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)

J&J Sports Productions, Inc. v. Tepatitlan Mexican Kitchen, Inc., Slip Copy (2016)

2016 WL 8710461
Only the Westlaw citation is currently available.
United States District Court,
S.D. Texas, Houston Division.
J&J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
TEPATITLAN MEXICAN
KITCHEN, INC., et al., Defendants.
CIVIL ACTION NO. H-15-2666
|
Signed 10/21/2016
Attorneys and Law Firms
David M. Diaz, Korn Bowdich & Diaz LLP, Dallas, TX,
for Plaintiff.
Jose R. Lopez, II, Attorney at Law, Houston, TX, for
Defendants.

MEMORANDUM AND OPINION
Lee H. Rosenthal, United States District Judge
*1 Some of Houston's many restaurants and bars
offer their customers not only food and drink, but also
the opportunity to watch televised professional boxing
matches. Some of those broadcasts require payment
to view. Some of the restaurants and bars allegedly
show them to customers without paying the licensor
its fee. Some of those licensors sue. Courts in this
district frequently handle cases asserting the licensors'
claims that the broadcasts violate the Communications
Act and seeking statutory and other damages. Most of
the cases end with default judgments and the focus is
on collection. In this case, the defendants have appeared
through counsel, participated in discovery, and filed a
cross-motion for summary judgment. In this case, J&J
Sports Productions, Inc., a company that licenses pay-perview boxing matches to restaurants and bars, alleges that
Tepatitlan Mexican Kitchen, a Houston restaurant, and
its owner, Efren Gonzalez, showed a fight without paying
the fee to do so. J&J seeks statutory damages under the
Communications Act, 47 U.S.C. §§ 553 and 605.

After discovery, the parties filed cross-motions for
summary judgment. After considering the briefs, record,
and applicable law, the court denies both parties' motions
for summary judgment. The case will be tried on the
schedule previously set. The parties are to appear for their
final pretrial conference and docket call on October 28,
2016.
The reasons for the rulings are explained below.

I. Background
On September 15, 2012, Julio Cesar Chavez, Jr. fought
Sergio Martinez in a boxing match available on pay-perview. (Docket Entry No. 19-1, Ex. A at 6). J&J had an
exclusive license to exhibit the closed-circuit telecast of
the fight at commercial establishments like restaurants
and bars. In order to show the fight, commercial
establishments had to pay J&J a sublicense fee. (Id. at 6-7).
The fight telecast was transmitted via scrambled satellite
transmission. When the establishment paid the sublicense
fee, J&J would arrange for an unscrambled transmission
and broadcast to that establishment. (Id.).
Efren Gonzalez owns Tepatitlan, a Houston-area
restaurant and bar. (Docket Entry No. 20-3 at 5). It is
undisputed that Tepatitlan did not purchase a sublicense
to show the fight or otherwise order the fight on pay-perview. (Docket Entry 19-1, Ex. A at 7-8; Docket Entry No.
19-3, Ex. C at 4-5).
On the night of the fight, Adela Hernandez, an
investigator working for J&J, went to Tepatitlan. She filed
a declaration stating that the fight could be viewed on
three televisions mounted on the restaurant walls. About
30 people were present. (Docket Entry No. 19-1, Ex. A-2
at 21). Tepatitlan disputes that it showed the fight at all.

II. The Applicable Legal Standards
a. Summary Judgment
“Summary judgment is required when ‘the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.’ ”
Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting
FED. R. CIV. P. 56(a)). “A genuine dispute of material
fact exists when the ‘evidence is such that a reasonable jury
could return a verdict for the nonmoving party.’ ” Nola
Spice Designs, LLC v. Haydel Enters., Inc.,783 F.3d 527,

