UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
March 4, 1997
JOE HAND PROMOTIONS, Plaintiff,
BURG'S LOUNGE, et al., Defendants.
The opinion of the court was delivered by: JOYNER
MARCH 4, 1997
This is an action for statutory damages pursuant to 47 U.S.C. § 605 for the unlawful exhibition for commercial advantage of the closed circuit television signal of the August 19, 1995 Tyson-McNeely boxing event (the "Event"). Plaintiff Joe Hand Promotions ("Plaintiff") filed this action against thirty-seven defendants (various taverns and their respective owners) on September 9, 1996. On November 25, 1996, Plaintiff moved for the entry of default and default judgment against seven defendants for failure to appear, answer or otherwise defend the Complaint. Plaintiff's motions were granted as to six of these defendants (collectively the "default defendants")
by Order dated January 6, 1997. The allegations against the default defendants are thus deemed admitted. On January 23, 1997, a hearing was held to assess the damages to be awarded against the default defendants. We decide this matter today.
Section 605(a) provides in pertinent part that
no person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.... No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall...use such communication (or any information therein contained) for his own benefit or the benefit of another thereto.
47 U.S.C. § 605(a).
Plaintiff's motions for default judgment request damages for two violations of § 605(a), namely, for both the interception of the signal and exhibition of the Event. In its Complaint, however, Plaintiff alleges only that
with full knowledge that the [Event was] not to be received and exhibited by entities unauthorized to do so, agents, servants, workmen or employees of the Defendants did exhibit the [Event]...at the time of its transmission wilfully and for purposes of direct or indirect commercial advantage or private financial gain.
(Complaint, P 10). We find that this allegation states a claim for the unlawful exhibition only. See Cablevision Systems v. 45 Midland Enterprises, Inc., 858 F. Supp. 42, 43 (S.D.N.Y. 1994)("A default judgment entered on well-pleaded allegations of a claim establishes a defendant's liability."). Indeed, the Complaint itself seeks damages only for "willful violation" (singular) of the statute, as well as fees and costs. (Complaint, PP 14-15). We therefore award damages for the exhibition claim only.
Under § 605(e)(3), an aggrieved party may recover either actual damages or "statutory damages for each violation of subsection (a)...in a sum not less than $ 1,000 or more than $ 10,000, as the court considers just." 47 U.S.C. § 605(e)(3)(C)(i)(II). Further, where "the court finds that the violation was committed willfully and for purposes of direct and indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $ 100,000 for each violation of subsection (a) of this section." 47 U.S.C. § 605(e)(3)(C)(ii). Finally, the court "shall direct the recovery of full costs, including awarding attorneys' fees to an aggrieved party who prevails." 47 U.S.C. § 605(e)(3)(B)(iii). The award of costs is made mandatory by use of the word "shall" in the statute.
As noted supra, Plaintiff requests statutory damages in this case. Specifically, Plaintiff seeks $ 20,000 per defendant per unlawful exhibition of the Event, plus fees and costs. We find this amount to be unwarranted in the absence of evidence suggesting especially egregious circumstances. See, e.g., Joe Hand Promotions v. 4300, Inc. t/a Grady's Lounge, 1995 U.S. Dist. LEXIS 3286, 1995 WL 115405 (E.D.Pa. March 16, 1995); Wade Communications Partnership v. Grant, 1995 U.S. Dist. LEXIS 4807, 1995 WL 217624 (E.D.Pa. April 12, 1995). We therefore exercise our discretion under the statute to enter judgment against each of the default defendants for $ 1,000 pursuant to § 605(e)(3)(C)(i)(II) and an additional $ 1,000 pursuant to § 605(e)(3)(C)(ii). If any party can demonstrate why the judgments should be more or less, such party may file the appropriate Rule 59(e) motion. Plaintiff is also granted leave to submit affidavits detailing fees and costs.
An appropriate Order follows.
AND NOW, this 4th day of March, 1997, following the January 23, 1997 assessment of damages hearing in this matter, and it appearing that following return of service defendants Byzantine Holdings, Inc., Charles S. Raday, Jr., Bob's 2442, Inc., Patricia Jasinski, Robert Jasinski, and Te's Scranton bar failed to appear, answer or otherwise defend in this action, and a default having been duly entered by the Clerk and default judgment having been granted by Order of this Court dated January 6, 1997, consistent with the accompanying Memorandum and pursuant to Fed. R. Civ. P. 55(b)(2), it is hereby ORDERED as follows:
(1) JUDGMENT is ENTERED in this action for Plaintiff and against defendants Byzantine Holdings, Inc., Charles S. Raday, Jr., Bob's 2442, Inc., Patricia Jasinski, Robert Jasinski, and Te's Scranton bar in the amount of $ 2,000 per defendant; and
(2) Plaintiff is GRANTED LEAVE to file a Petition for Attorney's Fees and Costs and an Affidavit setting forth the basis for calculating fees, in detail, on an hourly basis, and the itemization of all recoverable costs. Plaintiff shall file said Petition and Affidavit within fourteen days of the date of entry of this Order.
BY THE COURT:
J. CURTIS JOYNER, J.