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Directv, LLC v. Ertem

United States District Court, E.D. Louisiana

February 3, 2015

DIRECTV, LLC
v.
HABIP ERTEM, ET AL. Section: R

ORDER AND REASONS

SARAH S. VANCE, District Judge.

Before the Court is the issue of damages for defendants' violation of 47 U.S.C. § 605. The Court previously granted plaintiff DirecTV's motion for partial summary judgment on the issue of defendants' liability, [1] leaving only the question of damages remaining. For the following reasons, the Court awards DirecTV $23, 463.58 in total damages, fees, and costs.

I. BACKGROUND

DirecTV filed this lawsuit on March 15, 2013, alleging that on June 16, 2012, defendants Habip Ertem and Ulusan, LLC d/b/a St. Charles Tavern received and displayed DirecTV satellite programming at St. Charles Tavern without DirecTV's authorization.[2] On May 9, 2014, DirecTV moved for summary judgment on defendants' liability under 47 U.S.C. § 605, part of the Cable Communications Policy Act of 1984.[3] The Court granted DirecTV's motion for partial summary judgment.[4] DirecTV then timely submitted a Memorandum of Law in Support of Damages, Costs, and Fees.[5] St. Charles Tavern did not file an opposition. Because DirecTV's memorandum lacked sufficient supporting documentation, however, the Court declined to enter an award for damages, costs, or attorney's fees and ordered supplemental briefing.[6] DirecTV filed a supplemental memorandum with new supporting documentation on November 21, 2014.[7]

II. LAW AND DISCUSSION

Section 605(e)(3)(C)(i)(II) of the Cable Communications Policy Act states that "the party aggrieved may recover an award of statutory damages for each violation of subsection (a) of this section involved in the action in a sum of not less than $1, 000 or more than $10, 000." 47 U.S.C. § 605(e)(3)(C)(i)(II). Further, 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 in its discretion may increase the award of damages... by an amount of not more than $100, 000 for each violation of subsection (a)." 47 U.S.C. § 605(e)(3)(C)(ii). Lastly, section 605(e)(3)(B)(iii) provides that the Court "shall direct the recovery of full costs, including awarding reasonable attorney's fees to an aggrieved party who prevails." 47 U.S.C. § 605(e)(3)(B)(iii). Here, DirecTV asks for $6, 395.58 in statutory damages, [8] $19, 186.74 in enhanced damages, [9] and $7, 018.30 in attorney's fees and costs, [10] for a total of $32, 600.62.

A. Statutory Damages

Courts have employed several different methods for calculating statutory damages for violations of section 605. See Joe Hand Promotions, Inc. v. Bonvillain, No. 13-4912, 2013 WL 5935208, at *2 (E.D. La. Nov. 5, 2013). Some courts have held defendants liable for a "flat sum of damages"; others have calculated damages "based on the number of patrons in the establishment at the time of the violation"; and still others have imposed "the cost of the appropriate licensing fee proportional to the size of the business had the business legally aired the program." Id. (citations omitted). Each method "provides a different approach to determining a just' amount." Id. In the final analysis, courts are to award an amount of damages that "balance[s] the financial harm suffered by the plaintiff with the financial burden on the defendants of a hefty damages award" and also takes into account the deterrent purposes of the statute. Joe Hand Promotions, Inc. v. Trenchard, No. 3:12cv1099, 2014 WL 854537, at *3 (D. Conn. March 3, 2014); see Joe Hand Promotions, Inc. v. Guillory, No. 14-00970, 2014 WL 4678962, at *2 (W.D. La. Sept. 18, 2014) (considering the need to deter similar conduct in the future as a factor relevant to setting statutory damages).

While there is no bright line rule dictating a single method for calculating damages under section 605(e)(3)(C)(i)(II), courts within this and other jurisdictions most often use the plaintiff's cable licensing fee as a benchmark for determining an appropriate damages award. See, e.g., Joe Hand Promotions, Inc. v. Ashby, No.13-4747, 2014 WL 1330027, at *5 (E.D. La. April 2, 2014) (awarding three times the licensing fee as statutory damages), vacated on other grounds by Joe Hand Promotions, Inc. v. Ashby, No. 13-4747, 2014 WL 1652511 (E.D. La. April 24, 2014); Bonvillain, 2013 WL 5935208, at *2 (awarding approximately two times the licensing fee as statutory damages); J&J Sports Prods. Inc., v. Wing Bistro LLC, No. 4:13cv31, 2013 WL 6834645, at *7 (E.D. Va. Dec. 19, 2013) (awarding four times the licensing fee as statutory damages).

DirecTV contends that defendants' unlawful exhibition of DirecTV's programming in St. Charles Tavern caused DirecTV to suffer actual losses of $6, 395.58, which DirecTV seeks as statutory damages.[11] DirecTV reaches this sum by calculating the cost defendants would have paid for a commercial account beginning on December 12, 2010, the date defendants' residential account began, through September 10, 2012, the date DirecTV cancelled defendants' service.[12] DirecTV's supporting documentation includes a spreadsheet that shows the price difference between a residential and a commercial account for each month between December 2010 to September 2012.[13]

On summary judgment, DirecTV proved only one violation of section 605: defendants displayed DirecTV programming in St. Charles Tavern on June 16, 2012.[14] Thus, an award representing what defendants would have paid for nearly 22 months of commercial service is inappropriate. To accomplish the deterrent goals of the statute, DirecTV's losses for the most recent year are a more appropriate benchmark. According to DirecTV's spreadsheet, the total amount of loss suffered by DirecTV between September 2011 and August 2012 is $2, 740.88. Applying a 2.0 multiplier to this amount, the Court awards DirecTV $5, 481.76 in statutory damages.

B. Enhanced Damages

Courts often calculate enhanced damages under section 605(e)(3)(C)(ii) by applying a multiplier to the amount awarded for statutory damages. See, e.g., Ashby, 2014 WL 1330027, at *6 (awarding double the amount of statutory damages as enhanced damages); Bonvillain, 2013 WL 5935208, at *3 (same). Here, DirecTV asks the court to apply a 3.0 multiplier. Balancing the deterrent goals of the statute and "the financial harm suffered by [DirecTV]" against "the financial burden on the defendants of a hefty damages award, " the Court determines that a 2.0 ...


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