J&J Sports Productions, Inc. v. Orellana et al
Filing
24
OPINION AND ORDER granting 12 Plaintiff's Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
J&J SPORTS PRODUCTIONS, INC.,
as Broadcast Licensee of the
February 16, 2008 “The Epic
Battle Continues”: Pavlik/
Tylor Event,
§
§
§
§
§
§
Plaintiff,
§
§
VS.
§
§
(1) FRANCISCO RAMIRO ORELLANA, §
Individually and d/b/a EL FERRI §
a/k/a EL FERRI MEXICAN
§
RESTAURANT & BAR, and
§
§
(2) AGUSTINA MONTANO PORTILLO
§
a/k/a AUGUSTINA MONTANO
§
PORTILLO, Individually and
§
d/b/a EL FERRI a/k/a EL FERRI
§
MEXICAN RESTAURANT & BAR,
§
§
Defendants.
§
CIVIL ACTION H-11-0574
OPINION AND ORDER OF SUMMARY JUDGMENT
The
above
referenced
action,
grounded
in
the
Federal
Communications Act of 1934, as amended by the Federal Cable
Communications Act of 1984, 47 U.S.C. §§ 553 and 605,1 alleges that
1
Section 553 provides in relevant part, “No person shall
intercept or receive or assist in intercepting or receiving any
communications service offered over a cable system, unless
specifically authorized to do so by a cable operator or as may
otherwise be specifically authorized by law.”
Section 605(a) states in relevant part, “[N]o person
receiving . . . any interstate or foreign communication by wire
or radio shall divulge or publish the existence, contents,
substance, purport, effect, or meaning thereof, except through
authorized channels of transmission or reception . . . to any
person other than the addressee, his agent, or attorney . . . .
-1-
Defendants Francisco Ramiro Orellana, Individually and d/b/a El
Ferri a/k/a El Ferri Mexican Restaurant & Bar, and Agustina Montano
Portillo a/k/a Augustina Montano Portillo, Individually and d/b/a
El Ferri a/k/a El Ferri Mexican Restaurant & Bar, illegally and
willfully intercepted and/or received the interstate communication
of a closed circuit February 16, 2008 fight, “The Epic Battle
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 communication 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.”
As noted by the district court in J&J Sports Productions,
Inc. v. Live Oak County Post No. 6119 Veterans of Foreign Wars,
Civ. No. C-08-270), 2009 WL 483157, *4 n.3 (S.D. Tex. Feb. 14,
2009),
“[I]t is not clear that damages resulting from one
unlawful act of cable or satellite ‘piracy’ are
recoverable under both § 553 and 605.” Innovative
Sports Mktg. v. Medeles, C.A. No. H-07-3281, 2008 U.S.
Dist. LEXIS 31409, at *3-4, 2009 WL 1758886 (S.D. Tex.
Apr. 15, 2008). “The Fifth Circuit has not explicitly
addressed whether a plaintiff can recover under both
sections for the same action.” Id. at *4 (citing
Prostar v. Massachi, 239 F.3d 669, 673 (5th Cir.
2001)(recognizing the disagreement on the issue of
double recovery and citing United States v. Norris, 88
F.3d 462, 466 (7th Cir. 1996) for the proposition that
a plaintiff may not recover under both sections).
“However, even the courts that have held that liability
under § 553 and § 605 overlap often have chosen to
impose liability under § 605 and not § 553.”
Innovative Sports Mktg., 2008 U.S. Dist. LEXIS 31409,
at *4 (citing Ent’mt by J&J v. Al-Waha Enters., 219 F.
Supp. 2d 769 (S.D. Tex. 2002)(explaining that courts
generally award damages under section 605 because it is
more generous to plaintiffs)).
-2-
Continues”:
Kelly
Pavlik
Middleweight
Championship
v.
Jermain
Fight
Taylor,
Program
(the
II,
WBC
Super
“Event”),
and
exhibited the Event in Defendants’ establishment, El Ferri a/k/a El
Ferri
Mexican
“restaurant”),
Productions,
Restaurant
thereby
Inc.’s
&
Bar
(the
misappropriating
licensed
exhibition
“Establishment”
Plaintiff
of
the
J&J
or
Sports
program
and
infringing upon Plaintiff J&J Productions, Inc.’s exclusive rights
to
sub-license
that
telecast.
Pending
before
the
Court
is
Plaintiff J&J Sports Productions, Inc.’s motion to for summary
judgment (instrument #12).
Standard of
Review
Summary judgment is proper when “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(c). The movant has the burden to demonstrate that no genuine
issue of material fact exists and that it is entitled to judgment
as a matter of law.
