J&J Sports Productions, Inc. v. Jonescorp, Inc. et al

Filing 42

ORDER entered: the parties should be prepared to discuss Mandell's holding that a defendant under § 553 can prevail by showing that he or she had the permission of the cable operator, rather than the permission of the license-owner. In Te patitlan, this court explained why Mandell's holding logically extends to claims under § 605. The issue is whether the defendants had permission from the sender of the satellite transmission, not whether it had permission from the license- owner. The parties should come prepared to discuss these cases and tailor their presentations to the legal rule they establish. (Signed by Chief Judge Lee H Rosenthal) (Attachments: # 1 Supplement, # 2 Supplement) Parties notified.(leddins, 4)

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751 FEDERAL REPORTER, 3d SERIES

J&J SPORTS PRODUCTIONS, INCORPORATED, as Broadcast Licensee of
the December 8, 2007 ‘‘Undefeated’’:
Mayweather/Hatton Event, Plaintiff–
Appellee
v.
MANDELL
FAMILY
VENTURES,
L.L.C., Individually and doing business as Greenville Avenue Pizza Company; Samuel J. Mandell, III, Individually and doing business as Greenville
Avenue Pizza Company, Defendants–
Appellants.
No. 13–10485.
United States Court of Appeals,
Fifth Circuit.
May 2, 2014.
Background: Commercial distributor of
sporting events that had exclusive right to
distribute professional boxing match to
commercial establishments brought action
against restaurant owners, alleging owners
violated Cable Communications Policy Act
by illegally intercepting and broadcasting
boxing match at restaurant. Distributor
moved for summary judgment. The United
States District Court for the Northern
District of Texas, Paul D. Stickney, United
States Magistrate Judge, 2012 WL
4757694, granted motion. Owners appealed.
Holdings: The Court of Appeals, Haynes,
Circuit Judge, held that:
(1) genuine issue of material fact existed
as to whether cable television provider
authorized restaurant owners to broadcast pay-per-view sports event, and
(2) as a matter of first impression, statute
proscribing unauthorized interceptions
of radio communications does not apply
to the receipt or interception of com-

munications by wire from a cable system.
Reversed and remanded.

1. Federal Courts O3604(4), 3675
Court of Appeals reviews a district
court’s grant of summary judgment de
novo, construing all facts and evidence in
the light most favorable to the non-moving
party.
2. Telecommunications O1251, 1256
In order for a cable customer to ensure that it is not criminally or civilly liable
for intercepting or receiving any communications service offered over a cable system,
it need only receive authorization from a
cable operator for the cable services it
receives; customer is not required to take
the additional step of ensuring that the
cable operator itself is licensed to distribute the various broadcasts that the customer views. Communications Act of
1934, § 633(a)(1), 47 U.S.C.A. § 553(a)(1).
3. Federal Civil Procedure O2519
Genuine issue of material fact as to
whether cable television provider authorized commercial customer to broadcast
pay-per-view sports event in its restaurant
precluded summary judgment on claim
that customer violated Cable Communications Policy Act provision prohibiting unauthorized reception of cable service.
Communications Act of 1934, § 633(a)(1),
47 U.S.C.A. § 553(a)(1).
4. Telecommunications O1251
Statute proscribing unauthorized interceptions of radio communications does
not apply to the receipt or interception of
communications by wire from a cable system. Communications Act of 1934, § 705,
47 U.S.C.A. § 605.

J&J SPORTS PRODUCTIONS v. MANDELL FAMILY VENTURES
Cite as 751 F.3d 346 (5th Cir. 2014)

