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DirecTV, INC. v. LONG

August 4, 2005.

DIRECTV, INC., Plaintiff,
GARY M. LONG, Defendant.

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 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. § 2511(1)(a)

  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 part, that:
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 ...

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