J&J Sports Productions, Inc. v. Port Richmond Emporium Corp. et al

Filing 48

MEMORANDUM AND ORDER: The Court finds in favor of defendant Aziz, dismissesplaintiffs claim that Mr. Aziz violated the Communications Act of 1934, and directs the Clerk to enter judgment in favor of Mr. Aziz. So Ordered by Magistrate Judge Cheryl L. Pollak on 2/21/2014. (Caggiano, Diana)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------)(

J&J SPORTS PRODUCTIONS, INC.,

MEMORANDUM

Plaintiff,

AND

-against-

ORDER

12 CV 4926 (CLP)

PORT RICHMOND EMPORIUM CORP.
and AHMED A. AZIZ,
Defendants.

---------------------------------------------------)(
On October 3, 2012, plaintiff J&J Sports Productions, Inc. ("J&J" or "plaintiff")
commenced this suit against defendants Port Richmond Emporium Corp. ("Port Richmond" or
the "corporate defendant") and Ahmed A. Aziz ("Aziz" or "defendant"), alleging a violation of
the Communications Act of 1934, 47 U.S.C. §§ 553 and 605. Plaintiff alleges that defendants
infringed on plaintiff's exclusive license to show the September 17, 2011 boxing match between
Floyd Mayweather, Jr. and Victor Ortiz ("the Event"). (Compl. 1 ~ 7).
On December 13, 2012, the undersigned held an initial conference with the parties. At
that time, the Court determined that although Mr. Aziz could represent himself nm se, Port
Richmond, a corporation, could not proceed pro se. The Court Ordered Port Richmond to either
find counsel or face default judgment. Port Richmond failed to obtain counsel, and on March 20,
2013, plaintiff requested a certificate of default against Port Richmond. On March 22, 2013,
plaintiff filed a motion for default judgment. The Honorable Dora L. Irizarry entered a default
judgment against the corporate defendant on March 25, 2013 and referred the matter to the

'Citations to "Compl." refer to plaintiff's Complaint, filed October 3, 2012.
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undersigned for an inquest as to damages and attorneys' fees.
Discovery proceeded with the individual defendant, Mr. Aziz, and on September 19,
2013, the parties consented to a bench trial before the undersigned, which took place on
November 14,2013. Plaintiff seeks $31,342.50 in damages, representing $10,447.50 in actual
damages, with enhanced damages calculated by increasing actual damages by a factor of three to
account for defendants' willfulness. (Proposed Joint Pre-Trial Order ("Pre-Trial Order") at 4-6).
Having heard the testimony and considering the evidence and arguments presented by the
parties, this Court finds in favor of defendant for the reasons set forth below.

FACTUAL BACKGROUND
During the November 14,2013 trial, plaintiff called one witness, Kevin O'Connor, an
investigator retained by J&J, who authenticated certain photographs of Port Richmond, taken on
the night of the Event. (See Pl.'s Ex. 3(a)-(d)). In addition, plaintiff introduced into evidence its
rate sheets, setting forth the rates charged by J&J to commercial entities contracting for the rights
to broadcast the Event. (See Pl.'s Ex. I).
Defendant Aziz, proceeding prose, testified on his own behalf, and called James Bibbins,
a friend of Aziz's, who testified that he was present in Port Richmond on the night of the Event.
Defendant also introduced into evidence additional photographs taken by plaintiff's investigator
that had not been offered by plaintiff, an affidavit signed by plaintiff's investigator, defendant's
DIRECTV account information, and two DIRECTV bills. (Def.'s Ex. A(l)-(5), B, C, D).
Following trial, Mr. Aziz, pursuant to the Court's direction, submitted an additional bill from
DIRECTV, dated August 31, 2013, which the Court marked as "Def.'s Ex. E."
2

A.

