DIRECTV, LLC v. Ertem et al

Filing 21

ORDER AND REASONS granting 18 plaintiff's motion for partial summary judgment on the question of defendants' liability. Defendants are adjudged liable to plaintiff DirecTV for violation of 47 U.S.C. § 605.. Signed by Chief Judge Sarah S. Vance on 6/20/14. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DIRECTV, LLC

CIVIL ACTION

VERSUS

NO: 13-487

HABIP ERTEM, ET AL.

SECTION: R

ORDER AND REASONS
Plaintiff DirecTV moves for partial summary judgment on the
question of defendants' liability.1 The defendants have not filed
an opposition. Therefore, the Court considers this motion
unopposed. For the following reasons, the Court GRANTS the
motion.

I.

BACKGROUND
DirecTV transmits satellite television programming to paying

subscribers throughout the United States.2 DirecTV has a
proprietary right to its satellite programming,3 and only makes
its programming available to customers on a subscription or pay-

1

R. Doc. 18. Though styled a motion for summary
judgment, the Court construes DirecTV's motion as a motion for
partial summary judgment, as it does not request judgment on the
question of damages at this time.
2

R. Doc. 1 at 2.

3

Id. at 3.

per-view basis.4 DirecTV provides both residential and commercial
subscriptions to its satellite programming, with residential
subscriptions available at a lower rate than commercial
subscriptions.5 To keep people (and businesses) who have not paid
for a subscription from viewing its programming without
authorization, DirecTV encrypts its satellite transmissions.6
Once a subscriber pays a subscription or license fee, DirecTV
will authorize and enable the subscriber to unscramble and view
its satellite programming.7
DirecTV filed this lawsuit on March 15, 2013, alleging that
on June 16, 2012, defendants Habip Ertem and Ulusan, LLC d/b/a
St. Charles Tavern ("St. Charles Tavern") received and displayed
DirecTV satellite programming at St. Charles Tavern without
DirecTV's authorization.8 St. Charles Tavern is a commercial bar
and restaurant business that serves food and alcohol and has an

4

R. Doc. 18-2 at 2 (Affidavit of Susan Galofaro,
Director of Risk Management for DirecTV).
5

Id. at 3; R. Doc. 1. at 4.

6

R. Doc. 1. at 4; R. Doc. 18-2 at 2.

7

R. Doc. 1. at 4; R. Doc. 18-2 at 2.

8

R. Doc. 1.
2

estimated capacity of approximately 101-200 people.9 DirecTV
learned that St. Charles Tavern was displaying its satellite
programming through one of its auditors, John W. Bailey. Bailey
entered St. Charles Tavern on June 16, 2012, around 2:30 PM, and
saw two television sets, one of which was displaying DirecTV
programming.10 To verify that the programming was indeed
DirecTV's, Bailey asked the bartender "whether they could get
'channel 209'" and observed her check by "pulling up the DirecTV
Guide and then selecting ESPN2 (CH 209)."11 Defendants do not
dispute that St. Charles Tavern was displaying DirecTV satellite
programming on June 16, 2012.12
After receiving Bailey's report, DirecTV searched its
records and determined that St. Charles Tavern did not have a
valid DirecTV commercial account for St. Charles Tavern on June
16, 2012, nor was the bar authorized to display DirecTV satellite
programming that day.13

DirecTV's search of its records did

9

See R. Doc. 18-9 at 6-7 (Habip Ertem's Responses to
Requests for Admissions); id. at 14-15 (St. Charles Tavern
Responses to Requests for Admissions); R. Doc. 18-3 at 2
(Affidavit of John W. Bailey).
10

See R. Doc 18-2 at 3-4; R. Doc. 18-3 at 2-3.

11

See R. Doc. 18-3 at 2.

12

See R. Doc. 18-9 at 6 & 14.

13

See R. Doc. 18-2 at 3-4.
3

reveal a residential account in the name of Adam Ertem, Habip
Ertem's son, for a residential address in New Orleans.14
The complaint alleges that defendants' unauthorized display
of DirecTV satellite programming at St. Charles Tavern violated
two federal statutes: 47 U.S.C. § 605, which is part of the Cable
Communications Policy Act of 1984, and 18 U.S.C. § 2511, which is
part of the Electronic Communications Policy Act of 1986.15 The
complaint also includes a claim for conversion under state law.16
The complaint seeks both monetary damages and injunctive relief,
as well as costs and attorneys' fees.17
On May 9, 2014, DirecTV filed for summary judgment solely on
the question of defendants' liability under 47 U.S.C. § 605,18
with a request that the parties be allowed to provide further
briefing on the question of relief should the Court find in

14

See id. at 4.

15

R. Doc. 1 at 6-8.

16

Id.

17

Id. at 9-10.

18

See R. Doc.
claim under 18 U.S.C.
support of its motion
liability. The Court,
abandoned.

