United States District Court, D. New Jersey
December 27, 2005.
COMCAST CABLE COMMUNICATIONS, Plaintiff,
EDWIN CABRERA, Defendant.
The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
This matter comes before the Court upon motion by Plaintiff
Comcast Cable Communications ("Plaintiff") for Entry of Final
Judgment by Default pursuant to Federal Rule of Civil Procedure
55 against Defendant, Edwin Cabrera ("Defendant") for theft of
cable services in violation of the Communications Act of 1934, as
amended, 47 U.S.C. § 553(a)(1) ("Communications Act"). For the
reasons set forth below, Plaintiff's motion is granted.
Plaintiff seeks an award of statutory damages pursuant to
47 U.S.C § 553. § 553(a) authorizes a court to award statutory
damages, as the court considers just, in the range of $250.00
through $10,000.00 for all violations involved in an action.
See 47 U.S.C § 553(c)(3)(A)(ii). A court may also "direct the
recovery of full costs, including awarding reasonable attorneys'
fees to an aggrieved party who prevails."
47 U.S.C § 553(c)(2)(C).
The statutory damage provision of 47 U.S.C. § 553 is used in
lieu of a calculation of actual damages because of the difficulty in determining the
extent of an individual's unauthorized use. See Cablevision
Systems New York City Corp. v. Lokshin, 980 F.Supp 107 (E.D.N.Y.
1997). Under § 553 a court is only permitted to award "just"
statutory damages, between $250.00 and $10,000.00, to an
aggrieved party such as Plaintiff. To approximate a "just"
statutory damage award, the court must undertake an accounting of
the services a defendant could access without payment. This
accounting requires a court to subtract the difference between
the retail value of full premium programing and the retail value
of the subscription plan a defendant purchased and then multiply
the sum by the number of months a defendant had illegal access to
premium programing. This product, when added to an estimate of a
defendant's aggregate illicit pay-per-view usage, plus a
plaintiff's attorneys' fees, substantiated by time sheets and
affidavits, represent the full statutory damages that may be
awarded by this Court.
A. Standard for Default Judgment
The Court has received and considered the documentation
submitted by Plaintiff. Defendant did not submit any response to
Plaintiff's application. By virtue of Defendant's default, every
"well-plead allegation" of the complaint, except those relating
to damages, are deemed admitted. Comdyne I. Inc. v. Corbin,
908 F.2d 1142, 1149 (3d Cir. 1990). Moreover, Plaintiff is entitled
to all reasonable inferences from the evidence offered. See,
e.g., Victor Int'l, Inc. v. Taiwan Mach. Trade Ctr. Corp.,
278 B.R. 67, 81-82 (D.N.J. 2002) (citing Au Bon Pain Corp. v.
Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)). Thus, the Court
is required to accept as true the assertions that Defendant
purchased a "pirate" cable television decoding device compatible
with the cable television technology used by Plaintiff, and used
this device to intercept and receive Plaintiff's cable television programming services,
including "premium" and "pay-per-view" services, without
Plaintiff's authorization and without payment. (See generally
Pl.'s Ex. A.) The Court is also required to accept that Plaintiff
is a "person aggrieved" by Defendant's violation and that
Defendant violated 47 U.S.C. § 553.
B. Admitted Facts
The evidence offered in Plaintiff's affidavit establishes the
following facts. Defendant purchased an unauthorized "pirate"
device in August 2001. (McGinnis Aff. at ¶ 17.) Suit was
commenced against Defendant in July 2004. Through Defendant's use
of the "pirate" device, he would have access to all premium and
pay-per view services. Because the "pirate" device was designed
to defeat Plaintiff's security protections, Plaintiff had no way
of knowing how often Defendant actually used the premium or
pay-per-view services to which he had access. As a result,
Plaintiff cannot calculate its real damages incurred by
Defendant's use of a "pirate" cable converter. Therefore,
Plaintiff is forced to pursue statutory damages in lieu of actual
C. Calculation of Damages
In setting the amount of statutory damages within the $250.00
through $10,000.00 range provided by the statute, the Court
considers as a starting point the value of the programming
services to which Defendant had access without having to pay the
applicable fees. The evidence establishes that through the use of
the decoder purchased in August 2001, Defendant had access to
premium and pay-per-view service programming. The evidence
establishes that with just one pirating device obtained by
Defendant, he could have illegally obtained all the premium
channels and pay per view channels offered by Plaintiff, totaling
$5,000 per month, for the past five years. (McGinnis Aff. ¶ 14).
Plaintiff asserts that pay-per-view includes selections that
range from $4.00 to $49.99 per month, which are available throughout the day
on a per event or movie basis. Premium services range in cost
from approximately $7.00 to $13.00 per month per service.
Due to the fact Defendant did not answer the Complaint or
participate in discovery, Plaintiff could not discover the
current location of the device and was unable to fully calculate
the maximum amount of damages suffered due to Defendant's illegal
activity. Due to the fact that Defendant could conceivably
deprived Plaintiff of thousands of dollars per month in revenue,
this Court awards Plaintiff $10,000, the maximum amount of
statutory damages. This amount of damages is also appropriate to
serve as a deterrence.
D. Pre-Judgment Interest
Under New Jersey Court Rules 4:42-11b pre-judgment interest may
be awarded to tort recoveries. In Prostar v. Massachi, the
Fifth Circuit held that cable piracy was analogous to the tort of
conversion. 239 F.3d 669 (5th Cir. 2001). The Court has
discretion to compensate a plaintiff for a defendant's use of its
money after the cause of action accrued but before the judgment
was entered. Hurely v. Atlantic City Police, 933 F. Supp. 396,
398 (D.N.J. 1996). The interest rate to be applied in this case
is 7.5% and will be calculated from the date of the filing of
Plaintiff's Complaint. This Court awards pre-judgment interest to
Plaintiff in the amount of $414.59.
E. Costs and Fees
As discussed above, § 553 of the Communications Act provides
that the Court may award full costs as well as reasonable
attorney's fees. 47 U.S.C. § 553(c)(2)(C). Here, Plaintiff has
submitted an affidavit and time sheets to establish the amount of
costs and attorneys' fees incurred in prosecuting this action. In reviewing the submission
on this issue, this Court finds that the time billed and the
rates charged by counsel are reasonable. Specifically, one
attorney worked on this matter, and in total, billed $1,000.00.
Plaintiff's affidavit establishes that the Plaintiff incurred
$150.00 in filing fees and $90.00 in process service fees, for a
total of $240.00 in properly reimbursable litigation fees and
costs. Thus, the Court awards Plaintiff its costs and attorneys'
fees in the amount of $1,240.00. Accordingly, Defendant must pay
Plaintiff $11,654.59 in damages.
Pursuant to § 553(c)(2)(A) of the Communications Act, a court
may issue a final injunction in such terms that are reasonable to
prevent or restrain Defendant from performing any further
violations of § 553(a)(1). Accordingly, this Court permanently
enjoins Defendant from committing or assisting in the commission
of any further violation of the Communications Act.
For the foregoing reasons, Plaintiff's request for damages
pursuant to 47 U.S.C. § 553(a)(1), full costs and attorneys fees
pursuant to 533(c)(2)(C) is granted. An appropriate Order
accompanies this Opinion.
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