J & J Sports Productions Incorporated v. Mosqueda

Filing 33

ORDER Plaintiff's motion for summary judgment (Doc. 25 ) is granted in part and denied in part. Summary judgment is granted with respect to all claims except the claim under § 553, which is denied as moot. Defendant is ordered to pay $3,800 in damages. Plaintiff shall submit a request for costs and attorneys' fees pursuant to 47 U.S.C. § 605(e)(3)(V)(iii) and Local Rule 54.1 and 54.2 to the Court within 14 days. Signed by Judge David G Campbell on 6/11/2013.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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J & J Sports Productions Incorporated,

No. CV-12-0523 PHX DGC

Plaintiff,

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ORDER

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v.

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Adrian Mosqueda, individually and doing
business as Adrian’s Restaurant,

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Defendant.

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Plaintiff J & J Sports Productions Incorporated has filed a motion for summary

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judgment. Doc. 25. The motion is fully briefed. Docs. 26, 28. No party has requested

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oral argument. For the reasons set forth below, the Court will grant Plaintiff’s motion in

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part and deny it in part.

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I.

Background.

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A boxing match titled “The Event”: The Manny Pacquiao v. Joshua Clottey WBO

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Welterweight Championship (“the Program”) was telecast nationwide on March 13, 2010.

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Doc. 25-1 ¶ 1; Doc. 26 at 2. Plaintiff owned the exclusive commercial distribution rights

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to the Program, including undercard events and all color commentary. Doc. 25-1 ¶ 2.

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Plaintiff’s investigator Frank Balkcom, Sr., observed the Program being displayed at

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Adrian’s Restaurant on March 13, 2010. Id. ¶ 7. Defendant did not pay a commercial

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licensing fee to Plaintiff to broadcast the Program (Doc. 25-1 ¶ 4; Doc. 26 at 2), and did

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not have permission from Plaintiff to broadcast the Program at Defendant’s commercial

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establishment (Doc. 25-1 ¶ 5; Doc. 26 at 2).

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II.

Legal Standard.

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A party seeking summary judgment “bears the initial responsibility of informing

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the district court of the basis for its motion, and identifying those portions of [the record]

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which it believes demonstrate the absence of a genuine issue of material fact.” Celotex

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Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the

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evidence, viewed in the light most favorable to the nonmoving party, shows “that there is

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no genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a

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party who “fails to make a showing sufficient to establish the existence of an element

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essential to that party’s case, and on which that party will bear the burden of proof at

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trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome

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of the suit will preclude the entry of summary judgment – the disputed evidence must be

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“such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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III.

Analysis.

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A.

Claims under 47 U.S.C. §§ 553 and 605.

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Plaintiff brings claims under 47 U.S.C. § 553 and § 605. Section 605 prohibits the

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“unauthorized publication or use of communications.” The Ninth Circuit has clarified

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that communications protected by § 605(a) include satellite television signals. DirecTV

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v. Webb, 545 F.3d 837, 844 (9th Cir. 2008). Section 553 prohibits the unauthorized

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reception of cable service. There is some disagreement as to the extent of the overlap

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between the two statutes, but the Court need not resolve the issue to decide this case.

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Kingvision Pay Per View, Ltd. v. Guzman, No. CV-07-0963-PHX-PGR, 2008 WL

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1924988, at *1 (D. Ariz. Apr. 30, 2008) (“The position taken by a majority of courts is

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that signals broadcast through the air via radio and satellite are generally within the

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purview of § 605, including programming transmitted via satellite to cable operators for

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their transmission to cable subscribers, and signals broadcast through a coaxial cable

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system are generally within the purview of § 553.”). Even where both sections are
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applicable, damages typically are awarded only under § 605. Id; see also Kingvision

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Pay-Per-View. Ltd. v. Backman, 102 F. Supp. 2d 1196, 1197 (N.D. Cal. 2000).

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“[T]o be held liable for a violation of section 605, a defendant must be shown to

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have (1) intercepted or aided the interception of, and (2) divulged or published, or aided

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the divulging or publishing of, a communication transmitted by plaintiff.”

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Subscription Television v. S & H TV, 644 F.2d 820, 826 (9th Cir. 1981); see also DirecTV

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545 F.3d at 844 (“Section 605(a) of the Communications Act prohibits the unauthorized

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receipt and use of radio communications for one’s ‘own benefit or for the benefit of

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another not entitled thereto.’”).

Nat’l

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In support of its motion for summary judgment, Plaintiff submits the affidavit of

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its president, Joseph M. Gagliardi. Doc. 25-5. Gagliardi asserts that Plaintiff purchased

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and retained the commercial exhibition licensing rights to the Program and thereafter

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sublicensed those rights to its commercial customers. Id ¶ 3. Gagliardi states that

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domestic commercial establishments who wished to broadcast the Program were required

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to pay Plaintiff a commercial sublicense fee based on the size of the establishment.

