The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
Plaintiff Kingvision Pay-Per-View Ltd. ("Kingvision") brought this action against defendants El Valle Restaurant, also known as J&J Sports Bar, Inc. ("J&J"), and Felix Jiminez ("Jiminez"), J&J's owner, alleging that defendants illegally broadcast the November 13, 2004 pay-per-view boxing match headlined by John Ruiz and Andrew Golota, in violation of 47 U.S.C. §§ 553 & 605. A bench trial was conducted before this Court on May 15, 2006. For the reasons that follow, judgment is entered for the defendants.
At trial, plaintiff called Alan Gelb, an attorney employed by Kingvision, and Jose Batista, an investigator hired to detect unauthorized reception of the Ruiz/Golota event.*fn2 According to Gelb, Kingvision's "piracy counsel," pay-per-view events may be broadcast in several ways. (Transcript of Bench Trial, dated May 15, 2006 ("Tr.") at 8, 24). Kingvision may transmit its signal to subscribers through a consumer satellite television provider, such as DirectTV or the Dish Network, or through a cable television company. (Tr. at 24). However, a commercial establishment must contact Kingvision directly to purchase a pay-per-view event. (Tr. at 8-9, 24). In such instances, the broadcast is transmitted through a satellite provider or cable television company. (Tr. at 1 1-12).
Gelb also testified regarding some of the methods that commercial establishments can employ to "steal" pay-per-view events. (Tri at 7-9). For example, a commercial establishment may install satellite television service and fraudulently register its account as residential. (1d.). Here. however, J&J was in fact registered as a commercial user with DirectTV. (Tr. at 8-9, 24). Gelb also testified that customers may illegally display an event by temporarily transferring a residential cable or satellite receiver to a commercial establishmenti (Tr. at 9). Gelb explained that commercial establishments often bought unauthorized receivers over the internet. (Tr. at 10). Gelb did not, however, testify as to the specific manner in which J&J (allegedly) displayed the Ruiz/Golota pay-per-view event on November 13,2004. (Tr. at 24-27).
According to Gelb, the price Kingvision charges to commercial customers is determined by multiplying the event price by the maximum number of legal occupants for the venue. (Tr. at 36-37). Obviously, when an event is shown illegally, Kingvision is unable to collect this fee. (See Tr. at 36-39). In addition, Kingvision suffers a reduced rate of return on the money it has spent to promote the event through commercials, print ads, and direct mail pieces. (Tr. at 19-20, 36).
Kingvision contracts with outside entities to investigate the unauthorized interception of its signals. (Tr. at 16). In this instance, Kingvision contracted with Signal Auditing. (Id.). Signal Auditing retains auditors, who are given lists of authorized Kingvision customers and instructed to look for commercial establishments displaying an event illegally. (Tr. at 12,16- 17). Gelb testified that Kingvision does not train these auditors, but rather expects the contractors to do so. (Tri at 22-23). Batista, the auditor who claimed to have discovered J&J's piracy, testified that he had received no training "per se" from Signal Auditingi (Tr. at 51). Gelb testified that auditors are generally given a form affidavit to complete, which includes the names and descriptions of an establishment's employees, the number of individuals viewing the event at the location and, if possible, license plate numbers of those parked nearby. (Tr. at 20-21). After receiving an auditor's report, Gelb generally compares the time of the observation, the fight observed, and the auditor's video tape (if one is submitted) against a tape of the actual event. (Tr. at 15-16).
Batista submitted a completed affidavit, dated November 20,2004, created from notes that he took on November 13th and 14th after visiting J&J. (Tr. at 14-15,41,52; Ex. A). The affidavit states that Batista visited J&J at approximately 11:00 p.m. on November 13,2004, where he witnessed a portion of the match between Jamel McCline and Chris Byrd, an undercard fight before the Ruiz/Golota event. (Tr. at 2-3, Ex. A). J&J was not authorized by Kingvision to show the fight. (Tri at 20).
