United States District Court, D. South Carolina, Columbia Division
REPORT AND RECOMMENDATION
V. HODGES, UNITED STATES MAGISTRATE JUDGE
J&J Sports Productions, Inc. (“Plaintiff) had
exclusive, nationwide commercial television distribution
rights to Floyd Mayweather, Jr. v. Andre Berto WBA/WBC
Welterweight Championship Fight Program (“the
Program”) and sues defendant 800 Grand Family, LLC
(“Grand Family”), d/b/a Skores, a/k/a Primetime
Sports Bar and Grill (the “Establishment”), and
its member, Sandra F. Simpkins (“Simpkins”)
(collectively “Defendants”) for exhibiting the
September 12, 2015, commercial broadcast of the Program,
without paying the required licensing fee. [ECF No. 1 at
¶¶ 11-14]. Plaintiff alleges causes of action for
conversion and violations of the Communications Act of 1934
(as amended, 47 U.S.C. § 605) and the Cable &
Television Consumer Protection and Competition Act of 1992
(as amended, 47 U.S.C. § 553). [ECF No. 1].
pretrial proceedings were assigned to the undersigned
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B)
and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.). Grand Family has
not made a proper appearance in this court, and the court
entered default against it on November 3, 2017. [ECF No. 13].
This matter is before the court on Plaintiff's motion for
summary judgment filed August 3, 2018. [ECF No.
As Simpkins is proceeding pro se, the court advised her
pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975) of the dismissal procedures and the possible
consequences if she failed to respond adequately to the
motion. [ECF No. 31]. The motion having been fully briefed
[ECF Nos. 36, 39], it is ripe for disposition.
was granted the exclusive commercial distribution rights to
the Program. Plaintiff's distribution rights encompassed
all undercard events as well as the main event and all color
commentary. Gagliardi Affidavit ¶3. At all times
relevant hereto, Grand Family was doing business as Skores
a/k/a Primetime Sports Bar & Grill and Simpkins was the
member of Grand Family. [ECF No. 30-4 at 9; 36-2 at ¶1].
The Program was exhibited at the Establishment, operating in
Columbia, South Carolina, but Defendants did not pay a
commercial licensing fee or otherwise have permission to
broadcast the Program. Id. at 5; Gagliardi Affidavit
¶7. Simpkins stated in responses to Plaintiffs requests
for admission that “based on information from [her
nephew] Edward Simpkins, a residential cable television
service was diverted into the Establishment.” [ECF No.
30-4 at 7]. The commercial fee to broadcast the Program at a
venue the size of the Establishment was $3, 000. Gagliardi
Affidavit at ¶8. The Program was observed being
displayed at the Establishment on September 12, 2015, by its
private investigator Carolyn Harding
(“Investigator”). [ECF No. 30-3].
Standard on a Motion for Summary Judgment
court shall grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The movant bears the initial burden of
demonstrating that summary judgment is appropriate; if the
movant carries its burden, then the burden shifts to the
non-movant to set forth specific facts showing that there is
a genuine issue for trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). If a
movant asserts that a fact cannot be disputed, it must
support that assertion either by “citing to particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials;” or “showing . . . that an
adverse party cannot produce admissible evidence to support
the fact.” Fed.R.Civ.P. 56(c)(1).
considering a motion for summary judgment, the evidence of
the non-moving party is to be believed and all justifiable
inferences must be drawn in favor of the non-moving party.
See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). However, “[o]nly disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.” Id. at 248.
submits that it has established liability pursuant to 47
U.S.C. § 553 and seeks statutory damages. Plaintiff does
not specifically address its claim pursuant to 47 U.S.C.
§ 605, likely because courts are split as to the
applicability of this section to pirated programming
involving cable services, as opposed to satellite services,
at the delivery point. The Fourth Circuit has not addressed
this issue and courts in this district have adopted the
Seventh Circuit's position in United States v.
Norris, 88 F.3d 462 (7th Cir. 1996), finding that 47
U.S.C. § 553, not 47 U.S.C. § 605, applied to the
theft of cable services at the point of delivery.
Columbia Cable TV Co., Inc. v. McCary 954 F.Supp.
124 (D.S.C. 1996); see also J & J Sports Prods., Inc.
v. Chef Tejano, LLC, C/A No. 0:11-2436-MBS, 2013 WL
353497, at *2 (D.S.C. Jan. 29, 2013). Statutory damages under
47 U.S.C. § 553 range from $250 to $10, 000 for all
violations and a maximum $50, 000 enhancement for
willfulness. 47 U.S.C. §§ 553(c)(3)(A)(ii),
General Statutory Damages
seeks the maximum of $10, 000 in statutory damages as needed
to compensate Plaintiff for its damages and to deter future
to the Investigator's affidavit, the Establishment has a
capacity of 150 patrons. [ECF No. 30-3]. According to
Plaintiff's Affidavit in Support of Motion for Summary
Judgment, the rate card shows, based on a capacity of up to
150, that the charge for the license fee for the Program was
$3, 000. [ECF No. 30-2 at ¶8]. The court may award
statutory damages between $250 to $10, 000 in an amount
“the court considers just.” 47 U.S.C. §
553(c)(3)(A)(ii). Courts have used various methods of
determining an appropriate amount of statutory damages. Some
courts fashion an award by considering the number of patrons
who viewed the programming, often multiplying that number by
the cost of the residential fee for watching such
programming. See Joe Hand Promotions, Inc. v. Veltsistas,
LLC, No. 1:10CV1442 JCC/TRJ, 2011 WL 5826059, at *2
(E.D. Va. Oct. 21, 2011), report and recommendation adopted,
No. 1:10CV1442 JCC/TRJ, 2011 WL 5826082 (E.D. Va. Nov. 18,
2011) (finding a “per patron” amount
appropriate). Some courts base the statutory damages amount
on an iteration of the licensing fee the violating
establishment should have paid the plaintiff, and other
courts award a flat amount for a violation. See e.g.,
J&J Sports Productions, Inc. v. Ultimate Jet-A-Way
Sportsbar & Lounge, No. 4:17-CV-1038-RBH, 2018 WL
1709920, at *4 (D.S.C April 9, 2018) (finding the license fee
plus cover charge appropriate ...