscriber's agreement to pay for those services on a monthly basis. See id., ΒΆ 6, at 2-3. Cablevision's subscribers pay a monthly fee for the type of programming services they have selected and purchased from Cablevision. Each Cablevision subscriber is entitled to receive ...


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