On June 17, 1995, Home Box Office ("HBO") broadcast nationwide from Las Vegas, Nevada, via coaxial cable and satellite, a championship prizefight boxing match between Riddick Bowe and Jorge Luis Gonzalez. The plaintiff, Joe Hand Promotions, Inc., was granted the right to distribute the heavyweight boxing match along with the other matches on the card, and entered into agreements with various entities in Pennsylvania to publicly exhibit the boxing matches to their patrons.
The plaintiff claims that on June 17, 1995, several defendant businesses and their owners
exhibited the boxing matches at the time of their transmission even though they had not paid the required subscription fee. Therefore, on May 9, 1996, the plaintiff filed suit against these defendants in this Court, alleging that the defendants violated 47 U.S.C. § 605 by exhibiting the boxing matches without authorization. In addition, the plaintiff alleged claims of conversion and interference with prospective economic advantage. This Court, however, dismissed the plaintiff's complaint, and afforded the plaintiff the opportunity to amend the complaint to state a claim upon which relief could be granted. Joe Hand Promotions, Inc. v. Rennard Street Enter., Inc., 954 F. Supp. 1046, 1055-1056 (E.D. Pa. 1997) (Hutton, J.).
On February 7, 1997, the plaintiff amended its complaint and again alleged that the defendants violated 47 U.S.C. § 605. The plaintiff also alleged claims of conversion and interference with prospective advantage. On February 24, 1997, three of the defendants, Lennon's Bar, Inc., James Lennon, and Gloria Lennon (collectively "the defendants"), responded by filing the instant motion to dismiss.
A. Standard for Dismissal under Rule 12(b)(6)
Federal Rule of Civil Procedure 8(a) requires that a plaintiff's complaint set forth "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Accordingly, the plaintiff does not have to "set out in detail the facts upon which he bases his claim." Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) (emphasis added). In other words, the plaintiff need only to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. (emphasis added).
When considering a motion to dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),
this Court must "accept as true the facts alleged in the complaint and all reasonable inferences that can be drawn from them. Dismissal under Rule 12(b)(6) . . . is limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved."
Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (citing Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988)); see H.J. Inc. v. Northwest Bell Tel. Co., 492 U.S. 229, 249-50, 106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989). The court will only dismiss the complaint if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J. Inc., 492 U.S. at 249-50 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)).
B. Analysis of Plaintiff's Claims
In their motion, the defendants argue that the plaintiff's complaint must be dismissed because it fails to allege facts sufficient to plead a cause of action pursuant to 47 U.S.C. § 605. Additionally, they assert that the plaintiff lacks standing to bring the instant suit under 47 U.S.C. § 605. They also urge the Court to dismiss the state law allegations because there is no reasonable basis for it to exercise supplemental jurisdiction.
1. Federal Claim: 47 U.S.C. § 605
a. Sufficiency of Pleadings
In its January 29, 1997 opinion, this Court clarified the distinctions between a "radio communication" and "wire communication" for purposes of 47 U.S.C. §§ 553 and 605. Joe Hand Promotions, 954 F. Supp. at 1050-1054. Adopting the reasoning set forth by the United States Court of Appeals for the Seventh Circuit in United States v. Norris, 88 F.3d 462, 465 (7th Cir. 1996), this Court held that:
because a television signal transmitted through the air is a "radio communication," any person may be held liable under 47 U.S.C. § 605 for the unauthorized reception and publication of cable programming transmitted through the air. On the other hand, because a television signal transmitted over coaxial cable is a "wire communication," only legitimate communication personnel may be held liable for publishing a cable broadcast while it is actually being transmitted over a system of coaxial cables under 47 U.S.C. § 605. All other persons who publish a cable broadcast while it is actually being transmitted over a system of coaxial cables, however, may only be held liable under 47 U.S.C. § 553(a).
954 F. Supp. at 1054. Following this Court's decision, other courts in this circuit also adopted Norris and explicitly rejected the United States Court of Appeals overly broad holding and rationale of International Cablevision, Inc. v. Sykes, 75 F.3d 123, 131-132 (2d Cir.), cert. denied sub nom., Noel v. International Cablevision, Inc., 136 L. Ed. 2d 217, 117 S. Ct. 298 (1996). See, e.g., TWC Cable Partners v. Cableworks, Inc., 966 F. Supp. 305, 310, 1997 WL 307953, at *6 (D.N.J. 1997) (Orlofsky, J.) ("I join the Seventh Circuit, as well as several district courts in the Third Circuit and elsewhere, in concluding that § 605 governs only the interception of satellite or radio transmissions through the air and does not regulate the unlawful interception of communications which are sent over a cable network); Comcast Cablevision of Phila., L.P. v. Roselli, 1997 U.S. Dist. LEXIS 782, *5, No. CIV.A.96-2938, 1997 WL 36957, at *1-2 (E.D. Pa. Jan. 30, 1997) (Waldman, J.) ("The court finds more persuasive the reasoning in Norris. . . . The court concludes that § 605 does not encompass the modification of converters or decoder boxes to intercept or assist in receiving television transmissions over wire or cable."). But see Joe Hand Promotions v. Burg's Lounge, 955 F. Supp. 42, 43 n.2 (E.D. Pa. 1997) (Joyner, J.) ("[Section 605] has been held to apply to the unauthorized publication of a cable television broadcast which originated as a radio transmission.")
In the instant case, the defendants argue that the plaintiff's Section 605 claims must be dismissed because the allegations are not pled in sufficient detail to provide the defendants with notice of the specific actions alleged to have given rise to the plaintiff's claims. (Defs.' Mem., at 3-4; Defs.' Reply, at 2-3.) Moreover, the defendants assert that even if the plaintiff's complaint is pled in sufficient detail, the claim must be dismissed because 47 U.S.C. § 553, and not 47 U.S.C. § 605, applies to the interception, reception, and publication of television broadcasts transmitted along a coaxial cable network. (Defs.' Mem., at 3-4; Defs.' Reply, at 2-3.) The plaintiff, on the other hand, rejects these arguments and asserts that its complaint is sufficiently pled, because the boxing matches were not solely transmitted via coaxial cable, and thus 47 U.S.C. § 605 applies. (Pl.'s Resp., at 1-3.) Specifically, the plaintiff contends that,
the same HBO broadcast was also nationally transmitted via DSS (mini-dish technology)
through a number of broadcasters including USSB (United States Satellite Broadcasting) and also broadcast via C-Band or "full-sized" satellite receivers
as the signal to those units would have been distributed by companies such as Turner Satellite or Hughes Satellite on the evening in question.