The opinion of the court was delivered by: Townes, United States District Judge
In January 2005, plaintiff J & J Sports Productions, Inc., contracted with a boxing promoter to obtain the exclusive license to exhibit within the United States the telecast of a March 19, 2005, boxing program (the "Program"). On March 19, 2005, an investigator hired by plaintiff visited Taqueria La Mixteca Restaurant in Brooklyn (hereinafter, the "Restuarant"), where he observed a television exhibiting the Program to the patrons. The Restaurant was not authorized by plaintiff to exhibit the Program and, on December 27, 2005, plaintiff brought this action pursuant to 47 U.S.C. §§ 553 and 605 against both the Restaurant and "John Doe," an unknown officer, director, shareholder and/or principal of the Restuarant, alleging that defendants intercepted the signal for the Program without authorization.*fn1 After defendants failed to answer or to otherwise respond to its complaint, plaintiff filed the instant motion for a default judgment, seeking statutory damages of up to $10,000 pursuant to 47 U.S.C. §605(e)(3)(C)(i)(II); enhanced damages of up to $100,000 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 a judgment will be entered against defendants, jointly and severally, in the amount of $7,611.50.
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 (1) "willfully violated 47 U.S.C. § 605(a)," Complaint at ¶ 21, Amended Complaint at ¶ 21, and (2) "willfully violated 47 U.S.C. § 553." Complaint at ¶ 35, Amended Complaint at ¶ 35.*fn2
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 plaintiff has elected to recover under §605, which provides "far more severe penalties than those of § 553(c)," International Cablevision, Inc. v. Sykes, 997 F.2d 998, 1007 (2d Cir. 1993), this Court will determine the damages recoverable under that statute.
Damages Under § 605 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 requests that this Court award statutory damages. See Plaintiff's Memorandum of Law ("Plaintiff's Memo") at 4.
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 $10,000, as the court considers just . . . .
In addition, § 605(e)(3)(C)(ii) states:
In any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount ...