The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE RICHARD J. HOLWELL, UNITED STATES DISTRICT JUDGE.
In this action, Cablevision Systems New York City Corporation
("Cablevision") alleges that Gertha Guignard ("Guignard")
intercepted cable television programming signals illegally, in
violation of the Cable Communications Policy Act, as amended,
47 U.S.C. §§ 553(a)(1) and 605(a).
Upon Guignard's failure to file an answer or otherwise respond
to the Complaint, United States District Judge Shira A. Sheindlin
ordered that a default judgment be filed against her. Thereafter,
Judge Sheindlin 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 Guignard.
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 Guignard
to serve and file any opposing memoranda, affidavits and exhibits, as well as any alternative
findings of fact and conclusions of law she deemed appropriate.
Guignard did not file any papers in opposition to Cablevision's
submissions. In November 2003, this case was reassigned to your
Cablevision's submissions aver that it is entitled to $10,000
in statutory damages and $1,284 in attorneys' fees. For the
reasons that follow, I recommend that Cablevision be awarded
$11,284: statutory damages of $10,000, pursuant to
47 U.S.C. § 605, and attorneys' fees of $1,284.
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 Delaware corporation which is authorized to do
business in New York and has its principal offices in Bethpage,
New York and Bronx, New York. See Complaint, ¶ 4, at 2.
Guignard is an individual residing at 2075 St. Raymonds Avenue,
Apt. 2C, Bronx, New York. See Plaintiff's Memorandum of Law in
Support of Inquest ("Pl.'s Mem."), at 2. Pursuant to a franchise
awarded by the State of New York, Cablevision constructs,
operates and maintains cable television systems in Bronx County,
where Guignard resides. See id. Cablevision provides cable television services to subscribers
who request and pay for them. See Affidavit of Donald Kempton
in Support of Damages ("Kempton Aff."), ¶ 2, at 1. Cablevision
offers different tiers of programming services to its
subscribers. "Basic" service is offered at a monthly rate, and
provides a residential subscriber with enhanced quality reception
of broadcast stations, as well as a small number of additional
programming services. See id., ¶ 3, at 1. "Family" service is
a higher level of service, which provides a subscriber with all
of Cablevision's programming services except for its "premium"
and pay-per-view programming services. See id., ¶ 3, at 1-2.
Cablevision's residential subscribers may also subscribe to one
or more premium services such as Cinemax, Home Box Office, and
Showtime, for an additional monthly charge per service. Premium
services range in price from approximately $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 to residential subscribers at an
average cost of approximately $80.95 per month. See id.
Subscribers may also order pay-per-view programming services.
Pay-per-view programming includes movies and sporting events,
fees for which are charged on a per-event basis. See id., ¶
5, at 2. The pay-per-view service includes selections which
typically range in price from approximately $4.00 to $49.95 per
selection, and are offered continuously over a 24-hour period.
The aggregate value of the pay-per-view events offered over a
typical month, assuming each pay-per-view event is viewed only
once, is approximately four hundred dollars. See id. Cablevision provides its cable television service to
subscribers via subscription agreements. Cablevision agrees to
provide the services requested by a subscriber in exchange for
the subscriber's agreement to pay for those services on a monthly
basis. See id., ¶ 6, at 2. Each Cablevision subscriber is
entitled to receive only the level and amount of cable
programming and services for which that subscriber has paid.
See id., ¶ 7, at 2-3.
As part of its cable service, Cablevision provides each
subscriber with equipment known as a converter-decoder.
Cablevision programs the converter-decoder so that each
subscriber can receive and view only the level and amount of
cable programming he or she has selected and purchased. The
rental fee for the converter-decoder is regulated by the Federal
Communications Commission on an actual cost basis. The fee is
included in the subscriber's monthly bill. See id., ¶ 8, at
Cablevision receives the signals for most of its cable
television programming services from orbiting satellites and
local radio towers. See id., ¶ 9, at 3. In order to protect
its cable programming from theft and unauthorized reception
commonly known as cable "piracy" Cablevision encrypts or
"scrambles" the signals to all programming which a subscriber has
not purchased and is not authorized to receive. See id., ¶¶
9, 13, at 3-4. When Cablevision's programming is in a scrambled
mode, it is distorted and unviewable by a subscriber who has not
paid for such programming. See id., ¶ 9, at 3. ...