Andrew Ross Korn (argued), Esq., Dallas, TX, for Plaintiff–Appellee.
William J. Dunleavy (argued), Law Offices of William J. Dunleavy, P.C., Allen,
TX, for Defendants–Appellants.
Appeal from the United States District
Court for the Northern District of Texas.
Before WIENER, HAYNES, and
HIGGINSON, Circuit Judges.
HAYNES, Circuit Judge:
Defendants Mandell Family Ventures,
L.L.C. and Samuel J. Mandell, III (collectively, the ‘‘Defendants’’) appeal the district court’s grant of summary judgment in
favor of Plaintiff J&J Sports Productions,
Inc. (‘‘J&J’’) on J&J’s Federal Communication Act (‘‘FCA’’) claims pursuant to 47
U.S.C. §§ 553 & 605. We REVERSE and
REMAND.
I. Background
This case concerns the live broadcast of
the Floyd ‘‘Money’’ Mayweather, Jr. v.
Ricky Hatton WBC Welterweight Championship Fight (the ‘‘fight’’) on December 8,
2007. The rights to broadcast the fight
were held by various entities, including
Time Warner Cable (‘‘TWC’’) and J&J.
TWC was granted the rights to broadcast
the fight by means of pay-per-view to only
those venues ‘‘not accessible to the public
in general.’’ The agreement granting
TWC these rights contemplated that TWC
might inadvertently broadcast the event to
‘‘commercial subscribers’’ and provided for
a liquidated-damages fee to be paid by
TWC under such circumstances. Conversely, J&J was granted the rights to
broadcast the fight to only ‘‘commercial
closed-circuit television exhibition outlets.’’
1.

For this error, TWC offered to pay J&J
$2,000 in liquidated damages pursuant to

347

Greenville Avenue Pizza Company
(‘‘GAPC’’) is a restaurant in Dallas, Texas,
which is owned by the Defendants. At all
times relevant to this case, GAPC received
commercial cable television services from
TWC pursuant to a ‘‘Commercial Services
Agreement.’’
On December 8, 2007,
GAPC purchased the pay-per-view broadcast of the fight from TWC for $54.95 and
displayed the fight in its restaurant during
business hours. GAPC did not advertise
the fight or charge an entry fee or any
other fee to view the fight. Representatives of both GAPC and TWC attest that
TWC authorized GAPC’s receipt of the
broadcast. A representative of TWC described the authorization as an inadvertent
error on its part.1
On December 7, 2010, J&J initiated this
action against the Defendants, alleging
that they violated §§ 553 and 605 by receiving and displaying the fight without
first paying a licensing fee to J&J. At the
conclusion of discovery, J&J filed a motion
for summary judgment, which the district
court granted, awarding J&J statutory
damages of $350 and costs and attorney’s
fees of $26,780.30. Defendants timely appealed.
II.

Standard of Review

[1] Summary judgment is appropriate
when ‘‘there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.’’
FED.R.CIV.P. 56(a). We review a district
court’s grant of summary judgment de
novo, construing all facts and evidence in
the light most favorable to the non-moving
party. See EEOC v. Chevron Phillips
Chem. Co., 570 F.3d 606, 615 (5th Cir.
2009).
TWC’s pay-per-view broadcast agreement.

348

751 FEDERAL REPORTER, 3d SERIES

III.

Discussion

J&J alleged below that the Defendants
violated both §§ 553 and 605. While
granting judgment in J&J’s favor, the district court refrained from deciding which
of the two sections applied to the Defendants’ conduct, implicitly finding that J&J
was entitled to judgment as a matter of
law under at least one of the two sections.
As explained more fully below, because we
find a dispute of material fact exists as to
J&J’s § 553 claim, we must determine
whether § 605 applies to the facts of this
case. We hold that it does not.
A.

Whether § 553’s Safe Harbor Applies

Section 553(a)(1) imposes civil and criminal liability for ‘‘intercepting or receiving
any communications service offered over a
cable system.’’ 47 U.S.C. § 553(a)(1)
(2006). But it includes an essential exclusion, often referred to as a ‘‘safe harbor,’’
that precludes the imposition of liability on
the majority of cable recipients—customers of cable providers. This exclusion constrains the reach of the statute by exempting from liability those individuals who
receive authorization from a cable operator:
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
2.

The parties do not dispute that TWC is a
cable operator and that J&J is not. See 47
U.S.C. § 522(5) (2006) (defining cable operator).

3.

