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DIRECTV INC. v. FRICK

March 2, 2004.

DIRECTV, INC.,
v.
GUY FRICK



The opinion of the court was delivered by: JOHN PADOVA, District Judge

ORDER — MEMORANDUM

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 ...

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