United States District Court, E.D. New York
July 1, 2005.
CSC HOLDINGS, INC., Plaintiff,
JOSEPH KELLY, Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
Plaintiff CSC Holdings, Inc. ("Cablevision" or the
"Plaintiff"), is a cable television operator. Cablevision is
authorized to operate and maintain cable television systems in
parts of New York State, including areas within the Eastern
District of New York. Cablevision commenced this case on May 9,
2003 alleging that the defendant Joseph Kelly (the "Defendant")
illegally intercepted the Plaintiff's cable television programming service in violation of 47 U.S.C. §§ 553(a)(1) and
605(a). Presently before the Court is Cablevision's unopposed
motion for summary judgment seeking entry of a permanent
injunction, damages, and attorneys' fees and costs.
A. Factual Background
Cablevision and its affiliates own, operate, and maintain cable
television systems on which they transmit cable television
signals for use by its subscribers. Cablevision transmits
television signals that include basic, premium, and pay-per-view
content. In order to secure its various signals from theft,
Cablevision utilizes the technological measure of encoding or
scrambling the premium and pay-per-view services. Subscribers who
are authorized to view such content are provided a converter that
is programmed to descramble the signal and permit the subscriber
to view the content of the signal. Despite these security
measures, it is possible to steal the signal by use of "pirate"
cable television decoding devices that are designed to descramble
a cable company's signal without payment or authorization.
One such device that can be used to descramble cable signals in
known as the "J Cube" device. A "J Cube" is a non-addressable,
fully descrambling "pirate" cable television decoding device. The
device was designed to work with General Instrument's "Jerrold"
technology used by Cablevision. Cablevision asserts that if the
"J Cube" device is attached to its system it would allow a
subscriber to view all of its premium and pay-per-view services without payment or
authorization. These devices were once sold by North Tech, Inc.,
a now defunct seller of pirate decoding devices formerly based in
North Tech was subject to a criminal investigation commenced by
the Massachusetts Attorney General in which documents were seized
that included customer records. One of the records seized is an
invoice that shows the sale of a "CFT 2200" from North Tech to a
Joseph Kelly, residing at 2655 Ocean Avenue, Seaford, New York,
for the sum of $126.00. A "CFT 2200" is a device legitimately
manufactured by Motorola Broadband, formerly General Instrument,
and only sold to cable television companies. Cablevision claims
that such devices are not sold to individuals.
B. Procedural Background
Cablevision commenced this action on May 9, 2003, asserting
that the Defendant purchased and used the "J Cube" device to
steal services. Although the Defendant appeared for a deposition,
he failed to appear in court for numerous pre-trial conferences
and failed to respond to the Plaintiff's discovery requests. Upon
motion by the Plaintiff, Magistrate Judge E. Thomas Boyle entered
an order pursuant to Federal Rules of Civil Procedure 36 and 37
deeming all unanswered Requests for Admission admitted. As a result, the
following facts were established: (1) the Defendant or someone he resides
with was a subscriber to Cablevision's cable service; (2) the Defendant knew that the law and cable subscription
agreements prohibit tampering with the cable television
operator's equipment and the unauthorized reception of services;
(3) the Defendant knew that decoders can be used to receive
scrambled cable television services; (4) the Defendant resided at
2655 Ocean Avenue, Seaford, New York, at the time the item was
purchased and delivered; (5) the Defendant ordered and received
the device from North Tech; and (6) the Defendant connected and
used the device on Cablevision's cable system to receive premium
and pay-per-view services without paying for such services.
On October 5, 2004, the Defendant appeared at a pre-trial
conference in which a schedule for summary judgment was set. On
November 11, 2004, the Plaintiff filed the instant motion for
summary judgment along with the "Notice to Pro Se Litigant
Opposing Summary Judgment" as required under Local Rule 56.2. The
Defendant did not file any opposition.
A. Summary Judgment Standard
When deciding a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving
party and must draw all permissible inferences from the submitted
affidavits, exhibits, interrogatory answers, and depositions in
favor of that party. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Niagara
Mohawk Power Corp. v. Jones Chemical Inc., 315 F.3d 171,175 (2d Cir. 2003) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 n. 11, 106 S. Ct. 1348, 1356 n. 11, 89 L. Ed. 2d 538
(1986) (quoting Fed.R.Civ.P. 56(e)). Summary judgment is
appropriate when "there is no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c).