On the affidavit, Batista noted seeing only one television set and described it as a "very large floor model," which he drew on a diagram at the bottom of the affidavit. (Exi A). Batista testified that he noted only one television in total because he was "focusing on the one television [he] saw" showing the fight. (Tr. at 58-60). Batista's affidavit states that J&J did not charge an admission fee. (Ex. A). The affidavit does not include a description of any of the employees working at J&J that night, or a description of J&J's facade. (Id.). However, Batista did submit a photograph of the exterior of J&J that he took the next day, November 14,2004. (Exs. A, B). Batista failed to record any license plate numbers of those parked nearby; in fact he explained that he had not seen any parking lot for the establishment. (Tr. at 46; Exi A). However, Jiminez testified that J&J does have a customer parking lot on 134th street. (Tr. at 67).
Batista noted that he observed no cable box in the bar. (Ex. A). The affidavit described the inside of the establishment as a "Restaurant and Sports Bar" where people ate at tables while watching a "large screen TV." (Id.). Batista approximated the capacity of the bar to be 75 people, but noted on the affidavit that he counted 50 in J&J that evening. (Id.). At trial, Batista testified that there were 50-75 people in the bar. (Tr. at 53, 64). Batista also testified that he saw no advertising for the event at J&J. (Tr. at 48) Gelb explained that bars advertise and charge for admission when they show an event legally, in order to recoup their costs in buying the pay-per-view eventi (Tr. at 36-37).
The affidavit states that Batista left the establishment at around 11:15 p.m. (Ex. A). Batista explained that he was not wearing a watch on the night in question. (Tr. at 56-57). He testified that he first observed the defendants showing the fight around 10:50 or 10:55 p.m., went into the bar at 11 p.m., and remained in the establishment for close to two minutes before leaving to take a video of the establishment. (Id.). Thus, he may have left the area around 11:15 p.m., but apparently left the bar before 11:15 pim. (See Tri at 50, 56-57). The video taken by Batista was submitted by plaintiff and played during the trial. (Tr. at 18-19; Exi D). It was less than 30 seconds in length, and an image of a boxer's face was barely discernible. (Ex. D). Gelb testified that the video tape did reflect a portion of the McCline/ Byrd fight that occurred between 11 p.m. and 11:15 p.m. on November 13,2004. (Tri at 30-31; Ex. D). Batista testified that he took the video from inside his vehicle. (Tr. at 40, 45, 55). He used a hand-held Sony camcorder that was able "to go directly through the glass and get that image." (Tr. at 40). Batista explained his method of video recording as follows: "I was in my van and have a Dodge Caravan, which has a tinted side mirror in the back seat, so that was actually done through the side of the tinted side mirror of the Dodge Caravan. . . ." (Tri at 45). Batista testified that he did so to prevent others from discovering what he was up to. (Tri at 45). It was impossible to tell, from the video itself, where it was filmed, or whether the location depicted was actually the defendants' establishment. (Ex. D). Batista explained that he is not a "professional photographer" and that he was in a hurry. (Tr. at 56). Batista testified that after he took the video, at around 11:10 or 11:15 p.m., he called Signal Auditing to make sure that he had observed the correct match and to find out whether J&J was a "late legal," i.e., a commercial establishments that purchased the event between the time the authorized list was distributed and the time of the actual event. (Tr. at 14, 50-53).
Batista also testified that Signal's auditors are compensated at the rate of $275 per observation, and are only paid at all if they observe a violation. (Tri at 54-55). On November 13, 2004, Batista had begun his surveillance around 9 p.m. (Tri at 43-44). He could not remember exactly how many bars he had visited that night. (Tr. at 43). Batista testified that he had discovered approximately three establishments that were showing the fight illegally and had visited perhaps ten others that were not showing the fight at all, but could not remember how many bars he had checked before stopping at J&Ji (Tri at 43, 61-62).
Defendants called three witnesses on their behalf: Jiminez himself; Ana Jiminez, an employee of J&J; and Boliva Sena, the bar's manager. Jiminez testified that J&J had purchased eight fights in the past from Kingvision.*fn3 (Tr. at 66). Jiminez testified that the last fight he had purchased for J&J was the "Trinidad" match in Madison Square Garden. (Tri at 76). However, he testified that he did not purchase the Ruiz/Golota match. (Tr. at 66). Jiminez admitted that he had received a flyer from Kingvision advertising the Ruiz/Golota fighti (Tri at 73, 78).
However, Jiminez maintained that he was at J&J on the night of November 13, 2004, and that the fight was not shown. (Tr. at 70-71). Jiminez also asserted that he has sole responsibility ...