Opinion
Case No. 2:03-cv-1245, Severed from Case No. 2:03-cv-448
March 31, 2004
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on Defendant Curtiss Smith's Motion to Dismiss Count Three of the Complaint. Defendant asserts that Plaintiff, DIRECTV, Inc. ("DIRECTV"), has failed to state a cause of action for violation of 18 U.S.C. § 2512 because § 2512 is a criminal, and not a civil, provision. For the following reasons, Defendant's Motion is GRANTED.
II. FACTS
For the purpose of evaluating Defendant's Motion to Dismiss, the facts as alleged in Plaintiff's Complaint will be taken as true. Plaintiff filed a Complaint for damages and injunctive relief against Defendant for unlawfully purchasing and using Pirate Access Devices that are designed to permit viewing of DIRECTV television programming without authorization by or payment to DIRECTV. Specifically, Plaintiff alleges that Smith illegally purchased two or more Pirate Access Devices from Vector Technologies ("Vector") and used such devices to deprive Plaintiff of subscription and pay-per-view revenues. Defendant admits purchasing two devices from Vector; however, Defendant denies that these purchases were illegal.III. PROCEDURAL HISTORY
Plaintiff filed a Complaint against Curtiss Smith and eight other named, individual Defendants in this Court on May 16, 2003. By Order dated October 22, 2003, the Court severed the claims against each Defendant so as to create a separate case involving each named Defendant. In the Complaint, DIRECTV sought damages and injunctive relief based on three counts: (1) Unauthorized Reception of Satellite Signals in Violation of 47 U.S.C. § 605(a); (2) Unauthorized Interception of Electronic Communications in Violation of 18 U.S.C. § 2511 (1)(a); and (3) Possession of Pirate Access Devices in Violation of 18 U.S.C. § 2512(1)(b).
On July 14, 2003, Defendant filed a Motion to Dismiss Count Three of Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. This matter is before the Court on Defendant's Motion to Dismiss Count Three of Plaintiff's Complaint on the ground that 18 U.S.C. § 2512(1)(b) is a criminal and not a civil provision. At issue is whether the private right of action of 18 U.S.C. § 2520 may be used only to recover for illegal interception of electronic communications in violation of 18 U.S.C. § 2511(1)(a), or whether it also may be used to recover for possession of pirate access devices in violation of 18 U.S.C. § 2512(1)(b).
IV. STANDARD OF REVIEW
When considering a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is constrained to accept as true the allegations of a complaint. Associated Genl Contractors of Cal, Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 724 (6th Cir. 1996). A motion to dismiss may be granted under Rule 12(b)(6) "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996).
V. ANALYSIS
Plaintiff filed a Complaint against Defendant, seeking damages and injunctive relief against Defendant for unlawfully purchasing and using Pirate Access Devices which allowed Defendant to receive DIRECTV satellite transmissions without paying for them. Specifically, Count Three of Plaintiff's Complaint seeks relief under 18 U.S.C. § 2512(1)(b) for possession of devices primarily useful for surreptitiously intercepting DIRECTV's satellite transmissions. DIRECTV has alleged that Defendant violated 18 U.S.C. § 2512(1)(b), part of the Federal Wiretap Laws, which states that any person who intentionally
manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce . . . shall be fined under this title or imprisoned not more than five years, or both.18 U.S.C. § 2512(1)(b). Violation of the prohibition against illegal possession of devices under § 2512(1)(b) can lead to felony-level criminal penalties. Although all parties acknowledge that § 2512(1)(b) is a criminal statute, Plaintiff asserts that a private right of action exists for violations of § 2512(1)(b) pursuant to 18 U.S.C. § 2520(a).
Defendant has moved to dismiss Count Three of Plaintiff's Complaint on the ground that there is no private right of action for violations of 18 U.S.C. § 2512(1)(b). Defendant asserts that the civil remedy of 18 U.S.C. § 2520(a), with its reference solely to unlawful interceptions, does not provide a basis for a civil action against a person who for possession of an unlawful device, even if that individual has used the device for surreptitious interception of communications.
