United States District Court, D. New Jersey
May 2, 2005.
Robert F. Wordelmann, et al.
The opinion of the court was delivered by: GARRETT BROWN, District Judge
This matter comes before the Court upon plaintiff DIRECTV's
("Plaintiff" or "DIRECTV") motion for final judgment by default
against defendant Darren Hepburn ("Defendant"). Defendant was
served with the summons and complaint, but failed to answer or
otherwise respond to the complaint. On DIRECTV'S motion, the
Clerk of the Court entered default against Defendant for failure
to appear in the action. DIRECTV then filed the instant motion
for final judgment by default. The Court, having considered
Plaintiff's submission and decided the matter without oral
argument pursuant to Fed.R.Civ.P. 78, finds as follows:
DIRECTV alleges that Defendant violated the Federal
Communications Act of 1934 ("Communications Act"), as amended,
47 U.S.C. § 605, and the Electronic Communications Privacy Act
("Privacy Act"), 18 U.S.C. §§ 2510-2521, by illegally purchasing,
using and/or selling devices that intercept DIRECTV's
programming. Plaintiff requests injunctive relief under both
statutes. However, Plaintiff only seeks damages under Section
2520 of the Privacy Act, foregoing the damages available under
Section 605 of the Communications Act. Under Section 2520(c)(2), if the Court finds that damages are
appropriate, it may award the greater of actual or statutory
damages. Statutory damages "is the greater of $100 a day for each
day of violation or $10,000." 18 U.S.C. § 2520(c)(2) (2005). In
contrast, under Section 605, if the Court chooses to assess
damages, it must impose an award not less than $1,000 and no more
than $10,000. 47 U.S.C. § 605(c)(3)(B)(2005). The Court has broad
discretion to fix damages within that range. See generally
DIRECTV, Inc. v. Cain, 2005 U.S. Dist. LEXIS 7404, *2 (D.N.J.
April 20, 2005) (citations omitted). In the present case,
Defendant allegedly purchased and used illegal equipment for the
purpose of viewing DIRECTV's programming in his home. DIRECTV
requests $10,000 in statutory damages under Section 2520.
The Court notes that these motions are nothing new in this
District. DIRECTV has been plagued by the proliferation of
companies engaged in the sale of illegal equipment that
unscrambles their signal and allows users to view their
programming for free. With the assistance of law enforcement
authorities, DIRECTV has engaged in an aggressive campaign
designed to identify the manufacturers and distributors of pirate
access devices and the individuals purchasing them and recover
lost revenue via legal actions. In DIRECTV v. DeCroce,
332 F.Supp.2d 715 (D.N.J. 2004), the Honorable Katharine S. Hayden,
U.S.D.J., observed that "these lawsuits are often either quickly
settled for unspecified sums or [as is the case here] . . .
presented in the context of a default judgment application . . .
that does not subject DIRECTV's claims to the rigors of the
adversary system." DeCroce, 332 F. Supp. 2d at 717.
Here, DIRECTV submits that it is entitled to $10,000 in
statutory damages under Section 2520 and declines to pursue
damages under Section 605. Recently, the Honorable William J.
Martini, U.S.D.J., encountered this same situation and addressed
DIRECTV's failure to pursue damages under Section 605. See Cain, 2005 U.S. Dist. LEXIS
7404 at 3-7. In Cain, the defendant also allegedly purchased a
pirate access device for viewing DIRECTV's programming in his
home. Like here, DIRECTV sought $10,000 in statutory damages plus
attorneys' fees and costs under Section 2520 and did not request
damages under Section 605. The court expressed concern that in
such situations, statutory damages may "unjustifiably exceed the
goals of compensation and punishment and provide plaintiff with a
windfall." Cain, 2005 U.S. Dist. LEXIS 7404 at *4-5 (citing
DIRECTV, Inc. v. Brown, 371 F.3d 814, 819 (11th Cir. 2004)
(concluding that the district court did not abuse its discretion
when denying damages under § 2520 and characterizing a liquidated
damages award under § 2520(c)(2) as potentially being
At oral argument, the court "pressed . . . why DIRECTV [sought]
monetary damages under § 2520 instead of § 605 . . ." Id. at
3-4. "[P]laintiff responded by arguing that the Court should
impose a sanction of $10,000, rather than a potentially lesser
sanction under § 605, for both compensatory and punitive
reasons." Id. at 4. In its letter opinion, the court opined
that a $10,000 statutory damage award under Section 2520 would
represent a windfall to the Plaintiff under those facts. The
court emphasized that the defendant's true culpability must be
evaluated when determining an appropriate damages award. Further,
the Court stressed that "the proposition that at least $10,000 is
required to accomplish the complimentary goals of compensation
and punishment is belied by the fact that Congress has spoken on
the matter in the form of § 605 and determined that those goals
may be fulfilled with a lesser monetary sanction." Id. at 5.
Therefore, the court denied DIRECTV's request for damages under
Section 2520. However, the court noted that an award between
$1,000 and $10,000 under Section 605 would be more fitting. Thus, the court stated that it would "consider
granting a damages award [under Section 605] upon plaintiff's
timely submission of an appropriate motion for such relief."
Id. at 6.
This Court finds Cain instructive. Here, like in Cain,
Defendant purchased a pirate access device for the sole purpose
of viewing DIRECTV's programming in his home. An award of $10,000
would unjustifiably exceed the goals of compensation and
punishment and provide Plaintiff with a windfall. Therefore, this
Court denies Plaintiff's motion for damages under Section 2520.
However, the Court would consider an appropriate motion under
Section 605. Therefore, this Court will grant Plaintiff ten (10)
days leave to file a new motion for damages under Section 605.
The Court will grant Plaintiff's request to permanently enjoin
Defendant from committing or assisting in the commission of any
violation of Section 605 and Sections 2511 and 2512. The Court
will also consider Plaintiff's request for attorneys' fees and
costs upon timely submission of an appropriate affidavit of
services and bill of costs that comport with Local Civil Rules
54.1 and 54.2.
An appropriate Order accompanies this Letter Opinion.
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