DIRECTV, LLC v. Kuhn et al
Filing
34
Memorandum Opinion and Order granting Plaintiff's motion for summary judgment (Doc. # 21 ). Judgment is hereby entered in favor of DirecTV as to count one of the Complaint. Counts two and three are dismissed. Judge John R. Adams on 8/1/16. (K,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DIRECTV, LLC,
Plaintiff,
vs.
JOHN S. KUHN, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
CASE NO. 5:14 CV 2657
JUDGE JOHN R. ADAMS
MEMORANDUM OF OPINION
(Resolving Doc. #21)
This matter is before the Court on Plaintiff, DirecTV, LLC’s (“DirecTV”), motion for
summary judgment as to liability under 47 U.S.C. § 605 (Count 1). For the reasons that follow,
DirecTV’s motion (Doc. #21) is GRANTED.
I.
FACTS
Defendant John S. Kuhn (“Kuhn”) is a licensed attorney who owns and operates
Defendant Sadie Rene, Inc., doing business as “Sadie Rene’s,” collectively “Defendants.” Sadie
Rene’s is located at 7200 Whipple Ave., NW, North Canton, OH 44720. Plaintiff DirecTV is a
direct broadcast satellite service that provides a variety of programming including sports and
other special interest content. DirecTV offers different service contracts to residential and
commercial customers with different rates. Although the service contracts are different, the
physical equipment used to receive DirecTV’s broadcast signal is functionally interchangeable
and can receive a signal at a residential or commercial location.
DirecTV is aware that
individuals will move residential equipment to commercial locations in an attempt to avoid
paying the higher price of a commercial service contract. In an attempt to prevent individuals
from exploiting residential contracts in commercial locations, DirecTV sends observers to
businesses who broadcast satellite content.
DirecTV has placed the residential service agreement governing Mr. Kuhn’s residential
account in the record; the agreement provides at part 1, subsection (h):
We provide Service only for your private non-commercial use, enjoyment and
home viewing. The programming may not be viewed in areas open to the public
or in commercial establishments.
The agreement further provides, at part 10, subsection (d):
This Agreement and any lease, activation, programming, or other service
commitment agreement that you entered into in connection with obtaining Service
or Receiving Equipment constitute our entire agreement. No salesperson or other
representative is authorized to change it.
(Motion to Dismiss, Doc. #18-2, p. 11.) Defendants do not dispute that this service agreement
governed Mr. Kuhn’s DirecTV account.
DirecTV alleges, and Defendants admit, that they moved DirecTV equipment from Mr.
Kuhn’s home, where he had a residential contract, to his business, Sadie Rene’s, where he did
not have a commercial service agreement, and proceeded to broadcast DirecTV satellite
programming, in violation of his residential agreement, without paying the commercial rate.
(Amended Answer, Doc. # 15; Affidavit of John S. Kuhn, Doc. # 24-1.) DirecTV created a
record of one such broadcast by sending a representative, Kwasi English, to Sadie Rene’s on
June 11, 2014, where, at approximately 9:28 p.m. he observed DirecTV sports programming
playing on one television in the bar area. Mr. English further observed a waiter using a DirecTV
remote control to change the channels; recorded the receiver number; noted a DirecTV channel
banner displayed on the broadcast; and recorded the fire code occupancy of the building at 101200. While in the bar, Mr. English took photos and recorded video. Images were produced
along with Mr. English’s affidavit in support of Plaintiff’s Motion for Summary Judgment.
2
Defendants do not dispute what Mr. English observed, but allege that the equipment was moved
with the verbal permission of a customer sales representative. According to Mr. Kuhn he
suggested to a sales representative named Joel that he move his home equipment to his business
for a test period to determine whether satellite service at Sadie Rene’s would be disrupted by
inclement weather. (Amended Answer, Doc. # 15; Affidavit of John S. Kuhn, Doc. # 24-1.)
Defendants do not address the content of the service agreement cited by DirecTV as precluding
any verbal amendment of the service contract.
