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CABLEVISION SYSTEMS NEW YORK CITY CORP. v. EVANGELISTA

May 5, 2004.

CABLEVISION SYSTEMS NEW YORK CITY CORPORATION, Plaintiff, -against- RAPHIAL EVANGELISTA, Defendant


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

I. INTRODUCTION

  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 Evangelista.

  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.

  II. BACKGROUND AND FACTS

  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 ...


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