Celotex Corp. v. Catrett, 317, 323 (1986).
The substantive law governing the claims identifies the essential
elements and thus indicates which facts are material.
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where the non-movant bears the burden of proof at trial, the
movant need only point to the absence of evidence to support an
essential element of the non-movant’s case; the movant does not
-3-
have to support its motion with evidence negating the non-movant’s
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
case.
1994).
If the movant succeeds, the non-movant must come forward with
evidence such that a reasonable jury could return a verdict for the
nonmoving party.”
248.
Anderson v. Liberty Lobby, Inc., 477 U.S. at
The non-movant “must come forward with ‘specific facts
showing there is a genuine issue for trial.’” Matsushita Elec. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“A factual
dispute is deemed ‘genuine’ if a reasonable juror could return a
verdict for the nonmovant, and a fact is considered ‘material’ if
it might affect the outcome of the litigation under the governing
substantive law.”
Cross v. Cummins Engine Co., 993 F.2d 112, 114
(5th Cir. 1993).
Summary judgment is proper if the non-movant
“fails to make a showing sufficient to establish the existence of
an element essential to that party’s case.”
Celotex Corp., 477
U.S. at 322-23; Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744,
752 (5th Cir. 2006).
Although the court draws all reasonable
inferences in favor of the non-movant, the non-movant “cannot
defeat
summary
conclusory,
unsubstantiated
assertions, or ‘only a scintilla of evidence.’”
Turner v. Baylor
Richardson
Med.
judgment
Center,
with
476
F.3d
337,
343
(5th
Cir.
2007).
Conjecture, conclusory allegations, unsubstantiated assertions and
speculation are not adequate to satisfy the nonmovant’s burden.
-4-
Little v. Liquid Air Corp., 37 F.3d 1069, 1079 (5th Cir. 1994);
Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002).
pleadings competent summary judgment evidence.
Nor are
Little, 37 F.3d at
1075; Wallace v. Texas Tech. U., 80 F.3d 1042, 1045 (5th Cir. 1996).
Plaintiff’s Motion for Summary Judgment (#12)
Plaintiff has cited numerous cases and presented substantial
evidence
in
support
of
all
elements
of
its
claims
against
Defendants for the unauthorized interception of the closed-circuit
telecast
and
broadcast
of
the
signal
of
the
Event
in
their
Establishment on February 16, 2008 in violation of the Federal
Communications Act, a strict liability statute.
The attached
documentary evidence includes the following: a copy of the License
Agreement between the promoter of the Event and Plaintiff that gave
Plaintiff the exclusive right to license the exhibition of the
Event
to
commercial
establishments;
an
affidavit
from
Maria
Gonzales, Plaintiff’s Auditor, “hired for the specific purpose of
finding violators of the anti-piracy statute,” and an eyewitness to
the exhibition of the Event in Defendants’ restaurant on the
February
Agustina
16,
2008;
Montanao’s
Defendants
Francisco
responses
to
Ramiro
Plaintiff’s
Orellana
and
request
for
admissions; and an affidavit from Thomas P. Riley, a representative
and custodian of records of Plaintiff, regarding damages.
Because the actual amount of damages is difficult to prove,
Plaintiff elects to seek statutory damages of $10,000.00 pursuant
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to the Communications Act, 47 U.S.C. § 605(e)(3)(C)(i)(II).2
As a result of this piracy, Plaintiff, which paid substantial
fees for the right to sublicense the broadcast to commercial
establishments, asserts and provides evidence that in addition to
lost revenue, it deserves further compensation because it has lost,
and will continue to lose, as its customers legitimate commercial
establishments which must compete with unauthorized commercial
establishments
like
Defendants’
establishment
that
offer
the
broadcast to their patrons for a lesser amount than the authorized
establishments or for no fee.
Plaintiff asserts, with documentary
support, that Defendants’ conduct has the potential to erode the
base of Plaintiff’s customers.
Plaintiff has also suffered damage
to its goodwill and reputation and the loss of its right and
ability to control and receive fees for the transmission of the
Event.
Furthermore, with citation to authority, Plaintiff requests
additional damages for a “willful” act performed by Defendants for
direct or indirect commercial advantage or private financial gain
under 47 U.S.C. § 605(e)(3)(C)(ii) in the amount of $100,000.00.
See ON/TV of Chicago v. Julien, 763 F.2d 839, 844 (7th Cir. 1985),
citing TransWorld Airlines, Inc. v. Thurston, 469 U.S. 111, 127
(1985).
