Joe Hand Promotions, Inc. v. Ducummon et al
Filing
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OPINION AND ORDER by Chief Judge Gregory K Frizzell ; granting 19 Motion for Default Judgment (hbo, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
GEORGE DUCUMMON, individually and
d/b/a CITY FOUNTAIN; PIERRE
D. LEVECQUE, individually and d/b/a CITY
FOUNTAIN; and CITY FOUNTAIN, INC.,
d/b/a CITY FOUNTAIN,
Defendants.
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Case No. 11-CV-278-GKF-FHM
OPINION AND ORDER
Before the court is the Motion for Default Judgment [Dkt. #19] filed by plaintiff Joe
Hand Promotions, Inc. (“Joe Hand”). Plaintiff filed this action pursuant to the Communications
Act of 1934, 47 U.S.C. § 605, et seq., and the Cable and Television Consumer Protection and
Competition Act of 1992, 47 U.S.C. § 553, et seq. It alleges defendants, who are owners and/or
operators of City Fountain, a small bar located in Skiatook, Oklahoma, intercepted and exhibited
the Ultimate Fighting Championship 94: “Ill Will,” (“Fight”) telecast on May 24, 2008, to which
plaintiff owns exclusive nationwide distribution rights. In its complaint, plaintiff sought
statutory damages under 47 U.S.C. § 605 and 47 U.S.C. § 553(b)(2), plus attorney fees and
costs. [Dkt. #2]. Defendants were properly served and failed to answer or otherwise respond to
the complaint. [Dkt. ##9-11]. On February 7, 2012, plaintiff filed its Motion for Entry of
Default [Dkt. #15], and on February 8, 2012, the Court Clerk entered default against defendants.
[Dkt. #16].
Viewing the allegations in plaintiff’s Complaint as admitted, defendants have violated 47
U.S.C. § 605 and 47 U.S.C. § 553 by intercepting and exhibiting a program licensed for
distribution to plaintiff without paying plaintiff the required fees. Therefore, plaintiff is entitled
to default judgment.
Plaintiff seeks statutory and enhanced damages totaling $35,000.00 under 47 U.S.C. §
605(e).1 Additionally, it seeks recovery of attorneys’ fees in the amount of $2,300.00 and costs
totaling $460.00.
Statutory and Enhanced Damages
Under § 605(e)(3)(C)(i)(I) and (II), the aggrieved party may recover either actual
damages or statutory damages in “a sum of not less than $1,000 or more than $10,000, as the
court considers just,” for each violation. Additionally, if the court determines a violation was
committed “willfully and for purposes of direct or indirect commercial advantage or private
financial gain,” the court may increase the award of damages by up to $100,000 for each
violation. 47 U.S.C. § 605(e)(3)(C)(ii).
Plaintiff seeks maximum statutory damages of $10,000 and enhanced damages of
$25,000, for a total of $35,000. In support, it has submitted the affidavit of its president, Joe
Hand, Jr. (“Hand”) [Dkt. #20, Ex. 1] and the affidavit of a private investigator, Richard W.
1
Most courts have found that 47 U.S.C. § 605 applies to piracy of satellite communications and
47 U.S.C. § 553 applies to piracy of cable broadcasts. See J & J Sports Productions, Inc. v.
Aguilera, 2010 WL 2362189, *2 (N.D. Ill. June 11, 2010). In this case, plaintiff was unable to
establish whether the defendants intercepted satellite communications or a cable broadcast,
because defendants have failed to appear and defend the case. Plaintiff, arguing it should not be
prejudiced by defendants’ default, urges application of § 605, which has a higher cap for
enhanced damages. The court concurs. However, in light of the amount of damages sought by
plaintiff, it is immaterial whether the court applies § 605 or § 553.
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Huckeby, who visited City Fountain on the evening of the fight and observed the fight being
shown on one television in the establishment. [Dkt. #20, Ex. 2].
Hand stated that his company, a closed-circuit distributor of sports and entertainment
programming, purchased and retained the commercial exhibition licensing rights to the Fight.
[Ex. 1, ¶3]. The company thereafter marketed the sub-licensing rights to the Fight to its
commercial customers, including casinos, racetracks, bars, restaurants and nightclubs. [Id.].
