United States District Court, E.D. Pennsylvania
May 19, 2004.
DIRECTV, INC., Plaintiff,
SYED HUSSAIN Defendant
The opinion of the court was delivered by: JAMES GILES, Chief Judge, District
AND NOW, this __ day of May, 2004, upon consideration of plaintiff's
Motion for Default Judgment and the related May 18, 2004 assessment of
damages hearing, it is hereby ORDERED that:
1. Judgment is entered in favor of plaintiff,
and against defendant, in the amount of
$10,240.00, which includes $240.00 for costs
and fees reasonably incurred;
2. Any pending motion is DENIED as MOOT.
Pursuant to the court's entry of default on March 19, 2004, and
following an opportunity for a hearing on May 18, 2004, the above case is
before the court for an award of damages.
Plaintiff alleges that defendant purchased and possessed a smart card
programmer and two unloopers, the sole purpose of which is to make it
possible for the user to intercept and receive plaintiff's proprietary
signals without making payment for the signals. In addition defendant
possessed a DirecTV satellite dish, despite that fact that neither he,
nor anyone at the address of the dish, was a subscriber to the DirecTV
network. These circumstances create a strong presumption that the devices
were used to intercept and receive plaintiffs signals without authorization. DirecTV v. Karpinsky, (E.D. Mich. July 31.
2003). Such actions constitute a violation of 47 U.S.C. § 605(a),
which prohibits the unauthorized reception or interception of proprietary
Plaintiff additionally alleges that defendant has breached
47 U.S.C. § 605(e)(4), which states:
Any person who manufactures, assembles, modifies,
imports, exports, sells, or distributes any
electronic, mechanical, or other device or
equipment, knowing to 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,
or is intended for any other activity prohibited
by subsection (a) of this section, shall be fined
. . .
Plaintiff argues that defendant modified, assembled, or manufactured
an electronic device to import plaintiffs signals. (PL's Compl. ¶
141.) Plaintiff alleges that this occurred when plaintiff "actively
programmed and reprogrammed DirecTV Access Cards and designed electronic
systems for use in surreptitiously obtaining DirecTV Satellite
Programming [and] by removing and inserting Pirate Access Devices and/or
inserting illegally programmed Access Cards into valid DirecTV
Receivers. . . ." (Id.) However, 47 U.S.C. § 605(e)(4)
is a provision relating to manufacturers and to sellers, rather than to
users. Community Television Systems. Inc. v. Caruso,
284 F.3d 430
, 435 n.6 (2d Cir. 2002). Plaintiff has alleged no facts that
would allow this court to determine that defendant did anything other than
purchase products to decode plaintiffs signal for personal use. As
previously discussed, § 605(a) makes this conduct illegal. However,
the connection of the components parts that defendant purchased does not
elevate the conduct of "manufacturing" or "modification" under the
meaning of § 605(e)(4). The purpose of § 605(e)(4) is to place a
heightened penalty upon individuals propagating illegal decoding of
proprietary signals, through actions such as construction of systems or
sale of systems. Here, plaintiff has not alleged such circumstances, and merely indicates
that defendant made purchases to create a system for personal use.
Accordingly, this conduct is not actionable under § 605(e)(4) and
damages will not be granted pursuant to this section.
Based upon defendant's violation of § 605(a), plaintiff now seeks
damages pursuant to 47 U.S.C. § 605(e)(C). Section 605(e)(C)(i)(II)
the party aggrieved may recover an award of
statutory damages for each violation of sub sec.
(a) involved in the action in a sum of not less
than $1,000, or more than $10,000, as the court
considers just, and for each violation of
paragraph (4) of this subsection involved in the
action an aggrieved party may recover statutory
damages in a sum not less than $10,000, or more
than $100,000, as the court considers just.
Here, plaintiff urges that it is entitled to damages under the
provision in § 605(e)(C)(i)(II), arguing that the violation was
willful and that it resulted in private financial gain to defendant.*fn1
(PL's Mem. of Law in Supp. of Default at 5.) Accordingly, based upon
defendant's conduct and his violation of subsection (a), and to further
the deterrent effect of the penalties, this court finds plaintiff is
entitled to the maximum amount of damages for this violation, that is,
Additionally, plaintiff is granted $240 for reasonable costs and fees,
as is permitted by 47 U.S.C. § 605(e)(B)(iii). Plaintiff does not
seek attorney's fees.