The fact that the violation was willful is established by
2
This amount falls within the range of the statute, which
permits recovery from $1000.00 up to $10,00.00 for each
violation. 47 U.S.C. § 605(e)(3)(C)(i)(II).
-6-
the fact that to receive the unauthorized broadcast of the Event,
Defendants had to commit a wrongful act to decode the scrambled
signals, such as using an unauthorized decoder or satellite access
card or moving an authorized decoder or satellite card from its
authorized location to the Establishment or illegally altering the
cable
or
satellite
Establishment.
service
to
bring
the
signal
into
the
Ex. A, Affid. of Thomas P. Riley, at ¶¶ 7, 10.
Plaintiff also submits evidence that Defendants exhibited the Event
for financial gain.
In
addition,
attorney’s
fees
553(c)(2)(C)
pointing
and
and
out
costs
is
that
an
award
of
reasonable
mandatory
under
47
U.S.C.
a
supporting
605(e)(3)(B)(iii),
providing
§§
affidavit from David M. Diaz (Exhibit B), and citing authority
recognizing a one-third contingent fees as reasonable for the
prosecution of anti-piracy cases, Plaintiff seeks an award of onethird
(33
1/3%)
of
the
actual
and
additional
prosecution of this action through final judgment.
damages
for
Alternatively,
Plaintiff requests an award based on a lodestar calculation for its
counsel’s work for six hours at an hourly rate of $250.00, for a
total of $1500.00.
Finally
Plaintiff
asks
the
Court
to
permanently
enjoin
Defendants from ever intercepting or broadcasting an unauthorized
program in violation of the Communications Act, 47 U.S. C. §
605(e)(3)(B)(i).
-7-
Initially, in response, Defendants conclusorily asserted, with
a supporting affidavit from Defendant Agustino Montano Portillo
(“Portillo”), that “[D]efendants never illegally intercepted the
closed-circuit telecast of the April 26, 2008 ‘Latin Fury’:
Cesar
Chavez,
Jr.
v.
Tobia
Guiuseppe
Loriga
WBC
Julio
Continental
Americas Light Middleweight Championship Fight Program.”
#13 at
p.2.
In reply (#14), inter alia Plaintiff objected that this
allegation is not only conclusory, but even more, that the date and
the program cited in the affidavit were not for the program or date
targeted in Plaintiff’s complaint and therefore incompetent to
preclude summary judgment.
Subsequently
Portillo,
stating
that
she
filed
the
wrong
affidavit from another case, submitted an unopposed motion for
leave to file an amended affidavit (#18), which the Court granted
(#21).
Portillo then filed a one-page affidavit (#22) stating in
relevant part,
I was present at the El Ferri Mexican Restaurant and Bar
on February 16, 2008, and contrary to the affidavit of
Plaintiff, we did not broadcast the Pavlik/Taylor fight
on that date, nor did we have the capability to broadcast
the fight. We only had Karoke [sic] at the restaurant
that evening and did not illegally intercept the
communication as alleged by the plaintiff.
In reply (#23), Plaintiff notes Defendants’ failure to cite
any authority or to respond to the substance of Plaintiff’s claims.
Insisting that even if everything in the amended affidavit is
-8-
true, it does not refute that the Event went on in Defendants’
restaurant’ Plaintiff points out Portillo’s affidavit fails to
state that she was there during the time the Event was on and thus
the affidavit does not refute that the Event was exhibited at the
restaurant that night; “evening” is not night.
affidavit
does
not
say
that
she
was
in
the
Moreover the
room
where
the
televisions were on, as opposed to the kitchen or in an office, nor
does she swear that she continually observed the television so that
she could testify that the Event was not on those televisions at
10:52 p.m. on February 16, 2008, as Plaintiff’s Auditor Gonzales
swears.
Summary judgment affidavits must provide clear and direct
evidence. Le v. Cheesecake Factory Rests., Inc., Civ. A. No. H-035713, 2005 U.S. Dist. LEXIS 42881, *32 (S.D. Tex. Sept. 14,
2005)(“affidavits must contain a clear explication of factual
information that would be admissible at trial”).
Furthermore, Portillo’s affidavit does not refute Plaintiff’s
claim that Defendants violated of the Communications Act by simply
stating, “We . . . did not illegally intercept the communication as
alleged by the Plaintiff.”
Plaintiff’s complaint (#1 at ¶¶ 12 and
16) was not limited to interception of the signal:
On February 16, 2008 Defendants willfully intercepted
and/or received the interstate communication of the
Event. In the alternative, Defendants assisted in the
receipt of the interstate communication of the Event. .