Where, as here, the nonmoving party has chosen the "perilous
path" of failing to respond to a motion for summary judgment, the
court must still examine "the moving party's submission to
determine if it has met its burden of demonstrating that no
material issue of fact remains for trial." Amaker v. Foley,
274 F.3d 677, 681 (2d Cir. 2001). "[I]n determining whether the
moving party has met this burden of showing the absence of a
genuine issue for trial, the district court may not rely solely
on the statement of undisputed facts contained in the moving
party's Rule 56.1 statement. It must be satisfied that the
citation to evidence in the record supports the assertion." Vt.
Teddy Bear Co. v. 1-800 BEARGRAM Co., 373 F.3d 241, 244 (2d Cir.
In addition, when the nonmoving party is pro se, summary
judgment may be granted only if the undisputed facts "show that
the moving party is entitled to a judgment as a matter of law."
Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Also, the
Second Circuit has cautioned that a district court may only grant
the motion if the pro se party has received notice that failure
to respond to the motion "will be deemed a default." Id. As stated above the defendants served a
"Notice to Pro Se Litigant Opposing Motion for Summary Judgment."
Also, the Plaintiff affixed a copy of Fed.R.Civ.P. 56 to the
B. The Communications Act Claims
Cablevision alleges that the Defendant violated
47 U.S.C. §§ 553(a)(1) and 605(a) of the Communications Act.
47 U.S.C. § 553(a)(1) states, "No person shall intercept or receive or assist
in intercepting or receiving any communications service offered
over a cable system, unless specifically authorized to do so by a
cable operator or as may otherwise be specifically authorized by
law." Id. Further, 47 U.S.C. § 553(c)(1) allows any person
aggrieved by a violation of § 553(a) a private right of action to
seek an injunction, damages, and attorneys' fees and costs.
In addition, 47 U.S.C. § 605(a) provides, in relevant part, "No
person not being entitled thereto shall receive or assist in
receiving any interstate or foreign communication by radio and
use such communication (or any information therein contained) for
his own benefit or for the benefit of another not entitled
thereto." Id. Further, 47 U.S.C. § 605(e) sets forth penalties
a private party may recover in an action against a person who is
in violation of § 605(a).
The affidavit and documentary evidence, in conjunction with the
facts established by the Defendant's admissions, establish the
elements necessary for the Plaintiff to carry its burden in this
motion for summary judgment. Cablevision has explained that it is the business protected by the statute and
produced the invoice showing the Defendant's purchase of a device
from North Tech. Also, the company from which the device was
bought was in the business of selling pirate devices, and the
device listed on the Defendant's invoice is not the type of
device sold to individuals. Further, Cablevision has shown that
the Defendant was not a subscriber to any of Cablevision's
premium or pay-per-view services. Without any opposition from the
Defendant on these points, it is reasonable to conclude that the
Defendant bought the device to steal premium services from the
In addition, the affidavits submitted by the Plaintiff and the
relevant case law both show that the "J Cube" device has only one
purpose, that is, the interception of cable television
programming services. Intermedia Partners Southeast, Gen. Pshp.
v. QB Distribs. L.L.C., 999 F. Supp. 1274, 1281 (D. Minn. 1998)
("Defendants have failed to offer any explanation for why a
subscriber would purchase their products for such a legal
purpose, when the cable operator supplies the equipment one needs
for authorized access to premium and pay-per-view services.").
The admissions that resulted by the Defendant's failure to
comply with discover, after repeated warnings from the Magistrate
Judge only reinforces this conclusion. The admissions meet each
element necessary to establish a violation of both sections of
the Communication Act. For these reasons, the Court finds that the evidence in the
record is sufficient to demonstrate that there is no material
issue of fact and that Cablevision is entitled to judgment as a
matter of law on all of its claims.
Based on the foregoing it is hereby
ORDERED, that the Plaintiff's motion for summary judgment is
GRANTED; and it is further
ORDERED, that this matter is REFERRED to Magistrate Judge
E. Thomas Boyle for the purpose of holding an inquest as to damages, fees,
and the propriety of issuing a permanent injunction.
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