Testimony of Kevin O'Connor
Plaintiffs witness, Kevin O'Connor, testified that he has been an investigator for over 20

years and that in 2011, he was employed as an investigator for J&J Enterprises. (Tr. 2 at 7). In
this role, Mr. O'Connor was assigned to visit areas of New York and New Jersey to observe
whether bars or other commercial establishments were bro&lcasting J&J's licensed boxing
matches or sporting events without the right to show the events. (ld. at 8). According to Mr.
O'Connor, J&J provided its investigators with a list oflocations that had paid to show the Event,
and, based on that list, Mr. O'Connor sought out only those establishments that had not
purchased the commercial broadcast rights for the Event from J&J. (ld. at 8-9).
Mr. O'Connor identified Plaintiffs Exhibit 1 as the rate list for J&J's September 27,
2011 welterweight championship fight between Mayweather and Ortiz, which listed the rates
charged by J&J to purchase the right to show the Event; the rates were based on the maximum
seating available in the establishment. (Id. at 10). Mr. O'Connor testified that establishments
that had not purchased the right to show the Event could show it by running a wire from an
outside facility or from an apartment in the building. (.kh at 9-1 0). On cross-examination, Mr.
O'Connor conceded that he received payment for his services depending on the results of his
investigation- namely, he was paid whenever :Pe found a facility that was broadcasting a J&J
program without permission.

iliL. at 27).

On September 17, 2011, plaintiff had exclusive rights to broadcast the Mayweather/Ortiz
boxing match. (Pl.'s Ex. 1). Mr. O'Connor testified that on the night of September 17, he sat in

2Citations

to "Tr." refer to the transcript of the trial proceedings, which took place on
November 14, 2013.
3

his car across the street from Port Richmond watching people come in and out, so he decided to
"go in and take a look." (Tr. at 12). He described Port Richmond as a club on the second floor
of the building, which in plaintiff's photographs appears to be a stand-alone building with
windows looking over the street. (lih; Def.'s Ex. A(3), A(5)). Mr. O'Connor testified that when
he entered the second floor bar, a "large [black] fellow" asked O'Connor to pay him $20 to view
the Mayweather/Ortiz fight, which he paid. (Tr. at 12, 18). Mr. O'Connor testified that there
were a "couple" of pool tables in the bar, and he observed the Event being broadcast on two
televisions monitors. (ld. at 13, 20). On cross-examination, defendant challenged the accuracy
of O'Connor's recollection, suggesting that there were twelve pool tables in the premises, but
O'Connor maintained that there were only "a couple." (ld. at 20). When asked to describe the
size of the television sets broadcasting the Event, O'Connor stated that he was "not too good
with sizes of televisions," but that there was one that was large and one that was small. (liL at
26). He did not recall the specific lighting of the bar, but he testified that he knew it was the
Event being shown because he saw Mayweather wearing an orange and black outfit, and he
recognized the insignia on the ring floor. (.14. at 13, 20).
Mr. O'Connor estimated that there were approximately fifty (50) people in the bar during
the time he was there. (liL at 11). He stated that the majority ofthe people present were African
American, and that some of them were Hispanic. (.14. at 26). He noted that J&J generally
charged around $2,200.00 for facilities that could accommodate 50 people.

iliL at 10-11; see

also Pl.'s Ex. 1). When questioned about the individual who asked Mr. O'Connor for $20 at the
door- who Mr. O'Connor described as "the bouncer"- Mr. O'Connor testified that the
individual remained at the door throughout the time Mr. O'Connor was present. (M. at 15-16).
4

Although Mr. O'Connor saw several people go in and out and speak to the bouncer, he conceded
that he could not be sure if the bouncer was collecting money from these other people because
the room was dark.

iliL. at 15-16, 18-19).

When asked about the photographs that he had taken,

O'Connor testified that he took photographs as he drove past Port Richmond in his cru3 (see Pl.'s
Exs. 3(a)-(c)), but he did not take any photographs of the bouncer, the interior of the bar, or the
televisions broadcasting the Event because he wanted to appear unintrusive. (Tr. at 19).
According to Mr. O'Connor, he spent ten to fifteen minutes in the bar before leaving. (!4..
at 13). On the way out, the bouncer at the door asked him if he was coming back, to which he
responded he would return later. (kl..)

B.

