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DIRECTV, INC. v. KITZMILLER

March 31, 2004.

DIRECTV, INC., Plaintiff,
v.
DANA R. KITZMILLER, Defendant



The opinion of the court was delivered by: JAMES KELLY, Senior District Judge

MEMORANDUM AND ORDER

Presently before the Court is a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendant Dana R. Kitzmiller ("Kitzmiller" or "Defendant") in this matter initiated by Plaintiff DIRECTV, Inc. ("DIRECTV" or "Plaintiff") against Kitzmiller and several other named defendants,*fn1 alleging that Defendant purchased a device commonly used by persons to assist in the unauthorized interception of DIRECTV's satellite programming ("device" or "pirate access device") in violation of Page 2 federal and state statutory, and state common law. Plaintiff's Complaint seeks damages and injunctive relief against Defendant on six counts, including: Count I — Damages for Violations of Cable Communications Policy Act, 47 U.S.C. § 605(e)(3)(C); Count 2 — Damages for Violations of 18 U.S.C. § 2511; Count 3 — Damages for Possession, Manufacture, and/or Assembly of Electronic, Mechanical or Other Device or Equipment, 18 U.S.C. § 2512; Count 4 — Damages for Willful Assembly or Modification of Devices or Equipment, 47 U.S.C. § 605(e)(4); Count 5 — Civil Conversion under Pennsylvania law; and Count 6 — Possession of Devices for Theft in Violation of Pennsylvania Consolidated Statutes, 18 Pa. Cons. Stat. § 910. For the following reasons, Kitzmiller's Motion to Dismiss is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

  DIRECTV is a California-based company in the business of distributing satellite television broadcasts throughout the United States by relaying digital signals from within the United States up to satellites hovering thousands of miles above Earth, which signals are then broadcast back to Earth and are received through the use of a fixed outdoor satellite dish designed to capture the satellite signals. The satellite dish is connected by cable to an indoor satellite receiver which is then connected by cable to a television monitor. Page 3

  To prevent unauthorized reception and use of DIRECTV's broadcasts by individuals who have not paid for the service, DIRECTV uses encryption technology to digitally scramble the signal making the signal unusable until it is unscrambled by a satellite receiver, which contains a removable access card that manages the opening and closing of television channels offered by DIRECTV. When a DIRECTV customer pays a subscription fee, DIRECTV electronically directs the access card to unscramble portions of the satellite signal allowing customers to view programs on their television and/or listen to certain high quality audio programs communicated by satellite. DIRECTVs main revenue source is from payment by authorized users for its satellite programming.

  In its Complaint, Plaintiff alleges that Defendant purchased a device, from a distributor of such devices, to surreptitiously pirate its satellite signals, and effected unauthorized interception and receipt of Plaintiff's satellite programming in violation of federal telecommunication and wiretapping laws and state statutory and common law. Specifically, Plaintiff alleges that, on or about August 17, 2001, Defendant purchased a combination package invoiced as a "X-Terminator Unlooper/Vector Next Generation Programmer Combo," which consisted of an unlooper and a smart card programmer. (Compl. ¶ 20.) Plaintiff also alleges that the unlooper is designed to repair access cards that have been rendered unusable by illegitimate use, and is Page 4 specifically designed for use with certain software further permitting the illegal programming of valid DIRECTV access devices. (Id.) Further, Plaintiff alleges that the programmer is primarily designed to permit the illegal programming of valid DIRECTV access cards for the sole purpose of obtaining access to DIRECTV satellite programming without paying for the service. (Id.)

  Defendant filed a Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. Plaintiff responded, and Defendant replied thereto. We address the sufficiency of each of DIRECTV's claims against Defendant in turn.

  II. STANDARD OF REVIEW

  The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to test the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). We therefore accept all factual allegations in the complaint as true and give the pleader the benefit of all reasonable inferences that can be fairly drawn therefrom. Wisniewski v. Johns-Manvilie Corp., 759 F.2d 271, 273 (3d Cir. 1985). We are not, however, required to accept legal conclusions either alleged or inferred from the pleaded facts. Kost, 1 F.3d at 183. In Page 5 considering whether to dismiss a complaint, courts may consider those facts alleged in the complaint as well as matters of public record, orders, facts in the record and exhibits attached to a complaint. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994). A court may dismiss a complaint only if the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

  III. DISCUSSION

 A. Count 1-47 U.S.C. § 605(e)(3)(C)

  Plaintiff seeks damages for violations of 47 U.S.C. § 605, which prohibits the illegal interception of radio transmissions, including satellite transmissions. See 47 U.S.C. § 605. A person violates § 605 by "receiving," "assisting in receiving" or "intercepting" radio transmissions without proper authorization. § 605(a).*fn2 Accordingly, to prevail on the merits of this count in the Complaint, Plaintiff must prove that Defendant "received, assisted in receiving or intercepted" Plaintiff's satellite transmission. See id.

  Defendant argues that this count of Plaintiff's Complaint must be dismissed because the Complaint alleges only possession Page 6 of the pirate access device, which, alone, is insufficient to establish a violation of § 605.*fn3 Plaintiff's Complaint does Page 7 allege that Defendant purchased a combination package invoiced as a "X-Terminator Unlooper/Vector Next Generation Programmer Combo," which consisted of an unlooper, designed to repair access cards for use with certain software further permitting the illegal programming of valid DIRECTV access devices, and a programmer, primarily designed to permit the illegal programming of access cards for unauthorized receipt of DIRECTVs services. (Compl. ¶ 20.)

  Upon further review, however, Plaintiff's Complaint alleges more than mere possession of the device. Plaintiff also pled that, "Defendant, illegally and without authorization, intercepted, received and exhibited, or otherwise assisted in the unauthorized interception, reception or exhibition of Satellite Programming transmitted by DIRECTV." (Compl. ¶ 34.) A reasonable inference that can be drawn from Plaintiff's allegations is that Defendant intercepted DIRECTV's signal without its permission, and that the device purchased by Defendant was used in intercepting that signal. Since, ...


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