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July 9, 2004.

DIRECTV, Plaintiff,

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge



On May 23, 2003, plaintiff DirecTV, Inc. ("DTV") filed a complaint against a number of defendants, including Marcos Javier and Michael Warner. See Complaint, filed May 23, 2003 (Docket #1), ¶¶ 8, 15. The complaint seeks damages and injunctive relief for the unauthorized interception of DTV's satellite transmissions in violation of 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a), and the possession and use of a "Pirate Access Device" in violation of 18 U.S.C. § 2512(1)(b). See Complaint ¶¶ 20-31. The defendants were served, see Affidavit of Service of Marcos Javier, filed July 30, 2003 (Docket #4); Affidavit of Service of Michael Warner, filed July 30, 2003 (Docket #5), but did not answer, see Clerk's Certificate for Defendant Marcos Javier and Michael Warner, dated February 11, 2004. DTV thereafter submitted an application for default judgment under 18 U.S.C. § 2511(1)(a), seeking $10,000 in damages and $850 in attorneys' fees and costs against each defendant. See Affidavit for Judgment by Default for Defendants Marcos Javier and Michael Warner, filed February 17, 2004 (Docket #21) ("Pl.'s Aff."), at 2. On March 9, 2004, United States District Judge John G. Koeltl entered an Order of default and referred the case to the undersigned for an inquest regarding damages. See Order, filed March 9, 2004 (Docket #25).

  By Order dated March 19, 2004, this Court directed DTV to submit a memorandum of law concerning damages and any other monetary relief permitted against the defendants. See Scheduling Order for Damages Inquest, dated March 19, 2004 ("Scheduling Order"), at 2. A copy of the order was mailed to the defendants. In response, DTV submitted a memorandum of law seeking to recover statutory damages in the amount of $10,000 against each defendant and attorneys' fees and costs in the amount of $4815.80, which the plaintiff proposed splitting between the two defendants. See Plaintiff's Memorandum Concerning Damages on Default for Defendants Javier and Warner, dated May 3, 2004 (Docket #29) ("Pl.'s Mem."), at 5. The Court gave defendants until June 2, 2004 to submit any response, see Scheduling Order at 2, but neither defendant availed himself of this opportunity.

  DTV did not request a hearing on the issue of damages. The Second Circuit has held that an inquest into damages may be held on the basis of documentary evidence "as long as [the Court has] ensured that there was a basis for the damages specified in [the] default judgment." Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989); accord Action S.A. v. Marc Rich & Co. Inc., 951 F.2d 504 (2d Cir. 1991), cert. denied, 503 U.S. 1006 (1992). As DTV's submissions provide such a basis, no hearing is required. The following findings of fact and conclusions of law are based on those submissions. In addition, in light of the defendants' default, DTV's properly-pleaded allegations, except those relating to damages, are accepted as true. See, e.g., Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993) ("factual allegations are taken as true in light of the general default judgment"); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 506 U.S. 1080 (1993); Time Warner Cable of N.Y.C. v. Barnes, 13 F. Supp.2d 543, 547 (S.D.N.Y. 1998).


  DTV, a California corporation, operates a nationwide direct broadcast satellite television system. Complaint ¶ 1. Defendant Javier is a resident of Bronx, New York. Id. ¶ 15. Defendant Warner is a resident of Glen Sprey, New York. Id. ¶ 8.

  DTV electronically scrambles its satellite transmissions to prevent unauthorized viewing of its satellite television programming. Id. ¶ 2. In order to view the transmissions each customer is required to maintain an account with DTV and obtain the proper hardware, including a small satellite dish and an item called an "access card." Id.

  On or about May 25, 2001, DTV executed several writs of seizure upon mail shipping facilities used by major sources of pirate technologies. Id. ¶ 3. From these raids, DTV came into possession of records showing that Javier and Warner illegally purchased modified access cards, commonly referred to as "pirate access devices." Id.

  DTV alleges that the defendants purchased the pirate access devises in or about March 2001, using interstate or foreign wire facilities, and received the orders via the Postal Service or commercial mail carriers. Id. ¶¶ 8(a), 15(a). DTV further alleges that each defendant used the pirate access device to decrypt and view DTV satellite signals. Id. ¶¶ 21, 25.


  DTV has not been consistent in explaining under what statute it seeks damages against Javier and Warner. DTV's complaint alleged the violation of three statutes — 47 U.S.C. § 605(a), 18 U.S.C. § 2512(1)(b) and 18 U.S.C. § 2511(1)(a) — although in its third prayer for relief, DTV requested, in the event of a default, damages only for violations of § 2511(a)(2). See Complaint at 10.*fn1 Consistent with the complaint, DTV's application for default seeks damages only under § 2511. See Pl.'s Aff. ¶ 7. DTV's memorandum of law, however, argues that it is entitled to relief for violations of all three statutes. See Pl.'s Mem. at 1-4. Notwithstanding this new argument, the Court will hold DTV to the request made in the complaint and in its application for a default judgment.*fn2

  The measure of damages for violations of § 2511(1)(a) is set out in § 2520(c)(2):
[U]nder this section, the court may assess as damages whichever is the greater of —
(A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or
(B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.
18 U.S.C. § 2520(c)(2). Most courts have held that the decision whether to award of damages under § 2520(c)(2) is discretionary. See, e.g., DirecTV v. Brown, ___ F.3d ___, 2004 WL 1178469, at *1 (11th Cir. May 28, 2004); Dorris v. Absher, 179 F.3d 420, 429 (6th Cir. 1999); Reynolds v. Spears, 93 F.3d 428, 435 (8th Cir. 1996); Nalley v. Nalley, 53 F.3d 649, 652 (4th Cir. 1995); DirecTV v. Perrier, 2004 WL 941641, at *4 (W.D.N.Y. Mar. 15, 2004); but see Rodgers v. Wood, 910 F.2d 444, 448 (7th Cir. 1990) (award of damages is mandatory). The Court need not address this issue, however, inasmuch as even if the award were discretionary, the Court would award damages in this case as described further below.
  Courts holding a damages award to be discretionary under § 2520(c)(2) typically adhere to the following analysis:
(1) The court should first determine the amount of actual damages to the plaintiff plus the profits derived by the violator, if any.
(2) The court should next ascertain the number of days that the statute was violated, and multiply by $100.
(3) The court should then tentatively award the plaintiff the greater of the above two amounts, unless each is less than $10,000, in which case $10,000 is to be the presumed award.
(4) Finally, the court should exercise its ...

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