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Id ¶ 8. For an establishment with a capacity of less than 100 persons, like Adrian’s

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Restaurant, the fee for the Program was $1,800. Id. (citing Doc. 25-5 at 18.). Gagliardi

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states that Defendant did not purchase a license to broadcast the Program.

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Furthermore, according to Gagliardi, the nature of the broadcast is such that it could not

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be inadvertently intercepted by a commercial establishment. Id. ¶ 9

Id.

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Plaintiff also submits the affidavit of private investigator Frank Balkcom, Sr., who

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states that he entered Adrian’s Restaurant on the night the Program was telecast,

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March 13, 2010, at approximately 9:50 p.m. Doc. 25-4 at 4. Balkcom states that he

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observed the Pacquiao-Clottey fight (the Program’s “main event”) displayed on a

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television with approximately 80 persons inside the establishment. Id. At the time he

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entered the restaurant, Balkcom believed the fight to be in its third round. Id.

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Plaintiff’s evidence tends to show that Defendant (1) intercepted or aided the

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interception of the Program and (2) divulged or published, or aided the divulging or
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publishing of the Program without Plaintiff’s authorization. Although the evidence of

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interception is circumstantial, the Ninth Circuit has held that circumstantial evidence can

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be sufficient to support a factual finding, particularly in cases of signal piracy. DirecTV,

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Inc., 545 F.3d at 844 (“The law does not require direct evidence to support a factual

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finding. Circumstantial evidence may be sufficiently persuasive. Signal piracy is by its

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very nature a surreptitious venture and direct evidence may understandable be hard to

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come by.”).

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Defendant’s only evidence is his own affidavit. Doc. 27 at 5-6. In the affidavit,

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Defendant states that he “does not recall” being present in his restaurant on March 13,

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2010. Id at 5. He also states: “I believe that the boxing match at my Restaurant may

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have been tape delayed because I have no records of a purchase of this broadcast.” He

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further states that the restaurant did not have cable service, but rather “Dish or Direct TV,

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but [he is] confident it was Dish TV.” Id. at 6.

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Speculative averments do not constitute facts for purposes of a summary judgment

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motion. See Harris Tech. Sales, Inc. v. Eagles Test Sys., Inc., No. 06-02471-PHX-RCB,

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2008 WL 343260, at *2 (D. Ariz. Feb. 5, 2008).

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“believe[s]” the boxing match “may have been” shown on tape delay (Doc. 27 at 5) is

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speculative and therefore insufficient to raise a genuine issue of fact.

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broadcast was tape-delayed, however, “[a] tape-delayed broadcast without authorization

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is still a violation of the [Federal Communications Act].” Nat’l Satellite Sports, Inc. v.

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Garcia, No. Civ.A. 301CV1799D, 2003 WL 21448375 (N.D. Tex. June 18, 2003)

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(citations omitted).

Defendant’s statement that he

Even if the

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Defendant’s assertion that the restaurant received television service through a

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satellite rather than cable creates a genuine issue of fact on the § 553 claim because § 553

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applies only to cable broadcasts. But, as Plaintiff concedes, even if both sections were

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applicable, damages would be awarded only under § 605.

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Kingvision Pay-Per-View. Ltd., 102 F. Supp. 2d at 1197. Thus, the Court’s inability to

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grant summary judgment for Plaintiff on the § 553 claim will not affect the ultimate
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Doc. 25-1 at 10; see

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outcome of the case.

Defendant’s affidavit confirms the use of a satellite and the

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applicability of § 605. Accordingly, the Court will grant summary judgment, award

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damages under the §605 claim, and dismiss the § 553 claim as moot.

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B.

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“Conversion is any act of dominion wrongfully asserted over another’s personal

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property in denial of or inconsistent with his rights therein.” Scott v. Allstate Ins. Co.,

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553 P.2d 1221, 1225 (Ariz. Ct. App. 1976). It is not disputed that Plaintiff had exclusive

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commercial distribution rights over the Program and that a license for Adrian’s

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Restaurant would have cost $1,800. Defendant has produced no evidence to refute that

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the Program was broadcast at Adrian’s Restaurant without authorization. Accordingly,

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the Court grants summary judgment on the conversion claim.

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Productions., Inc. v. Vargas, No. CV-11-02229-PHX-JAT, 2013 WL 1249206, at *3-4

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(D. Ariz. Mar. 27, 2012) (holding that a similar showing was a conversion under Arizona

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law and awarding damages).

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C.

Conversion.

See J & J Sports

Damages.
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Statutory Damages.

Plaintiffs have elected to pursue statutory damages.

Statutory damages are

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appropriate when actual damages cannot be easily proven. J & J Sports Productions, Inc.

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v. Canedo, No. C 09–01488 PJH, 2009 WL 4572740, *5 (N.D. Cal. 2009). “Under

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§ 605(e)(3)(C)(i)(II), an aggrieved party may recover ‘a sum not less than $1,000 or more

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than $10,000, as the court considers just’ for each violation.” J & J Sports Productions

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Inc. v. Miramontes, No. CV–10–02345–PHX–FJM, 2011 WL 892350, at * 2 (D. Ariz.