Though such individual can be sued under § 2520(a) for unlawful interception, he cannot, according to Defendant, also be sued for unlawful possession under § 2512(1)(b). Plaintiff asserts that the reach of § 2520(a) extends not only to unlawful interceptions under § 2511(1)(a) but to other violations of the statute as well, including unlawful possession of devices in violation of § 2512(1)(b). According to Plaintiff, § 2520(a) provides for a civil cause of action against parties that have violated any of the criminal provisions of Chapter 119 of Title 18 of the United States Code (§§ 2510-2521). In Plaintiff's view, it can proceed to recover against Defendant under § 2520(a) for possession of unlawful devices used to accomplish the interception, as prohibited in § 2512(1)(b).
Section 2520(a) states that "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity . . . which engaged in that violation such relief as may be appropriate." 18 U.S.C. § 2520 (emphasis added). At issue in this case is whether the private civil remedy of § 2520 may be used only to recover for illegal interception of electronic communication in violation of § 251 1(1)(a), or whether it also may be used to recover for possession of devices covered by § 2512(1)(b). Plaintiff contends that the words "that violation" refer to a violation "of this chapter," i.e., of §§ 2510-2521. Defendant's argument is that "that violation" refers to an interception, disclosure, or intentional use of a wire, oral, or electronic communication.
Although the Sixth Circuit has not considered this issue, other United States Courts of Appeals have addressed the same question in similar contexts, and a number of United States district courts have specifically addressed whether providers of satellite television transmissions can bring suit under § 2520 based on possession of unlawful pirating devices in violation of § 2512(1)(b). There is, however, a split in authority.
The first line of decisions, led by Flowers v. Tandy Corp., 773 F.2d 585 (4th Cir. 1985), holds that § 2520(a) does not provide a private cause of action for violations of § 2512. See Peavy v. WFAA-TV, Inc., 221 F.3d 158, 168-69 (5th Cir. 2000) (holding, in context of action for procurement under § 2511(1)(a), that "that violation" in § 2520 clearly refers only to illegal interception, disclosure, or use); Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) ("In order to recover under § 2520, plaintiff must show that defendants violated § 2511. . . ."); Flowers, 773 F.2d at 588-89 (holding, based on language of § 2520 before 1986 amendments, that no private cause of action exists for violation of § 2512); DIRECTV, Inc. v. Murray, — F. Supp.2d —, 2004 WL 445163, at *3-4 (D.S.C. Mar. 3, 2004) (relying on Flowers in concluding that the amended § 2520 does not create a private cause of action for violations of § 2512); DIRECTV, Inc. v. Boggess, 300 F. Supp.2d 444, 446-48 (S.D.W.V. 2004) (rejecting DIRECTV's argument that "that violation" in § 2520 creates a right to a private cause of action for the potential group of plaintiffs against violators of any section of Chapter 119); DIRECTV, Inc. v. Lorenzen, 299 F. Supp.2d 789, 792 (N.D. Ohio 2004) (finding the "simplest, clearest, and most accurate interpretation of § 2520" to be that § 2520 only provides a remedy for unlawful interceptions under § 2511(1)(a)); DIRECTV, Inc. v. Bertram, 296 F. Supp.2d 1021, 1024 (D. Minn. 2003) ("[T]he express