Testimony of Ahmed Aziz
/

The defendant, Ahmed Aziz, testified that he has owned the building that houses Port
Richmond since 1983, and that he opened the bar and pool hall in 1997. (kL. at 28). Mr. Aziz
lives in an apartment behind the bar in the same building, but the apartment has a different
address- 178 Palmer Avenue. (kL. at 33).. Mr. Aziz testified that although his residence is
adjacent to the bar, he does not have a residential cable television account; instead, he subscribes
to a closed-circuit commercial account from DIRECTV, which he understands to mean that he

3

Although the photographs were clearly taken from a moving vehicle and were extremely
blurry, defendant Aziz conceded that the photographs submitted into evidence by plaintiff were
of Port Richmond. (~Pl.'s Ex. 3(a)-(c)). However, as Mr. Aziz pointed out, the plaintiff
produced additional photographs to him during the course of discovery that were of a different
location. (See Def.'s Ex. A(1)-(5)). Not only is it unclear why the investigator could not have
slowed his vehicle to take the photographs or taken them as he was parked across the street,
watching the "people go[ing] in and out," it also is unclear why plaintiff produced other
photographs to Mr. Aziz during discovery that were clearly taken of another location.
5

orders directly from DIRECTV for service at a commercial private office. (Def.'s Ex. E). Based
on the records submitted by Mr. Aziz at trial and in his post-trial submission, the account appears
to be a commercial closed-circuit account from DIRECTV. (Tr. at 3I, 34; Def. 'sEx. E).
Mr. Aziz testified that he often orders boxing events through DIRECTV to watch with his
friends and family after the bar closes to the public at II :30 p.m. {Tr. at 28). According to Mr.
Aziz, on the night of September I7, 20II, he closed the bar to the public early because he was
having an end of summer gathering of friends and family, and he ordered the Event from
DIRECTV for them to watch. Qd.) His testimony was corroborated by the records that he
submitted from DIRECTV. According to his DIRECTV records, Mr. Aziz paid $59.95 to order
the Event directly from DIRECTV.

iliL. at 32; Def.'s Ex. C).

-

Mr. Aziz testified that there were

approximately thirty people in attendance at his gathering, and they were free to go in and out as
they wished. Mr. Aziz denied that there was a bouncer present or that anyone was at the door
collecting money. (Tr. at 28, 32). Mr. Aziz contradicted Mr. O'Connor's testimony, stating that
there was only one black person present, James Bibbins, and that he was there as a friend,
helping out around the bar during the party. (Id. at 3I ).

C.

Testimony of James Bibbins
Mr. Bibbins testified that he is a family friend of Mr. Aziz; the two have known each

other for thirty years, since 1980.

iliL. at 37-38).

Mr. Bibbins testified that although he does not

work for Mr. Aziz, Mr. Bibbins helps out when Mr. Aziz has events for friends at the bar.

iliL. at

38-39).
Mr. Bibbins testified that on September I7, 20 II, he arrived at Port Richmond at noon

6

and remained there the entire day, until about 4:00a.m. (Id. at 39). He testified that there were
between 35 and 45 people present while the Event was being shown. (MJ He noted that there
were very few African Americans present - only himself and maybe one or two others. (kh at
39-40). While the Event was being broadcast, Mr. Bibbins said that he was running up and down
the stairs to get food from the store below the bar and getting drinks - mostly sodas and beers for the guests. (Id. at 40). He testified that he was not working as a bouncer that night nor did he
ever work as a bouncer at Port Richmond. ilih) He also denied that he had taken any money
from anyone, and he testified that he did not recognize Mr. O'Connor and had never seen him
before the trial. (Id.)

