United States District Court, D. South Carolina, Rock Hill Division
ORDER AND OPINION
Margaret B. Seymour, Senior United States District Judge
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.
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
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.
to the private investigator's affidavit, she paid a $5.00
cover charge the night of the broadcast.
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. § 553(c)(3)(B).
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
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.
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.