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536 (5th Cir. 2015) (quoting Anderson v. Liberty Lobby,
477 U.S. 242, 248 (1986)). “The moving party ‘bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact.’ ” Id. (quoting EEOC v.
LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
*2 “Where the non-movant bears the burden of proof
at trial, the movant may merely point to the absence of
evidence and thereby shift to the non-movant the burden
of demonstrating by competent summary judgment proof
that there is an issue of material fact warranting trial.” Id.
(quotation marks omitted); see also Celotex, 477 U.S. at
325. Although the party moving for summary judgment
must demonstrate the absence of a genuine issue of
material fact, it does not need to negate the elements of
the nonmovant's case. Boudreaux v. Swift Transp. Co., 402
F.3d 536, 540 (5th Cir. 2005). “A fact is ‘material’ if its
resolution in favor of one party might affect the outcome
of the lawsuit under governing law.” Sossamon v. Lone
Star State of Texas, 560 F.3d 316, 326 (5th Cir. 2009)
(quotation omitted). “If the moving party fails to meet
[its] initial burden, the motion [for summary judgment]
must be denied, regardless of the nonmovant's response.”
United States v. $92,203.00 in U.S. Currency, 537 F.3d 504,
507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
“Once the moving party [meets its initial burden], the
nonmoving party must ‘go beyond the pleadings and by
her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.’ ”
Nola Spice, 783 F.3d at 536 (quoting EEOC, 773 F.3d
at 694). The nonmovant must identify specific evidence
in the record and articulate how that evidence supports
that party's claim. Baranowski v. Hart, 486 F.3d 112,
119 (5th Cir. 2007). “This burden will not be satisfied
by ‘some metaphysical doubt as to the material facts,
by conclusory allegations, by unsubstantiated assertions,
or by only a scintilla of evidence.’ ” Boudreaux, 402
F.3d at 540 (quoting Little, 37 F.3d at 1075). In
deciding a summary-judgment motion, the court draws all
reasonable inferences in the light most favorable to the
nonmoving party. Connors v. Graves, 538 F.3d 373, 376
(5th Cir. 2008); see also Nola Spice, 783 F.3d at 536.

b. The Communications Act
J&J sued under 47 U.S.C. §§ 553 and 605. Section 553
provides that:
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.
47 U.S.C. § 553. Section 605 provides that:
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.
47 U.S.C. § 605(a).
Before May 2014, district courts in this circuit applied
an identical strict-liability test to claims under both
statutes. The plaintiff licensor had to show only that:
(1) the defendant showed the boxing match, for which
the plaintiff had an exclusive exhibition license; and (2)
the license-owner (here, J&J) had not authorized the
defendant to do so. J & J Sports Prods., Inc. v. Flor
De Cuba, TX, Inc., No. CIV.A. H-13-3282, 2014 WL
6851943, at *3 (S.D. Tex. Dec. 3, 2014) (collecting cases).
In May 2014, in another case filed by J&J, the Fifth
Circuit rejected that analysis. See J&J Sports Prods., Inc.
v. Mandell Family Ventures, L.L.C., 751 F.3d 346, 348 (5th
Cir. 2014). The court reasoned that an approach based on
the license-owner's authorization improperly read out of
§ 553 the ‘safe harbor’ provision for persons “specifically
authorized ... by a cable operator” to show the event.
Id. at 348. The court emphasized that it was the cable

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operator's authorization to show the event that governed
a defendant's entitlement to shelter in the safe harbor
provision, not authorization by the commercial exhibition
license-holder. Id. at 349.
*3 The defendants in Mandell had purchased a consumer
pay-per-view version of a fight and showed it in
a commercial establishment. The defendants argued
that they came under the safe harbor because the
cable provider had authorized their use of the signal.
Id. at 347. The cable provider acknowledged that it
had authorized this use, although claimed it was a
mistake. Id. J&J argued that its authorization, not the
cable operator's authorization, was what mattered. The
Fifth Circuit rejected that argument. Id. at 348. J&J
also argued that notwithstanding the cable provider's
accidental authorization, the establishment's terms of
service prohibited it from displaying premium channels
like HBO (which distributed the fight for home payper-view purposes) for commercial gain; therefore, the
exhibition was not authorized. Id. at 349-50. The Fifth
Circuit rejected this argument and held that J&J had not
met its summary judgment burden. Id. The court based
its conclusion on the uncontroverted evidence that the
cable provider had authorized the broadcast. despite the
language in the terms of service. Id. at 350.
In a separate part of the opinion, the court held that § 553
governed interception of cable signals and § 605 governed
interception of wireless ‘radio’ signals, like satellite TV
broadcasts. Id. at 350-54. The court did not clarify whether
the two-prong strict liability standard turning on the
license-owner's authorization that it had just rejected for §
553 claims remained valid for actions under § 605. Several
district courts in this circuit have continued to apply
the pre-Mandell license-owner's-authorization standard
under § 605. See, e.g., Innovative Sports Mgmt., Inc. v.
Huetamo Enterprises, Inc., No. CV H-15-1478, 2016 WL
5791702, at *2 (S.D. Tex. Oct. 4, 2016); J&J Sports Prods.,
Inc. v. Bandera Cowboy Bar LLC, No. 5:15-CV-352-DAE,
2016 WL 2349123, at *2 (W.D. Tex. May 2, 2016).
This court does not find that approach persuasive. As
this court explained in Flor De Cuba, 2014 WL 6851943,
at *3, Mandell's reasoning about § 553 applies equally
to § 605. Mandell makes clear that courts adjudicating
Communications Act claims must pay careful attention to
the plain language of the governing provision. Just like
§ 553, § 605 conditions liability on lack of authorization