Hand stated the commercial sublicense fee for a commercial establishment the size of City
Fountain for the Fight would have been $750.00. [Id., ¶8]. Hand described several methods by
which signal pirates can unlawfully intercept and broadcast programming, [Id., ¶9]. He avers
that “rampant piracy of our broadcasts by unauthorized and unlicensed establishments (signal
pirates)” has cost the company’s loss of “several millions of dollars of revenue,” and increased
the cost of service to lawful residential and commercial customers. [Id., ¶¶4, 11]. Hand states
the company believes that the persistent signal piracy results in part, “from the perceived lack of
consequences (including nominal or minimal damage awards by the Courts who hear our cases)
for such unlawful interception and exhibition by the commercial signal pirates.” [Id., ¶12].
Huckeby testified he entered City Fountain at 9:25 p.m. on May 24, 2008, the night of the
Fight. [Dkt. #2 at 1]. He rated the establishment as “Poor.” [Id. at 2]. He states the seating
capacity of the bar was approximately 40 people. [Id.]. He counted the number of patrons three
different times, observing five people at 9:25 p.m., seven people at 9:33 p.m. and eight people at
9:38 p.m. [Id.]. He left the bar at 9:38 p.m. [Id.].
In support of its claim, plaintiff cites several recent decisions by courts in the Western
District of Oklahoma in which maximum statutory and enhanced damages have been awarded: J
& J Sports Productions, Inc. v. Sanchez, 5:10-cv-1163-C (W.D. Okla., Jan. 13, 2011) [Dkt. #13];
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J & J Sports Productions, Inc. v. Calderon, 5:10-cv-123-L (W.D. Okla. Feb. 28, 2011) [Dkt.
#21]; J & J Sports v. Cuellar, 5:11-CV-153-L (W.D. Okla., July 6, 2011) [Dkt. #13]; and J & J
Sports v. Cuellar, 5:10-CV-1162-C (W.D. Okla., Apr. 14, 2011) [Dkt. #13].
However, in a similar case in this district, United States District Judge Claire V. Eagan
declined to award maximum statutory damages or the maximum allowable enhancement. Joe
Hand Promotions, Inc. v. John M. McLemore, et al, 4:10-CV-772-CVE-TLW (N.D. Okla. Sept.
26, 2011) [Dkt. #28]. There, the seating capacity of the offending establishment was 70; the
sublicense fee would have been $875; no cover fee was charged; and the event was broadcast on
three television screens. With respect to statutory damages, Judge Eagan reasoned an award of
$2,500 “compensates plaintiff for any fee that should have [been] paid by defendants to obtain a
sublicense to broadcast the program and for disgorgement of any possible financial benefits
derived by defendants from displaying the illegally intercepted program.” [Id. at 3]. Judge
Eagan awarded enhanced damages of $2,500, finding this amount “should be sufficient to punish
defendants for their illegal conduct and deter future violations of § 605,” but “not so substantial
that it will likely put defendants out of business.” [Id. at 4].
In this case, the sublicense fee City Fountain would have paid to broadcast the Fight was
$750; no cover fee was charged; and no more than five to eight patrons were in the bar.
Additionally, plaintiff has presented no evidence of repeated violations by defendants. Adopting
the reasoning set forth in McLemore, the court finds $2,000 to be the appropriate amount for
statutory damages and $2,000 to be an appropriate enhancement, for a total damage award of
$4,000.
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Attorney Fees and Costs
Plaintiff seeks attorney fees under 47 U.S.C. § 605(e)(3)(B)(iii), which provides that
“[t]he court shall direct the recovery of full costs, including awarding reasonable attorney’s fees
to an aggrieved party who prevails.” Id. Plaintiff attached to its motion the declarations of its
counsel, Joshua Cline and Thomas Riley. The declarations include itemized records evidencing
the time spent and the rates charged for the prosecution of this case. The court has reviewed the
declarations and the accompanying itemized time records, and with one exception finds the
amount sought by plaintiff to be reasonable, both with respect to the hourly rates sought and the
time spent. The exception is an entry evidencing six minutes billed by attorney Riley at the rate
of $400/hour. The court finds the rate excessive, and therefore reduces that rate to $200/hour,
resulting in a reduction of $20 for the time charged by attorney Riley. This results in a fee award
of $2,280.00.
Plaintiff seeks taxable costs of $460.00. The court, having reviewed the affidavit of
attorney Cline [Dkt. #20, Ex. 6], grants the requested award of costs.
Conclusion
Plaintiff’s Motion for Default Judgment [Dkt. #19] is granted in part. The court awards
statutory damages in the amount of $2,000.00 and enhanced damages in the amount of
$2,000.00, attorney fees of $2,280.00 and costs of $460.00.
ENTERED this 23rd day of April, 2012.
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