Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

J&J Sports Productions Inc. v. Drakeford

United States District Court, D. South Carolina, Rock Hill Division

September 21, 2016

J&J Sports Productions, Inc., Plaintiff,
v.
Steven Dante Drakeford d/b/a Steve's Lounge Bar & Grill, and Styron Drakeford d/b/a Steve's Lounge Bar & Grill, Defendants.

          ORDER AND OPINION

          Margaret B. Seymour, Senior United States District Judge

         On April 11, 2016, Plaintiff J & J Sports Productions, Inc. (“J & J Sports”), filed an action in this court against Defendants Steven Dante Drakeford and Styron Drakeford, collectively doing business as Steve's Lounge Bar & Grill (“Steve's Lounge Bar & Grill”). 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 May 11, 2016, in response to Plaintiff's request, the clerk entered default as to both Defendants. On May 26, 2016, Plaintiff filed a motion for default judgment.

         FACTS

         The following facts are alleged in Plaintiff's complaint (ECF No. 1), and due to Defendants' default, are accepted as true: Defendant Steven Dante Drakeford (“Steven”) is a South Carolina citizen doing business Steve's Lounge Bar & Grill & Grill. Id. at 2. Defendant Styron Drakeford (“Styron”) is the owner, chief executive, member, principal, alter ego, manager, agent, and/or representative of Steve's Lounge Bar & Grill. Id. Defendants had dominion, supervisory control, oversight, and management authority over the Steve's Lounge Bar & Grill. 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. Steven and Styron were present during and participated in this misconduct. Id.

         The following facts are set out in a sworn affidavit by private investigator, Carolyn D. Harding (ECF No. 9-4): Carolyn D. Harding went to Steve's Lounge Bar & Grill on April 12, 2014, and observed that the Championship Fight was being shown on three televisions. Id. She states that the approximate capacity of the establishment is 150 customers but she observed no more than 25 customers at a given time. Id. According to a sworn affidavit by Plaintiff's president, Joseph Gagliardi, based on a capacity of 101 to 200 persons, it would have cost $3, 200.00 (license fee) for Steve's Lounge Bar & Grill & Grill to purchase the rights to exhibit the Championship Fight. ECF No. 9-3 at 3 & 10.

         According to the private investigator's affidavit, she paid a $5.00 cover charge the night of the broadcast.

         DISCUSSION

         A. Liability

         Under 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).

         Under 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. § 553(c)(3)(B).

         The 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).

         As a 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 financial gain.

         Plaintiff also seeks damages based on a tort theory of conversion. However, recovery under both § 605 and the tort of conversion would result in an impermissible double recovery for the same loss. See, e.g., J & J Sports Prod., Inc. v. J.R.'Z Neighborhood Sports Grille, Inc., 2010 WL 1838432 at *2 (D.S.C. Apr. 5, 2010). Because Plaintiff has indicated its choice to proceed under § 605 and to not pursue the conversion claim, the court will address damages only under § 605.

         B. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.