United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR ASSESSMENT OF DAMAGES AND ENTRY OF DEFAULT JUDGMENT (DKT.
L. CABELL, U.S.M.J.
J Sports Production, Inc. (“the plaintiff”), a
closed circuit distributor of sports and entertainment
programming, has brought suit against the defendant Leonildo
Sousa, individually and as the owner of the Raw Martini Bar
in Fall River, Massachusetts (“the
establishment”), for unlawfully exhibiting one of the
plaintiff's programs. Although the defendant was properly
served with the complaint, he has failed to answer or file
any responsive pleadings. The plaintiff now moves for default
judgment pursuant to Fed.R.Civ.P. 55. (Dkt. No. 10). For the
following reasons, I recommend that the motion for default
judgment be granted and that the plaintiff be awarded damages
in the amount of $5, 036.15.
following facts are taken from the plaintiff's pleadings,
including the complaint and supporting affidavits, and are
assumed to be true in light of the defendant's default.
See e.g., In re The Home Rests., Inc., 285 F.3d 111,
114 (1st Cir. 2002) (a defaulting party is “taken to
have conceded the truth of the factual allegations in the
complaint as establishing the grounds for liability”).
plaintiff is a closed circuit distributor of sports and
entertainment programs and had exclusive nationwide
commercial distribution rights to a boxing match that was
telecast on April 12, 2014, the “Manny Pacquiao v.
Timothy Bradly, II WBO Welterweight Championship Fight
Program” (“the program”). (Compl.
¶ 9). As a result of its exclusive distribution rights,
the plaintiff had the option of sublicensing the program to
various commercial ventures for a set sublicensing fee.
(Id. at ¶ 10). A commercial venture with such a
sublicense could then publicly display the program in its
establishment. (Id.). In this case, the plaintiff
charged a sublicensing fee of $2, 200.00 for the program.
(Dkt. No. 11).
to a sworn affidavit submitted by the plaintiff's
investigator, Leonara DaPonte (“DaPonte”), she
went to the establishment on the evening of April 12, 2014.
DaPonte did not pay a cover charge to enter the
establishment. Upon arriving inside, DaPonte observed two
flat screen televisions, both of which displayed the program.
DaPonte estimates the establishment can hold a maximum of
approximately 50 people. Over the course of the evening she
made three separate head-counts of the patrons in the
establishment and counted twenty-one (21), twenty (20), and
twenty (20) patrons, respectively. (DaPonte Affidavit, Dkt.
plaintiff filed a complaint against the defendant on March
31, 2017. (Dkt. No. 1). The defendant was properly served on
April 14, 2017 (Dkt. No. 6), but failed to respond to the
complaint or file a responsive pleading. The Clerk of Court
entered a notice of default on July 6, 2017. (Dkt. No. 9).
The plaintiff now moves for default judgment and for an
assessment of damages. (Dkt. No. 10).
Civ. P. 55 prescribes a two-step process for obtaining
default judgment. First, “[w]hen a party against whom a
judgment for affirmative relief is sought has failed to plead
or otherwise defend, and that failure is shown by affidavit
or otherwise, the clerk must enter the party's
default.” Fed.R.Civ.P. 55(a). Thereafter, “the
party must apply to the court for a default judgment.”
Fed.R.Civ.P. 55(b)(2). Once a default judgment is entered,
“the trial judge . . . has considerable latitude in
determining the amount of damages.” Jones
v. Winnepesaukee Realty, 990 F.2d 1, 4 (1st Cir. 1993)
(emphasis in original).
Applicability of Sections 553 and 605
plaintiff contends that it is entitled to recover statutory
and enhanced damages under the Cable Communications Policy
Act, 47 U.S.C. § 553, and the Communications Act, 47
U.S.C. § 605. Specifically, the plaintiff seeks $10, 000
in statutory damages under sections 553 and 605, $50, 000 in
enhanced damages for each willful violation under section
553, and $100, 000 in enhanced damages for each willful
violation under section 605. The plaintiff's requests
require that the court first determine whether section 553 or
section 605 applies to the facts of this case. While the
statutes are similar in nature and purpose, “[o]ne
cannot violate both with a single act of interception.”
Joe Hand Promotions, Inc. v. Rajan, No.
10-40029-TSH, 2011 WL 3295424, at *2 (D. Mass. July 28,
553 provides that “[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). As the plaintiff's investigator
observed two flat screen televisions in the establishment
displaying the program, there would appear to be no dispute
that the defendant's conduct falls within the purview of
section 605 applies here, however, is not as clear. Section
605 provides that “[n]o person not being entitled
thereto shall receive or assist in receiving any interstate
or foreign communication by radio and use such communication
(or any information therein contained) for his own benefit or
for the benefit of another not entitled thereto.” 47
U.S.C. § 605(a). “Section 605 thus prohibits the
unauthorized interception or reception of radio
communications.” Joe Hand Promotions, Inc. v.
Patton, No. 10-40242-FDS, 2011 WL 6002475, at *2 (D.
Mass. Nov. 29, 2011) (emphasis in original). The First
Circuit has held that based on the plain language of the
statute and its regulatory framework, section 605 does not
apply to communications transmitted over wire or cable.
See Charter Communications Entertainment I, DST v.
Burdulis, 460 F.3d 168, 173 (1st Cir. 2006)(“[t]he
change in form of transmission of the communication, from an
airborne signal to a signal traveling over a cable wire,
changes the applicability of [section 605]; when the
communication is stolen as it is being transmitted over a
cable wire, § 553, not § 605, applies”);
see also Patton, 2011 WL 6002475 at *2 (holding that
section 605 does not apply where the defendant obtained
access to an ...