United States District Court, E.D. New York
For Plaintiff: Paul J. Hooten, Esq., The Law Firm of Paul J. Hooten & Associates, Mount Sinai, New York.
REPORT AND RECOMMENDATION
JOAN M. AZRACK, UNITED STATES MAGISTRATE JUDGE.
On May 2, 2014, J & J Sports Productions, Inc. (" plaintiff"), filed suit against Big Daddy's Theme Palace, Inc. d/b/a Club 632 (" Big Daddy's") and Gaetana Lisanti (" Lisanti" and collectively with Big Daddy's, the " defendants") alleging violations of the Federal Communications Act of 1934, as amended, 47 U.S.C. § § 553 and 605. Big Daddy's was properly served on May 19, 2014, (Aff. of Service, ECF No. 4), and Lisanti was properly served on May 28, 2014, (Aff. of Service, ECF No. 5). On June 27, 2014, the Clerk of the Court issued a certificate of default for both defendants. (ECF No. 8.)
Plaintiff now moves for a default judgment against defendants pursuant to Fed.R.Civ.P. 55(b). (Mot. for Default, ECF No. 9.) The Honorable John Gleeson referred plaintiff's motion to me for a report and recommendation. (July 9, 2014 Order.) For the reasons that follow, I respectfully recommend that the Court grant plaintiff's motion and enter a default judgment against defendants in the amount of $15, 236.50, comprised of $4, 945.50 in statutory damages, $9, 891.00 in enhanced damages, and $400.00 in costs.
According to the complaint, plaintiff entered into a closed-circuit television licensing agreement to broadcast the May 5, 2012, WBA World Light Middleweight Championship Fight and preliminary bouts (collectively the " event") at locations throughout the New York region. (Compl. ¶ 7, ECF No. 1.) The purpose of the agreement was to allow plaintiff to distribute the event to various business establishments in exchange for a fee. (Id. ¶ ¶ 8, 10.) Pursuant to the licensing agreement, the event could only be shown in a commercial establishment if said establishment was contractually authorized by plaintiff to show the event. (Id. ¶ 9.) When an establishment contracted with plaintiff to exhibit the event, plaintiff would provide the establishment with electronic decoding equipment and information for it to receive and decode the scrambled transmission. (Id. ¶ ¶ 11-13.)
Lisanti is the principal of Big Daddy's, a bar located on Midland Avenue in Staten Island, New York. (Id. ¶ 5.) Lisanti had the " right and ability to supervise the infringing activities" on the night of the event. (Id.) Big Daddy's did not contract with plaintiff to obtain the rights to exhibit the event. (Id. ¶ 18.) Plaintiff's investigator, Robert Taylor (" Taylor"), observed the event being televised on May 6, 2012, at 12:23 A.M., at Big Daddy's. (Aff. of Robert Taylor (" Taylor Aff.") at 1, Pl.'s Mem. in Supp. for J. by Default (" Pl.'s Mem.") Ex. A., ECF No. 11.) After observing the event, Taylor prepared an affidavit detailing his findings. According to Taylor, there were a maximum of 90 patrons in the bar observing the event. (Taylor Aff. at 1.) Plaintiff alleges that defendants willfully intercepted and assisted in receipt of the event, enabling the patrons of Big Daddy's to view the event, and that defendants did so for their own financial gain and commercial advantage. (Compl. ¶ ¶ 14-16.)
A default amounts to an admission of liability, and all well-pleaded allegations in the complaint pertaining to liability are deemed true. See Greyhound Exhibit Grp., Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); Lyons P'ship, L.P. v. D & L Amusement & Entm't, Inc., 702 F.Supp.2d 104, 109 (E.D.N.Y. 2010). However, the court must, nonetheless, determine whether the allegations establish, as a matter of law, the non-moving party's liability. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).
Here, plaintiff alleges that Lisanti and Big Daddy's violated 47 U.S.C. § § 553 and 605, and plaintiff seeks damages under both statutes. However, " when a defendant's conduct has violated both sections 553 and 605, an aggrieved cable operator is 'entitled to only one, non-duplicative recovery.'" J & J Sports Prods., Inc. v. Alvarez, No. 02-CV-5173, 2009 WL 3096074, at *4 (S.D.N.Y. Sept. 25, 2009) (quoting J & J Sports Prods., Inc. v. Dehavalen, No. 06-CV-1699, 2007 WL 294101, at *1 (S.D.N.Y. Jan. 30, 2007)). Where a defendant's liability can be established pursuant to both sections 553 and 605, " the court should award damages pursuant to Section 605." Innovative Sports Mtkg., Inc. v. Aquarius Fuente De Soda, No. 07-CV-2561, 2009 WL 3173968, at *5 (E.D.N.Y. Sept. 30, 2009); see also Joe Hand Promotions, Inc. v. Elmore, No. 11-CV-3761, 2013 WL 2352855, at *4 (E.D.N.Y. May 29, 2013); J & J Sports Prods., Inc. v. 291 Bar & Lounge, LLC, 648 F.Supp.2d 469, 472 (E.D.N.Y. 2009); Time Warner Cable of New York City v. Barnes, 13 F.Supp.2d 543, 548 (S.D.N.Y. 1998).
Section 605(a) of the Communications Act prohibits the unauthorized interception of satellite communications. See Int'l Cablevision, Inc. v. Sykes, 75 F.3d 123, 133 (2d Cir. 1996). Courts in the Eastern District " have held that where . . . at least part of the [e]vent's transmission was produced by satellite, the defendant's interception of the [e]vent violates [§ 605(a)]." Traffic Sports USA v. La Camisa Negra Restaurant and Bar Corp., No. 11-CV-1475, 2012 WL 3064129, at *2 (E.D.N.Y. May 23, 2012) (Ross, J., adopting report and recommendation of Mann, M.J.) (collecting cases).
1. Liability of Big Daddy's
The complaint alleges that defendants willfully intercepted and received the event and then " transmitted, divulged, and published" the event to patrons of Big Daddy's. (Compl. ¶ 14.) The complaint does not allege that defendants intercepted a satellite signal, but the complaint does allege that electronic decoding equipment and satellite coordinates were necessary to receive the signal for the event. (Compl. ¶ ¶ 11, 13.) This allegation is sufficient to establish that Big Daddy's is liable under Section 605. See J & J Sports Prods., ...