. . Defendants were not authorized to intercept, receive
or transmit the communication of the Event or to assist
in such action is any form at any time.
-9-
Interception is only one method of obtaining the Event unlawfully.
See Joe Hand Promotions v. Malespin, 2001 U.S. Dist. LEXIS 2037,
*9-10 (S.D.N.Y. Feb. 27, 2001)(“The respective defendants elected
not
to
enter
into
contract
transmission of the Program.
with
plaintiff
to
obtain
the
Their only means of obtaining the
Program, and to avoid paying the legal subscription rate for a
commercial
establishment,
would
be:
(a)
using
an
illegal
descrambler in a satellite receiver; (b) using a pirate cable box;
(c) registering their respective commercial establishments as
residential sites rather than commercial; and (d) ordering the
Program
for
their
respective
residences
and
moving
residential cable boxes to their commercial establishments.
their
The
Court finds that employing any one of these means to defraud
plaintiff would be evidence of wilfulness and would support an
award of enhanced damages.”).
Any unauthorized showing of the
Event is a violation of the Communications Act.
See, e.g., Nat’l
Satellite Sports, Inc. v. Garcia, 2003 U.S. Dist. LEXIS 10315, *3
n.2 (N.D. Tex. June 18, 2003)(“A tape-delayed broadcast without
authorization is still a violation of the FCA.”).
The FCA is a
strict liability statute, so a plaintiff, as exclusive licensee,
need
only
show
that
the
Event
was
shown
in
the
establishment without the plaintiff’s authorization.
defendant’s
Joe Hand
Promotions, Inc. v. Lee, 2012 U.S. Dist. LEXIS 73094, *7-8 (S.D.
Tex. May 24, 2012).
-10-
In sum, Defendants fail to meet their burden to show a genuine
issue of material fact because the single affidavit in opposition
does not contradict Plaintiff’s proof.
See, e.g., Bayou West
Condos. Homeowners Ass’n v. Royal Surplus Lines Ins. Co., 415 F.
Supp. 2d 684, 686 (S.D. Tex. 2006)(affidavit in opposition to
summary judgment must designate specific facts that show there is
a genuine issue of material fact for trial).
Portillo’s affidavit further assert that Defendants did not
“have the capability to broadcast the fight.”
Defendants did not
plead the affirmative defense of impossibility and thus have waived
it and therefore cannot raise it now.3
Moreover, Portillo failed
to designate an expert on matters such as electrical wiring,
satellite reception, and cable/satellite piracy and did not provide
any basis in her knowledge, education, experience or ability to
provide expert testimony on these types of matters.
Thus her
testimony is unreliable and not competent to be sufficient summary
3
The Court agrees. See, e.g., In re Capco Energy, Inc.,
Bankr. No. 08-32282, Adversary No. 10-3349. 2012 WL 253140
(Bkrtcy. S.D. Tex. Jan. 25, 2012)(“[I]mpossibility and ambiguity
are affirmative defenses and must be specifically pleaded under
F.R. Civ. P. 8(c). Although the Fifth Circuit has directed
courts not to ‘exalt[] form over substance’ when determining
whether an affirmative defense has been pleaded, Heritage Bank v.
Redcom Laboratories, Inc., 250 F.3d 319, 327 n.8 (5th Cir. 2001),
the affirmative defense must still be apparent from the
pleadings.”); see also Stoeffels v. SBC Communications, Inc.,
Civ. A. No. 05-CV-0233-WWJ, 2008 WL 4391396, *1 (W.D. Tex. Sept.
22, 2008)(affirmative defenses musts be pleaded with sufficient
specificity or factual particularity to give the plaintiff fair
notice of the defense).
-11-
judgment evidence.
Even if she were deemed to be an expert on
these matters, her affidavit fails to clarify when she inspected
the premises. She has not even established that she was present at
the Establishment the night of February 16, 2009, no less at the
time of the Event.
Plaintiff’s summary judgment evidence shows that the events at
issue were all electronically scrambled.
#12-1 Ex. A (Riley
Affid.).
Thus illegal activity was necessary to divert and
broadcast
the
event
at
Defendants’
restaurant.
J&J
Sports
Productions, Inc. v. Garcia, 2009 U.S. Dist. LEXIS 72233, *11-12
(S.D. Tex. Aug. 14, 2009).
Plaintiff’s evidence also establishes
that the Event was broadcast at that restaurant.
(Affid. of Maria Gonzales).
