DISH Network LLC et al v. Singh

Filing 9

Memorandum Opinion: Plaintiffs' motion for default judgment as to Count III of the complaint, an award of statutory damages in the amount of $10,000, and a permanent injunction, as outlined above, is granted. (Doc. No. 8 .) Further, upon plaintiffs' representation that Counts I and II of the complaint would be dismissed if plaintiffs' motion is granted, the Court dismisses Counts I and II of the complaint with prejudice. A Judgment Entry will be separately published. Judge Sara Lioi on 2/6/2015. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DISH NETWORK L.L.C., et al.,

PLAINTIFFS,
v.
DONALD SINGH,

DEFENDANT.

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CASE NO. 1:14-cv-1581

JUDGE SARA LIOI

MEMORANDUM OPINION

Presently before the Court is plaintiffs’ motion for default judgment,
statutory damages, and permanent injunction against defendant Donald Singh (“Singh” or
“defendant”), pursuant to Fed. R. Civ. P. 55(b)(2), for violation of the Electronic
Communications Privacy Act, 18 U.S.C. § 2511 et seq. (“ECPA”).1 (Doc. No. 8
[“Motion”] and Doc. No. 8-1 [“Memorandum”].) The Court has jurisdiction over this
case pursuant to 28 U.S.C. § 1331. Defendant has not responded to the motion. For the
reasons that follow, plaintiffs’ motion is GRANTED.
I. BACKGROUND
Plaintiffs DISH Network L.L.C., EchoStar Technologies L.L.C., and
NagraStar L.L.C. (collectively, “DISH Network”) allege that defendant Singh unlawfully
circumvented the DISH Network’s security system and intercepted encrypted,
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Plaintiffs’ three count complaint alleges violations of the Digital Millennium Copyright Act, 17 U.S.C. §
1201 et seq. (Count I), Federal Communications Act, 47 U.S.C. § 605 et seq. (Count II), and EPCA (Count
III). (Doc. No. 1 [“Compl.”].) Plaintiffs move for default only as to Count III, representing to the Court that
Counts I and II will be dismissed if the Court grants relief to plaintiffs as to Count III. (Memorandum at 55
(All page number references are to the page identification numbers generated by the Court’s electronic
filing system.).)

copyrighted, subscription-based DISH Network satellite television programming.
Defendant accomplished this by subscribing to two pirate television services known as
IKS Rocket and Fish TV, which provided defendant with the information needed to
decrypt DISH Network’s satellite signal and view DISH Network programming without
authorization from or payment to DISH Network.
The following facts are derived from plaintiffs’ well-pleaded allegations in
DISH Network’s complaint and documents provided in support of DISH Network’s
motion:
DISH Network is a multi-channel video provider that delivers video,
audio, and data services to approximately 14 million customers via a direct broadcast
satellite system. DISH Network uses high-powered satellites to broadcast, among other
things, movies, sports and general entertainment services to consumers who have been
authorized to receive such services after payment of a subscription fee, or in the case of a
pay-per-view movie or event, the purchase price. (Compl., ¶¶ 9-10 at 3.)
DISH Network contracts for and purchases the distribution rights for most
of the programming broadcast on the DISH Network platform from providers such as
network affiliates, motion picture distributors, pay and specialty broadcasters, cable
networks, sports leagues, and other holders of programming rights. The works broadcast
on the DISH Network platform are copyrighted. DISH Network has the authority of the
copyright holders to protect these works from unauthorized reception and viewing.
(Compl., ¶¶ 11-12 at 3.)
A DISH Network satellite television system consists of a compatible dish
antenna, receiver, smart card, television, and cabling to connect the components. Plaintiff

