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DIRECTV, INC. v. GENDRACHI

February 14, 2005.

DIRECTV, INC., a California corporation, Plaintiff,
v.
RON GENDRACHI, GERSHON JOHNS, ANTHONY PANICHELLI, FRANK SISCO, RODNEY STOKES, JOHN WALSH, and SERGEY YEZRIL, Defendants.



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

This matter comes before the Court upon Plaintiff DirecTV Inc.'s motion for entry of final default judgment against Defendant Gershon Johns, pursuant to Fed.R.Civ.P. 55(b)(2), for Defendant's failure to answer, appear or otherwise reply in this matter. For the reasons discussed herein, Plaintiff's motion will be granted.

  BACKGROUND

  DirecTV, Inc. ("DirecTV") is a California-based company in the business of distributing satellite television broadcasts throughout the United States. (Compl. at ¶ 1.) Programming is electronically scrambled by DirecTV and is transmitted from satellites to DirecTV subscribers who receive the signals through the use of DirecTV hardware, including a small satellite dish, an integrated receiver, a DirecTV access card, and cabling. (Id. at ¶ 2.) The DirecTV access card unscrambles the signals for those programs paid for by the subscriber. (Id.)

  A number of companies have engaged in the internet sale of illegal equipment designed to modify or circumvent DirecTV's signal-scrambling technology, including devices known as "unloopers" and "bootloaders." With the assistance of law enforcement authorities, DirecTV executed Writs of Seizure in the matter of DirecTV v. Derek Trone, et al., No. SA CV 01-370 DOC (Anx), in the United States District Court for the Central District of California and obtained a substantial body of sales records, shipping records, email communications, credit card receipts and other records. (Compl. at ¶ 3.) According to those records, Defendant Gershon Johns purchased two printed circuit board devices called "Terminator Bootloaders," from DSS-Pro, on two separate occasions. (Id. at ¶ 8(a) and (b).) DirecTV previously has proven that bootloaders, like the ones Defendant purchased, are specifically designed to facilitate the illegal interception of DirecTV signals. See e.g., DirecTV v. Disalvatore, 2003 U.S. Dist. LEXIS 23822, *11 n. 2 (N.D. Ohio May 21, 2003) ("the Court finds as an undisputed fact that [bootloaders] are primarily useful for purposes of allowing free unauthorized access to satellite programming"); DirecTV v. Trone, 2003 U.S. Dist. LEXIS 23835, *5 (C.D. Cal. Feb. 10, 2003) (bootloaders "can modify an Access Card to view DirecTV channels without authorization or payment"). DirecTV also alleged in its Complaint that: (1) Defendant possessed and used this device knowing or having reason to know that its design rendered it primarily useful for surreptitiously intercepting DirecTV's satellite transmissions of television programming and (2) Defendant received or assisted others in receiving DirecTV satellite transmissions of television programming without authorization. (Compl. at ¶¶ 18, 24.)

  DirecTV filed a complaint against Defendant in this Court on April 30, 2003, which alleges violations of the Cable Communications Policy Act of 1984, as amended, 47 U.S.C. § 605 ("Communications Act"), and the Electronic Communications Privacy Act, 18 U.S.C. §§ 2511 and 2512 ("Electronic Communications Privacy Act"), with respect to the purchase, possession, and use of illegal equipment designed for the purpose of stealing DirecTV's satellite television programming. The Complaint further alleges unauthorized interception of electronic communications in violation of N.J.S.A. § 2A:156A-3, possession of pirate access devices in violation of N.J.S.A. § 2A:156A-5 and a claim for conversion against Defendant Johns.

  Defendant Johns was served with a summons and complaint on June 1, 2003. Pursuant to Rule 12(a)(1)(A), Fed.R.Civ.P., Defendant Johns had twenty (20) days from the date he was served with the summons and complaint to file an answer. Defendant Johns was required to file an answer on or before June 23, 2003. Johns did not answer by that date, and on or about July 11, 2003, DirecTV requested that the Clerk of Court enter default against Johns pursuant to Fed.R.Civ.P. 55(a). The Clerk entered default against Defendant Johns on July 18, 2003.

  DirecTV now moves for a judgment by default against Defendant Johns, as authorized by Rule 55(b)(2), Fed.R.Civ.P., for violations of § 605, § 2511, § 2512, as well as violations of N.J.S.A. § 2A:156A-3, N.J.S.A. § 2A: 156-5 and unlawful conversion. Plaintiff requests damages in the amount of $10,000 pursuant to 18 U.S.C. § 2520 for Defendant's violations of either § 2511 or § 2512 and is not requesting that the Court enter independent monetary damages against Defendant for each count in the Complaint.*fn1 In addition, pursuant to the above-referenced statutes, DirecTV seeks costs and attorneys' fees. This motion is unopposed.

  DISCUSSION

  Violation of 47 U.S.C. § 605

  Under the Communications Act, any person aggrieved by violations of § 605(a) may bring a cause of action against such violators. See 47 U.S.C. § 605(e)(2). Violations of § 605(a) include, inter alia, receiving and/or assisting others in receiving satellite transmissions of television programming without authorization. See generally, TKR Cable Co. V. Cable City Corp., 267 F.3d 196, 200 (3d Cir. 2001). The Third Circuit's decision in TKR Cable Co. supports DirecTV's claims against Defendant arising from his interception of satellite signals because in TKR, the Third Circuit expressly stated that liability under § 605 applies to "pirates who directly intercept airborne transmissions." Id. At 200. DirecTV has alleged such facts in the Complaint, (see Compl. at ¶ 24), those facts are deemed admitted and DirecTV has therefore proven a violation of § 605.

  The Communications Act provides that the Court "may grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain violations of subsection (a) of [the Communications Act]." See 47 U.S.C. § 605(e)(3)(B)(i). This Court will therefore grant DirecTV default judgment for its claims under the Federal Communications Act and an injunction prohibiting Defendant from committing further violations.

  Judgment Pursuant to 18 U.S.C. § 2520

  DirecTV argues that it has a civil remedy for violations of 18 U.S.C. § 2511(1)(a), which addresses one who "intentionally intercepts, endeavors to intercept, or procures another person" to do so, and 18 U.S.C. § 2512(1)(b), which addresses anyone who "possesses" a 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."*fn2 Civil claims for relief based on violations of these provisions of the United States Code are authorized by 18 U.S.C. § 2520(a), which states:
Except as provided in section 2511(2)(a)(ii), 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, other than the United States, which engaged in that violation such relief as may be appropriate.
18 U.S.C. § 2520(a). Plaintiff thus relies upon Section 2520(a) to assess statutory damages against Defendant Gershon Johns, as the facts alleged in the Complaint regarding the ...

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