The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE JOHN E. SPRIZZO, UNITED STATES DISTRICT JUDGE
In this action, Cablevision Systems New York City Corporation
("Cablevision") alleges that the defendant: (1) engaged in the sale and
distribution of "pirate" converter-decoder devices ("pirate decoding
devices"), in violation of 47 U.S.C. § 553(a)(1) and 605(e)(4); and (2)
used one or more of these "pirate" decoding devices to intercept
Cablevision's premium and pay-per-view programming services without
Cablevision's authorization and without payment of the requisite fee to
Cablevision, in violation of 47 U.S.C. § 553(a)(1) and 605(a).
Upon defendant Raphial Evangelista's ("Evangelista") failure to file an
answer or otherwise respond to the complaint, your Honor ordered that a
default judgment be entered against him. 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
The Court directed Cablevision to serve and file 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. The Court also
directed Evangelista to serve and file any opposing memoranda, affidavits
and exhibits, as well as any alternative findings of fact and conclusions
of law he deemed appropriate. The defendant did not file any papers in
opposition to plaintiff's submissions.
Plaintiff's submissions aver that it is entitled to $50,000 in
statutory damages and $1,622.50 in costs and attorneys' fees. For the
reasons that follow, I recommend that Cablevision be awarded $47,671.10:
statutory damages pursuant to 47 U.S.C. § 605 in the amount of
$46,048.60, attorneys' fees in the amount of $1,442.50, and costs in the
amount of $180.
When a defendant defaults in an action, by failing to plead or
otherwise defend against a complaint, the defendant is deemed to have
admitted every well-pleaded allegation of the complaint 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). In addition, the plaintiff is entitled to all
reasonable inferences from the evidence presented. See Au Bon Pain Corp.
v. Artect, Inc., et al., 653 F.2d 61, 65 (2d Cir. 1981). Based upon the
submissions made by the plaintiff, the complaint filed in the instant
action, and the Court's review of the entire court file in this action,
the following findings of fact are made:
Cablevision is a corporation which is duly registered to do business in
New York State and has its principal offices at 1111 Stewart Avenue,
Bethpage, New York. See Plaintiff's Memorandum of Law in Support of
Inquest ("Plaintiff's Mem."), at 2. Evangelista is an individual having a residence at 2274 Grand Concourse Boulevard, Apt.
1D, Bronx, New York. See Id. Pursuant to a franchise awarded by the
political subdivisions of New York state, Cablevision constructs, operates
and maintains cable television systems in parts of New York City,
including Bronx County, where the defendant resides. See Affidavit of
Chuck Carroll in Support of Inquest ("Carroll Aff."), ¶ 2, at 1.
Cablevision offers cable television services to subscribers who request
and pay for them. See Id. 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 Id., ¶ 3, at 1-2. "Family" service is a higher
level of service to which a customer can subscribe at a monthly rate.
With that level of service, he or she can receive all of Cablevision's
programming services, including all of those offered in the Basic service
package. However, premium and pay-per-view programming services are
excepted. See Id. "Optimum" service is a level of service provided which
includes all programming available under "Family" service plus certain
premium stations. See Id.
Cablevision's residential subscribers may also elect to subscribe to
one or more premium services such as Cinemax, Home Box Office and
Showtime, for an additional monthly charge per service, and may elect to
order pay-per-view programming services. Pay-per-view programming
includes movies and sporting events, a fee for which is charged on a per
event basis. See Id., ¶¶ 4, 5, at 2.
Premium services range in price from $1.95 to $14. 95 per month per
service. See Id. ¶ 4, at 2. The full range of Cablevision's premium
programming channels, not including pay-per-view events, is offered at an average cost to a residential subscriber of
approximately $80.95 per month. See Id. The pay-per-view service includes
selections which typically range in price between approximately $4.50 and
$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 via
subscription agreements. Cablevision agrees to provide the programming
services requested by a subscriber in return for the subscriber's
agreement to pay for the same on a monthly basis. See Id., ¶ 6, at 2.
Cablevision's subscribers pay a monthly fee for the specific level and
amount of programming services they have selected and purchased from
Cablevision. Each Cablevision subscriber is entitled to receive only ...