18-11 at 11. DirecTV did not rely on its
§ 2511 or its state-law conversion claim in
for summary judgment regarding defendants'
therefore, considers those claims
4

DirecTV's favor on the question of § 605 liability.19 Defendants
filed no response to the summary judgment motion. This failure,
of course, does not permit the Court to enter a "default" summary
judgment. Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir.
1988). The Court may, however, accept the moving party's facts as
undisputed when no opposition is filed. Id. Hearsay evidence and
unsworn documents do not qualify as competent opposing evidence.
Jones v. State Farm Fire & Cas. Co., 677 F. Supp. 2d 923, 926-27
(E.D. La. 2009) aff'd sub nom. Jones v. State Farm Fire & Cas.
Co., Inc., 392 F. App'x 347 (5th Cir. 2010) (citing Martin v.
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th
Cir.1987)). Although defendants filed Answers to DirecTV's
Complaint on May 24, 2013,20 they are unsworn. Therefore,
defendants have presented no summary judgment evidence.

II. LEGAL STANDARD
Summary judgment is warranted when "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23

19

See id.

20

R. Doc. 10.
5

(1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994). When assessing whether a dispute as to any material fact
exists, the Court considers "all of the evidence in the record
but refrain[s] from making credibility determinations or weighing
the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008). All reasonable
inferences are drawn in favor of the nonmoving party, but
"unsupported allegations or affidavits setting forth 'ultimate or
conclusory facts and conclusions of law' are insufficient to
either support or defeat a motion for summary judgment." Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see
also Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party "must
come forward with evidence which would 'entitle it to a directed
verdict if the evidence went uncontroverted at trial.'" Int'l
Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264–65 (5th
Cir. 1991). The nonmoving party can then defeat the motion by
either countering with evidence sufficient to demonstrate the
existence of a genuine dispute of material fact, or "showing that
the moving party's evidence is so sheer that it may not persuade
the reasonable fact-finder to return a verdict in favor of the
moving party." Id. at 1265.
6

If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party's claim. See Celotex, 477 U.S. at 325. The
burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324. The
nonmoving party may not rest upon the pleadings, but must
identify specific facts that establish a genuine issue for trial.
See, e.g., id.; Little, 37 F.3d at 1075 ("Rule 56 'mandates the
entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden
of proof at trial.'" (quoting Celotex, 477 U.S. at 322)).
III. DISCUSSION
A.

Liability Under 47 U.S.C. § 605

Section 605(a) makes it unlawful for any entity to intercept
and display satellite cable programming without proper
authorization. See 47 U.S.C. § 605(a) ("No person not being
authorized by the sender shall intercept any radio communication

7

and divulge or publish the existence, contents, substance,
purport, effect, or meaning of such intercepted communication to
any person."). Although § 605(a) refers to radio communication,
the protection afforded to radio communications extends to
satellite television communications. See, e.g., United States v.
Harrell, 983 F.2d 36, 39 (5th Cir. 1993); Nat'l Satellite Sports,
Inc. v. Eliadis, Inc., 253 F.3d 900, 912 (6th Cir. 2001)
("satellite communications" included "under the protection of §
605").
The undisputed evidence shows that defendants, without
authorization from DirecTV, intercepted and displayed DirecTV
satellite programming at St. Charles Tavern on June 16, 2012.
First, there is no dispute that St. Charles Tavern displayed
DirecTV satellite programming on June 16, 2012.21 Second, DirecTV
has provided evidence that St. Charles Tavern did not have
authorization or a valid commercial account to display DirecTV's
programming that day.22 Defendants have submitted no evidence to
contradict DirecTV on this point. Therefore, the Court finds that
DirecTV has sufficiently established defendants liability under §
605(a).

21

See R. Doc 18-2 at 3-4; R. Doc. 18-3 at 2-3; R. Doc.
18-9 at 6 & 14.
22

See R. Doc. 18-2 at 3-4.
8

B.

Whether the Violation Was "Willful" and for the Purpose of
"Commercial Advantage"
DirecTV also argues that defendants violated § 605

"knowingly and willfully," for the purpose of receiving a
"financial benefit."23 Such a finding would make DirecTV eligible
for enhanced damages under § 605's statutory remedial scheme,
which allows for enhanced damages in cases involving violations
committed "willfully and for purposes of direct or indirect
commercial advantage or private financial gain." 47 U.S.C.
§ 605(e)(3)(C)(ii).
Courts have defined "willful" under the statute as
"disregard for the governing statute and an indifference for its
requirements." See, e.g., ON/TV of Chicago v. Julien, 763 F.2d
839, 844 (7th Cir. 1985) (quoting TransWorld Airlines, Inc. v.
Thurston, 469 U.S. 111, 127 (1985)). Courts have found that
violators meet this standard when the circumstances surrounding a
violation suggest that the violation could not have occurred
innocently or by accident. For example, in Joe Hand Promotions,
Inc. v. 152 Bronx, L.P., a commercial bar illegally intercepted
and displayed a closed circuit telecast of a championship
fighting match without paying the required licensing fee. See
CIV.A. H-11-3406, 2014 WL 1312372, at *1, *5 (S.D. Tex. Mar. 26,
2014). The court found that the defendants' violation was

