The opinion of the court was delivered by: SIMMONS
Plaintiffs, Shenango Cable TV, Inc. and Variety Cable TV, Inc. (hereinafter "Shenango"), two affiliated cable television companies, allege that Defendant, Tandy Corporation, through its Radio Shack Division (hereinafter "Tandy"), is manufacturing, distributing and retailing a cable television converter known as the "Archer Converter" in violation of § 705 (formally § 605) of the Communications Act of 1934, 47 U.S.C. § 605 and § 633 of the Cable Communications Policy Act of 1984, 47 U.S.C. § 553. Shenango and Tandy now move for summary judgment under Fed.R.Civ.P. 56. Both parties have submitted extensive evidentiary materials, including depositions and affidavits of parties and witnesses, which present all facts that could be provable at trial.
The undisputed operative facts of record may be summarized as follows: Shenango provides cable television service
to customers in Mercer County, Pennsylvania and Trumbull County, Ohio area. Under Shenango's system, customers can subscribe to basic cable service
in order to receive cable channels in the mid and super-band
range. Both the mid-band cable channels and the super-band cable channels are transmitted by Shenango (in unscrambled form) through a cable wire running into the customer's home. When a customer (subscriber) elects to receive the mid and super-band services, Shenango leases as part of its monthly fee, a converter box which restricts access to only those channels subscribed to.
The converter provided by cable companies, such as Shenango, converts each cable channel to VHF channel 3 or 4. Since the converter only delivers one channel at a time, the remote channel control feature of a standard TV set is eliminated because the TV must always be tuned to this channel (VHF Channel 3 or 4). In addition, standard televisions equipped with converters such as Shenango's cannot record one channel with VCR equipment while the user is watching another channel.
Tandy, through its Radio Shack division, markets and sells a product known as the "Archer Converter." The Archer Converter converts a "block" of VHF channels into UHF channels
thereby restoring remote control capabilities and allowing the user to record one program on VCR equipment while watching another. The Archer Converter does, however, permit owners of standard television sets,
who are basic service subscribers to Shenango's cable, to receive "unscrambled" and "non-trapped"
mid and super-band signals without paying a subscription fee for those signals/channels.
Under Fed.R.Civ.P. 56 (c), this Court will grant summary judgment where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." While doubts as to the existence of genuine issues of fact must be resolved against the moving party, United States v. Diebold, Inc., 369 U.S. 654, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962), "Rule 56(e) does not allow a party resisting the motion to rely merely upon bare assertions, conclusory allegations or suspicions." Fireman's Insurance Company of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). The party opposing a motion for summary judgment "must set forth the specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See Viger v. Commercial Insurance Company of Newark, N.J., 707 F.2d 769, 771 (3d Cir. 1983). ("Naked assertions in the pleadings are insufficient to withstand summary judgment.")
Defendant Tandy maintains that the Archer Converter is designed and marketed solely to 1) restore remote control capacity; and 2) permit the user who owns VCR equipment to record one program while watching another, and proffered substantial evidence in support of it's position. Plaintiff Shenango, however, contends that Tandy has manufactured and marketed the Archer Converter for the specific purpose of unauthorized interception of Shenango's mid and super-band signals in violation of Section 705 of the Communications Act of 1934, 47 U.S.C. § 605
and Section 633 of the Cable Communications Policy Act of 1984, 47 U.S.C. § 553.
Section 705 of the Communications Act of 1934 provides in pertinent part:
(a) No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.
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([O> d 4 intent of its use to assist in any activity prohibited by subsection (a) of this section shall be subject to penalties and remedies under this subsection to the extent and in the same manner as a ...