J&J frames the argument as follows: ‘‘Time
Warner cannot give Appellants authority that
Time Warner does not have.’’ See, e.g., J&J
Sports Prods. v. Phelan, No. 08–CV–00486–
OWW–DLB, 2009 WL 3748107, at *8–9, 2009

may otherwise be specifically authorized
by law.
Id. (emphasis added).
The Defendants maintain that they fall
within this safe harbor. To support their
argument, they provided evidence that
GAPC (1) was a paying commercial customer of TWC; (2) paid a separate fee for
the pay-per-view broadcast of the fight;
and (3) was authorized by TWC, a cable
operator,2 to receive the broadcast of the
fight. J&J, however, contends that the
Defendants’ conduct falls outside the safe
harbor because, as the license holder for
the closed-circuit broadcast of the fight, it
did not authorize the Defendants’ receipt
of the broadcast. The district court appeared to accept J&J’s contention, holding
that J&J only had to prove ‘‘(1) that the
Event was Shown in Greenville Avenue
Pizza and (2) that J&J Sports did not
authorize such exhibition of the Event.’’
[2] We conclude that this ruling misconstrues § 553(a)(1). The text of the
statute unambiguously states that liability
extends only to the receipt of cable services not authorized by a cable operator.
Therefore, in order for a cable customer to
ensure that it is not criminally or civilly
liable under § 553(a)(1), it need only receive authorization from a cable operator
for the cable services it receives. J&J’s
argument, in essence, is that a cable customer who receives such authorization may
still face liability under § 553 unless it
takes the additional step of ensuring that
the cable operator itself is licensed to distribute the various broadcasts that the customer views.3 Interpreting the safe harU.S. Dist. LEXIS 103626, at *24–25 (E.D.Cal.
Nov. 5, 2009) (employing the same reasoning); Nat’l Satellite Sports, Inc. v. Time Warner Entm’t, 217 F.Supp.2d 466, 468 (S.D.N.Y.
2002) (same). While this concept has facial
appeal, it is hard to imagine why a ‘‘safe
harbor’’ would be needed in the situation J&J
posits. Further, J&J is not left without a
remedy as the unauthorized cable operator
may itself be liable for its actions (as TWC

J&J SPORTS PRODUCTIONS v. MANDELL FAMILY VENTURES
Cite as 751 F.3d 346 (5th Cir. 2014)

bor in this highly restrictive manner finds
no support in the text of the statute. The
statute does not hinge liability on the cable
customer taking additional steps or the
cable operator being licensed to distribute
a broadcast: The exclusion from liability
simply applies to those who receive authorization from a cable operator. See J&J
Prods., Inc. v. Schmalz, 745 F.Supp.2d
844, 851 (S.D.Ohio 2010); see also Hartford Underwriters Ins. Co. v. Union
Planters Bank, N.A., 530 U.S. 1, 6, 120
S.Ct. 1942, 147 L.Ed.2d 1 (2000) (‘‘Congress says in a statute what it means and
means in a statute what it says there.’’
(citation and internal quotation marks
omitted)). Moreover, applying the safeharbor provision in the manner J&J advocates would expand liability under the
statute to ends not encompassed by the
text, holding liable cable customers who
unknowingly receive broadcasts that the
cable company was not licensed to distribute, even though they were authorized by
the cable operator to receive the broadcast.
We interpret the statute in accordance
with its plain language: liability under
§ 553(a)(1) does not extend to those who
acknowledged here by offering the $2,000 liquidated damages); the ‘‘safe harbor’’ protects
only the innocent recipient, such as a small
business like GAPC.
4.

Because the language of the statute is plain,
it is not necessary to consider the legislative
history. See United States v. Ron Pair Enters.,
489 U.S. 235, 241, 109 S.Ct. 1026, 103
L.Ed.2d 290 (1989). However, we note that
J&J’s interpretation finds no support there
either, as the legislative history suggests that
Congress was concerned with the ‘‘theft of
cable service,’’ including ‘‘obtain[ing] cable
service without paying the installation and
hook-up costs’’ and ‘‘gaining access to premium movie and sports channels without paying
for the receipt of those services.’’ H.R.REP. NO.
98–934, at 83 (1984), reprinted in 1984
U.S.C.C.A.N. 4655, 4720 (emphasis added).

