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TWC CABLE PTNRS. v. CABLEWORKS

June 6, 1997

TWC CABLE PARTNERS, Plaintiff,
v.
CABLEWORKS, INC., et al., Defendants.



The opinion of the court was delivered by: ORLOFSKY

ORDER

 This matter having come before the Court on the motion of Defendant, Andrew Christopher, to dismiss Plaintiff's second amended complaint pursuant to Fed. R. Civ. P. 12(b)(6), Daniel J. Lefkowitz, Esq., and Walter F. Timpone, Esq., of McElroy, Deutsch & Mulvaney, appearing on behalf of the Plaintiff, and Defendant, Andrew Christopher, appearing pro se ; and,

 The Court having considered the parties' submissions filed in support of, and in opposition to the motion;

 For the reasons set forth in this Court's Opinion filed with this Order;

 IT IS HEREBY ORDERED on this 6th day of June, 1997, that the motion of Andrew Christopher to dismiss Plaintiffs' second amended complaint pursuant to Fed. R. Civ. P. 12(b)(6), shall be considered by the Court as a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), and is hereby granted in part and denied in part; and,

 IT IS HEREBY FURTHER ORDERED that Defendant's motion for judgment on the pleadings is granted with respect to Plaintiff's claims against him under 47 U.S.C. § 605, and denied in all other respects.

 ORLOFSKY, District Judge:

 Defendant, Andrew Christopher, has moved to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). Defendant's pro se motion requires this Court to address an issue about which two Courts of Appeals have disagreed *fn1" and which has yet to be addressed by the Third Circuit. Specifically, did Congress, by enacting section 633 of the Federal Communications Act, 47 U.S.C. § 553, intend that section to be the sole statutory remedy for interference with the transmission of signals over a cable system; or rather, did Congress intend that section 705 of the Federal Communications Act, as amended by the Cable Communications Policy Act of 1984, 47 U.S.C. § 605, also govern such interference over a cable network.

 For the reasons set forth below, I conclude that 47 U.S.C. § 553 is the sole statutory remedy for interference with the transmission of signals over a cable system, and that by enacting this provision, Congress intended that 47 U.S.C. § 605 would no longer regulate the unauthorized decryption of transmissions over a cable system. Accordingly, this Court will treat the Defendant's motion to dismiss as a motion for judgment on the pleadings and grant it in part, and deny it in part. *fn2"

 I. Facts and Procedural Background

 Plaintiff, TWC Cable Partners d/b/a Staten Island Cable ("SIC"), offers cable television services to subscribers who request and pay for them. (Second Amended Complaint P9). SIC's programming is offered to its subscribers in various packages of programming services -- basic, standard, or standard plus. Subscribers may also elect to purchase certain premium programming services for an additional monthly charge per service. (Second Amended Complaint P10). Each subscriber to SIC's services is entitled to receive only that level of programming services which he or she selects and purchases. (Second Amended Complaint P11).

 The signals for all of SIC's cable television services are transmitted from SIC reception facilities to subscribers' homes through a network of cable wiring and equipment. (Second Amended Complaint P13). In order for a subscriber to receive these transmitted cable television signals on his or her television set, SIC provides each subscriber with a device known as a "converter" which converts the multiple signals transmitted simultaneously over the network of cable wiring into different channels which can be viewed on a subscriber's television set. (Second Amended Complaint P13).

 To prevent subscribers from receiving programming services for which they have not paid, SIC encodes or scrambles the signals for specific programming services. Subscribers purchasing scrambled programming services are provided with a device known as a descrambler or decoder, which is incorporated into the subscriber's converter. (Second Amended Complaint P14). The descrambler decodes the scrambled service so that the programming selected and purchased can be viewed clearly on a subscriber's television set. Programming services not purchased will continue to be scrambled and therefore will be unviewable on the subscriber's television set. (Second Amended Complaint P14).

 SIC alleges that the Defendants have engaged in an ongoing scheme to sell and/or illegally modify cable television decoders for profit. SIC contends that the Defendants have sold the illegal equipment with the specific intent that the devices be used to decode scrambled programming transmitted through the network of cable wiring from SIC's reception facilities to subscribers homes, thus allowing dishonest customers of Defendants to receive SIC's scrambled programming services without payment. Defendants' "pirate" decoders cannot readily be detected by SIC once connected. (Second Amended Complaint P23).

 On June 12, 1995, SIC filed its initial complaint against Defendants, Cableworks, Inc., James Hamada and Irving Yellen, for violations of the Federal Communications Act, as amended by the Cable Communications Policy Act of 1984, and conversion. SIC filed an amended complaint on December 7, 1995, correcting the spelling of one defendant's name. On April 30, 1997, SIC filed a second amended complaint, adding Andrew Christopher ("Christopher") as an additional defendant. Defendant, Christopher, has now moved to dismiss SIC's claims against him contained in the second amended complaint.

 II. Standard for Dismissal Pursuant to Rule 12(b)(6)

 When considering a defendant's motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), the Court must accept all well pleaded allegations in the complaint as true and view them in a light most favorable to the plaintiff. Schrob v. Catterson, 948 F.2d 1402 (3d Cir. 1991). A motion to dismiss pursuant to Rule 12(b)(6) requires that the court consider all factual allegations in the complaint, as well as all reasonable inferences to be drawn from the facts alleged, in the light most favorable to the plaintiff. Gomez v. Toledo, 446 U.S. 635, 636, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); ...


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