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DIRECTV, Inc. v. Moher

March 29, 2007

DIRECTV, INC., PLAINTIFF
v.
ROBERT MOHER, DEFENDANT



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Plaintiff DIRECTV, Inc. commenced this action against pro se Defendant Robert Moher, alleging that Mr. Moher purchased, distributed, and used equipment designed to access DIRECTV's satellite television programming without authorization in violation of the Federal Communications Act ("FCA"), 47 U.S.C. § 605, the Electronics Communications Privacy Act ("ECPA"), 18 U.S.C. §§ 2511-12, and 18 Pa. Cons. Stat. Ann. § 910. (Dkt. Entry 1.) DIRECTV has moved for summary judgment, asserting that Mr. Moher has "effectively admitted" each of its allegations. (Pl.'s Br. Supp. Summ. J. (Dkt. Entry 133) at 1.) In fact, Mr. Moher has denied that he illegally accessed DIRECTV's programming or knowingly distributed illegal equipment. Because there exist genuine issues of facts material to whether Mr. Moher used or distributed equipment designed to access DIRECTV's satellite television programming without authorization, DIRECTV's motion will be denied.

I. BACKGROUND

A. Factual Background

Mr. Moher purchased a DIRECTV system for his residence in November of 1999. (Pl.'s Statement of Material Facts ("SMF") (Dkt. Entry 132-3) ¶ 16.*fn1 ) A DIRECTV system includes: (1) a satellite dish for receiving DIRECTV's satellite transmissions, (2) a DIRECTV integrated receiver/decoder for converting the satellite transmission into viewable programming, and (3) a DIRECTV Access Card for controlling which DIRECTV channels are viewable. (Aff. James Whalen, Pl.'s Mot. Summ. J. Ex. A (Dkt. Entry 134-2) ¶ 5.) Mr. Moher activated an account with DIRECTV on April 11, 2000. (Pl.'s Mot. Summ. J. Ex. K (Dkt. Entry 134-19).) The account has remained active through September 2005. (Id.)

In early 2001, Mr. Moher purchased a second DIRECTV system for his father's summer home at a flea market. (Pl.'s SMF (Dkt. Entry 132-3) ¶ 1.) The seller of the system informed Mr. Moher that the DIRECTV Access Card was damaged and told him he "could buy a device on the internet to repair the card." (Tr. of Mr. Moher's Dep., Pl.'s Mot. Summ. J. Ex. C (Dkt. Entry 134-10) at 31.) Mr. Moher installed the system at his father's summer home, but it did not work because of the damaged access card. (Id. at 34-35, 38.)

In April 2001, Mr. Moher purchased a "boot loader" from a website to repair the damaged access card in accordance with the flea market salesman's advice. (Pl.'s SMF (Dkt. Entry 132-3) ¶ 2.) A boot loader circumvents DIRECTV's electronic countermeasures designed to disable access cards that have been modified without DIRECTV's authorization.*fn2 (Aff. James Whalen, Pl.'s Mot. Summ. J. Ex. A (Dkt. Entry 134-2) ¶¶ 12, 26.) Mr. Moher stated that he never received the boot loader. (Tr. of Mr. Moher's Dep., Pl.'s Mot. Summ. J. Ex. C (Dkt. Entry 134-10) at 38-39.)

FedEx Express records indicate that the boot loader was delivered to Mr. Moher's residence on April 24, 2001. (Pl.'s Mot. Summ. J. Ex. G (Dkt. Entry 134-15).) Receipt of the package was signed by "J.ROCHE," who is not identified in the summary judgment record.*fn3 (Id.) Mr. Moher testified that he never received the FedEx Express shipment. (Tr. of Mr. Moher's Dep., Pl.'s Mot. Summ. J. Ex. C (Dkt. Entry 134-10) at 38-39.) He claimed that he disposed of the second DIRECTV system "about two months after [he] didn't receive the boot loader." (Id. at 52.)

Records from PayPal, Inc. from February 2001 to March 2002, show that Mr. Moher purchased other equipment that can be used to gain unauthorized access to DIRECTV's programming, including a Smart Card Passive Emulator, a SU2 Boot Code AtMel AT90S2, a Terminator Emulator, and an Avr4.*fn4 (Pl.'s Mot. Summ. J. Ex. I (Dkt. Entry 134-17); see also Aff. James Whalen, Pl.'s Mot. Summ. J. Ex. A (Dkt. Entry 134-2) (explaining how the devices work); Pl.'s Supp. Expert Report, Pl.'s Mot. Summ. J. Ex. E (Dkt. Entry 134-12) (same).) Mr. Moher did not recall purchasing the other items listed on the PayPal records. (Def.'s Answers to Pl.'s Second Set of Interrogs., Pl.'s Mot. Summ. J. Ex. D (Dkt. Entry 134-11) No. 1.)

United Parcel Service records indicate that the Terminator Emulator was delivered to Mr. Moher's residence on May 19, 2001. (Pl.'s Mot. Summ. J. Ex. H (Dkt. Entry 134-16).) Mr. Moher testified that he did not order the Terminator Emulator. (Tr. of Mr. Moher's Dep., Pl.'s Mot. Summ. J. Ex. C (Dkt. Entry 134-10) at 45-50.) Rather, a co-worker, whose name he no longer recalls, paid him cash to allow him to use his computer and credit card to purchase the emulator. (Id.) Mr. Moher said that the package was left at his door and he gave it to his co-worker without knowing what was inside the package. (Id.)

Mr. Moher also visited websites that discuss the unauthorized interception of DIRECTV programming. (Pl.'s SMF (Dkt. Entry 132-3) ¶ 15.) He said that he visited these websites for legal advice in this case. (Def.'s Answers to Pl.'s Second Set of Interrogatories, Pl.'s Mot. Summ. J. Ex. D (Dkt. Entry 134-11) Nos. 3-5.)

Mr. Moher has testified that he did not purchase a device for the purpose of obtaining DIRECTV programming without paying for it. (Def.'s Answers to Pl.'s Interrogs., Pl.'s Mot. Summ. J. Ex. B (Dkt. Entry 134-9) No. 12.) He also testified that he never watched DIRECTV programming without paying for it. (Id. No. 4; Tr. of Mr. Moher's Dep., Pl.'s Mot. Summ. J. Ex. C (Dkt. Entry 134-10) at 66-67.)

B. Procedural Background

DIRECTV filed a six-count complaint against Mr. Moher and other defendants on January 13, 2003. (Dkt. Entry 1.) In counts one and two, DIRECTV alleges that Mr. Moher intercepted its programming without authorization in violation of the FCA, 47 U.S.C. § 605(a), and the ECPA, 18 U.S.C. § 2511, respectively. (Id. ¶¶ 29-38.) In count three, DIRECTV asserts that Mr. Moher distributed or possessed an electronic communication intercepting device that was transported through interstate commerce in violation of 18 U.S.C. § 2512 of the ECPA. (Id. ¶¶ 39-42.) In count four, DIRECTV claims that Mr. Moher knowingly manufactured, assembled, or modified a device, knowing or having reason to know that the device is primarily of assistance in the unauthorized interception of DIRECTV's programming in violation of 47 U.S.C. § 605(e)(4). (Id. ¶¶ 43-46.) In count five, DIRECTV alleges that Mr. Moher knowingly possessed an unlawful device for ...


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