349

are ‘‘specifically authorized TTT by a cable
operator ’’ to receive a broadcast. 47
U.S.C. § 553(a)(1) (emphasis added); see
Hartford Underwriters, 530 U.S. at 6, 120
S.Ct. 1942 (‘‘[W]hen the statute’s language
is plain, the sole function of the courts—at
least where the disposition required by the
text is not absurd—is to enforce it according to its terms.’’ (citation and internal
quotation marks omitted)).4
[3] Even under this interpretation,
J&J alternatively argues that TWC did not
authorize the Defendants’ receipt of the
broadcast of the fight because it was distributed by HBO, and the ‘‘Business Class
Service Agreement’’ (‘‘Service Agreement’’) between GAPC and TWC included
the following language:
Customer understands and agrees that
premium program services, such as
HBO, Cinemax, Showtime, and The
Movie Channel, may not be received or
shown on any television receivers located in any public areas, such as lounges,
dayrooms, visiting areas, or other common areas used by groups or the general public, nor shall Customer authorize
or approve any copying, taping or dupliHere, the Defendants paid TWC for both the
receipt of commercial cable service and the
pay-per-view broadcast of the fight. There is
no contention that the Defendants stole the
broadcast of the fight; instead, TWC admits
that it mistakenly distributed the broadcast to
the Defendants in return for a fee. We find
no indication in the legislative history that
Congress sought to hold cable customers vicariously liable for the actions of cable operators as J&J would effectively have us do here.
Cf. id. at 84 (in regards to the definition of
‘‘assist in intercepting or receiving’’ in
§ 553(a), the House Committee on Energy
and Commerce expressed that it ‘‘d[id] not
intend a person’s clearly legal conduct to become illegal because of the actions of others
about which such person had no knowledge’’).

350

751 FEDERAL REPORTER, 3d SERIES

cating thereof.5
However, this language does not unambiguously encompass this situation because
the fight was not shown on a traditional
HBO subscription channel, but was delivered via a pay-per-view broadcast that the
Defendants requested and purchased separately from TWC.6 Additionally, other language in the Service Agreement suggests
that TWC obligated itself to ensure that
the services it distributed to the Defendants were authorized and made pursuant
to the proper license: ‘‘As between the
Parties, TWC will obtain and maintain at
its own expense all licenses, approvals and
regulatory authority required by law with
respect to TWC’s operation and provision
of the ServicesTTTT’’
The Defendants submitted uncontroverted affidavits by representatives of the two
parties to the Service Agreement (TWC
and GAPC) stating that TWC authorized
the receipt of the broadcast despite the
language in the Service Agreement. The
affidavits show that the Defendants did not
5.

J&J cites to various district court cases
that found lack of authorization based on a
contract between a defendant and a different cable operator (primarily Comcast).
These cases are distinguishable because,
among other reasons, the contracts in those
cases differ from the contract here. In particular, the Comcast contract specifically addressed pay-per-view broadcasts of sporting
events in addition to the premium program
services that are mentioned in the TWC
agreement. See, e.g., Joe Hand Promotions,
Inc. v. Phoenix Promotions LLC, No. 10–
15102, 2012 WL 3025107 at *1, 2012 U.S.
Dist. LEXIS 102534, at *3 (E.D.Mich. July
24, 2012) (citing the language of the contract, which stated, ‘‘Comcast does not have

In light of this evidence, there is at least
a dispute of material fact as to whether the
Defendants violated § 553. Accordingly,
J&J failed to meet its summary judgment
burden under § 553. See FED.R.CIV.P.
56(a).
B.

Whether § 605 Applies to the Defendants’ Receipt of Cable Services

J&J also sought summary judgment
pursuant to § 605(a). The Defendants ar-

J&J also points to the following language in
the Service Agreement: ‘‘As between the Parties, Customer is solely responsible for (a) all
use (whether or not authorized) of the Service
by CustomerTTTT’’ This language is unhelpful
to J&J as it simply acknowledges that some
uses of the cable service may be authorized
while some uses may not be authorized.

