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Kingvision Pay-Per-View, Ltd. v. Caffe Del Popolo Inc.

February 6, 2007

KINGVISION PAY-PER-VIEW, LTD., PLAINTIFF,
v.
CAFFE DEL POPOLO INC., AND LORENZO PALAZZOLO, INDIVIDUALLY AND AS (AN) OFFICER(S), DIRECTOR(S), AND/OR SHAREHOLDER(S) OF CAFFE DEL POPOLO INC.; LAS ANTILLAS RESTAURANT, CORP., AND AMABLE CONTRERAS D/B/A LAS ANTILLAS RESTAURANT, INDIVIDUALLY AND AS (AN) OFFICER(S), DIRECTOR(S), AND/OR SHAREHOLDER(S) OF LAS ANTILLAS RESTAURANT, CORP., DEFENDANTS.



The opinion of the court was delivered by: Townes, United States District Judge

MEMORANDUM and ORDER

Sometime prior to November 2004, plaintiff, Kingvision Pay-Per-View, Ltd., contracted for the exclusive right to exhibit the closed-circuit telecast of a November 13, 2004, championship boxing match and certain preliminary bouts (collectively, the "Event") at various "closed-circuit locations such as . . . bars, clubs, lounges [and] restaurants." Complaint at ¶¶ 9, 11. In December 2005, plaintiff commenced this action pursuant to 47 U.S.C. §§ 553 and 605, alleging that defendants intercepted or otherwise received plaintiff's transmission of the Event without authorization, and exhibited the boxing events to patrons at Caffe Del Popolo and Las Antilles Restaurant. None of the defendants answered the complaint and on April 4, 2006, plaintiff moved for a default judgment against all defendants, seeking statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II); enhanced damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii); and costs and attorneys' fees.

Defendants Caffe Del Popolo and Lorenzo Palazzolo subsequently reached a settlement with plaintiff and were dismissed from the action. Accordingly, plaintiff's motion for a default judgment now relates solely to defendants Amable Contreras and Las Antillas Restaurant (hereinafter, the "Defendants"). For the reasons stated below, plaintiff's motion is granted and judgment shall be entered in favor of plaintiff in the amount of $11,550, plus costs.

The Consequences of Defendants' Default

"Where, as here, 'the court determines that [a] defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp 2d 622, 623 (S.D.N.Y. 1998) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 2688, at 58-59 (3d ed. 1998)). Accordingly, by defaulting in this case, Defendants have conceded, inter alia, that they willfully violated both 47 U.S.C. § 605 and 47 U.S.C. § 553. Complaint at ¶¶ 27, 37.

Although Defendants have admitted liability under both § 605 and § 553, plaintiff "can recover under only one statute." Kingvision Pay-Per-View Ltd. v. Brito, No. 05 CV 1042 (GBD) (RLE), 2006 WL 728408, at *1 (S.D.N.Y. Mar. 20, 2006) (Report and Recommendation of Ellis, M.J.) (citing International Cablevision, Inc. v. Sykes, 75 F.3d 123, 129 (2d Cir. 1996)). Since §605(e) provides "far more severe penalties than those of § 553(c)," International Cablevision, Inc. v. Sykes, 997 F.2d 998, 1007 (2d Cir. 1993), and since plaintiff makes the same arguments with respect to both sections, this Court will assume that plaintiff would prefer to proceed under § 605(e) and will determine the damages recoverable under that statute.

Damages Under § 605(e)

Section 605(e) provides, inter alia, that any person aggrieved by a violation of § 605(a) can bring a civil action in district court, in which the court:

(i) may grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain violations of . . . [§ 605(a)];

(ii) may award damages as described in subparagraph (C); and

(iii) shall direct the recovery of full costs, including awarding reasonable attorneys' fees to an aggrieved party who prevails.

47 U.S.C. § 605(e)(3)(B). Subparagraph (C) permits the recovery of either actual damages under (C)(i)(I), or statutory damages under (C)(i)(II). Plaintiff expressly requests that this Court award statutory damages. Plaintiff's Memorandum of Law ("Plaintiff's Memo") at 6, 7.

The statutory damages provision, § 605(e)(3)(C)(i)(II), provides, in pertinent part:

[T]he party aggrieved may recover an award of statutory damages for each violation of [ยง 605(a)] . . . in a sum of not less than $1,000 or more than ...


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