“by the sender” of the radio transmission. The “sender”
of a satellite transmission may or may not be the same
entity as the owner of the license to commercially exhibit
the event. The case that recent district court opinions cite
in using the pre-Mandell test—Joe Hand Promotions, Inc.
v. 152 Bronx, L.P., 11 F. Supp. 3d 747, 753 (S.D. Tex.
2014)—is itself a pre-Mandell case. The case does not
support continuing to use the license-owner-authorization
test in light of Mandell's instruction to carefully parse the
statutory text. To obtain judgment as a matter of law, J&J
must point to or submit competent summary judgment
evidence meeting its burden of proving that Tepatitlan
showed the fight that the sender of the satellite signal did
not authorize.

III. Analysis
a. Tepatitlan's Motion
Tepatitlan contests the accuracy and reliability of
Hernandez's affidavit, which is J&J's only evidence that
Tepatitlan showed the fight. Tepatitlan argues that
Hernandez misstated her description of the inside of the
restaurant, 1 and that the reliability of her recollection
is diminished by her inability to remember other stops
she made that night. (Docket Entry No. 18 at 2-3).
Tepatitlan also argues that Hernandez's affidavit is
unreliable because it is self-interested, since she was paid
for her investigative work only when she identified license
violators. (Id. at 3, 7).
1

The court notes that although Tepatitlan repeatedly
references “Exhibit 3, Defendants' Answers to
Interrogatories, No 25,” which purportedly
demonstrates that Hernandez was incorrect in
reporting details about the restaurant, Tepatitlan's
attached exhibits, (Docket Entries No. 18-4, 20-3),
only include interrogatories and responses for
interrogatories 1 to 24. The court was not able to find
an interrogatory number 25 in Tepatitlan's exhibits.
The interrogatories that are attached do not appear
to contain assertions about the interior details of the
restaurant.

*4 This argument is unpersuasive. A court cannot
consider credibility at the summary judgment stage.
See Anderson, 477 U.S. at 255 (1986). The fact that
a witness's statement is “self-interested” does not mean
that the evidence is improper or inadmissible. See C.R.
Pittman Const. Co. v. Nat'l Fire Ins. Co. of Hartford, 453

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J&J Sports Productions, Inc. v. Tepatitlan Mexican Kitchen, Inc., Slip Copy (2016)

Fed.Appx. 439, 443 (5th Cir. 2011). Hernandez's affidavit
is competent summary judgment evidence.
Tepatitlan's second argument is that J&J's suit is timebarred, because the court should apply Texas's twoyear statute of limitations for conversion. (Docket Entry
No. 18 at 4-7). This argument is also unpersuasive.
Tepatitlan acknowledges that the statute of limitations
for Communications Act claims is three years. Prostar v.
Massachi, 239 F.3d 669, 678 (5th Cir. 2001). J&J's claim,
which was filed on September 14, 2015, (Docket Entry No.
1)—one day short of three years—is not time-barred.
Tepatitlan's third argument is that the affidavits
it submitted with its summary judgment motion
demonstrate that there is no genuine factual dispute that
the restaurant did not show the fight. Tepatitlan first
points to a notarized letter by a restaurant patron stating
that he had been to the restaurant five times a month since
it opened, including around the time of the fight. (Docket
Entry No. 18-3 at 1). The patron stated that he had never
seen any pay-per-view broadcasts on the televisions at
the restaurant. (Id.). Tepatitlan then points to 13 nearidentical affidavits, each of which reads “I, <name> never
seen pay-per-view fight at Taqueria Tepatitlan located at
10337 East Freeway Houston, Texas 77029 any day and
on date question September 15, 2012 between Julio Cesar
Chavez vs. Sergio Martinez.” (Id. at 2-14). One affidavit
is by Efren Gonzalez, the restaurant owner. There is no
information about the other affiants. Even assuming that
the affidavits are competent summary judgment evidence
that no fights were broadcast, Hernandez has submitted
a controverting affidavit that gives rise to a material and
genuine factual dispute.

