Summary
holding that in exercising its discretion to award damages under 47 U.S.C. § 605, a court "should consider both the nature of the violation in light of the statutory scheme involved, as well as the particular circumstances concerning the defendant's actions"
Summary of this case from Directv, Inc. v. GriffinOpinion
Civil Action No. 3:01-CV-1799-D.
June 18, 2003.
MEMORANDUM OPINION AND ORDER
Plaintiff National Satellite Sports, Inc. ("National") moves for summary judgment against defendant Nancy Del Carmen Garcia ("Garcia"), individually and d/b/a La Guira Night Club ("La Guira"), for violation of the Federal Communications Act of 1934, 47 U.S.C. § 151-614 (the "FCA"), which prohibits piracy of radio and television signals. National requests statutory damages, damages for a willful act, and reasonable attorney's fees and costs. Garcia has not responded to the motion. The court grants the motion to the extent of holding that Garcia is liable to National for some of the relief that National seeks.
National filed its motion on May 2, 2003. Garcia's response was due May 22, 2003. See N.D. Tex. Civ. R. 7.1(e).
I
As noted, Garcia has not responded to National's motion. Although the court may not enter a "default" summary judgment, it may accept as true the undisputed evidence that National has adduced. See, e.g., Tutton v. Garland Indep. Sch. Dist., 733 F. Supp. 1 113, 1117 (N.D. Tex. 1990) (Fitzwater, J.). National had the right to exhibit the closed-circuit telecast of the January 16, 1999 championship boxing match between Mike Tyson and Francios Botha, from the MGM Grand in Las Vegas, Nevada, including undercard bouts (collectively, the "Event"), at closed-circuit locations throughout the state of Texas, including at the La Guira. On January 16, 1999 Garcia enabled the patrons at the La Guira to view a tape delayed broadcast of the Event. An investigator acting for National was also present. Garcia did not pay the required license fee, and National did not authorize her to intercept, receive, or transmit the communication of the Event.
A tape-delayed broadcast without authorization is still a violation of the FCA. See Kingvision Pay Per View, Ltd. v. Julian Corp., 1996 WL 496600 at *3 *N.D. Ill. Aug. 29, 1996).
National asserts claims against Garcia for willful violations of 47 U.S.C. § 553 and 605 and now moves for summary judgment.
II
Because National will have the burden of proof at trial on these claims, to obtain summary judgment it "must establish `beyond peradventure all of the essential elements of the claim[.]'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F. Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). National has met this burden. It has introduced a copy of the license agreement and affidavits that establish that it is in the business of marketing and licensing commercial exhibitions of pay-per-view prizefight events; that it possessed the proprietary rights to exhibit and sublicense the right to exhibit the closed-circuit telecast of the Event to commercial establishments such as the La Guira; and that it was licensed to exhibit the Event at closed-circuit locations throughout the state of Texas. The record reflects that the Event was available in the state of Texas only to commercial establishments through an agreement with National. National electronically coded and/or scrambled the interstate satellite transmission of the Event. The only way to view the Event was by obtaining the electronic decoding equipment or satellite coordinates necessary to receive the signal.
National has introduced undisputed evidence through requests for admissions to which Garcia failed to object and are therefore deemed admitted. See Fed.R.Civ.P. 36(a); Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991). Based on these admissions National has proved the following essential elements of its FCA claims: (1) Garcia did not order the Event or pay the license fee to exhibit the Event at the La Guira; (2) she intercepted and exhibited the Event at the La Guira without authorization; (3) she knew she exhibited the Event illegally; (4) she was aware that a license fee had to be paid to exhibit the Event at the La Guira; (5) she advertised the Event and required its patrons to pay cover charge; (6) she is an owner and manager of the La Guira and was present the night of the Event; (7) she exhibited the event for her financial gain and derived an economic benefit from exhibiting the Event; and (8) she intentionally and willfully broadcast the Event at the La Guira knowing she did not have authorization to do so.
National has demonstrated through undisputed summary judgment evidence that Garcia is liable. Garcia has offered no evidence or response to National's motion and has failed to present a genuine issue of material fact.
III
Having determined that Garcia is liable under the FCA, the court must decide the relief to which National is entitled.
A
National requests statutory damages in the amount of $10,000. Upon proof of a violation of 47 U.S.C. § 605(a), the plaintiff is entitled to recover either actual damages and loss of profits or statutory damages of not less than $1,000 nor more than $10,000, "as the court considers just." 47 U.S.C. § 605(e)(3)(C)(i)(II). "In exercising its discretion to award damages, this court should consider both the nature of the violation in light of the statutory scheme involved, as well as the particular circumstances concerning the defendant's actions[.]" Cablevision Sys. N.Y. City Co. v. Lokshin, 980 F. Supp. 107, 113 (E.D.N.Y. 1997). Considering National's loss of revenue, loss of business opportunities and goodwill, and "the statute's intent to deter wrongful interception, receipt and broadcasting of the type of closed-circuit program at issue in this case," Entertainment By JJ, Inc. v. Nuno, 2001 WL 896941, at *1 (N.D. Tex. Aug. 1, 2001) (Sanders, J.), the court concludes that National is entitled to $10,000, the full amount of statutory damages.
B
National also requests damages of $100,000 for willful acts. "In any case in which 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, whether actual or statutory, by an amount of not more than $100,000 for each violation[.]" 47 U.S.C. § 605(e)(3)(C)(ii). The facts deemed undisputed as a result of Garcia's failure to respond to National's requests for admission clearly establish that Garcia's violation of the FAC was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain. The court therefore concludes that the additional sum of $30,000 should be awarded.
C
Finally, National requests an award of attorney's fees and costs in the amount of one-third of the actual and additional damages awarded for the prosecution of this action. National also seeks a contingent award of additional attorney's fees in the event certain post-trial, pre-appeal, and appellate services are rendered and do not lead to a reversal of the judgment of this court. Under 47 U.S.C. § 553(c)(2)(C) and 605(e)(3)(B)(iii) National is entitled to recover its reasonable attorney's fees and costs.
The court declines to award contingent attorney's fees and costs. National may apply for such an award if and when such fees and costs are incurred. State courts make such awards because state trial courts are the tribunals that make factual findings and they must award post-trial court and appellate fees before they lose their jurisdiction to do so. Federal district courts do not operate under similar jurisdictional restraints. Therefore, this court uniformly denies post-trial court appellate fee requests, without prejudice to awarding them on a subsequent application that is based on the actual fees incurred.
National seeks a fee award of one-third of the actual and additional damages based on its contingent fee agreement with National. The contingent nature of the fee, however, is only one factor to be considered in determining a reasonable fee. See Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 718 (5th Cir. 1974). The court concludes that National should recover a fee based on the hours expended and a reasonable hourly rate, which National seeks in the alternative. Its undisputed evidence shows that this sum is $5,000 (20 hours times $250 per hour).
* * *
For the reasons set out, the court grants National's motion for summary judgment as set forth above. A judgment will be filed contemporaneously with the filing of this memorandum opinion and order.