6.

steal, intercept, or obtain the broadcast
under false pretenses. They further show
that TWC: (1) was aware that GAPC was
a commercial establishment holding a commercial cable account; (2) sold the broadcast of the fight to GAPC for $54.95; and
(3) affirmatively delivered the broadcast of
the fight to GAPC via pay-per-view broadcast.7 Most significantly, a Vice President
of TWC averred that ‘‘Greenville Avenue
Pizza Company was authorized by Time
Warner Cable to receive the broadcast on
cable television of the [fight] on December
8, 2007.’’

the right to distribute pay-per-view video
programming (including programming such
as sporting events) and certain premium video services to commercial establishments.
Therefore, Customer agrees that it shall not
exhibit or assist in the exhibition of any
such programming unless explicitly authorized to do so, in advance and in writing, by
Comcast and the applicable program or
event distributor.’’).
7.

In this regard, the facts of this case are
almost identical to those in Schmalz, where
the court found that J&J could not maintain a
§ 553 claim against a TWC commercial customer who received a pay-per-view broadcast
of a boxing match that TWC was not authorized to distribute to commercial customers.
See 745 F.Supp.2d at 851 (‘‘Defendants were
listed as a commercial customer, ordered the
program as a commercial customer, were
billed and paid for such service, as commercial customers. At no time did Defendants
misrepresent their status as a commercial
customer.’’).

J&J SPORTS PRODUCTIONS v. MANDELL FAMILY VENTURES
Cite as 751 F.3d 346 (5th Cir. 2014)

gued below, citing cases from our sister
circuits, that § 605 was inapplicable because it prohibited only the unauthorized
receipt of radio or satellite communications
and the summary judgment evidence established that they received the fight via
cable wire pursuant to TWC’s cable service.8 See Charter Commc’ns Entm’t I v.
Burdulis, 460 F.3d 168, 172–78 (1st Cir.
2006); TKR Cable Co. v. Cable City Corp.,
267 F.3d 196, 199–207 (3d Cir.2001); United States v. Norris, 88 F.3d 462, 464–69
(7th Cir.1996). The district court implicitly found that the Defendants were liable
under either §§ 553 or 605, maintaining
that it was unnecessary to decide whether
§ 605 applied. In light of this ambiguity,
J&J argues on appeal that the district
court’s grant of summary judgment may
be upheld under § 605 because the broadcast of the fight originated via satellite
transmission. See Int’l Cablevision v.
Sykes, 75 F.3d 123, 129–33 (2d Cir.1996).
[4] Because of our ruling on § 553, we
must determine whether the Defendants
may be held liable under § 605, which does
not contain the same safe harbor exception. This is an issue of first impression
for our circuit, and our sister circuits are
not uniform in their approach. See Prostar v. Massachi, 239 F.3d 669, 673 (5th
Cir.2001). We now join the majority of
circuits in holding that § 605 does not
encompass the conduct presented here:
the receipt or interception of communications by wire from a cable system.9 We
8.

It is undisputed that GAPC received the
broadcast by wire from TWC’s cable system.

9.

We specifically do not address how § 605
might apply to factual circumstances not
present here, such as the receipt or interception of satellite or radio signals intended for
receipt by a cable system,

10. The first sentence of § 605 refers to the
divulgence or publication of ‘‘communication
by wire or radio.’’ However, J&J does not
argue that this sentence applies. This sen-

