United States District Court, E.D. Pennsylvania
July 27, 2004.
DIRECTV, Inc., Plaintiff,
Bill T. Barker, Defendant.
The opinion of the court was delivered by: JOHN FULLAM, Senior District Judge
MEMORANDUM AND ORDER
DIRECTV, Inc. sues Bill T. Barker for a violation of the Cable
Communications Policy Act, 47 U.S.C. § 605(e)(3)(C) (Count I),
prohibited interception and disclosure of wire, oral, or
electronic communications under 18 U.S.C. § 2511 (Count II),
illegal possession, manufacture, and/or assembly of electronic,
mechanical or other device or equipment, 18 U.S.C. § 2512 (Count
III), willful assembly or modification of devices or equipment,
47 U.S.C. § 605(e)(4) (Count IV), and possession of devices for
theft in violation of state law, 18 Pa. C.S. § 910 (Count V).
Defendant Barker moves pursuant to Rule 12(b)(6) to dismiss
Counts II, III, and IV.
Defendant seeks to dismiss Count II by arguing that the cause
of action that exists under 18 U.S.C. § 2520 only applies to
private satellite video communication that is not scrambled or
encrypted. However, when § 2520 is read in its entirety (with
particular focus on subsection (c)), Defendant's interpretation
seems contrary to the plain language of the section. A cause of
action for Plaintiff's properly pled 18 U.S.C. § 2511 violation
exists. Therefore, Defendant's Motion to Dismiss Count II will be
denied. Defendant's Motion to Dismiss Count IV also will be denied
because Plaintiff states a claim, despite relying largely on
However, Defendant's Motion to Dismiss Count III will be
granted. A plain language interpretation of the statutory
provisions and well-reasoned persuasive authority convince me
that there is no private cause of action under 18 U.S.C. § 2520
for violations of 18 U.S.C. § 2512. See DIRECTV, Inc. v.
Treworgy, No. 03-25323, 2004 U.S. App. LEXIS 11673 (11th Cir.
June 15, 2004); DIRECTV, Inc. v. Amato, 269 F. Supp.2d 688,
691 (E.D. Va. 2003). Although Judge Surrick came to a contrary
conclusion when Defendant moved to dismiss a § 2512 claim in
DIRECTV, Inc. v. Baratta (E.D. Pa. C.A. No. 03-3265),
Plaintiff's since-severed claims (found in "DIRECTV, Inc.'s First
Amended Complaint," a pleading different from the original
Baratta Complaint) proceed independently in this discrete suit.
See United States ex. rel. St. John LaCorte v. Smithkline
Beecham Clinical Lab., 149 F.3d 227, 231, n. 3 (3d Cir. 1998).
In sum, Defendant's Motion will be granted in part and denied
in part. An order follows. ORDER
AND NOW, this ____ day of July, 2004, upon consideration of
Defendant's Motion to Dismiss Counts II, III, and IV of
Plaintiff's First Amended Complaint, Plaintiff's Response, and
Defendant's Notice of Supplemental Authority, IT IS ORDERED:
1. Defendant's Motion is granted in part; denied in
a. Defendant's Motion to Dismiss Counts II and IV is
b. Defendant's Motion to Dismiss Count III is
GRANTED. Count III is DISMISSED with prejudice.
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