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EchoStar Technologies provides receivers, dish antenna, and other digital equipment for
the DISH Network system. Smart cards and other proprietary security technologies that
form a conditional access system are supplied by plaintiff NagraStar. (Compl., ¶ 14 at 4.)
DISH Network programming is digitized, compressed, and scrambled
prior to being transmitted to multiple satellites in orbit above Earth. The satellites then
relay the encrypted signal back to Earth where it can be received by DISH Network
subscribers that have the necessary equipment. The EchoStar Technologies receiver
processes an incoming DISH Network satellite signal by locating an encrypted part of the
transmission, known as the entitlement control message, and forwards that message to the
NagraStar smart card. Provided the customer is tuned to a channel he or she is authorized
to watch, the smart card uses its decryption keys to unlock the message, uncovering a
control word. The control word is transmitted back to the receiver in order to decrypt the
DISH Network satellite signal. (Compl., ¶¶ 13, 17-18 at 3-4.)
IKS Rocket and Fish TV are Internet key sharing (“IKS”) services which
provide subscribing end-users with the control words needed to descramble DISH
Network television programming without authority and without payment of a
subscription fee to DISH Network. (Compl., ¶ 25 at 6.)
Defendant has circumvented DISH Network’s security system and
received DISH Network’s satellite broadcasts of copyrighted television programming
without payment of the required DISH Network subscription fee. Defendant
accomplished this by subscribing to IKS Rocket for one year around January 1, 2012, and
purchasing a subscription to Fish TV around April 2013. Through IKS Rocket and Fish
TV, defendant obtained DISH Network’s control words which he intentionally used to

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intercept DISH Network’s satellite signal and view DISH Network programming without
authorization. Defendant violated ECPA by obtaining DISH Network’s control words
through the IKS Rocket and Fish TV services and using them to intentionally intercept
DISH Network programming. (Compl., ¶¶ 8, 26-27, 39-41 at 2-3, 6-7, 9; see also Doc.
No. 8-2 (Declaration of Thomas Dixon [“Dixon Decl.”], ¶¶ 11-12 at 58-59, and Doc. No.
8-3 (Declaration of Steven Rogers [“Rogers Decl.”]), ¶¶ 2-5 at 67-69.)
II. DISCUSSION
A. Fed. R. Civ. P. 55
1. Entry of Default
Federal Rule of Civil Procedure 55 governs default and default judgment.
Rule 55(a) provides for the entry of default against a party who has failed to plead or
otherwise defend against a complaint.
In this case, defendant was properly served with a copy of the summons
and complaint, but failed to file an answer or responsive pleading, or to otherwise defend
the lawsuit. (Doc. No. 8-5 (Declaration of Jeffrey Koberg [“Koberg Decl.”]), ¶¶ 2-4 at
139.) The Court entered default against defendant Singh, and the entry of default was
mailed to defendant at his address of record. (Doc. No. 7.)
Once default is entered, the defaulting party is deemed to have admitted
all of the well-pleaded allegations in the complaint regarding liability, including
jurisdictional averments. Ford Motor Co. v. Cross, 441 F. Supp. 2d 837, 846 (E.D. Mich.
2006) (citing Visioneering Const. v. U.S Fid. and Guar., 661 F.2d 119, 124 (6th Cir.
1981)); see also Fed. R. Civ. P. 8(b)(6) (“An allegation—other than one relating to the
amount of damages—is admitted if a responsive pleading is required and the allegation is

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not denied.”). Accordingly, the Court accepts as true the well-pleaded allegations in
DISH Network’s complaint.
2. Default Judgment
After default has been entered, the Court may enter default judgment with
or without a hearing. Fed. R. Civ. P. 55(b). Based on the well-pleaded factual allegations
in the complaint, and the declarations submitted by plaintiffs in support of the motion for
default judgment, the Court concludes that there is a sufficient basis for determining
defendant’s liability without the need for a hearing. Finally, DISH Network has submitted
evidence that defendant is not an infant, an incompetent person, or on active duty in the
military or otherwise exempted under the Servicemembers’ Civil Relief Act. (Koberg
Decl., ¶¶ 6-9 at 140.)
Even accepting the well-pleaded allegations in the complaint as true, the
Court must still determine whether those facts state a claim for relief as to the cause of
action for which the plaintiffs seek default judgment. J&J Sports Productions, Inc. v.
Rodriguez, No. 1:08-CV-1350, 2008 WL 5083149, at *1 (N.D. Ohio Nov. 25, 2008)
(citation omitted). Plaintiffs seek default judgment on Count III of the complaint, which
alleges that defendant’s intentional interception of DISH Network’s satellite
transmissions through the use of IKS Rocket and Fish TV violates ECPA.
EPCA prohibits unauthorized persons from intentionally intercepting,
endeavoring to intercept, or procuring another to intercept, wire, oral or electronic
communications. 18 U.S.C. § 2511(1)(a). “Intercept” is defined as the “aural or other
acquisition of the contents of any wire, electronic, or oral communication through the use
of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). Satellite television