b. J&J's Motion
It is undisputed that Tepatitlan had satellite TV rather
than cable, so § 605 governs. To prevail on its summary
judgment motion, J&J must show that there is no genuine
factual dispute material to determining that Tepatitlan
showed the fight and the “sender” of the satellite TV
signal did not authorize Tepatitlan to do so. See Flor
De Cuba, 2014 WL 6851943, at *3. Tepatitlan maintains
that it did not show the fight at all and denies that
anyone ordered the fight on the restaurant's behalf.
(Docket Entry No. 18-4 at 3-4). The second element is
undisputed: Tepatitlan's denial that anyone ordered the
broadcast of the fight necessarily means that the sender
did not authorize it. But because there is a genuine factual

dispute material to determining the first issue—whether
Tepatitlan showed the fight at all—the court denies J&J's
motion for summary judgment.
J&J points to Hernandez's affidavit as evidence that
Tepatitlan showed the fight. The affidavit describes how
Hernandez went to Tepatitlan on the night of the fight
and saw it broadcast on Tepatitlan's TVs. (Docket Entry
No. 19-1, Ex. A-2). J&J also argues that Tepatitlan's
failure to produce the restaurant's DirecTV invoice for
September 2012, despite the fact that it was otherwise
able to produce every monthly statement from December
2011 until November of 2012, (see Docket Entry No. 19-3,
Ex. F at 45-57), gives rise to an inference that Tepatitlan
feared what the bill would show (presumably a pay-perview purchase of a license to view the fight at a private
home).
*5 Tepatitlan responds by pointing to the notarized
letter from the restaurant patron and the near-identical
affidavits noted above. Tepatitlan argues that these give
rise to a genuine factual dispute material to determining
whether the restaurant showed the fight. The court agrees
with J&J that these affidavits and letter do not give rise
to a factual dispute. The notarized letter does not state
that the patron was at Tepatitlan on the night of the fight.
Instead, it says only that the patron had not seen pay-perview programming on his regular visits to the restaurant.
Because the patron does not say that he was present on
the night of the fight, the letter does not create a genuine
factual dispute as to what happened the night the fight
was broadcast. The affidavits are similarly insufficient.
All thirteen recite a substantially identical statement:
“I, <name> never seen pay-per-view fight at Taqueria
Tepatitlan located at 10337 East Freeway Houston, Texas
77029 any day and on date question September 15, 2012
between Julio Cesar Chavez vs. Sergio Martinez.” The
affidavits do not indicate who the affiants are or state that
they were present at the restaurant on the night at issue.
(Indeed, they do not even indicate that the affiants had
ever been to the restaurant.) They do not give rise to a
genuine factual dispute material to deciding whether the
restaurant showed the fight.
The court's own examination of the summary judgment
record demonstrates that J&J has not satisfied its
summary-judgment burden. 2 Tepatitlan attached its
interrogatory responses to its own motion for summary
judgment, (Docket Entry No. 18-4), and its response to

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J&J Sports Productions, Inc. v. Tepatitlan Mexican Kitchen, Inc., Slip Copy (2016)

J&J's motion, (Docket Entry No. 20-3). The responses
are verified and based on Efren Gonzalez's personal
knowledge. (Docket Entry No. 18-4 at 8). They are
competent summary judgment evidence. See Hart v.
Hairston, 343 F.3d 762, 765 (5th Cir. 2003). In the
interrogatory responses, Tepatitlan repeatedly denies,
under oath and based on Gonzalez's personal knowledge,
that it showed the fight. (Docket Entry No. 18-4 at 4 (“No
one ordered the event nor showed it at the establishment....
We did not receive the Event at the Establishment in
any manner.... [T]he event was not ordered, received, or
transmitted at the establishment.”); id. at 7 (“The event
was not show at the establishment in any way.”)).
2

The court is not required to, but is permitted to,
examine materials in the summary-judgment record
that the parties do not cite. Fed. R. Civ. P. 56(c)(3).

This verified interrogatory response is competent
summary judgment evidence that creates a genuine factual
dispute material to whether Tepatitlan showed the fight
at all. J&J is correct that Tepatitlan's failure to produce
its September DirecTV bill is relevant, but it does not
negate as a matter of law the inference that Tepatitlan did
not show the specific fight at issue. Tepatitlan's response
pleading attaches an affidavit in which Gonzalez states
End of Document

that he did not have a copy of the bill, executed a
release entitling J&J to access his satellite bills, and made
good-faith but unsuccessful efforts to get and produce
the bill. (Docket Entry No. 20-4). At a minimum, there
is a credibility issue that cannot be resolved at the
summary judgment stage. Tepatitlan's response, including
Gonzalez's statement, makes the cases that J&J cites
distinguishable. In those cases, courts drew negative
inferences at summary judgment based on a party's failure
to produce certain documents.
There is a genuine factual dispute material to deciding
whether Tepatitlan showed the fight, precluding a grant of
J&J's motion for summary judgment.

IV. Conclusion
The cross-motions for summary judgment, (Docket
Entries Nos. 18 and 19) are denied. The parties are to
appear on Friday, October 28, 2016, as scheduled, for the
final pretrial conference and docket call.

All Citations
Slip Copy, 2016 WL 8710461

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