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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 other respects.
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 from [Plaintiff].
(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 Programming.
(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, 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 misappropriation).

  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 granted.

  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.

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