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transmissions, such as those transmitted by DISH Network, constitute an “electronic
communication” under ECPA. See United States v. One Macom Video Cipher II, 985
F.2d 258, 260 (6th Cir. 1993); DISH Network L.L.C. v. Williamson, No. 3:13-CV-50TAV-CCS, 2013 WL 6119222, at *4 (E.D. Tenn. Nov. 21, 2013) (citing One Macom
Video Cipher II, 985 F.2d at 260-61).
Based on the allegations in the complaint, which the Court accepts as true,
the Court finds that plaintiffs have established the elements required to state a claim for
relief under 18 U.S.C. § 2511(1)(a), and that defendant’s intentional interception of DISH
Network’s satellite signal violates ECPA. Accordingly, plaintiffs are entitled to default
judgment against Singh on Count III of the complaint.2
3. Statutory Damages
After default is entered, the well-pleaded allegations in the complaint as to
liability are taken as true, but not as to damages. Ford Motor Co. v. Cross, 441 F. Supp.
2d at 848 (citing Visioneering Const., 661 F.2d at 124). “[W]here the damages are not for
a sum certain, the Court must determine the propriety and amount of the default
judgment.” J&J Sports Productions, Inc. v. Rodriguez, 2008 WL 5083149, at *1 (citing
Fed. R. Civ. P. 55(b)).
Rule 55(b)(2) permits, but does not require, the district court to conduct an
evidentiary hearing to determine damages. Arthur v. Robert James & Assoc. Assett
Mgmt., Inc., No. 3:11-cv-460, 2012 WL 1122892, at *1 (citing Vesligaj v. Peterson, 331
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Other courts in the Northern District of Ohio, presented with similar fact patterns, have also awarded
default judgment and statutory damages in favor of DISH Network based on ECPA violations. See DISH
Network L.L.C. v. Gohlike, No. 3:13-cv-1796-JJH, Doc. No. 11 at 82 and 85 (N.D. Ohio Sept. 11, 2014);
DISH Network L.L.C.v. Hanna, 1:13-cv-1797-PAG, Doc. No. 12 at 175-76 (N.D. Ohio Nov. 22, 2013);
DISH Network L.L.C. v. Mondry, 1:11-cv-1484-SO, Doc. No. 8 at 69-70 (N.D. Ohio Nov. 29, 2011); DISH
Network L.L.C. v. Berger, 3:11-cv-1483-JZ, Doc. No. 10 at 81-82 (N. D. Ohio Nov. 17, 2011).
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F. App’x 351, 354-55 (6th Cir. 2009)). The Court may rely on affidavits submitted by
plaintiffs in support of damages without a hearing. Id. at *2 (citation omitted).
In this case, reliance on plaintiffs’ declarations in lieu of an evidentiary
hearing is appropriate for at least two reasons. First, plaintiffs seek statutory, rather than
actual, damages, and there is a basis for an award of statutory damages in this case.
Second, defendant has been served with the complaint, the entry of default, and plaintiff’s
motion for default judgment at his address of record, but has failed to appear or otherwise
defend this action and thus would likely not participate in an evidentiary hearing if it
occurred. See id.
Plaintiffs seek statutory damages. Section 2520(c)(2)3 provides that:
(c) Computation of damages.
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(2) In any other action4 under this section, the court may
assess as damages the greater of-(A) the sum of the actual damages suffered
by the plaintiff and any profits made by the
violator as a result of the violation; or
(B) statutory damages of whichever is the
greater of $100 a day for each day of
violation or $10,000.
(Footnote added.)