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March 14, 2011) (internal citation omitted). Further, “[a]n award of damages should

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deter future conduct but not destroy the business.” Id. (quoting Kingvision Pay–Per–

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View v. Lake Alice Bar, 168 F.3d 347, 360 (9th Cir.2009)).

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Courts consider a number of factors when awarding statutory damages. In a recent

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case with similar facts in this District, the court considered “the maximum capacity of the

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commercial establishment, the total number of patrons present at the time of the
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unauthorized showing, and the amount defendant would have paid if it had purchased the

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rights to show the broadcast.” Vargas, 2013 WL 1249206 at * 3.

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Plaintiff has presented evidence that the Program was broadcast on one television

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in a room with approximately 80 people. Doc. 25-4 at 4. Defendant stated in his

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deposition that the maximum capacity of his restaurant under the City of Phoenix Fire

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Marshall’s order was 40 persons. Doc. 27 at 5. Even if the Court accepts Defendant’s

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assertion as true, it does not refute Balkom’s testimony, particularly because Defendant

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admitted that he “did not recall being present” at the restaurant on March 13, 2010. Id.

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Defendant has not created a genuine issue of fact with respect to the number of people in

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the restaurant.

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In Vargas, the court awarded $4,000 dollars in statutory damages against an

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establishment that showed an intercepted broadcast on five televisions to between 125-

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130 patrons. Vargas, 2013 WL 1249206 at * 3. Here, the Program was broadcast on a

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single television and to a significantly smaller number of people. The Court finds that an

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award of $2,000 to be just under the circumstances.
2.

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Conversion Damages.

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Plaintiff requests conversion damages in the amount of $1,800. Doc. 25-1 at 20.

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Under Arizona law, “the measure of conversion damages includes not only the value of

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the property taken, but also other damage suffered because of the wrongful detention or

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deprivation of property.” Collins v. First Fin. Servs., Inc., 815 P.2d 411, 413 (Ariz. Ct.

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App. 1991). Plaintiff has provided undisputed factual support for the claim that it

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charges a commercial sublicense fee of $1,800 for a business the size of Adrian’s

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Restaurant. Doc. 25-5 at 3, 18; see J & J Sports Productions, Inc., v. Diaz, No. CV 11-

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02224-PHX-FJM, 2012 WL 1134904, at * 2 (D. Ariz. Apr. 4, 2012) (awarding only

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nominal damages where Plaintiff had failed to provide factual support for damages on a

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similar conversion claim). Accordingly, the Court awards damages in the amount of

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$1,800.00 for the conversion claim.

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3.

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Enhanced Damages.

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Section 605(e)(3)(C)(ii) provides that the Court may also award enhanced

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damages of up to $100,000 upon “a showing that defendant acted willfully and for the

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purpose of direct or indirect commercial advantage or private financial gain.” J & J

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Sports Productions Inc. v. Miramontes, No. CV–10–02345–PHX–FJM, 2011 WL

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892350, at * 2 (D. Ariz. Mar. 14, 2011). Relevant factors for courts to consider when

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awarding enhanced damages include: repeat violations, substantial unlawful monetary

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gains, significant actual damages, advertising, cover charges, or premium prices. Id.

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Additionally, some courts find “the mere unauthorized showing of a program sufficient to

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award enhanced damages because given the low probability of accidentally showing it, it

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must have been done willfully and for profit.” Id. (quoting Entertainment By J & J, Inc.

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v. Al-Waha Enter., Inc., 219 F. Supp. 2d 769, 776 (S.D. Tex. 2002)).

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There is no evidence in this case of repeat violations, substantial unlawful

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monetary gains, advertising, cover charges, or premium prices. Moreover, the mere fact

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that the Program was shown at Defendant’s restaurant does not foreclose the possibility

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that an employee or patron was primarily responsible for displaying the Program. A lack

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of evidence of the owner’s personal involvement is irrelevant under § 605’s strict liability

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scheme, but it is not irrelevant to the willfulness determination required for special

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damages. Furthermore, Defendant has since closed his restaurant and retired to take care

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of his sick wife, making specific deterrence less of a consideration. Doc. 27 at 5.

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Defendant is already liable for $1,800 in damages for conversion of the Program and an

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additional $2,000 in statutory damages. The Court finds the total amount of $3,800

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sufficient to serve the purposes of the statute and provide general deterrence to potential

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infringers.

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IT IS ORDERED:

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1.

Plaintiff’s motion for summary judgment (Doc. 25) is granted in part and

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denied in part. Summary judgment is granted with respect to all claims

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except the claim under § 553, which is denied as moot.
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Defendant is ordered to pay $3,800 in damages.

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3.

Plaintiff shall submit a request for costs and attorneys’ fees pursuant to 47

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U.S.C. § 605(e)(3)(V)(iii) and Local Rule 54.1 and 54.2 to the Court within

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14 days.

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Dated this 11th day of June, 2013.

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