DISCUSSION
Plaintiffbrings this claim under the Communications Act of 1934,47 U.S.C. §§ 605(a)
and 553. Section 605(a), provides, inter alii!, that "[n]o person not being authorized by the
sender shall intercept any radio communication and divulge or publish the ... contents ... of
such intercepted communication to any person," 47 U.S.C. § 605(a)(6). The provision has been
held to apply to the interception of cable communications originating as a satellite or radio
transmission. See International Cablevision. Inc. v. Sykes, 75 F.3d 123, 131-32 (2d Cir. 1996),
cert. denied, 519 U.S. 929 (1996); see also Garden City Boxing Club. Inc. v. Polanco, No. 05 CV
3411, 2006 WL 305458, at *5 (S.D.N.Y. Feb. 7, 2006), aff'd, 228 Fed. App'x 29, 30 (2d Cir.
2007); Entertainment by J & J. Inc. v. Mama Zee Rest. & Catering Servs.. Inc., No. 01 CV 3945,
2002 WL 2022522, at *2 (E.D.N.Y. May 21, 2002); Time Warner Cable ofNew York City v.
Taco Rapido Rest., 988 F. Supp. 107, 109 (E.D.N.Y. 1997). Section 553(a) provides similar

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protection to the interception of communications offered over a cable system.4 47 U.S.C. §
553(a)(1).
Section 605 prohibits any person who, "having received any intercepted radio
communication ... [from] divulg[ing] or publish[ing] the existence, contents, substance, purport,
effect or meaning of such communication ... for his own benefit or for the benefit of another not
entitled thereto." 47 U.S.C. § 605(a)(6). An exception to this provision applies to the
interception of cable programming "for private viewing" so long as the "individual[ ] receiving
such programming has obtained authorization for private viewing" under an established
marketing system. 47 U.S.C. § 605(b)(2)(B). The statute defines "private viewing" as the
"viewing for private use in an individual's dwelling unit by means of equipment, owned or
operated by such individual ...." 47 U.S.C. § 605(d)(4).
In order to establish a violation of the Communications Act, plaintiff must prove by a
preponderance of the evidence that defendant engaged in the unauthorized interception of radio
signals or cable communications. In this case, plaintiff alleges, and defendant does not appear to
dispute, that J&J had the exclusive rights to license the broadcast of the Event for commercial
viewing. It is also undisputed that the Event was displayed in the Port Richmond bar and that
defendant did not purchase the right from J&J to publicly broadcast the Event to patrons of Port

4

However, a court is not permitted to grant damages under both statutes for a single
illegal transmission. See International Cablevision. Inc. v. Sykes, 997 F.2d 998, 1009 (2d Cir.
1993). Rather, the Second Circuit has stated that where a defendant is found to have violated
both statutes, the court should award damages pursuant to Section 605. Id.; see also Garden City
Boxing Club. Inc. v. Polanco, 2006 WL 305458, at *5.

8

Richmond. 5

A.

Unauthorized Interception
In the motion papers submitted in connection with the Motion for Default Judgment,

plaintiff's counsel contends that "[i]n order for an unauthorized commercial establishment to
receive a broadcast such as the Event, there must be some wrongful action, such as using an
unauthorized decoder, obtaining cable service and illegally altering the cable service to bring the
signal of the Event into the establishment." (Hooten Aff. 6 ~ 9). Moreover, plaintiff's counsel
asserts: "[i]t is obvious that the Defendant's interception, receipt and broadcast of the Event were
not innocent." (Id. ~ 7).
The caselaw is clear that the use of a "blackbox" to descramble encrypted broadcasts, the
use of an illegal cable drop or splice from an adjacent home into a commercial establishment, or
the misrepresentation of a commercial establishment as a residence to then purchase a broadcast
at residential rates, constitutes an illegal interception or receipt that would violate the statute.
See Joe Hand Promotions. Inc. v. Liriano, No. 06 CV 2940,2007 WL 749681, at *1-3 (E.D.N.Y.
Feb. 15, 2007). However, at trial, the only evidence plaintiff presented to prove that defendant

5

Plaintiff would be entitled to enhanced damages if it could establish that a violation was
"committed wilfully and for purposes of direct or indirect commercial advantage or private
financial gain." 47 U.S.C. § 605(e)(3)(C)(ii). Here, the Court does not discuss enhanced
damages, and therefore any discussion of "commercial purpose" refers only to whether
defendant's viewing of the Event was with his family and friends, and therefore recreational, or
whether he opened Port Richmond and broadcast the Event for his commercial patrons, which
would have been unauthorized. (Def. 'sEx. C, E).
6

Citations to "Hooten Aff." refer to the Affirmation of Paul J. Hooten, Esq., In Further
Support of Judgment By Default, dated March 22,2013.