#12-1, Ex. A-2
For such a broadcast, Defendants had
to use an unauthorized decoder or “black box” to unscramble the
signal in a satellite receiver, use an illegal pirate cable box, to
falsely
represent
that
the
commercial
establishment
is
a
residential establishment in order to obtain the signal at the
lower
residential
rate,
to
use
an
illegal
“splice”
from
a
residential location adjacent to the commercial establishment, to
order the Event for a residence, and move the residential cable box
or satellite receiver and dish to their commercial establishment.
See Garden City Boxing Club, Inc. v. Guzman, 2005 U.S. Dist. LEXIS
7954, at *9 (S.D.N.Y. Apr. 26, 2005); J&J Sports Productions, Inc.
v. Kosoria, 2007 U.S. Dist. LEXIS 40246, *3 (S.D.N.Y. May 31,
-12-
2007); Joe Hand Promotions, Inc. v. Malespin. 2001 U.S. Dist. LEXIS
2037, *9-10 (S.D.N.Y. Feb. 27, 2001).
In sum, despite the Court
having granted Defendants an opportunity to amend and to submit
whatever evidence they wanted, Portillo’s affidavit, Defendants’
sole summary judgment evidence, does not address the use of illegal
splicing from a residential location nor negate the use of a
portable satellite dish on the night of the events. Such equipment
is affordable and readily available.
#23, Ex. C.
Thus Plaintiff
insists it is entitled to summary judgment.
This Court agrees.
Defendants have pointed out numerous
deficiencies in Defendants’ amended (substituted) affidavit, which
accordingly fails to raise a genuine issue of material fact for
trial.
Furthermore, after a careful review of Plaintiff’s evidence,
the Court finds that an award of $10,000 in statutory damages is
appropriate.
While Plaintiff seeks an additional $100,000.00 for willful
violations, the case law cited by Plaintiff suggests that a
multiplier of three to eight times the amount of statutory damages
is appropriate.
E.’s
Pub,
See, e.g., KingVision Pay-Per-View, Ltd. v. Scott
Inc.,
146
F.
Supp.
2d
955,
960
(E.D.
Wis.
2001)(multipliers of three to eight times the statutory damages);
Garden City Boxing Club, Inc. v. Reyes, No 1:05-CV-00262 (S.D. Tex.
2000)(three to seven).
See also J&J Sports Productions, Inc. v. Q
-13-
Café, Inc., Civ. A. No. 3:10-CV-02006-L, 2012 WL 216274, *2 (N.D.
Tex. Jan. 25, 2012)(finding a multiplier of five reasonable in
light of the urban location of the establishment and the importance
of deterring future violations).
After considering the matter,
the Court finds a multiplier of five reasonable and thus awards
$50,000.00 for willful acts.
The
Court
rejects
Plaintiff’s
request
for
an
additional
$2500.00 for collection of the final judgment in the event that
Plaintiff obtains a writ of execution, writ of garnishment, writ of
attachment or other process.
It further denies as speculative and
premature Plaintiff’s request for a contingent award in fees in the
event
that
post-trial,
pre-appeal
and
appellate
services
are
required. Plaintiff may apply for such an award when such fees are
incurred.
As for attorney’s fees, rather than a one-third contingency
fee, the Court finds that Plaintiff should recover a fee based on
the lodestar, i.e., hours expended and a reasonable hourly rate.
See, e.g., Kingvision Pay-Per-View, Ltd. v. Guerrero, Civ. A. No.
3:08-CV-1970-G (BF), 2009 WL 1973285, *5 (N.D. Tex. July 7, 2009).
Based on Plaintiff’s undisputed evidence (affidavit of David M.
Diaz, Ex. B), for six hours of services at the firm’s hourly rate
of $250.00, the Court awards Plaintiff $1500.00 in reasonable
attorney’s fees.
The statute permits issuance of a permanent injunction when
-14-
liability under the statute has been established “on such terms as
it may deem reasonable to prevent or restrain violations of
subsection (a)(1).”
47 U.S. 605(e)(3)(B)(i); Kingvision Pay-Per-
View, Ltd. v. Guerrero, Civ. A. No. 3:08-CV-1970-G (BF), 2009 WL
1973285, *5 (N.D. Tex. July 7, 2009).
The Court finds Plaintiff’s
request here to be reasonable and grants it.
Accordingly, to the extent indicated above, the Court
ORDERS that Plaintiff’s motion for summary judgment is
GRANTED.
The Final Judgment will issue by separate order.
SIGNED at Houston, Texas, this 2nd day of August, 2012.
________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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