J&J Sports Productions, Inc. v. Get Away Lounge, Inc.
Filing
30
MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 7/30/2015. (kns, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
J&J SPORTS PRODUCTIONS, INC.,
Plaintiff,
v.
Civil Action No. TDC-13-3064
GET AWA Y LOUNGE, INC.
t/a GETA WA Y LOUNGE
t/aGETAWAY,
Defendant.
MEMORANDUM
OPINION
Plaintiff J&J Sports Productions, Inc. ("J&J Sports") alleges that Defendant Get Away
Lounge, Inc. ("Defendant") illegally exhibited a closed circuit broadcast of a boxing match to
which J&J Sports owned the exclusive commercial distribution rights. J&J Sports brings claims
for a violation of the Federal Communications Act (the "FCA"), 47 U.S.C.
and conversion.
SS
553, 605 (2012),
Presently pending is J&J Sports' Motion for Summary Judgment on the issues
of liability and damages under the FCA.1 The Motion is ripe for disposition, and no hearing is
necessary to resolve the issues.
See Local Rule 105.6 (D. Md. 2014).
For the reasons that
follow, the Motion is GRANTED.
BACKGROUND
J&J Sports distributes sports and entertainment
television.
programming
through closed circuit
It owned the exclusive commercial exhibition licensing rights to Manny Pacquiao v.
Timothy Bradley, WBO Welterweight Championship Fight Program (the "Program") broadcast
1 J&J Sports does not request summary judgment on its conversion claim. Therefore, the Court
does not address that claim.
nationwide on June 9, 2012. The night of the Program, J&J Sports hired an investigator who
entered the Getaway Lounge ("Getaway"), a commercial establishment in Waldorf, Maryland.
Defendant did not purchase a license to exhibit the Program at Getaway. Getaway generally
used Direct TV satellite services to broadcast entertainment programs to patrons.
The investigator paid a $40 cover charge to enter Getaway. Inside, there were five
televisions and a large projector screen. Four of the televisions were showing a National
Basketball Association playoff game between the Boston Celtics and the Miami Heat. Another
television showed a Keno lottery game, and there were Keno machines on the bar. The sound on
the televisions was turned down. The Program was shown on a projector screen in front of a
wall.
A live band performed music in front of a dance floor and made "a lot of noise"
throughout the Program. Moon Aff. at 1-2, ECF No. 1-2. The investigator counted between 100
and 200 people inside Getaway at various times throughout the evening. The investigator
estimated that Getaway had a maximum capacity of about 250 people, but did not see a sign
confirming the maximum capacity. The investigator did not see any advertisements for the
Program.
On October 15, 2013, J&J Sports filed suit against Defendant under the FCA for
exhibiting the Program without purchasing a commercial license. J&J Sports now moves for
summaryjudgment.
DISCUSSION
I.
Legal Standard
Summary judgment is proper if there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). "A material fact is one that might affect the outcome of the
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suit under the governing law."
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir.
2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (internal quotation
marks omitted).
A dispute of material fact is only "genuine" if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248--49.
"[ A] summary judgment motion may properly be made in reliance solely on the pleadings,
depositions, answers to interrogatories,
and admissions on file."
Celotex, 477 U.S. at 324
(quoting Fed. R. Civ. P. 56(c)) (internal quotation marks omitted). When ruling on a motion for
summary judgment,
"[t]he evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
II.
TheFCA
In its Complaint, J&J Sports asserted claims under Sections 553 and 605 of the FCA.
Because Getaway used a satellite transmission to broadcast its sporting events, J&J Sports does
not seek summary judgment under Section 553, which prohibits the unauthorized
publication of cable transmissions.
receipt or
47 U.S.C. ~ 553. J&J Sports seeks summary judgment only
under Section 605, which provides, in relevant part:
No person not being entitled thereto shall receive or assist in receiving any
interstate or foreign communication by radio and use such communication (or any
information therein contained) for his own benefit or for the benefit of another not
entitled thereto. No person having received any intercepted radio communication
or having become acquainted with the contents, substance, purport, effect, or
meaning of such communication (or any part thereof) knowing that such
communication was intercepted, shall divulge or publish the existence, contents,
substance, purport, effect, or meaning of such communication (or any part
thereof) or use such communication (or any information therein contained) for his
own benefit or for the benefit of another not entitled thereto.
