The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge
REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD OWEN[fn*]
[fn*] This Report and Recommendation was prepared with the
assistance of Heather Burke, a first-year student at Fordham Law
In this action, plaintiff Cablevision Systems New York
("Cablevision") alleges that defendant Catherine Collins
("Collins") violated the Cable Communications Policy Act, as
amended, 47 U.S.C. § 605(a) and 553(a)(1), by tampering with
Cablevision's television system in order to receive its private
telecommunications signals unlawfully through use of a "pirate"
converter device. After Collins failed to answer the complaint,
Your Honor entered a default judgment and referred the matter to
me to conduct an inquest regarding Cablevision's damages. (See
Docket No. 4). On August 27, 2002, I directed Cablevision to serve and file an
inquest memorandum by September 4, 2002, setting forth its proof
of damages, as well as its proposed findings of fact and
conclusions of law. The scheduling order gave Collins until
September 18, 2002, to respond. Although Cablevision's papers
were timely filed, Collins has neither filed any opposition
papers, nor had any contact with this Court.
As detailed below, I recommend that Cablevision be awarded a
total of $10,690, consisting of statutory damages in the amount
of $10,000 plus reasonable attorneys' fees and costs in the
amount of $690.
In light of Collins' default, Cablevision's well-pleaded
allegations concerning issues other than damages must be accepted
as true. 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); Time Warner Cable of New York City v.
Barnes, 13 F. Supp.2d 543, 547 (S.D.N.Y. 1998); Cablevision
Sys. New York City Corp. v. Lokshin, 980 F. Supp. 107, 111
Additionally, although a plaintiff seeking to recover damages
against a defaulting defendant must prove its claim through the
submission of evidence, the Court need not hold a hearing as long
as (i) it has determined the proper rule for calculating damages,
see Credit Lyonnais Secs. (USA), Inc. v. Alcantara,
183 F.3d 151, 155 (2d Cir. 1999), and (ii) the plaintiff's evidence
establishes, with reasonable certainty, the basis for the damages specified in the default judgment. See
Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp.,
109 F.3d 105, 111 (2d Cir. 1997); Fustok v. ContiCommodity
Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989); see also
Tamarin v. Adam Caterers, Inc., 13 F.3d 51, 53-54 (2d Cir.
1993) (inquest on damages without hearing improper where based
upon "single affidavit only partially based upon real numbers").
On the basis of the complaint and Cablevision's inquest papers,
I find as follows:
Cablevision is a division of CSC Holdings, Inc., a Delaware
corporation, authorized to conduct business in New York, which
maintains its principal office at 1111 Stewart Avenue, Bethpage,
New York. (Compl. ¶ 4).
Collins, at all relevant times, resided at 2440 Boston Road,
Apt. 17K, Bronx, New York. (Id. ¶ 4; Aff. of Charles Carroll,
sworn to on Aug. 28, 2002 ("Carroll Aff."), ¶ 18).
Pursuant to government franchises, Cablevision constructs,
operates and maintains cable television systems in parts of Bronx
County as well as other counties. (Compl. ¶ 6). Cablevision
offers its customers various tiers of programming services
including "Basic," "Family," and "Optimum" which a subscriber may
purchase for a monthly fee. (Id. ¶ 7). "Basic" service provides
a subscriber with broadcast stations as well as a small number of
additional programming services. (Carroll Aff. ¶ 3). "Family" service is a higher level of programming that includes all of
Cablevision's services with the exception of "premium" and
pay-per-view programming. (Id.). "Optimum" service provides all
programming available under "Family" service and premium
stations. (Id.). A subscriber may pay for premium services at a
higher monthly rate, or may choose to purchase pay-per-view
programming for a pay-per-event fee in addition to the regular
monthly fee. (Id. ¶¶ 4-5). Premium services include channels
such as HBO, Cinemax and Showtime, and range in price from
approximately $1.95 to $14.95 per month, while packages of
premium services range in cost between $40.75 and $80.95. (Id.
¶ 4). Payper-view programming is offered continuously throughout
a 24-hour period and consists of individual movies and sporting
events. (Id. ¶ 5). The pay-per-view items typically cost a
subscriber between approximately $4.50 and $49.95 per selection.
(Id.). Over the course of a typical month, the aggregate value
of Cablevision's pay-per-view programs, assuming each is viewed
once, is hundreds of dollars. (Id.).
Satellites transmit the signals for Cablevision's cable
television services to Cablevision's reception facilities.
(Compl. ¶ 10). Those signals then are retransmitted to
subscriber's homes and businesses ...