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CABLEVISION SYSTEMS NEW YORK CITY CORPORATION v. GUIGNARD

June 3, 2005.

CABLEVISION SYSTEMS NEW YORK CITY CORPORATION, Plaintiff,
v.
GERTHA GUIGNARD, Defendant.



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.

I. INTRODUCTION

  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 Honor.

  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.

  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 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 3.

  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. ...


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