~ 605(a).
This provision
communications.
prohibits
the unauthorized
receipt or publication
J & J Sports Prods., Inc. v. Mumford, No. DKC 10-2967,2012
at *5 (D. Md. Apr. 20, 2012).
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of satellite
WL 1409588,
The FCA is a strict liability statute. Compare 47 U.S.C.
9 605(e)(3)(C)(i)(II)
9
for the recovery of damages for each violation of the statute), with 47 U.S.C.
(providing
605(e)(3)(C)(ii)
(providing for enhanced damages when a violation is willful and for the purpose of commercial
gain), and 47 U.S.C.
9
605(e)(3)(C)(iii) (allowing for damages to be reduced to $250 if "the
violator was not aware and had no reason to believe his acts constituted a violation of this
section").
Thus, J&J Sports need only show that it had the exclusive distribution rights to the
Program and that Defendant exhibited the Program without authorization.
It has successfully
made such a showing here.
J&J Sports had exclusive distribution rights.
In an affidavit, Joseph M. Gagliardi, the
President of J&J Sports, stated that J&J Sports retains the exclusive rights to license the Program
to commercial customers for exhibition.
Gagliardi Aff. ~ 3, ECF No. 28-3.
Included as an
exhibit to the affidavit is a copy of the license agreement, between J&J Sports and the promoter
of the Program, granting J&J Sports the exclusive license to exhibit the Program through closed
circuit live television throughout the United States. Gagliardi Aff. Ex. 1, at 1, ECF No. 28-3.
J&J Sports
authorization.
has also established
that Defendant
exhibited
the Program
without
It has submitted an affidavit from a private investigator who visited Getaway on
the night of the boxing match and watched the Program on a large projector screen there. Moon
Aff. at 1. In his affidavit, Gagliardi confirmed that Defendant did not have a commercial license
to exhibit the Program. Gagliardi Aff. ~~ 3, 7.
Although Defendant agrees that it did not order the Program or enter into a licensing
agreement with J&J Sports, see Def.'s Resp. to Pl.'s Interrog. Nos. 5(c), 5(d), 7, it denies that it
exhibited the Program. In support of its contention, Defendant points the Court to its answers to
Interrogatory No.5, which provide:
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To Defendant's knowledge, no person or persons ordered or obtained Manny
Pacquiao v. Timothy Bradley, WBO World Welterweight Championship Fight
Program for Get Away Lounge, Inc. t/a Getaway Lounge t/a Getaway.
To Defendant's knowledge, no method or methods or other means were used to
allow Get Away Lounge, Inc. t/a Getaway Lounge t/a Getaway to receive Manny
Pacquiao v. Timothy Bradley, WBO World Welterweight Championship Fight
Program.
Def.'s Resp. to PI.'s Interrog. No. 5(d), (e). These answers, however, only state that Defendant
and its owners lacked any knowledge of any showing of the Program at Getaway.
refute, or create a genuine issue of material fact with, the investigator's
They do not
sworn observation that
the Program was shown at Getaway.
The other interrogatory responses submitted by Defendant also fail to create a factual
dispute on whether Getaway showed the Program.
In its answer to Interrogatory
No.8,
Defendant states:
8.
If it is your contention that you did not broadcast Manny Pacquiao v.
Timothy Bradley, WBO World Welterweight Championship Fight
Program listed in the Complaint, indicate the factual basis supporting
such contention.
Answer:
Defendant
generally denies the allegations
of the alleged
broadcast/exhibition of Manny Pacquiao v. Timothy Bradley, WBO
World Welterweight Championship Fight Program.
Def.'s Resp. to PI.'s Interrog. NO.8.
This general denial is insufficient to establish a genuine
issue of material fact. Significantly, it is not responsive to the question, which requests specific
facts supporting the position that Defendant never broadcast the Program.