9

was illegally intercepting the Event was the testimony of the investigator that "[t]he way I
understand it," bars can obtain the Event "either by running a wire of some kind, like a cable
wire, and bringing it in from an outside facility ... [o]r, say, for example, ifthere's an apartment
upstairs, they'll run it right off the apartment upstairs." (Tr. at 10). However, plaintiff offered no
credible evidence to demonstrate that defendant intercepted the Event through the use of a
blackbox or wire snaked through from the residence, and the investigator offered no testimony,
nor was there any other evidence presented, to suggest that any of these methodologies for
intercepting the Event had been used in this case.
Instead, in his defense, defendant Aziz contends that he purchased the Event through his
commercial account with DIRECTV, which he believed authorized him to view the Event with
his friends and family. In support of that defense, Mr. Aziz submitted documentary evidence
demonstrating that during the time at issue, he had an account with DIRECTV, Account No.
052296678, that was designated "For Service at: Commercial Private Office," and that was listed
at 350 Port Richmond Ave., the address ofthe Port Richmond bar. (See Def.'s Ex. D, E). The
account statement, dated September 28, 2011, for this same commercial account, clearly
indicates that Mr. Aziz purchased the right to view the Event on September 17, 2011 from
DIRECTV. (Def. 'sEx. C).
Plaintiff J&J did not present any evidence to contradict Aziz's claim that he had the
DIRECTV account, or that he purchased the Event from DIRECTV. Although counsel
suggested in her oral argument that Aziz had not purchased the "commercial rights" from J&J,
she also argued that: "It's ... our position that as the defendant has his DIRECTV account in his
personal name to his apartment, the defendant would have been able to order the fight through
10

DIRECTV but only to his residence rather than to the establishment." (Tr. at 42). However,
apart from counsel's statement, J&J failed to present any evidence to demonstrate that the
account was to Mr. Aziz's apartment or was in fact a residential account. Not only does the
DIRECTV document clearly state "Commercial Private Office," but when asked the basis for her
claim that the DIRECTV account was registered to Mr. Aziz's residence and not the bar, counsel
argued that the suite number on the bill was an indication that the account was a residential
account. However, while Suite B2 is listed on the bill, plaintiff presented no evidence to support
the assertion that this was in fact Mr. Aziz's residence, and not the bar. Indeed, Mr. Aziz
testified that his residence, which is in the back and on the side of the building where the bar is
located, has a different address altogether- 178 Palmer Avenue. (Id. at 33, 43). Simply looking
at a map corroborates Mr. Aziz's testimony that 178 Palmer Avenue is a side entrance to the
building at the address 350 Port Richmond Avenue. Furthermore, plaintiff's photographs,
although blurry, show that the building is on a corner and that it had a side entrance. (Def.'s Ex.
A(3)). Therefore, absent further evidence to support plaintiff's assertion that the commercial
DIRECTV account was actually registered to Mr. Aziz's home and not to his business, the Court
finds that the statements of counsel alone are not sufficient to prove that Mr. Aziz illegally
intercepted the Event.
Based on the evidence presented at trial, the Court finds that the documentary evidence
establishes that Mr. Aziz was authorized to view the Event as a result of his purchase of the
Event through DIRECTV. Defendant's DIRECTV billing information confirms that Mr. Aziz
paid $59.95 for the Event (Def.'s Ex. C), and that the service was not "snaked" from his
apartment into the bar, but was a legitimate closed commercial account for use at Port Richmond.
11

