The opinion of the court was delivered by: Townes, United States District Judge
Plaintiff, Kingvision Pay-Per-View, Ltd., owns the exclusive right to exhibit the closed-circuit telecast of certain boxing events 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 without authorization, and exhibited the boxing events to patrons at Sugarcane and JRG Restaurant Bar & Fashion. Defendant Giddings answered the complaint in January 2006, and has since settled with plaintiff and been dismissed from the action. Defendant Gumbs, however, failed to answer or to otherwise respond to plaintiff's complaint.
Plaintiff now moves for a default judgment against Gumbs, individually and d/b/a Sugarcane, seeking statutory damages of $10,000 pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II); enhanced damages of $50,000 pursuant to 47 U.S.C. § 605(e)(3)(C)(ii); and costs and attorneys' fees. For the reasons stated below, plaintiff's motion is granted and judgment shall be entered in the amount of $14,050, 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, defendant Gumbs has conceded, inter alia, that she and Sugarcane willfully violated both 47 U.S.C. § 605 and 47 U.S.C. § 553. Complaint at ¶¶ 27, 37.
Although Gumbs has 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.
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.
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 [§ 605(a)] . . . in a sum of not less than $1,000 or more than ...