The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
Presently before this Court is Plaintiff DirecTV's Motion for
Default Judgment against Defendant Gary M. Long.*fn1 For the
reasons discussed below, this Court will grant Plaintiff's Motion
for Default Judgment, and award Plaintiff statutory damages in
the amount of $1,000, and attorneys' fees and costs in the amount
of $850, for a total judgment of $1,850.
On September 8, 2004, Plaintiff filed its Complaint in this
action alleging that Defendant purchased and used Pirate Access
Devices that are designed to permit the viewing of Plaintiff's
television programming without authorization by or payment to
Plaintiff. Plaintiff alleges that by doing so, Defendant violated
the Federal Communications Act of 1934, as amended,
47 U.S.C. § 605, and the Electronic Communications Privacy Act,
18 U.S.C. §§ 2510-2521. Drawn from the Complaint, the factual allegations are
as follows: Plaintiff, a California corporation, is the nation's
leading provider of direct broadcast satellite programming,
delivering more than 225 television channels to more than ten
million homes and businesses in the United States. Plaintiff
offers its television programming to residential and business
customers on a subscription and pay-per-view basis only. To
prevent unauthorized receipt and viewing of its programming,
Plaintiff electronically scrambles its satellite transmissions.
Therefore, each authorized customer is required to maintain an
account with Plaintiff and to obtain the proper system hardware
to receive the satellite transmissions, including a DirecTV
Access Card and a small satellite dish. Upon activation of the
DirecTV Access Card, the customer is able to receive and view
those channels to which the customer has subscribed or otherwise
arranged to purchase (e.g., pay-per-view).
On or about May 22, 2003, Plaintiff obtained certain business
records from Ken Compton and Charles Moscoe, the owners of an
Internet website called SatSmart.tv. The records were obtained as
a result of a lawsuit filed by Plaintiff against Compton, Moscoe
and SatSmart. SatSmart advertised, sold and distributed
electronic devices primarily designed for the surreptitious
interception of satellite communications. The records obtained by
Plaintiff included orders, invoices, electronic communications,
shipping documentation, transactions records for on-line merchant
transaction companies, product descriptions and customer lists
related to the distribution of Pirate Access Devices. Based on information discovered in these records, Plaintiff
alleges that Defendant purchased one "T-911 Loader" printed
circuit board from SatSmart on or about October 1, 2002.
Defendant placed his orders using interstate or foreign wire
facilities, and received his orders via the Postal Service or
commercial mail carriers.
Defendant failed to Answer the Complaint or otherwise defend
this action. Consequently, Plaintiff filed a Request for Clerk's
Entry of Default on November 18, 2004. The Clerk of the Court
granted Plaintiff's request and filed an Entry of Default against
Defendant on November 22, 2004. Plaintiff filed the instant
Motion for Default Judgment on February 23, 2005.
A. Default Judgment Standard
Before obtaining default judgment, a party must secure a
Clerk's Entry of Default by demonstrating, through affidavit or
otherwise, that the opposing party is in default. FED. R. CIV. P.
55(a). Once default has been entered, the allegations of the
Complaint that establish the defendant's liability are accepted
as true. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp.,
973 F.2d 155, 158 (2d Cir. 1992); FED. R. CIV. P. 8(d). Damages,
however, must be established by proof, unless the damages are
liquidated or "susceptible of mathematical computation." Flaks v.
Koegel, 504 F.2d 702, 707 (2d Cir. 1974). All reasonable
inferences from the evidence presented are drawn in the moving
party's favor. See Au Bon Pain Corp. v. Artect, Inc.,
653 F.2d 61, 65 (2d Cir. 1981). Prior to entering default judgment, the court must determine
whether the facts alleged in the Complaint are sufficient to
state a claim for relief as to each cause of action for which the
plaintiff seeks default judgment. Further, where the damages
sought are not for a sum certain, the court must determine the
propriety and amount of default judgment. FED. R. CIV. P.
55(b)(2). "In determining damages not susceptible to simple
mathematical calculation, a court has the discretion to rely on
detailed affidavits or documentary evidence in lieu of an
evidentiary hearing." DirecTV, Inc. v. Hamilton,
215 F.R.D. 460, 462 (S.D.N.Y. 2003) (citing Action S.A. v. Marc Rich & Co.,
Inc., 951 F.2d 504, 508 (2d Cir. 1992)). A hearing is not
required as long as the court ensures that there is a basis for
the damages awarded.*fn2 See Transatlantic Marine Claims
Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir.
1997) (quoting Fustok v. Conticommodity Servs., Inc.,
873 F.2d 38, 40 (2d Cir. 1989)).
B. Statutory Violations: 47 U.S.C. § 605(a) and 18 U.S.C. §
Plaintiff moves for default judgment on its first and third
causes of action.
Forty-seven U.S.C. § 605(a) prohibits the unauthorized
interception, receipt, publication or use of interstate or
foreign wire or radio communications. It provides, in pertinent
No person not being authorized by the sender shall
intercept any radio communication and divulge or
publish the existence, contents, substance, purport,
effect or meaning of such intercepted communication
to any person. 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.
47 U.S.C. § 605(a).
Similarly, 18 U.S.C. § 2511(1)(a) imposes liability upon any
person who "intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept,
any wire, oral, or electronic communication." This criminal
statute is civilly enforced pursuant to the provisions of
18 U.S.C. § 2520(a), which creates a civil cause of action for "any
person whose wire, oral, or electronic communication ...