The opinion of the court was delivered by: JOHN PADOVA, District Judge
AND NOW, this 2nd day of March, 2004, upon consideration of Defendant's
Motion to Dismiss Plaintiff's Complaint (Docket # 5), and all related
submissions, IT IS HEREBY ORDERED as follows:
1) Defendant's Motion to Dismiss Count 5 of the
Complaint is GRANTED.
2) Count 3 of the Complaint is DISMISSED by agreement
of the parties.
3) Defendant's Motion to Dismiss is DENIED in all
Plaintiff DirecTV, Inc. broadcasts television programming via satellite
to businesses and private residences. On or about October 27, 2001,
Defendant purchased a device from a company known as Kick Ass Clones.
(Compl. ¶ 20.) This device, known as a "Super X Unlooper/Emulator
Combo," in combination with other equipment, allows the user to view
DirecTV programming illegally without a subscription. The Complaint alleges that, "upon information and belief, Defendant
displayed satellite programing and such programming was displayed without
authorization from DIRECTV." (Compl. ¶ 22.)
Defendant moves to dismiss all six counts of the Complaint pursuant to
Rule 12(b)(6). When determining a Motion to Dismiss pursuant to Rule
12(b)(6), the court may look only to the facts alleged in the complaint
and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel,
20 F.3d 1250, 1261 (3d Cir. 1994). The court must accept as true all well
pleaded allegations in the complaint and view them in the light most
favorable to the Plaintiff. Anqelastro v. Prudential Bache Securities,
Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be
granted when a plaintiff cannot prove any set of facts, consistent with
the complaint, which would entitle him or her to relief. Ransom v.
Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
1. Count 1 47 U.S.C. § 605(a)
In Count 1, Plaintiff seeks damages pursuant to 47 U.S.C. § 605(a).
Section 605(a) prohibits the illegal interception of radio
transmissions, which includes satellite transmissions. 47 U.S.C. § 605
(a). Defendant argues that Section 605 is not applicable to the instant
case, because Section 605 does not apply to the interception of cable
transmissions, including programming broadcast over cable systems that is
originally delivered to the cable company via satellite transmission. See
TKR Cable Co. v. City Cable Corp., 267 F.3d 196, 207 (3d Cir. 2001).
However, Plaintiff's Complaint clearly alleges that Defendant illegally
possessed a device designed to intercept Plaintiff's satellite
transmissions. (Compl. ¶ 1.) Specifically, the Complaint alleges that
the device Defendant purchased allowed Defendant to unlawfully unscramble
Plaintiff's satellite signal without authorization from the company.
(See Compl. ¶¶ 4-5.) There is no allegation in the Complaint that
Defendant intercepted Plaintiff's signals after they had been distributed
over a cable system. Accordingly, Defendant's argument has no merit, and
Defendant's Motion to Dismiss Count 1 of the Complaint is denied.
2. Count 2 18 U.S.C. § 2511
18 U.S.C. § 2511 penalizes a person who:
intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to
intercept, any wire, oral, or electronic communication
18 U.S.C. § 2511(1)(a).
Defendant argues that there is no evidence in this case which
establishes that Defendant actually intercepted an electronic
communication. However, the Complaint alleges as follows:
[Plaintiff] alleges that Defendant intentionally
intercepted, endeavored to intercept, or procured
other persons to intercept electronic communications
(Compl. ¶ 33.) On a motion to dismiss, the Court must accept Plaintiff's
allegations as true. See Anqelastro, 764 F.2d at 944. Accordingly, the Court cannot dismiss this count simply because Plaintiff
does not yet have the evidence in hand which could establish that
Defendant actually intercepted Plaintiff's transmissions. Defendant's
Motion to Dismiss Count 2 of the Complaint is therefore denied.
3. Count 3 18 U.S.C. § 2512
Plaintiff has submitted a letter to the Court in which it indicates
that it no longer wishes to pursue Count 3, and the Court will therefore
dismiss Count 3 of the Complaint by agreement of the parties.
4. Count 4 47 U.S.C. § 605 (e)(4)
In Count 4, Plaintiff seeks damages under 47 U.S.C. § 605 (e)(4).
Section 605(e)(4) provides, inter alia, that anyone who modifies any
electronic device or equipment "knowing or having reason to know that the
device or equipment is primarily of assistance in the unauthorized
decryption of satellite cable programming, or direct-to-home satellite
services," is subject to penalty. 47 U.S.C. § 605(e)(4).
Defendant argues that Plaintiff has not adequately alleged that
Defendant modified any electronic equipment. However, a simple reading of
the Complaint indicates otherwise. Specifically, in paragraph 41 the
Complaint alleges that:
Upon information and belief, Defendant actively
programmed and reprogrammed DIRECTV access cards and designed electronic systems for use in
surreptitiously obtaining ...