The fact that
Defendant responded to this interrogatory without offering any facts illustrates that it has failed
to put forth any evidence to create a genuine dispute of material fact on whether Defendant
showed the Program and thus violated the FCA. J&J Sports is therefore entitled to summary
judgment.
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III.
Damages
A.
Statutory Damages
1&1 Sports further requests that this Court award damages under the FCA.
gives plaintiffs the option to recover actual or statutory damages.
47 U.S.C.
The FCA
S 605(e)(3)(C)(i).
Here, 1&1 Sports requests statutory damages. Under the FCA, "the party aggrieved may recover
an award of statutory damages for each violation of [the FCA] involved in the action in a sum of
not less than $1,000 or more than $10,000, as the court. considers just."
605(e)(3)(C)(i)(II).
47 U.S.C.
A just amount in this instance would include the fee that Defendant should
have p~id to show the Program, plus an additional amount to deter future violations.
issue, 1&1 Sports offers an advertisement
seating."
S
On this
indicating a rate schedule based on "minimum
See Gagliardi Aff. Ex. 2, ECF No. 28-3. The term "minimum seating" is confusing.
Although the investigator estimated, without any explanation, that the maximum capacity of
Getaway was 250, and that at various times there were 100 to 200 people in the establishment, it
is unclear how those figures relate to a calculation of "minimum seating," particularly when
there is no evidence that seats were set up to watch the Program, and that there were numerous
other reasons that patrons may have been present that evening other than the Program, including
a live band, a dance floor, a broadcast of an NBA playoff game, and the Keno lottery game.
Under these facts, the Court concludes that Defendant should have paid $4,200 to show the
Program. See Gagliardi Aff. Ex. 2 (charging $4,200 for venues with "minimum seating" of 100
to 200). Under the circumstances of this case, increasing the damages amount to $8,000, almost
doubling the fee, would sufficiently deter future conduct. 1&1 Sports is thus awarded $8,000 in
statutory damages.
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B.
Enhanced Damages
J&J Sports also argues that it is entitled to enhanced damages under the FCA. The FCA
provides that, in any case that "the court finds that the violation was committed willfully and for
purposes of direct or indirect commercial advantage or private financial gain, the court in its
discretion may increase the award of damages ... by an amount of not more than $100,000."
U.S.C. ~ 605(e)(3)(C)(ii).
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Before awarding enhanced damages, the Court considers several
factors: "(1) evidence of willfulness; (2) repeated violations over an extended period of time; (3)
substantial
unlawful
monetary
gains; (4) advertising
the broadcast;
admission fee or charging premiums for food and drinks."
and (5) charging
an
J & J Sports. Prods., Inc. v.
Quattrocche, No. WMN-09-CV-3420, 2010 WL 2302353, at *2 (D. Md. June 7, 2010) (citations
omitted).
Upon consideration of these factors and the very limited evidence presented, the Court
declines to award enhanced
damages. Although,
as discussed
above, Defendant
has not
established a genuine issue of material fact on whether the Program was shown at Getaway, it
has asserted that the owners were unaware that the Program was exhibited at the establishment.
See Def.'s Resp. to PI.'s Interrog. No. 5(e).
So there is a disputed issue of fact regarding
willfulness, which at this stage of the proceedings the Court must resolve in favor of Defendant.
Moreover, there is no evidence of repeat violations,
advertising for the Program.
saw no
The record does not establish whether Defendant had substantial
monetary gains as a result of the Program.
premium for food and drinks.
and the investigator
There is no evidence that Getaway charged a
Although the investigator paid a substantial cover charge, there
were numerous other attractions at Getaway that evening, including a live band, a dance floor, a
broadcast of an NBA playoff game, and the Keno lottery game. It is not clear whether Getaway
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imposed a cover charge every night, and if so, in what amount. On the evidence presented, the
Court cannot determine what portion of the proceeds from that evening was attributable to the
Program as opposed to the other attractions. Thus, upon consideration of the relevant factors, the
Court declines to award enhanced damages.
CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment is GRANTED.
is awarded $8,000 in statutory damages. A separate Order follows.
Date: July 30, 2015
THEODORED.
United States Dis
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J&J Sports
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