Defendants further agree that content was broadcast at Sadie Rene’s using the residential
account. Mr. Kuhn explains in his affidavit, that he displayed DirecTV programing at Sadie
Rene’s under his residential account for twenty-four days. (Affidavit of John S. Kuhn, Doc. #241 ¶ 4.) Defendants do not dispute existence of the residential service contract or in any way
address the contract terms cited by DirecTV that explicitly limit the use of Mr. Kuhn’s service to
his residence, and preclude any amendment of service terms by salespeople, or other
representatives. Defendants have not introduced any record of the conversation Mr. Kuhn was
alleged to have had with a sales representative of DirecTV in May of 2014. (Amended Answer,
Doc. # 15, ¶ 5.) The record of account produced by DirecTV does not reflect the sales call Mr.
Kuhn describes, or, any other sales call. (Motion for Summary Judgment, Doc. #21-5, Exhibit
D.) According to Defendants, they received a letter from DirecTV’s counsel concerning their
unauthorized use of the residential account at the commercial location on July 1, 2014; only after
receiving this letter did Defendants seek a commercial account from DirecTV, on or about July
11, 2014. (Amended Answer, Doc. #15, ¶¶ 4 & 8.) Within two weeks, DirecTV terminated this
commercial contract.
3
The termination of the Sadie Rene’s commercial account was the subject of Defendants’
counterclaims, which were dismissed on March 30, 2016.
By way of summary, much as
Defendants used a residential account for service to a commercial location, Defendants
misrepresented the intended use of the commercial account when they sought service in July and
purchased a less expensive commercial viewing account, which was restricted for use in
premises where no food or drink was served. In support of the Motion to Dismiss, DirecTV
demonstrated that the commercial viewing account was terminated pursuant to the terms of the
service contract, because Sadie Rene’s was a commercial establishment that sells food and
alcohol for immediate consumption and was therefore in breach of the terms of service. (Motion
to Dismiss, Doc. #18-3, Exhibit B.) Defendants did not oppose the motion to dismiss or in any
way dispute the information provided.
In response to DirecTV’s motion for summary judgment, Defendants contend that
Defendant John S. Kuhn acted “at all times herein” only in his capacity as an “officer and
director of Sadie Rene, Inc.” and therefore should not be held personally liable. (Response to
Motion for Summary Judgment, Doc. # 24, p. 3.) Defendants further state that because a sales
representative acquiesced to the use of the residential account, on an unspecified, open-ended,
“trial basis” at the commercial location, Kuhn and Sadie Rene’s are authorized users.
Defendants also contend that the short-lived commercial account at Sadie Rene’s constitutes
“accord and satisfaction” of the dispute over the use of the residential account at the commercial
premises.
II.
LEGAL STANDARD
Summary judgment is appropriate when the “pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is no
4
genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law.” Estate of Smithers v. City of Flint, 602 F.3d 758, 761 (6th Cir. 2010). A fact must be
essential to the outcome of a lawsuit to be ‘material.’ Anderson v. Liberty Lobby Inc., 477 U.S.
242, 248 (1986). Summary judgment will be entered when a party fails to make a “showing
sufficient to establish…an element essential to that party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 322-23. “Mere conclusory and unsupported allegations, rooted in speculation, do not
meet [the] burden.” Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir. 2003).
Summary judgment creates a burden-shifting framework. See Anderson, 477 U.S. 250.
The moving party has the initial burden of showing there is no genuine issue of material fact.
Plant v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000). Specifically,
“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.”
Fed.R.Civ.P. 56(c)(1).
The burden then shifts to the nonmoving party to prove that there is an issue of material fact
that can be tried. Plant, 212 F.3d at 934. If this burden is not met, the moving party is then
entitled to a judgment as a matter of law. Bell, 351 F.3d at 253. When evaluating a motion for
summary judgment, the Court construes the evidence and draws all reasonable inferences in the
light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The non-moving party may not simply rely on its pleadings; rather it
5
must “produce evidence that results in a conflict of material fact to be resolved by a jury.” Cox v.
Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir.1996). A fact is “material” only if its
resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S.
242248 (1986).
III.
ANALYSIS
Defendants have admitted that John S. Kuhn is the “only person or entity holding a
financial interest in the commercial establishment Sadie Rene’s,” a bar that serves food and
alcohol under liquor license located at 7200 Whipple Rd., North Canton, OH 44720. (Responses
to Interrogatories, ##1; 2; 12.) Defendants further admitted that Mr. Kuhn “had a DirecTV
residential account in the name of John Kuhn, account number 21437378” from which an
employee of Sadie Rene’s, who Mr. Kuhn had the “right and ability to supervise,” exhibited
DirecTV programming at the commercial establishment on June 11, 2014.