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18 U.S.C. § 2520 authorizes any person whose communication was intercepted in violation of §
2511(1)(a) to recover civil damages from the person who engaged in the violation. See DirectTV, Inc. v.
Taulbee, No. 3:04cv083, 2005 WL 5576222, at *5 (S. D. Ohio March 4, 2005) (§ 2520(a) permits a private
right of action for violation of 18 U.S.C. § 2511 (citing DirectTV, Inc. v. Treworgy, 373 F.3d 1124, 1128
(11th Cir. 2004))); Williamson, 2013 WL 6119222, at *4 (same (citing DirectTV Inc. v. Bennett, 470 U.S.
565, 569 (5th Cir. 2006))).
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Section 2520(c)(1) provides for the computation of damages when the satellite communication is not
scrambled or encrypted.
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An award of damages under 18 U.S.C. § 2520(c)(2) is discretionary with
the Court. Dorris v. Absher, 179 F.3d 420, 429-30 (6th Cir. 1999). In exercising its
discretion, the proper inquiry for the Court is as follows:
(1) The court should first determine the amount of actual damages to the
plaintiff plus the profits derived by the violator, if any. See 18 U.S.C §
2520(c)(2)(A).
(2) The court should next ascertain the number of days that the statute was
violated, and multiply by $100. See 18 U.S.C § 2520(c)(2)(B).
(3) The court should then tentatively award the plaintiff the greater of the
above two amounts, unless each is less than $10,000, in which case
$10,000 is to be the presumed award. See id.
(4) Finally, the court should exercise its discretion to determine whether
the plaintiff should receive any damages at all in the case before it. See 18
U.S.C § 2520(c)(2).
Id.
DISH Network is not seeking actual damages. There is no evidence that
defendant profited from his illegal interception of DISH Network’s signal, except that he
did enjoy DISH Network programming at a fraction of the cost of a DISH Network
subscription fee.5
Under § 2520(c)(2)(B), the Court may award statutory damages of $100
per day for each violation or $10,000, whichever is greater. Statutory damages are limited
to $10,000 unless the violations exceed 100 days. Direct TV v. Kruse, No. 3:03CV7407,
2004 WL 952844, at *2 (N.D. Ohio April 13, 2014) (citing Smoot v. United Transp.

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On January 1, 2012, defendant made a $25 subscription payment to IKS Rocket. (Rogers Decl., ¶ 4(a) at
68-69.) DISH Network’s average monthly revenue per authorized subscriber is approximately $70 per
month, which does not include access to premium channels. DISH Network’s subscription fee that includes
premium channels “far exceeds” the average monthly fee. Defendant’s illegal interception provided him
with unlimited access to DISH Network’s programming, including access to DISH Network’s premium
channels. (Doc. No. 8-4 (Declaration of Gregory Duval [“Duval Decl.”]), ¶ 18 at 138.)
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Union, 246 F.3d 633, 643 (6th Cir. 2001)). However, there is no evidence in the record of
the number of days the defendant’s violations occurred. Therefore, the Court may only
exercise its discretion to award no damages or $10,000. DIRECTV, Inc. v. Hedger, 322 F.
Supp. 2d 879, 882 (W.D. Mich. 2004) (statute does not provide for an award of statutory
damages falling between $100 per day for each violation or $10,000 (citing DIRECTV v.
Griffin, 290 F. Supp. 2d 1340, 1347-48, n. 28 (M.D. Fla. 2003))).
The Court finds that it would be inappropriate to award no statutory
damages in this case. By virtue of his default, defendant admits that he subscribed to IKS
Rocket and Fish TV in 2012 and 2013, respectively, and used these subscriptions to
illegally intercept DISH Network’s programming. Although the exact period of time
defendant used IKS Rocket and Fish TV cannot be determined from the evidence
available, the Court can infer that defendant intentionally intercepted DISH Network’s
programming for more than one year. Further, the evidence presented by DISH Network
shows that defendant’s conduct results in both lost subscription fees and expenditures of
significant resources to combat piracy. (Duval Decl., ¶ 16 at 137.) Accordingly, the Court
concludes that it is appropriate to exercise its discretion and award statutory fees of
$10,000 to compensate plaintiffs for all of defendant’s violations of ECPA. Hedger, 322
F. Supp. 2d at 882-83 (statutory damages of $10,000 appropriate in the absence of
evidence as to number of days violation occurred when defendant did not appear at
damages hearing).
B.

Injunctive Relief
ECPA authorizes the Court to grant equitable relief as may be appropriate

under 18 U.S.C. § 2520(b)(1):