language of § 2520(a) does not provide DirecTV with a private right of action against those possessing devices in violation of § 2512(1)(b)."); DIRECTV, Inc. v. Beecher, 296 F. Supp.2d 937, 943 (S.D. Ind. 2003) ("For a case of mere possession of an unlawful device, Congress might well have concluded that making such stringent penalties available to the private plaintiff would be excessive."); DIRECTV, Inc. v. Hosey, 289 F. Supp.2d 1259, 1263 (D. Kan. 2003) ("[T]he plain language of the current § 2520(a) creates a private cause of action only against those who intercept, disclose, or intentionally use wire, oral, or electronic communication."); DIRECTV, Inc. v. Cardona, 275 F. Supp.2d 1357, 1367 (M.D. Fla. 2003) ("To recognize a cause of action [for violations of § 2512(1)(b)] would be tantamount to denying the language of § 2520(a) its ordinary meaning."); DIRECTV, Inc. v. Amato, 269 F. Supp.2d 688, 691 (E.D. Va. 2003) ("[M]ere possession of a device, as banned by § 2512, creates no individualized harm and, thus, no justification for private recovery.") (emphasis in original); accord DIRECTV, Inc. v. Terry, No. Civ.A.2:03-CV-0137-J, 2004 WL 350480, at *1 (N.D. Tex. Jan. 29, 2004); DIRECTV, Inc. v. Cope, 301 F. Supp.2d 1303, 1305 (M.D. Ala. 2003); DIRECTV, Inc. v. Jerolleman, No. Civ. A. 03-1465, 2003 WL 22697177, at * 1-2 (E.D. La. Nov. 12, 2003); DIRECTV, Inc. v. Westendorf, No. 03 C 50210, 2003 WL 22139786, at * 1-2 (N.D. Ill. Sept. 16, 2003); DIRECTV, Inc. v. Childers, 274 F. Supp.2d 1287, 1288-89 (M.D. Ala. 2003); Ages Group, L.P. v. Raytheon Aircraft Co., 22 F. Supp.2d 1310, 1315 (M.D. Ala. 1998).
The second line of cases, led by Oceanic Cablevision, Inc. v. M.D. Electronics, 171 F. Supp. 1019 (D. Neb. 1991), holds that a civil cause of action exists against those who violate any portion of Chapter 119, including § 2512(1)(b). See DIRECTV, Inc. v. Legans, No. 03-1071-T, 2004 WL 187323, at *4 (W.D. Tenn. Jan. 9, 2004) ("This court agrees with those courts holding that § 2512 provides for civil as well as criminal liability."); DIRECTV, Inc. v. Drury, 282 F. Supp.2d 1321, 1323 (M.D. Fla. 2003) ("[T]he statute now defines the class of potential defendants as any person or entity `engaged in' a `violation of this chapter.' . . .[Section] 2512(1)(b) lies within the covered chapter and, therefore, § 2520(a) currently authorizes the recovery of civil damages."); DIRECTV, Inc. v. EQ Stuff, Inc., 207 F. Supp.2d 1077, 1084 (C.D. Cal. 2002) (relying on Oceanic with little independent analysis); Oceanic, 171 F. Supp. at 1027 (holding that § 2520 "confers a private cause of action upon persons when the action is brought against parties that have violated the provisions of §§ 2510-2521"); accord DIRECTV, Inc. v. Moreno, Civil Action No. 03-2478 (JEI), 2003 WL 22927883, at *3-4 (D.N.J. Dec. 11, 2003); DIRECTV, Inc. v. Gatsiolis, No. 03 C 3534, 2003 WL 22111097, at *1-2 (N.D. Ill. Sept. 10, 2003); DIRECTV, Inc. v. Karpinsky, 269 F. Supp.2d 918, 924-26, vacated in part on other grounds, 274 F. Supp.2d 918 (E.D. Mich. 2003); DIRECTV, Inc. v. Calamanco, No. 5:02-CV-4102-MWB, 2003 WL 21956187, at *2-3 (N.D. Iowa Jan. 21, 2003). A subset of the cases finding a private right of action for a § 2512 violation reads § 2520 to require both possession and interception to be shown in order for a private cause of action for possession to lie. See, e.g., Legans, 2004 WL 187323, at *3-4; Karpinsky, 269 F. Supp.2d at 925.