23

R. Doc. 18-11 at 9.
9

willful, reasoning that because the broadcast was
electronically coded or scrambled . . . and therefore
required using an unauthorized cable or satellite service
and illegally altering the cable or satellite service or
moving an unauthorized decoder or satellite card from its
authorized location to the Establishment, there was no
way the Defendants could have innocently accessed the
broadcast of the Event.
Id. at *6; see also Time Warner Cable v. Googies Lucheonette,
Inc., 77 F. Supp. 2d 485, 490 (S.D.N.Y. 1999) ("Signals do not
descramble spontaneously, nor do television sets connect
themselves to cable distribution systems.").
Like the cable companies in Joe Hand Promotions and Times
Warner Cable, DirecTV encrypts its satellite programming and
broadcasts it in scrambled form to keep non-customers from
viewing the programming without authorization.24 These scrambled
broadcasts can be viewed only with the help of a DirecTV "Access
Card," which allows customers to "receive and view in a decrypted
format (i.e., unscrambled) those channels to which the customer
has subscribed."25 DirecTV has established that defendants did
not have a valid commercial account for St. Charles Tavern on
June 16, 2012.26 Therefore, defendants had no reason to have a

24

See R. Doc. 18-2 at 2.

25

Id.

26

See R. Doc. 18-2 at 3-4.
10

DirecTV satellite dish at St. Charles Tavern that day, nor could
they have had valid and legal means to descramble DirecTV's
broadcast (such as an authorized Access Card). Yet it is
undisputed that St. Charles Tavern did have a satellite dish and
did display unscrambled DirecTV programming on June 16, 2012.27
Because "signals do not descramble spontaneously," it follows
that St. Charles Tavern could not have displayed DirecTV's
programming on June 16, 2012 without taking intentional steps to
circumvent DirecTV's security measures. Time Warner Cable, 77 F.
Supp. 2d at 490.

Therefore, the Court is persuaded that

defendants violation of § 605(a) was "willful."
Moreover, defendants clearly intercepted the broadcast for
the purpose of commercial gain. St. Charles Tavern is a
commercial bar and restaurant business that serves food and
alcohol and has an estimated capacity of approximately 101-200
people.28 Defendants displayed DirecTV programming during
business hours and without authorization, which allowed them to
provide a wider variety of entertainment without sustaining the
incident costs. That the bar was equipped with two televisions
demonstrates that the televisions were not for the personal
viewing pleasure of the owner, but to provide entertainment to
27

See R. Doc. 13-3 at 2.

28

See R. Doc. 18-9 at 6-7, 14-15; R. Doc. 18-3 at 2.
11

occupy the customers in the bar.29 Therefore, the Court finds
that DirecTV has sufficiently established its claim that
defendants violated § 605(a) "willfully and for purposes of
direct or indirect commercial advantage or private financial
gain." 47 U.S.C. § 605(e)(3)(C)(ii).

C.

Damages

Summary judgment on defendants' liability leaves open the
question of relief. Section 605 provides that a prevailing
plaintiff may be eligible for injunctive relief as the Court may
deem reasonable to prevent or restrain further violations of
subsection (a). See 47 U.S.C. § 605(e)(3)(B)(i). Section 605
provides that a prevailing plaintiff may be eligible for monetary
damages, which the plaintiff may elect to have computed as either
actual or statutory damages. See 47 U.S.C. § 605(e)(3)(C)(I). If
the Court awards monetary damages, the Court may enhance the
damages if the Court finds that the defendant committed the
violation "willfully and for the purposes of direct or indirect
commercial advantage or financial gain," or reduce the damages,
if the Court finds that the defendant "was not aware" or "had no
reason to believe" he was violating § 605. See 47 U.S.C.

29

See R. Doc. 18-3 at 2-3.
12

§ 605(e)(3)(C)(ii)-(iii). Finally, a prevailing plaintiff is
entitled to "full costs, including . . . reasonable attorneys'
fees." 47 U.S.C. § 605(e)(3)(B)(iii).
DirecTV has requested the opportunity to brief the issue of
relief separately. Therefore, the Court does not enter judgment
with regard to relief at this time.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff's

motion for partial summary judgment on the question of
defendants' liability. Defendants are adjudged liable to
plaintiff DirecTV for violation of 47 U.S.C. § 605.
New Orleans, Louisiana, this 20th day of June, 2014.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

13