(Responses to
Interrogatories, ##3; 7; 9.) These admissions demonstrate the absence of any genuine dispute
over material facts concerning Mr. Kuhn’s personal liability for his decision to set up and use his
DirecTV receiver and broadcast content using his residential account at his business.
Defendants have admitted to moving DirecTV equipment from Mr. Kuhn’s house to
Sadie Rene’s and broadcasting DirecTV content at Sadie Rene’s from Mr. Kuhn’s residential
account for twenty-four days, including June 11, 2014, when DirecTV’s auditor collected the
images produced to verify unauthorized broadcast. (Amended Answer, Doc. # 15; Affidavit of
John S. Kuhn, Doc. # 24-1.) The service contract governing Mr. Kuhn’s residential account was
provided by DirecTV and is unambiguous:
This Agreement and any lease, activation, programming, or other service
commitment agreement that you entered into in connection with obtaining Service
or Receiving Equipment constitute our entire agreement. No salesperson or other
representative is authorized to change it. If any provision is declared by a
6
competent authority to be invalid, that provision will be deleted or modified to the
extent necessary, and the rest of the Agreement will remain enforceable. The
terms of this Agreement that expressly or by their nature survive termination shall
continue thereafter until fully performed.
(Motion to Dismiss, Doc. #18-2, p. 11.) Defendants have not produced any material received in
discovery, or otherwise, that varies the terms of the service agreement. Mr. Kuhn’s averments
confirm his and the other named Defendants’ breach of the service agreement. Under the terms
of the agreement, the individual Mr. Kuhn describes speaking to in May had no authority to vary
the terms of the agreement. Defendants do not deny receiving or having access to the terms of
the agreement governing Mr. Kuhn’s residential DirecTV service; they do not in any way
address the service agreement.
Defendants have admitted all elements necessary to demonstrate a violation of 47 U.S.C.
§ 605 of the Federal Communications Act, which provides at part (a):
no person receiving, assisting in receiving, transmitting or assisting in
transmitting, any interstate or foreign communication by wire or radio shall
divulge or publish the existence, contents, substance, purport or effect, or
meaning thereof, except through authorized channels of transmission or reception,
(1) to any person other than the addressee, his agent, or attorney . . . No person
not being authorized by the sender shall intercept any radio communication and
divulge or publish the existence, contents, substance, purport, effect, or meaning
of such intercepted communications to any person. 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.
Although the language of the statute itself references communication by “wire or radio,” the
United States Sixth Circuit Court of Appeals finds the statute applicable to satellite content
service providers. National Satellite Sports, Inc., v. Eliadis, Inc., 253 F.3d 900 (6th Cir. 2001).
The Sixth Circuit held that 47 U.S.C. § 605 (a) operates in concert with sections 47 U.S.C. § 605
(e)(3)(A), which provides “[a]ny person aggrieved by any violation of subsection (a) of this
7
section . . . may bring a civil action in a United States district court or in any other court of
competent jurisdiction” and 47 U.S.C. § 605 (d)(6), which defines “any person aggrieved” to
“include any person with proprietary rights in the intercepted communication by wire or radio,
including wholesale or retail distributors of satellite cable programming,” to extend coverage of
the Act to content providers like DirecTV. Id. at 907. Accordingly, DirecTV has demonstrated a
right to recovery under 47 U.S.C. § 605.
Plaintiff’s Complaint contained three counts, the first, which has been addressed here,
alleged violations of 47 U.S.C. § 605; the second alleged violations of 18 U.S.C. § 2511; and the
third sought recovery for “civil conversion”; all counts address the same alleged violation by
Defendants and appear to be cumulative of one another. The dispositive motions deadline has
passed with Plaintiff filing a timely dispositive motion that solely addresses Count One without
referencing Counts Two and Three. Plaintiff has clearly elected a single theory of recovery.
Accordingly this Court will dismiss counts two and three sua sponte for want of prosecution.
IV.
CONCLUSION
DirecTV’s motion for summary judgment is GRANTED. Judgment is hereby entered in
favor of DirecTV as to count one of the Complaint. Counts two and three are DISMISSED.
IT IS SO ORDERED.
/s/ John R. Adams
_______________________
JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT COURT
DATED: AUGUST 1, 2016
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?