The Court agrees with Amato that this reading of the statute not only fails to distinguish Flowers but also "defies logic." Amato, 269 F. Supp.2d at 691. The idea that a private right of action for violation of § 2512 could only exist when a violation of § 2511(1)(a) has also been established strains this Court's credulity. Such an anfractuous reading of the statute is not necessary when a simpler, unambiguous interpretation exists.
After undertaking an examination of the statutory text and the relevant case law, this Court finds the Flowers line of cases persuasive. In interpreting a statute, the starting point is the language of the statute itself. Russello v. United States, 464 U.S. 16, 20 (1983) ("In determining the scope of a statute, we look first to its language."). As a general rule, if the language of a statute is plain, then a court's interpretive function ceases, and it should enforce the statute according to its own terms. Id. at 20 ("If the statutory language is unambiguous, in the absence of a clearly expressed legislative intent to the contrary, that language must ordinarily be regarded as conclusive.") (citations and internal quotations omitted).
The Court notes that the greater weight of authority appears to support a holding of no private right of action for violations of § 2512. Not only are there a greater number of reported cases to that effect, but, more significantly, three different Courts of Appeal have indicated support for this holding, while no appellate courts have spoken to the contrary.
The express language of § 2520(a) does not provide a private right of action against those possessing devices in violation of § 2512(1)(b). The Court finds that the unambiguous language of § 2520(a) limits those against whom a private right of action lies to those who intercept, disclose, or use electronic communications; this class of persons does not include mere possessors of prohibited devices. The statutory language of § 2520(a) authorizes a civil action against a person who "engaged in that violation." The antecedent to the phrase "that violation" is not found, as Plaintiff argues, in the phrase "violation of this chapter." Rather, when the sentence is read as a whole, it is clear that the language "that violation" refers to an "intercept[ion], disclos[ure], or intentional use in violation of this chapter." In short, this Court agrees with the analysis set forth in Beecher:
The private civil action is authorized not . . . against a person who `engaged in any violation of chapter 119.' Instead, the statutory language itself authorizes a civil action against a person who `engaged in that violation.' As a matter of grammar and sentence structure, the phrase `that violation' must refer to the interception, disclosure, or intentional use of a communication in violation of this chapter referred to earlier in the sentence.Beecher, 296 F. Supp.2d at 941 (emphasis in original). Consequently, § 2520(a) only provides remedies for violations under § 251 1(1)(a), which prohibits unlawful interception. E.g., Lorenzen, 299 F. Supp.2d at 792-93.
Furthermore, the Court agrees with the courts that have noted that the mere possession of a prohibited device, as criminalized by § 2512(1)(b), does not create an individualized harm. Consequently, unlike the interception of electronic communications, as criminalized by § 2511, there is no justification for private recovery under § 2512. Flowers, 773 F.2d at 589 (concluding that there is no implied private right of action for violation of § 2512); Bertram, 296 F. Supp.2d at 1026 (observing that the interception of electronic communications creates a victim while the mere possession of a prohibited device does not); accord Amato, 269 F. Supp.2d at 691.
Finally, the Court notes that a private right of action should not be implied here, especially because § 2512 already provides for criminal penalties. See Transamerica Mortgage Advisors Inc. v. Lewis, 444 U.S. 11, 19 (1979) ("It is an elemental canon of statutory construction that where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it."); Flowers, 773 F.2d at 589 ("[I]mplied causes of action are disfavored and should be found only where a statute clearly indicates . . . that Congress intended such a cause of action to lie.") (citations omitted); accord Boggess, 300 F. Supp.2d at 448.
The Court finds that 18 U.S.C. § 2520(a) does not afford a private right of action for violations of 18 U.S.C. § 2512(1)(b). Accordingly, the Court GRANTS Defendant's Motion to Dismiss Count Three of Plaintiff's Complaint on the ground that there is no private cause of action for possession of pirate access devices.
VI. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant's Motion to Dismiss Count
Three of Plaintiff's Complaint.
IT IS SO ORDERED.