United States District Court, W.D. New York
August 4, 2005.
DIRECTV, INC., Plaintiff,
GARY M. LONG, Defendant.
The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
DECISION AND ORDER
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 is
intercepted, disclosed, or intentionally used in violation of
[Chapter 119 of Title 18 of the United States Code]."
Here, by operation of default, Defendant is deemed to admit
Plaintiff's allegations against him. Thus, this Court finds that
Defendant purchased, received and used one "T9-11" Loader, which
is a Pirate Access Devices designed to permit viewing of
Plaintiff's television programming without authorization or
Further, drawing all reasonable inferences in Plaintiff's
favor, this Court finds that by using this device, Defendant
intentionally intercepted and used Plaintiff's electronic
communications. Accordingly, this Court finds that Defendant
violated 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a). This
Court will therefore grant Plaintiff's Motion for Default
Judgment on its first and third causes of action. C. Damages
1. First Cause of Action: 47 U.S.C. § 605(a) Violation
Plaintiff seeks recovery of only statutory damages on its first
cause of action.*fn3 Pursuant to
47 U.S.C. § 605(e)(3)(C)(i)(II), a statutory award of "not less than $1,000
or more than $10,000" can be awarded for each violation of
47 U.S.C. § 605(a) "as the court considers just."
47 U.S.C. § 605(e)(3)(C)(i)(II). Thus, the exact dollar amount awarded within
this range is committed to the court's discretion.
Upon these facts, this Court finds that the minimum statutory
award of $1,000 against Defendant is appropriate. This award is
based on one violation of the statute. There is no indication
that Defendant profited in any way from his misconduct beyond
receiving Plaintiff's television programming free of charge. Nor
is there any evidence that Defendant induced or assisted others
in committing similar unlawful activity. Plaintiff offers no
justification for a higher award. This Court further notes that
its damage award is in line with other damage awards entered in
cases presenting like circumstances. See, e.g., DirecTV,
Inc. v. Kaas, No. C03-4047-PAZ, 2003 WL 22965078 (N.D. Iowa Dec.
17, 2003) (awarding statutory minimum of $1,000 per violation);
DirecTV, Inc. v. Albright, No. Civ. A. 03-4603, 2003 WL
22956416, at *3 (E.D.Pa. Dec. 9, 2003) (awarding $1,000 statutory
damages and citing similar cases); Hamilton, 215 F.R.D. at 462
(awarding $1,000 per violation). In addition, this Court will award Plaintiff $850 in attorneys'
fees and costs as requested, a sum that this Court finds
reasonable. See 47 U.S.C. § 605(e)(3)(B)(iii) (providing that
the court "shall direct the recovery of full costs, including
awarding reasonable attorneys' fees to an aggrieved party who
prevails"); see Kaas, 2003 WL 22965078 (awarding $850 in
attorneys' fees and costs).
2. Third Cause of Action: 18 U.S.C. § 2511(1)(a) Violation
Plaintiff seeks statutory damages pursuant to
18 U.S.C. § 2520(c)(2)(B) on its third cause of action. That section
authorizes statutory damages to any person whose electronic
communication is intercepted, disclosed or intentionally used in
the amount of the greater of $100 a day for each day of violation
or $10,000. 18 U.S.C. § 2520(c)(2)(B). An award of statutory
damages under this section is discretionary. See Schmidt v.
Devino, 206 F.Supp.2d 301, 306 (D.Conn. 2001) (citing cases);
Romano v. Terdik, 939 F.Supp. 144, 146 (D.Conn. 1996). However,
the court's discretion extends only to granting damages as
provided in the statute or not granting damages at all; the court
has no discretion to award damages in an amount between the two
statutory choices. See Schmidt, 206 F.Supp.2d at 306; see
also Kaas, 2003 WL 22965078 (citing cases); Goodspeed v.
Harman, 39 F.Supp.2d 787, 791 (N.D. Tex. 1999).
Plaintiff has not provided any information regarding
Defendant's violation of the statute on a daily basis. Instead,
Plaintiff requests an award of $10,000 per violation. This Court
finds that on these facts, such an award is excessive. See
Kaas, 2003 WL 22965078 (finding $10,000 award excessive based
on similar facts); cf. Reynolds v. Spears, 93 F.3d 428, 435 (8th Cir. 1996) ("We think it logical
that Congress chose to make the award of [statutory] damages
discretionary, given the potential of the law to bring financial
ruin to persons of modest means, even in cases of trivial
transgressions."); but see DirecTV v. Braun, No. CIV
3:03CV937, 2004 WL 288805, at *2 (D.Conn. Feb. 9, 2004) (awarding
$10,000 pursuant to 18 U.S.C. § 2520(c)(2)(B) based on
Defendant's illegal interception of Plaintiff's broadcast
signal). Accordingly, this Court exercises its discretion to
award no statutory damages on Plaintiff's third cause of action.
As noted, there is no evidence that Defendant significantly
profited from his violation of the statute or induced or assisted
others in engaging in similar misconduct. Moreover, this Court is
awarding Plaintiff damages on its first cause of action, an award
that in this Court's view appropriately punishes Defendant for
his illegal actions, adequately compensates Plaintiff for any
damage it suffered, and sufficiently deters others from engaging
in similar unlawful conduct. See Albright, 2003 WL 22956416,
at *3 (finding a statutory minimum award of $1,000 per violation
sufficient to deter similar wrongdoing).
For the foregoing reasons, this Court will grant Plaintiff's
Motion for Default Judgment. Plaintiff will be awarded statutory
damages against Defendant in the amount of $1,000, and attorneys'
fees and costs in the amount of $850, for a total judgment of
IT HEREBY IS ORDERED, that Plaintiff's Motion for Default
Judgment (Docket No. 10) is GRANTED.
FURTHER, that Plaintiff is awarded a total of $1,850 in
statutory damages and attorneys' fees and costs against Defendant
Gary M. Long on its first cause of action.
FURTHER, that Plaintiff is awarded no statutory damages against
Defendant Gary M. Long on its third cause of action.
FURTHER, that the Clerk of the Court is directed to send a copy
of this Decision and Order to Defendant Gary M. Long at the
6928 Rebecca Drive
Niagara Falls, New York 14304
FURTHER, that the Clerk of the Court is directed to close this