(Def.'s Ex. E). 7 Furthermore, the "commercial," as opposed to "residential" account, is
registered to 350 Port Richmond Avenue, which is the address ofthe bar, and not 178 Palmer
Avenue, Mr. Aziz's personal address. (Id.)
Thus, in the absence of any evidence presented by plaintiff to contradict the reasonable
inferences to be drawn from the testimony and documents, the Court finds that Mr. Aziz did not
violate the statute because his "interception" of the Event was authorized. See Premium Sports
Inc. v. Connell, No. 10 CV 3753, 2012 WL 691891, at *3 (S.D.N.Y. Mar. 1, 2012) (granting
summary judgment in favor of defendant where the soccer game broadcast on television in
Ireland was transmitted to the defendant bar in New York through use of a slingbox, holding that
there was no unlawful "interception" by the defendants); see also Cablevision of Michigan. Inc.
v. Sports Palace. Inc., 27 F.3d 566, at *4 (6th Cir. 1994) (holding that the fact that a boxing
match was shown at a bar by videotape was insufficient to state a violation of the statute even
though the match was "divulged" or "published"); Smith v. Cincinnati Post & Times-Star, 475
F.2d 740, 741 (6th Cir. 1973) (holding that Section 605 is violated only when a person "both
intercepts and divulges" the communication).

B.

Commercial Viewing
J&J takes the position that based on the investigator's testimony, Aziz was broadcasting

7

It would have been helpful had plaintiff presented evidence or testimony from DIRECTV
to support plaintiff's assertion that, despite the designation "commercial account," this was
actually a residential DIRECTV account. However, given the Court's finding that plaintiff did
not carry its burden to show that Mr. Aziz showed the Event to anyone other than friends and
family, whether the account was residential or not would not alter the Court's findings. See
discussion infra at 16.

12

the Event to paying customers, which only J&J could have authorized. Even if there is no
evidence that Mr. Aziz illegally intercepted the Event, the question is whether Mr. Aziz could
nonetheless be held liable because he engaged in more than a "private viewing" of the Event as
defined in the statute, and unlawfully broadcast the Event "for his own benefit." 47 U.S.C. §
605(a)(6); 47 U.S.C. § 605(b)(2)(B). Although the decision in Premium Sports Inc. v. Connell
suggests that once it is determined that Aziz received the transmission in a lawful fashion, it does
not matter to whom Aziz showed the Event, the court in Premium Sports did not directly address
this particular question and the opinion does not discuss whether the Event was being broadcast
to paying customers of the bar or not. See Premium Sports Inc. v. Connell, 2012 WL 691891, at
*3.
Even if J&J is correct and the broadcast of the Event in Port Richmond was a violation of
the statute regardless of how Aziz received the Event, the Court finds that plaintiff has failed to
prove that Aziz was engaged in more than a private viewing of the Event. Having considered the
totality of the evidence presented at trial, the Court finds that plaintiff has failed to carry its
burden of proof with respect to the question of whether the Event was being broadcast to anyone
other than defendant's friends and family.
As noted, plaintiff has presented nothing to controvert the documentary evidence
demonstrating Mr. Aziz's purchase of the Event from DIRECTV, nor has plaintiff submitted any
arguments to suggest that this commercial account did not authorize Mr. Aziz to show the Event
to friends and family in Port Richmond. The only evidence presented was the testimony of
plaintiff's sole witness, Kevin O'Connor, which the Court did not find to be compelling. Mr.
O'Connor had a poor memory and could not recall basic facts about the bar. He could not recall
13

