United States District Court, Southern District of New York
April 25, 2003
ENTERTAINMENT BY J&J, PLAINTIFF,
78 ENTERPRISES, INC. DBA TWO COUSINS BAR AND SELWYN NELSON, DEFENDANTS.
The opinion of the court was delivered by: Denise Cote, United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs filed this action on October 9, 2002, pursuant to Section 705 of the Communications Act of 1934, as amended, 47 U.S.C. § 553 and 605 ("Section 705"). They allege that defendants intercepted and retransmitted a closed circuit broadcast to which plaintiff held the license without obtaining the rights. Defendants now move to dismiss on the ground that the statute of limitations had run prior to the commencement of the action. The motion is denied.
The following facts are as plead in the complaint. Plaintiff held a closed-circuit television license for the April 29, 2000 boxing match between Lennox Lewis and Michael Grant. The license agreement entitles plaintiff to "exhibit the closed-circuit telecast . . . at closed-circuit locations such as theaters, arenas, bars, [and] clubs." Plaintiff obtained the license "for the purpose of distributing for a commercial gain" the broadcast of the boxing match, and marketed the right to broadcast to establishments throughout New York. The transmission of the boxing match was "scrambled."
The right to display this closed-circuit telecast was made available to the defendants, who operate a bar in the Bronx, but they did not contract with the plaintiff to show the match. Plaintiff alleges, however, that the defendants nonetheless managed to show the fight to patrons in the bar.
Defendants contend that actions under Section 705 are governed by 47 U.S.C. § 415, which sets a two year limitations period for "all actions at law by carriers for recovery of their lawful charges, or any part thereof." The contend that this limitations period would have required plaintiff to bring suit no later than April 29, 2002.
Another provision of Title 47 exempts cable systems from regulation as common carriers. Section 541(c) specifies that "[a]ny cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service." 47 U.S.C. § 541(c). Since cable companies are not regulated as common carriers, the time limitations in 47 U.S.C. § 415 do not apply. See National Satellite Sports, Inc. v. Time Warner Entertainment Co., 2003 WL 1804351 at *4 (S.D.N.Y. April 4, 2003) (Rakoff, D.J.) ("[T]he statute of limitations for actions against common carriers, § 415(b), was always intended to apply just to common carriers and was irrelevant to the application of § 605 to non-carriers."); see also Prostar v. Massachi, 239 F.3d 669, 672 n. 6 (5th Cir. 2001) (specifically rejecting § 415 limitations period in theft of cable services case).
Section 705 does not contain its own statute of limitations. As a result, an appropriate limitations period must be "borrowed" from analogous state or federal law, using the standard described in North Star Steel Co. v. Thomas, 515 U.S. 29 (1995); see also Corcoran v. N.Y. Power Auth., 202 F.3d 530, 542 (2d Cir. 1999). When a federal scheme lacks a limitations period, state law is "lender of first resort." North Star Steel Co., 515 U.S. at 33-34.
Conversion actions under New York law carry a three year limitations period. New York State actions under CPLR § 214(2) for recovery of liability, penalty or forfeiture imposed by statute also possess a three year limitations period. Some courts have also looked to the federal action for copyright infringement to find an appropriate limitations measure, which is also three years. See National Satellite Sports, Inc., 2003 WL 1804351 at *6; CSC Holdings, Inc. v. Eli Kraut, 169 F. Supp.2d 115, 117 (E.D.N.Y 2001). It is not necessary to select one of these possibilities, as each provides an identical limitations period. This action is timely under each of them.
Defendants' motion to dismiss is denied. The action will proceed in accordance with the schedule set in the Order of January 27, 2003.
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