United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
seeks damages under the Communications Act of 1934, as
amended, 47 U.S.C. § 605 et seq., and the Cable
& Television Consumer Protection and Competition Act of
1992, as amended, 47 U.S.C. § 553 et
seq., for closed circuit television signals illegally
decoded and broadcast at defendants' bar and restaurant.
It is before me on plaintiff's motion for a default
judgment under Federal Rule of Civil Procedure 55(b). The
motion is granted to the extent set forth below.
as licensee, entered into a closed-circuit television license
agreement to domestically distribute the live telecast
referred to as Saul Alvarez v. Liam Smith WBO World Middle
Weight Championship Fight Program. The program included
preliminary bouts on the same card prior to the Alvarez v.
Smith championship fight. The license agreement authorized
plaintiff to sub-license the right to show the telecast to
telecast was shown nationwide on Saturday, September 17,
2016. Establishments that contracted with plaintiff to
broadcast the event were provided with electronic decoding
equipment and satellite coordinates necessary to receive and
unscramble the signal. Defendants, however, intercepted or
received plaintiff's signal, allowing their patrons to
unlawfully view the event in violation of 47 U.S.C.
§§ 553, 605.
initial matter, “[o]nce default has been entered, the
allegations of the Complaint that establish the
defendant's liability are accepted as true, except for
those relating to the amount of damages.” J & J
Sports Prods., Inc. v. Bimber, No. 07-cv-590S, 2008 WL
2074083, at *1 (W.D.N.Y. May 14, 2008) (citation omitted).
However, “where the damages sought are not for a sum
certain, the court must determine the propriety and amount of
the default judgment.” Id. (citing
is no question here as to liability. Plaintiff has adequately
pleaded signal piracy under the statutes and is entitled to
presents several options for determining damages. First, the
aggrieved party may recover actual damages that it has
suffered plus the violator's profits. 47 U.S.C. §
§ 605(e)(3)(C)(i)(I), 553(c)(3)(A).
“Profits” are defined as gross revenue less (1)
deductible expenses; and (2) that portion of gross revenue
not attributable to the piracy. Id.
signal theft cases in default, and perhaps in most signal
theft cases, actual damages plus the violator's profits
present a hollow or at least incomplete remedy. A piracy
victim is not able to ascertain the profits of a defaulting
defendant, and for the marginal commercial establishment that
is usually the perpetrator of signal theft, there may not be
any profits that are directly attributable to the offense, or
at least none that are measurable with the precision that the
where statutory damages are helpful. A plaintiff recovering
statutory damages is entitled to recover an award from $1000
and $10, 000 per violation. 47 U.S.C. §
605(e)(3)(C)(i)(II). “When determining statutory
damages under section 605, courts generally choose between
two methods of calculations - a per-customer damage
calculation or a flat-sum award.” Joe Hand
Promotions, Inc., v. Wall Street Restaurant, No.
14-cv-4267, 2015 WL 2084637, at *4 (E.D.N.Y. May 4, 2015)
(citation omitted). The first approach multiplies a dollar
amount, determined by the court, by the number of patrons
alleged to have been present during the unauthorized
telecast. See Kingvision Pay-Per-View Ltd. v.
Zalazar, 653 F.Supp.2d 335, 340 (S.D.N.Y. 2009); J
& J Sports Prods., Inc. v. Guzman, 553 F.Supp.2d 195
(E.D.N.Y. 2008) (multiplying the number of patrons who viewed
event by residential price charged for the event when
determining statutory damages). The second approach, the
flat-sum award, is the amount a plaintiff would have charged
the defendant to air the programming at its establishment.
J & J Sports Prods., Inc., v. Sugar Café
Inc., No. 17-cv-5350, 2018 WL 324266, at *1 (S.D.N.Y.
Jan. 5, 2018). Courts generally set the higher amount as
statutory damages. See id.
there were 6 patrons present, and the Court doubts the cost
of watching this particular boxing match at home exceeded
$300,  the Court sets $1800, the licensee fee, as
the base statutory award. This does not end the analysis,
however, because plaintiff also asserts that the Court should
exercise its discretion to enhance damages based on
defendants' allegedly willful conduct. See J & J
Sports Prods., Inc. v. Onyx Dreams Inc., No. 12-cv-5355,
2013 WL 6192546, at *6 (E.D.N.Y. Nov. 26, 2013). I find that
enhanced damages are appropriate because plaintiff has
demonstrated that its violation was willful and “for
purposes of direct or indirect commercial advantage, ”
47 U.S.C. § 605(e)(3)(C)(ii).
the Court will award an enhancement of $9000. This amount not
only serves as specific and general deterrence, but also
takes into account the increased profits the bar generated
that evening, including the $5 cover charge and the bar's
use of the fight to “draw potential customers who would
then spend more money inside” the establishment.
Kingvision Pay-Per-View, Ltd. v. Japser Grocery, 152
F.Supp.2d 438, 442 (S.D.N.Y. 2001). The $9000 enhanced award,
which is five times the base statutory award, is consistent
with other awards in this Circuit for comparable infractions.
See, e.g., Sugar Café Inc.,
2018 WL 324266, at *2 (awarding $8000 in enhanced damages
where the defendant charged a $35 cover); Kingvision
Pay-Per-View Ltd. v. Cardona, No. 03-cv-3839, 2004 WL
1490224, at *4 (S.D.N.Y. June 30, 2004) (finding that $10,
000 in enhanced damages, which was five times the base
damages award, was appropriate because that was the amount
necessary to “send the message that cable piracy is
impermissible”); Jasper Grocery, 152 F.Supp.2d
at 442 (applying an enhancement of $10, 000 based on the
defendant's willful conduct).
also seeks an award of pre-judgment interest at a rate of 9%
per annum from November 14, 2009, to the date of judgment. A
majority of courts in this Circuit have held that
pre-judgment interest should not be imposed when statutory
damages have been enhanced under Section 605(e)(3)(C)(ii), as
the enhancement serves to punish defendants' willful
conduct rather than to compensate plaintiff for a loss.
See, e.g., Joe Hand Promotions, Inc. v.
La Nortena Restaurants Inc., No. 10-cv-4965, 2011 WL
1594827, at *5 (E.D.N.Y. March 28, 2011); J & J
Sports Prods., Inc. v. Big Daddy's Theme Palace,
Inc., No. 14-cv-2765, 2015 WL 58606, at *5 (E.D.N.Y.
Jan. 5, 2015). I agree with these courts and accordingly
decline to award pre-judgment interest.
Section 605(e)(3)(B)(iii) states that a court “shall
direct the recovery of full costs, including awarding
reasonable attorneys' fees to an aggrieved party who
prevails, ” and plaintiff has requested leave to move
for such fees. That request is granted, and plaintiff may