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(b) Relief.--In an action under this section, appropriate relief includes-(1) such preliminary and other equitable or declaratory
relief as may be appropriate;
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In order to prevent future violations, plaintiffs seek an order permanently
enjoining defendant from: (1) circumventing, or assisting others in circumventing, DISH
Network’s security system, or otherwise intercepting, or assisting others in intercepting,
DISH Network’s satellite signal; and (2) testing, analyzing, reverse engineering,
manipulating, or otherwise extracting codes, data, or information from DISH Network’s
satellite receivers, smart cards, satellite data stream, or any other part or component of the
DISH Network security system. (Memorandum at 55.)
To obtain a permanent injunction, plaintiffs must show that: (1) they have
suffered irreparable injury; (2) remedies at law are not adequate to compensate for that
injury; (3) the balance of hardship between the plaintiffs and defendant weighs in favor of
a permanent injunction; and (4) the public interest would not be disserved by a permanent
injunction. The decision whether to grant a permanent injunction lies within the Court’s
discretion. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S. Ct. 1837, 164
L. Ed. 2d 641 (2006); List v. Ohio Elections Comm’n, Case No. 1:10-cv-720, --F. Supp.
3d--, 2014 WL 4472634, at *5 (S. D. Ohio Sept. 11, 2014) (citations omitted). An
evidentiary hearing is not required prior to issuing a permanent injunction in the case of a
default judgment because there are no factual issues in dispute. Chanel v. Cong, No. 102086, 2011 WL 6180029, at *9 (W. D. Tenn. Dec. 8, 2011) (citing Gibson Guitar Corp.
v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 546 (6th Cir. 2005)).
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Defendant’s liability has been established. The declarations submitted by
plaintiffs in support of the motion also establish that DISH Network expends significant
sums in security measures to prevent illegal interception, and that piracy requires
constant updates at great expense to prevent unauthorized devices from intercepting
DISH Network’s programming. In addition to the cost of new security measures to defeat
the latest piracy techniques and lost subscription revenues, piracy and its impact on DISH
Network’s system security interferes with DISH Network’s relationship with its
programming providers and subscribing customers. (See Duval Decl., ¶¶ 16-18 at 13738). Defendant’s illegal conduct has contributed to these injuries, which are irreparable
and cannot be calculated or compensated by money damages alone. Further, the balance
of hardships clearly weighs in favor of plaintiffs—defendant cannot complain of being
enjoined from violating a federal law. Finally, the public is not disserved by protecting
intellectual property and enforcing federal law, and may also benefit if the costs to
prevent piracy are reduced.
The Court concludes that the balance of these factors weighs in favor of
granting a permanent injunction, and that injunctive relief is appropriate to prevent
defendant from illegally intercepting DISH Network’s programming in the future and
assisting others from doing so. DISH Network L.L.C. v. Irving, No. 8:14-cv-2199-T33MAP, 2014 WL 6470231, at *4, (N.D. Fla. Nov. 16, 2014) (defendant permanently
enjoined against future ECPA violations); Williamson, 2013 WL 6119222, at *6 (same);
DISH Network L.L.C. v. Hanna, 1:13-cv-1797-PAG, Doc. No. 12 at 175-76 (N.D. Ohio
Nov. 22, 2013) (same); DISH Network L.L.C. v. Mondry, 1:11-cv-1484-SO, Doc. No. 8 at
69-70 (N.D. Ohio Nov. 29, 2011) (same); DISH Network L.L.C. v. Berger, 3:11-cv-1483-

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JZ, Doc. No. 10 at 81-82 (N. D. Ohio Nov. 17, 2011) (same); but see DISH Network
L.L.C. v. Jones, Civil Action No. 12-1273, 2012 WL 2885933, at *3 (E.D. Pa. July 16,
2012) (no permanent injunction because there is no evidence that piracy will continue in
future or that statutory damages are insufficient to deter future ECPA violations); DISH
Network L.L.C. v. Gohlike, No. 3:13-cv-1796-JJH, Doc. No. 11 at 85 (N.D. Ohio Sept.
11, 2014) (economic harm caused by defendant’s piracy not irreparable and
“insubstantial burden” of permanent injunction is not sufficient to support issuance of an
injunction).
Accordingly, defendant Donald Singh is hereby permanently enjoined
from: (1) circumventing or assisting others in circumventing DISH Network’s security
system, or otherwise intercepting or assisting others in intercepting DISH Network’s
satellite signal; and (2) testing, analyzing, reverse engineering, manipulating, or
otherwise extracting codes, data, or information from DISH Network’s satellite receivers,
smart cards, satellite data stream, or any other part or component of the DISH Network
security system.
III. CONCLUSION
For the reasons contained herein, plaintiffs’ motion for default judgment
as to Count III of the complaint, an award of statutory damages in the amount of $10,000,
and a permanent injunction, as outlined above, is GRANTED.

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Further, upon plaintiffs’ representation that Counts I and II of the
complaint would be dismissed if plaintiffs’ motion is granted, the Court dismisses Counts
I and II of the complaint with prejudice.
A Judgment Entry will be separately published.

IT IS SO ORDERED.
Dated: February 6, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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