351

conclude the plain language of the statute
compels this interpretation. See Hartford
Underwriters, 530 U.S. at 6, 120 S.Ct. 1942
(‘‘[W]hen the statute’s language is plain,
the sole function of the courts—at least
where the disposition required by the text
is not absurd—is to enforce it according to
its terms.’’ (citation and internal quotation
marks omitted)).
The relevant portions of § 605(a) address only the unauthorized interception or
receipt of radio communications:
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.10
47 U.S.C. § 605(a) (2006). Radio communications are defined as ‘‘the transmission
by radio of [communications] of all kinds,
including all instrumentalities, facilities,
apparatus, and services TTT incidental to
such transmission.’’ 47 U.S.C. § 153(40)
(emphasis added). Here, it is undisputed
that the communications were not transferred to the Defendants by radio, but by
tence is also not traditionally applied in the
piracy context because it does not refer to the
unauthorized interception or receipt of communications, and it is understood as ‘‘regulat[ing] the conduct of communications personnel.’’ Edwards v. State Farm Ins. Co., 833
F.2d 535, 540 (5th Cir.1987); see also TKR
Cable Co., 267 F.3d at 201; Norris, 88 F.3d at
465; Int’l Cablevision, 75 F.3d at 131 n. 4;
S.REP. NO. 90–1097 (1968), reprinted in 1968
U.S.C.C.A.N. 2112, 2197.

352

751 FEDERAL REPORTER, 3d SERIES

cable, which makes them ‘‘communication[s] by wire’’ as that term was separately defined by Congress in the FCA. See
§ 153(59) (‘‘ ‘[C]ommunication by wire’
means the transmission of [communications] of all kinds by aid of wire, cable, or
other like connection between the points of
origin and reception of such transmission,
including all instrumentalities, facilities,
apparatus, and services (among other
things, the receipt, forwarding, and delivery of communications) incidental to such
transmission.’’).
Given that Congress
clearly defined both radio and wire communications, it presumably would have included the word ‘‘wire’’ in the applicable
sentences of § 605 if it intended for them
to apply to the communications at issue
here. See Charter Commc’ns, 460 F.3d at
172–73 (‘‘[I]t is a general principle of statutory construction that when Congress includes particular language in one section of
a statute but omits it in another section of
the same Act, it is generally presumed
that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’’ (quoting Barnhart v. Sigmon Coal
Co., 534 U.S. 438, 452, 122 S.Ct. 941, 151
L.Ed.2d 908 (2002))).11

originated as a radio communication prior
to TWC retransmitting the broadcast by
cable to GAPC. § 153(40) (emphasis added). While this interpretation has been
adopted by the Second Circuit, see Int’l
Cablevision, 75 F.3d at 131, we agree with
the Third and Seventh Circuits that it
‘‘ ‘unacceptably blurs the line between radio and wire communications,’ ’’ which are
separately defined terms that both refer to
instrumentalities incidental to transmission
of the communication. TKR Cable Co.,
267 F.3d at 202 (quoting Norris, 88 F.3d at
467); see also § 153(40), (59). Moreover,
J&J’s interpretation ignores the plain
meaning of the terms by ‘‘demand[ing]
undue contortion of the phrase ‘instrumentalities [or] facilities TTT incidental to such
transmission.’ ’’ TKR Cable Co., 267 F.3d
at 202 (quoting § 153(40)). As the Third
Circuit has recognized, ‘‘the entire cable
transmission infrastructure of a city or
suburban area, a structure that provides a
foundation for a significant business, TTT
cannot be considered a mere instrumentality to transmission.’’ Id.

J&J argues, however, that § 605(a) applies to the Defendants’ receipt of wire
communications because the definition for
radio communications extends to ‘‘all instrumentalities, facilities, apparatus, and
services (among other things, the receipt,
forwarding, and delivery of communications) incidental to [radio] transmission[s],’’ and the broadcast of the fight

The statutory framework of the FCA as
a whole also confirms that § 605 does not
apply to Defendants’ receipt of cable communications. Section 553 covers the interception or receipt of cable communications
without mentioning radio communications,
just as § 605 covers the interception or
receipt of radio communications without
mentioning cable communications. A logical reading of the two provisions reveals a
clear demarcation whereby ‘‘[§ ] 605 deals

11. Moreover, the relevant sentences in § 605
previously referred to the receipt of ‘‘communication by wire or radio,’’ Communications
Act of 1934, Pub.L. No. 73–416, § 605, 48
Stat. 1064, 1103–04, but Congress later removed the references to wire communications. See Omnibus Crime Control and Safe
Streets Act of 1968, Pub.L. No. 90–351, 82
Stat. 197, 223. When making this change,
Congress explained that ‘‘regulation of the

interception of wire or oral communications
in the future is to be governed by proposed
new chapter 119 of title 18, United States
Code’’ (which is now codified at 18 U.S.C.
§§ 2510 et seq. and is inapplicable here because it does not encompass television broadcasts). 1968 U.S.C.C.A.N. at 2196. In other
words, the legislative history suggests that
Congress intentionally removed the word
‘‘wire’’ from § 605.

