United States District Court, E.D. Louisiana
ORDER AND REASONS
MARTIN L. C. FELDMAN, District Judge.
Before the Court is the defendants' motion for summary judgment. For the reasons that follow, the motion is DENIED in part and GRANTED in part.
This is a television piracy case. J&J Sports Productions, Inc., is a distributor of closed circuit pay-per-view boxing and special events. Giuseppe's Bistro, LLC, of which Mr. Jalice is the sole member, owns Down the Hatch Bar & Grill. J&J alleges that on June 9, 2012, J&J's private investigator saw a pay-per-view fight (Manny Pacquiao v. Timothy Bradley, WBO Welterweight Championship Fight Program), to which J&J had the exclusive rights, being shown at Down the Hatch Bar & Grill without payment to J&J. J&J contends that a post on the bar's Facebook page the day before advertised that the fight would be shown the following night.
J&J filed suit because of this allegedly impermissible showing of its programming. It brings claims against the LLC and Mr. Jalice under: (1) 47 U.S.C. § 605(a), which prohibits interception and publishing radio communication; (2) the Wiretap Act, 18 U.S.C. § 2511, which prohibits intentional interception of any wire, oral, or electronic communication, in conjunction with § 2520, which creates a private right of action; and (3) 47 U.S.C. § 553, which prohibits interception or reception of any communications service offered over a cable system. J&J further alleges that the defendants willfully and intentionally intercepted the program and did so for the purpose of commercial advantage or private financial gain, warranting enhanced statutory damages. The defendants now move for summary judgment.
Federal Rule of Civil Procedure 56 instructs that summary any material fact such that the moving party is entitled to judgment as a matter of law. No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio., 475 U.S. 574, 586 (1986). A genuine dispute of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a factual dispute does not defeat an otherwise properly supported motion. See id. Therefore, "[i]f the evidence is merely colorable, or is not significantly probative, " summary judgment is appropriate. Id. at 249-50 (citations omitted). Summary judgment is also proper if the party opposing the motion fails to establish an essential element of his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In this regard, the non-moving party must do more than simply deny the allegations raised by the moving party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he must come forward with competent evidence, such as affidavits or depositions, to buttress his claim. Id . Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); FED. R. CIV. P. 56(c)(2). Finally, in evaluating the summary judgment motion, the Court must read the facts in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255.
A. Claims under Sections 553 and 605
The Federal Cable Communications Policy Act, 47 U.S.C. § 553, prohibits the unauthorized receipt or interception of communications offered over a cable system. Section 553 creates a civil cause of action for an aggrieved party and permits the plaintiff to choose between actual and statutory damages. 47 U.S.C. § 553(c)(3)(A). Under § 553(c)(3)(A)(ii), the "party aggrieved may recover an award of statutory damages for all violations involved in the action, in a sum of not less than $250 or more than $10, 000 as the court considers just." Additionally, under § 553(c)(3)(B), "[i]n any case in which the court finds that the violation was committed willfully and for purposes of commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory under subparagraph (A), by an amount of not more than $50, 000." Finally, under § 553(c)(3)(C), "[i]n any case where the court finds that the violator was not aware and had no reason to believe that his acts constituted a violation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $100."
J&J brings claims against the defendants under §§ 553 and 605. "A signal pirate violates section 553 if he intercepts a cable signal, he violates section 605 if he intercepts a satellite broadcast. But he cannot violate both by a single act of interception." J&J Sports Prods., Inc. v. Manzano, No. 08-01872, 2008 WL 4542962, at *2 (N.D. Cal. Sept. 29, 2008). See also KingsVision Pay-Per-View, Ltd. v. Jasper Grocery, 152 F.Supp.2d 438, 441-42 (S.D.N.Y. 2001); Time Warner Cable of N.Y.C. v. Barbosa, No. 98-3522, 2001 WL 118608, at *5 (S.D.N.Y. Jan. 2, 2001); Cablevision Sys. Corp. v. Maxie's N. Shore Deli Corp., No. 88-2834, 1991 WL 58350, at *2 (E.D.N.Y. Mar. 20, 1991). The evidence shows that Down the Hatch uses only cable service. Accordingly, the relevant statute is § 553. Because there is no substantiated allegation that the defendants used a satellite signal to intercept the program, § 605 is inapplicable.
B. Liability of Mr. Jalice
The defendants contend that the plaintiff must prove three elements under § 553: (1) the defendant had control over the television at the time of the alleged signal piracy; (2) the defendant authorized the violation; and (3) the defendant derived a benefit from the alleged signal piracy. They argue that the plaintiff cannot prove these elements, at least as to ...