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J&J Sports Productions, Inc. v. Rodriguez

United States District Court, D. Massachusetts

September 4, 2018





         J&J Sports Productions, Inc. (“J&J Sports” or “Plaintiff”) has filed suit against Marcel Rodriguez (“Rodriguez” or “Defendant”) alleging that on November 22-23, 2014, Rodriguez's commercial establishment, DR Barbershop, unlawfully intercepted, received, published, divulged, displayed and/or exhibited Manny Pacquiao v. Chris Algieri, WBO Welterweight Championship Fight Program (“Program”).[1] J&J Sports alleges claims against Rodriguez pursuant to several federal statutes, including the Communications Act of 1934, as amended, Title 47 U.S.C. § 605 (“§ 605”), et seq.(Count I), The Cable & Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553 (“§ 553”), et seq. (Count II), a state common law claim for conversion (Count III), and the Massachusetts Consumer Protection Act, Mass. Gen.L. ch. 93A, §§ 2, 11(“Chapter 93A”) (Count IV). J&J Sports seeks statutory damages, actual damages and costs (including attorneys' fees). Additionally, J&J Sports alleges that Rodriguez acted willfully or knowingly and therefore, it is entitled to actual and enhanced damages.

         Rodriguez was served on February 8, 2017, and was required to answer by March 1, 2017.[2] To date, Rodriguez has not filed an Answer or otherwise appeared in the case. On September 15, 2017, pursuant to Fed.R.Civ. P. 55 (a), J&J Sports filed a request for entry of default against Rodriguez. On April 18, 2018, that request was granted and the Defendant was defaulted. (Docket Nos. 6, 8 & 9). The Court entered its Standing Order on motions for default judgment that same date (Docket No. 10). The Standing Order provides that Plaintiff shall file a Motion for Entry of Default Judgment pursuant to Fed. R. Civ. P 55(b) within 30 days. On May 18, 2018, J&J Sports filed its Motion for Assessment of Damages and Entry of Default Judgment (Docket No. 11). For the reasons set forth below, the motion to enter default judgment is granted and J&J Sports shall recover $6, 209.34 in damages, costs and fees.


         J&J Sports is a closed circuit distributor of sports and entertainment programming that was granted exclusive nationwide commercial distribution rights to the Program. J&J Sports entered into sublicensing agreements with various commercial entities throughout the United States by which it granted these entities the right to publicly exhibit the Program within their respective commercial establishments. Rodriguez's establishment, DR Barbershop, never lawfully licensed the Program from J&J Sports and unlawfully intercepted and exhibited the Program on November 22-23, 2014. More specifically, an investigator for J&J Sports entered DR Barbershop on November 23, 2014 at 12:34 a.m. and observed one (1) 32” flat screen television on which the main event was playing The same investigator counted the number patrons three separate times, and observed seven (7), eight (8), and seven (7), all of whom were watching the fight. The capacity of the establishment was not visible. Based on the investigator's observations and the pictures he provided, it appears DB Barbershop is a commercial establishment with a capacity to hold 1-100 peopled. With that capacity, it would have cost Rodriguez $2, 200 to obtain the proper license to show the Program.


         Entry of Default Judgment

         The Court has reviewed Plaintiff's Complaint, which requests money damages and costs (including attorneys' fees). The Defendant, as a defaulting party, is “taken to have conceded the truth of the factual allegations in the complaint as establishing the grounds for liability as to which damages will be calculated.” Ortiz-Gonzalez v Fonovisa 277 F.3d 59, 62-63 (1st Cir. 2002) (quoting Franco v. Selective Ins. Co., 184 F.3d 4, 9 n.3 (1st Cir. 1999). The Court has also reviewed Plaintiff's motion for entry of default judgment and supporting memorandum, as well as the accompanying affidavits. The Court is satisfied that the allegations are sufficient to support the entry of default judgment and more particularly, that Rodriguez is not an infant, incompetent or in military service of the United States, and that he caused J&J Sports' damages and owes any costs incurred. The primary issue before the Court is how damages should be assessed against the defaulting Defendant. The Court must determine Defendant's liability for each claim and must then assess damages by considering the type and amount of damages to be awarded, including whether enhanced damages, attorneys' fees and costs are appropriate.

         Plaintiff's Claim for Statutory Damages under 47 U.S.C. §§ 553 and 603

         Plaintiff asserts a claim under the Communications Act of 1934, as amended, Title 47 U.S.C. § 605 et seq., The Cable & Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553 et seq. Sections 605 and 553 are similar, however, §605 provides for mandatory recovery of costs' and attorneys' fees while under § 553, recovery of such damages is discretionary. J&J Sports acknowledges that First Circuit's ruling in Charter Communications Entertainment I v. Burdulis, 460 F.3d 168, 173 (1st Cir. 2006) suggests that §605 does not encompass Defendant's alleged wrongful conduct i.e., interception of the transmission of the Program, because the conduct does not amount to authorized receipt of radio communications. J&J Sports argues, however, that the conduct in this case is more analogous to the conduct in PPV Connection, Inv. v. Rodriguez, 607 F.Supp.2d 301 (D.Puerto Rico 2009), in which the district court in Puerto Rico found that a licensed distributor of pay-per-view programming can be transmitted over satellite or radio.

         Circuit Courts are split as to the applicability of § 605 and § 553 to allegations involving theft of cable services.[3] Section 553 provides, in relevant part, that “no person shall intercept or receive or assist in intercepting or receiving any communications services offered over a cable system, unless specifically authorized to do so by cable operator…” 47 U.S.C. § 553 (a)(1). Section 605, on the other hand, provides that “[n]o person receiving… any interstate or foreign communications by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof…” 47 U.S.C. § 605(a). Some courts have interpreted Section 553 as applying where a commercial establishment intercepts a cable signal and §605 as applying where a commercial establishment intercepts a satellite broadcast. See J&J Sports Productions Inc., v. Mosley, No.-C-10-5126 CW (EMC), 2011 WL 2066713 (N.D. Cal. Apr. 31, 2011) and cases cited therein; see also J&J Sports Productions Inc., v. Chacko, Civ.Act. No. 1:13-CV-1977-CC, 2013 WL 6190603 (N.D. GA. Nov. 25, 2013) (noting that Third and Seventh Circuits have taken position that § 553 covers interception of cable programming transmitted over cable network and § 605 covers cable transmissions as they travel through the air i.e., satellite transmissions). Other courts have interpreted the act of intercepting cable and/or satellite signals as violating both § 553 and § 605. See International Cablevision, Inc. v. Sykes, 75 F.3d. 123, 133 (2d. Cir. 1996); Joe Hand Promotions, Inc. v. Wing Spot Chicken & Waffles, Inc., 920 F.Supp.2d.659 (E.D. Va. 2013). The prevailing view in this District, based on the First Circuit's decision in Burdulis, is that § 553 applies to theft of cable services while §605 applies to theft of satellite services. This is the view which I find persuasive.

         J&J Sports has alleged a violation of both §§ 553 and 605. This Court is able to determine that Rodriguez's establishment intercepted a cable broadcast from the affidavit submitted by the investigator; “…a silver cable box was located by the counter in the back area to the left side” (Docket No. 13). Moreover, while a satellite dish can be seen on the roof of the store adjacent to DR Barbershop, the investigator does not mention seeing equipment consistent with use of a satellite signal. Therefore, on this record, the Court will assume that Rodriguez violated § 553 by intercepting a cable program over a cable network.

         Assessment of ...

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