\

the size of the televisions broadcasting the Event, nor could he recall how many billiard tables
were in the location, testifying that there were a "couple" of pool tables there. (Tr. at 20). The
Court credits Mr. Aziz's testimony that there were in fact twelve pool tables in the bar. Mr.
O'Connor also testified that he did not see the person at the door collect money from anyone else
because it was "a dark room, it's very difficult to observe." (ld. at 18). However, when
questioned on cross examination as to whether there were lights over each pool table, the witness
stated that he could not recall the lights over the tables. When asked, "[c]an't be a dark place if
they're all lit up," he responded, "[y]eah, I can't remember." (Id. at 20). Indeed, the photographs
taken by Mr. O'Connor of the exterior of the bar suggest that the bar was large, with many lights,
a statement confirmed by the testimony of Mr. Aziz and Mr. Bibbins.
Mr. O'Connor's testimony about the people he observed in the bar was also contradicted
by the testimony of the other witnesses. He stated that "a lot" of the people in the bar were
African American. (ld. at 26). Not only does his report neglect to mention any specific number
of African American patrons (see Def.'s Ex. B), but Mr. Aziz and Mr. Bibbins testified that there
were only one or two African Americans present that night. (Tr. at 31, 39-40). Moreover, apart
from the fact that Mr. O'Connor did not see the person at the door collect money from any other
patrons fuL. at 18-19), Mr. O'Connor admitted that he did not have proof to corroborate his claim
that he paid $20 to anyone. (ld. at 19).
Plaintiff's remaining evidence fails to support Mr. O'Connor's assertion that defendant
was engaged in commercial activity at the time the Event was being shown. Apart from Mr.
O'Connor's testimony, the only evidence provided by plaintiff that Mr. O'Connor had even been
to Port Richmond were three blurry photographs taken from a moving vehicle driving past Port
14

Richmond. (Pl.'s Ex. 3(a)-(c)). Nothing on the photographs themselves indicate that they were
actually taken on the night of the Event; the evidence merely demonstrates that the photographs
were developed on September 20, 2011, three days after the Event. (Pl.'s Ex. 3(d)). Given Mr.
O'Connor's testimony that he sat across the street from Port Richmond for a period of time
watching people "going in and coming out, some people coming downstairs for cigarettes" (Tr. at
12), it is unclear why he did not take the photographs during the time his car was stationary. The
fact that he could see people well enough to know why they came downstairs suggests that it was
light enough to get a decent photograph from where he was sitting. The photographs plaintiff did
submit into evidence were so blurry that they were barely useful.
Plaintiffs case would have been strengthened had Mr. O'Connor taken photographs
while inside the bar. Although Mr. O'Connor testified that he could not take photographs inside
the bar because he wanted to remain "unintrusive" (id. at 19), if in fact the bar was in violation of
the law, taking a photograph at that point would have been more than justified. The Court does
not understand why Mr. O'Connor needed to appear unintrusive if he had already determined that
commercial activity was taking place. Moreover, as Mr. Aziz pointed out, "[e]verybody take
[sic] pictures when they come in." (Id. at 19). In an age where people constantly take
photographs on their cellular phones or other personal electronic devices, the Court finds it
difficult to believe that Mr. O'Connor could not take even one photograph inside the bar.
Even if plaintiff could prove that this account was private and not for commercial
showing, the Court finds that plaintiff failed to establish that on this occasion, defendant was
showing the Event to paying customers and not to friends and family. Defendant Aziz's
testimony, corroborated by Mr. Bibbins, on the other hand, suggests that the gathering was not
15

for a commercial purpose, and therefore unauthorized, but was instead a party for family and
friends held after hours. (ld. at 28, 40). While Mr. Aziz may be biased because of his selfinterest in the outcome of the trial, plaintiffs only evidence that the Event was held for a
commercial purpose was Mr. O'Connor's testimony, which, as noted previously, the Court does
not find entirely reliable.
Given that plaintiff failed to satisfy its burden to prove the elements of its claim by a
preponderance of the evidence, and given that the Court credits the evidence presented by the
defendant that he purchased the Event through his commercial DIRECTV account, the Court
finds in favor of defendant Aziz.

CONCLUSION
For the reasons stated above, the Court finds in favor of defendant Aziz, dismisses
plaintiffs claim that Mr. Aziz violated the Communications Act of 1934, and directs the Clerk to
enter judgment in favor of Mr. Aziz. The Clerk is further Ordered to send copies of this
Memorandum and Order to the parties either electronically through the Electronic Case Filing
(ECF) system or by mail.

SO ORDERED.
Dated: Brooklyn, New York
February 21, 2014

/s/ CHERYL POLLAK
_,,_Cheryl
Unite tates Magistrate Judge
Eastern District ofNew York

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