United States District Court, D. South Carolina, Charleston Division
Sports Productions Inc, Plaintiff, represented by Leonard R.
Jordan, Jr., Jordan Law Firm.
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
April 11, 2016, Plaintiff J & J Sports Productions, Inc.
("J & J Sports"), filed an action in this court
against Defendants El-Corona and Elsie Acosta, collectively
doing business as Taqueria Abierto and/or Tropicana
Discotheque and/or El Tropicana ("El-Corona").
Plaintiff alleges that it owned the exclusive television
distribution rights for a boxing match, and that Defendants
exhibited the fight at a commercial establishment without
paying a licensing fee to Plaintiff. Plaintiff has asserted
claims under the Communications Act, 47 U.S.C. § 605, and the
Cable Communications Policy Act, 47 U.S.C. § 553, as well as
a state law claim for conversion. Neither Defendant filed an
answer or otherwise responded to Plaintiff's complaint.
On June 13, 2016, in response to Plaintiff's request, the
clerk entered default as to both Defendants. On June 29,
2016, Plaintiff filed a motion for default judgment.
following facts are alleged in Plaintiff's complaint (ECF
No. 1), and due to Defendants' default, are accepted as
true: Defendant Elsie Acosta ("Acosta") is the
owner, chief executive, member, principal, alter ego,
manager, agent, and/or representative of El-Corona.
Id. at 2. Defendant had dominion, supervisory
control, oversight, and management authority over El-Corona.
Id. at 3. J & J Sports Productions, Inc., a
California corporation, purchased the exclusive television
distribution rights to "Manny Pacquio v. Timothy
Bradley, II WBO Welterweight Championship Fight Program"
("Championship Fight"), which took place on April
12, 2014. Id. at 3. Defendants, or their agents,
unlawfully intercepted, received, published, divulged, and
exhibited the Championship Fight at the time of its
transmission with full knowledge that they were unauthorized
to do so. Id. at 4. This interception was done
willfully and for the purposes of commercial advantage or
financial gain. Id. Defendants were present during
and participated in this misconduct. Id.
following facts are set forth in a sworn affidavit of private
investigator, John Taylor (ECF No. 10-4): John Taylor paid a
$30.00 cover charge and entered El-Corona on April 13, 2014,
at 12:26 am. Id. Inside El-Corona, Taylor observed
the third round of the Championship Fight being shown
unlawfully on an 84" projection. Id. Taylor
states that the approximate capacity of the establishment was
between 125-150 persons and at the time of his appearance, he
counted approximately 114 persons in El-Corona. According to
a sworn affidavit by Plaintiff's president, Joseph
Gagliardi, based on a capacity of not more than 150 persons,
it would have cost $3, 200 for El-Corona to purchase the
rights to exhibit the Championship Fight. ECF No. 10-3 at 3.
47 U.S.C. § 605(a), "no person receiving... any
interstate or foreign communication by wire or radio shall
divulge or publish the existence, contents, substance,
purport, effect, or meaning thereof, except through
authorized channels of transmission or reception... to any
person other than the addressee, his agent, or
attorney." Any person aggrieved by such a violation may
bring a civil action to obtain an injunction and to recover
damages, costs, and attorney fees. 47 U.S.C. § 605(e)(3). The
aggrieved party may recover actual damages or statutory
damages between $1, 000 and $10, 000 for each violation. 47
U.S.C. § 605(e)(3)(C)(i). Furthermore, if the court finds
that "the violation was committed willfully and for
purposes of direct or indirect commercial advantage or
private financial gain, " the court may increase the
damages by an amount not more than $100, 000 for each
violation. 47 U.S.C. § 605(e)(3)(C)(ii).
47 U.S.C. § 553(a)(1), "[n]o person shall intercept or
receive or assist in intercepting or receiving any
communications service offered over a cable system, unless
specifically authorized to do so by a cable operator or as
may otherwise be specifically authorized by law." 47
U.S.C. § 553(a)(1). Any person aggrieved by such a violation
may bring a civil action to obtain an injunction and to
recover damages, costs, and attorney fees. 47 U.S.C. §
553(c). The aggrieved party may recover actual damages or
statutory damages between $250 and $10, 000 for all
violations involved in the action. 47 U.S.C. § 553(c)(3)(A).
Furthermore, if the court finds that "the violation was
committed willfully and for purposes of commercial advantage
or private financial gain, " the court may increase the
damages by an amount not more than $50, 000. 47 U.S.C. §
Seventh Circuit has held that § 605 and § 553 employ mutually
exclusive categories, specifically that a
"communications service offered over a cable
system" is not a "radio communication."
United States v. Norris, 88 F.3d 462, 469 (7th Cir.
1996). In other words, a person who steals cable services at
the point of delivery is liable only under § 553, even if the
signals were transmitted by radio at some earlier point. On
the other hand, the Second Circuit has disagreed and held
that some cable transmissions may also constitute "radio
communications" under § 605. International
Cablevision, Inc. v. Sykes, 75 F.3d 123, 133 (2d Cir.
1996). The Fourth Circuit has not considered the question,
but consistent with other courts in the District of South
Carolina, this court finds that the reasoning of
Norris to be more persuasive. See
Columbia Cable TV Co., Inc. v. McCary, 954 F.Supp.
124 (D.S.C. 1996).
result, Defendants are liable under § 605 only if they
exhibited radio communications without authorization and
liable under § 553 only if they received cable communications
without authorization. Plaintiff admits that it has not
determined how Defendants received the Program, whether
through radio or cable, but argues that there is no way to
make such a determination without the benefit of discovery.
ECF No. 9-1 at 4. Having been denied the benefit of
discovery, Plaintiff requests to proceed under § 605.
Id. The court finds this to be a reasonable
solution. The court finds that Defendants violated 47 U.S.C.
§ 605 by exhibiting interstate radio communications without
authorization to customers at a commercial establishment.
Furthermore, based on Plaintiff's well-pleaded
allegations, the court finds that the violation was committed
willfully and for the purposes of commercial advantage or
has indicated its choice to proceed under § 605, and in the
event that a judgment is granted under said statute, withdraw
its other causes of action. ECF No. 10-1 at n.1. ...