The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District
MEMORANDUM-DECISION AND ORDER
Plaintiff, a cable television franchisee, alleges that
Defendant unlawfully intercepted its subscription-only cable
signals by purchasing and using an electronic decoder box
("decoder") in violation of the Communications Act,
47 U.S.C. § 553(a) and 605(a). Plaintiff alleges further that Defendant purchased six decoders and therefore also intended
to re-sell the decoders on the black market, a violation of
47 U.S.C. § 553(a)(2) and 605(e)(4).
Plaintiff's claims against Defendant arose after Plaintiff's
affiliate, Time Warner Cable of New York City ("TWCNYC"),
investigated a business called M.D. Electronics ("M.D."). Over
the course of the investigation, TWCNYC confirmed that M.D. was
engaged in the sale and distribution of "pirate" cable television
converter-decoders ("decoders"), i.e., devices that enable users
to view premium and pay-per-view cable programming without
authorization or payment. TWCNYC eventually obtained records of
M.D.'s sales of decoders, including sales in Plaintiff's
franchise area. Plaintiff subsequently identified M.D.'s
customers who purchased decoders and were also Plaintiff's
subscribers, including Defendant. On December 28, 2000, Plaintiff
commenced this action alleging that Defendant (1) used the
purchased decoders to intercept Plaintiff's premium and
pay-per-view programming services without its authorization and
without payment to it and (2) engaged in the sale and
distribution of the decoders.
Defendant failed to answer, and the Clerk entered default on
April 17, 2001. See Dkt. No. 4. The Court then moved for
dismissal for want of prosecution on January 9, 2003. See Dkt.
No. 5. Plaintiff responded by moving for default judgment on
March 24, 2003. See Dkt. No. 7. Defendant responded to the
motion via handwritten letter and indicated that he would like to
commence settlement negotiations; Plaintiff agreed. After
receiving no further correspondence from the parties, the Court
once again moved for dismissal for want of prosecution on
September 10, 2003. See Dkt. No. 12. Plaintiff responded,
requesting that the Court permit it to conduct discovery or re-file its default judgment motion. See Dkt. No.
13. The Court gave Defendant another opportunity to answer and
advised the parties that, if Defendant did not answer, Plaintiff
could re-file its motion for default judgment. Defendant did not
respond, and Plaintiff then moved for an inquest regarding
damages and re-filed its motion for default judgment. See Dkt.
No. 14. Defendant responded to the motion by letter on November
3, 2003. See Dkt. No. 15.
The Federal Rules of Civil Procedure prescribe a two-step
process to enter judgment by default. See Thomas v. Sclavo,
S.P.A., No. 94CV1568, 1998 WL 51861, *2-*3 (N.D.N.Y. Feb. 4,
1998). Under Rule 55(a), a clerk must first enter the default
against a party who fails to plead or otherwise defend. See
Fed.R.Civ.P. 55(a). The party seeking entry of default must
provide evidence that the entry of default is appropriate. See
id. The second step in the process requires that a plaintiff
move the court for default judgment. See Thomas, 1998 WL 51861,
at *3. In considering a motion for default judgment, the court
will treat the well-pleaded factual allegations of the complaint
as true, and the court will then analyze those facts for their
sufficiency to state a claim. See id. at *3-*4 (citations
With these standards in mind, the Court will address
B. Plaintiff's Claims under the Communications Act of 1934,
47 U.S.C. § 553(a)(1) and 605(e)(4)
Both §§ 553 and 605 of the Communications Act prohibit
unauthorized reception of cable television programming and the sale of decoders. See, e.g.,
Cmty. Television Sys., Inc. v. Caruso, 284 F.3d 430, 435 (2d
Cir. 2002) (citing International Cablevision, Inc. v. Sykes
("Sykes II"), 75 F.3d 123, 131 n. 5, 133 (2d Cir. 1996)).
Specifically, §§ 553(a)(1) and 605(a) prohibit individuals from
receiving unauthorized cable programming and §§ 553(a)(2) and
605(e)(4) prohibit the sale of decoders. See
47 U.S.C. § 553(a)(1) and 605(a); see also 47 U.S.C. § 553(a)(2) and
The Second Circuit has held that liability attaches under these
sections regardless of whether the individual who sells the
decoder profits from the sales. See Int'l Cablevision, Inc. v.
Sykes, 998 F.2d 997, 1004 (2d Cir. 1993). Moreover, the
statute's prohibition on the sale of decoders extends both to
those who engage in the continuing business of selling decoders
and those who sell a single decoder. See id. Although § 553 has
a good-faith partial defense provision that allows a court to
reduce the award of damages if the violator was not aware and had
no reason to believe that he violated the statute, "there is no
suggestion in § 553(a)(1) that an unaware person even as thus
described in § 553(c)(3)(C) is exempted from liability. . . ."
Id. Thus, courts in this Circuit have consistently been very
reluctant to accept ignorance as a defense to liability under
these provisions. See, e.g., Kingvision v. Hansen, No. 02 Civ.
6587, 2004 WL 744230, *3 (S.D.N.Y. Apr. 5, 2004); Cablevision
Sys. New York City Corp. v. Cicero, No. 99 Civ. 3190, 2000 U.S.
Dist. LEXIS 21903, *17-*19 (S.D.N.Y. Aug. 28, 2000).
Plaintiff contends that Defendant (1) purchased six illegal
decoders, (2) used at least one of the decoders to view
Plaintiff's cable programming without authorization and payment,
and (3) sold decoders with knowledge that buyers would use them
to gain unauthorized access to cable service. In sum, Plaintiff
has produced evidence that Defendant ordered and received six
decoders from M.D. Electronics and, ...