J&J SPORTS PRODUCTIONS v. MANDELL FAMILY VENTURES
Cite as 751 F.3d 346 (5th Cir. 2014)

with communications traveling through the
air (via radio), [and] § 553 covers communications traveling over cable wire.’’
Charter Commc’ns, 460 F.3d at 173. Applying § 605 as J&J requests would remove this demarcation and require us to
assume Congress’s enactment of § 553
was largely superfluous—a course that we
decline to take. See id. at 176; TKR
Cable Co., 267 F.3d at 204; Norris, 88
F.3d at 468; see also United States v.
Caldera–Herrera, 930 F.2d 409, 411 (5th
Cir.1991) (‘‘Where possible, statutes must
be read in harmony with one another so as
to give meaning to each provision.’’).
Accordingly, based on the plain meaning
of § 605 and the statutory framework of
the FCA, we hold that § 605 does not
apply to the Defendants’ receipt of communications by wire from TWC’s cable
system.12 The district court’s grant of
12. Although we need not examine the legislative history surrounding the FCA, we note
that it simply confirms what is already evident from the text and statutory framework of
the FCA. In particular, a prior version of
§ 605 referred to the receipt of wire communications, but Congress removed the word
‘‘wire’’ when reenacting § 605 and enacted
18 U.S.C. §§ 2510 et seq. to regulate the interception of wire communications. See supra
note 11. This left a regulatory gap because
the definition of wire communications in the
newly enacted provisions did not encompass
cable television broadcasts. See 18 U.S.C.
§ 2510(1); Norris, 88 F.3d at 465–66. Section 553 was then passed to fill this void by
prohibiting the unauthorized receipt or interception of cable services, which Congress observed was becoming a pervasive problem.
See generally Charter Commc’ns, 460 F.3d at
176 (‘‘Congress, in enacting § 553, was attempting to create a comprehensive regulatory regime covering the theft of all communications transmitted over a wire or cable—
something that had largely been unregulated
since the enactment of the Crime Control Act
in 1968 and the removal of most references to
‘communications by wire’ from § 605.’’);
TKR Cable Co., 267 F.3d at 204 (‘‘[T]he legislative history accompanying § 553 demonstrates that Congress drafted the provision to

353

summary judgment, therefore, cannot be
maintained under § 605 as J&J argues.
IV.

Conclusion

Given our ruling, we need not reach the
Defendants’ additional arguments against
summary judgment.13 The grant of summary judgment is REVERSED, and the
case is REMANDED for further proceedings consistent with this opinion.

,
deter the newly emergent and previously
unaddressed cable piracyTTTT’’); Norris, 88
F.3d at 466. In short, the legislative history
suggests that § 553 was enacted specifically
because § 605 was inapplicable to wire communications.
13. Defendants’ additional arguments are: (1)
that J&J lacked statutory standing because its
license to broadcast the fight extended only to
broadcasts in a ‘‘place of public assembly’’
where ‘‘consideration is charged or received,’’
and (2) that a two-year statute of limitations
applies to J&J’s claims. Even were we to
reach these arguments, the outcome of this
appeal would be the same: the former argument, at most, highlights an additional dispute of material fact, and we are foreclosed
from accepting the latter argument in light of
Prostar, in which an earlier panel of this court
held that a three-year statute of limitations
applied to claims under §§ 553 & 605. 239
F.3d at 677–78; see Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir.2008)
(‘‘It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not
overturn another panel’s decision, absent an
intervening change in the law, such as by a
statutory amendment, or the Supreme Court,
or our en banc court.’’).