United States District Court, E.D. Pennsylvania
March 2, 2004.
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 DIRECTV Satellite
(Compl. ¶ 41). Accordingly, Defendant's Motion to Dismiss Count
4 is denied.
5. Count 5 Civil Conversion Under Pennsylvania Law
In Count 5, Plaintiff asserts a claim of civil conversion under
Pennsylvania law, and alleges that Defendant procured Plaintiff's
satellite signals for his own use without payment.
Defendant argues that a satellite transmission is not tangible
property, and therefore is not subject to conversion. Although courts in
other states have expanded the tort of conversion to include intangible
property, Pennsylvania courts continue to hold that only tangible
property, or intangible property rights which have merged with, or are
otherwise connected to, a document, are subject to conversion. See
Northcraft v. Edward C. Michener Assoc., 466 A.2d 620, 625 ( Pa. Super.
1983) ("`The process of expansion [of the tort of conversion] has stopped
with the kind of intangible rights which are customarily merged in, or
identified with some document.'") (quoting Prosser, Torts § 15, p. 82-83
(4th ed. 1971)); see also Famoloqv.com, Inc. v. Perot Svs. Corp.,
158 F. Supp.2d 589, 591 (E.D. Pa. 2001)(holding that conversion action
could not be brought under Pennsylvania law for misappropriation of
internet domain names, because such domain names do not constitute
tangible property). Satellite signals, which cannot be seen or felt, do
not appear to fall under the definition of tangible property, and this Court
has found no case which holds to the contrary. See Don King Prods, v.
Lovato, 911 F. Supp. 419, 423 (N.D. Cal. 1995) (noting that
"traditionally tangible personal property included only property that is
visible and corporeal, having substance and body.") (citations omitted);
see also DirecTV, Inc. v. Patel, No. 03-C-3442, 2003 WL 22682443 (N.D.
Ill. Nov. 12, 2003) (dismissing conversion claim based upon alleged theft
of satellite signal because such signal constituted intangible property
which Plaintiff continued to benefit from even after the alleged
In support of its argument, Plaintiff cites to Joe Hand Promotions v.
Rennard Street Enterp., 975 F. Supp. 746, 753 (E.D. Pa. 1997), in which a
state law conversion claim survived a motion to dismiss. However, it
appears from the court's opinion in Joe Hand that defendants never argued
that the plaintiff's conversion action was inappropriate because a
satellite signal constituted intangible property. Rather, the only basis
for dismissal of the state law claims discussed in the opinion was the
court's lack of supplemental jurisdiction. This opinion therefore
provides little support for the argument that satellite signals are
subject to conversion.*fn1 Accordingly, the Court finds that a satellite
signal is intangible property which cannot be converted under Pennsylvania
law, and Defendant's Motion to Dismiss Count 5 of the Complaint is
6. Count 6 18 Pa. C.S.A. § 910
In Count 6, Plaintiff seeks damages under 18 Pa. C.S.A. § 910.
Section 910 provides for civil penalties for those who make, possess,
assemble, distribute or use an unlawful telecommunication device, or
modify a lawful telecommunication device, which can be used for theft of
a telecommunication service. 18 Pa. C.S.A. § 910(a), (e). Satellite
service is included in the definition of telecommunication service.
18 Pa. C.S.A. § 910(e).
Defendant's argument in support of its motion to dismiss this count is
not entirely clear. Defendant appears to argue that the device possessed
was not an illegal telecommunication device under the statute. However,
the device that Defendant purchased is described in the Complaint as
"Pirate Access Device" which can be used to illegally intercept
Plaintiff's signals without authorization from the company. (See Compl.
11 5, 20.) This device clearly falls under the definition of an unlawful telecommunication
device found in 18 Pa. C.S.A. § 910(e), which defines an unlawful
telecommunication device as
any telecommunication device which is capable of or
has been altered, designed, modified, programmed or
reprogrammed, alone or in conjunction with another
telecommunication device or devices so as to be
capable of facilitating the disruption, acquisition,
receipt, transmission or decryption of a
telecommunication service without the consent or
knowledge of the telecommunication service provider.
18 Pa. C.S.A. § 910(e). Defendant's Motion to Dismiss Count 6 of the
Complaint is therefore denied.