J&J Sports Productions, Inc. v. Beck
MEMORANDUM AND ORDER granting Plaintiff's 4 MOTION for Default Judgment against Audrey Richey Beck. The request for injunction is denied. (Signed by Judge George P. Kazen) Parties notified. (dmorales, 5)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
J&J SPORTS PRODUCTIONS, INC.,
AUDREY RICHEY BECK,
INDIVIDUALLY AND D/B/A
Civil Action No. L-13-57
Pending before the Court is Plaintiff J&J Sports, Inc.’s
(“J&J”) Motion for Default Judgment.
For the reasons
that follow, that motion will be GRANTED.
commercial exhibitions of pay-per-view prizefight events,” and
“possessed the proprietary rights to exhibit and sublicense the
right to exhibit” the March 12, 2011 closed-circuit telecast of
(Dkt. 4 at 1-3.)
J&J “was licensed to exhibit the
Event at closed circuit locations, such as theaters, arenas,
clubs, lounges, restaurants and other commercial establishments
throughout the State of Texas.”
(Dkt. 4 at 3.)
establishment in Texas could legally show the Event only by
J&J provided sublicensed establishments with
necessary to receive the signal or the establishment’s cable or
Defendant Audrey Richey Beck was the owner of Double A’s,
located at 905 N. 14th Street, Kingsville, TX 78363.
(Dkt. 1 at
On March 12, 2011, an investigator hired by J&J observed
Double A’s displaying the Event to 20 to 33 patrons using one
(Dkt. 4-1, Ex. A-2.)
Beck had neither contracted
unlawfully intercepted the broadcast of the Event.
Ex. A at ¶9.)
J&J filed its complaint on April 1, 2013, claiming that
Beck’s actions violated the Federal Communications Act of 1934,
as amended, 47 U.S.C. §§ 553 and 605.
served with process on May 3, 2013.
neither answered nor otherwise defended as required by Fed. R.
Civ. P. 12, J&J simultaneously filed a Request for Entry of
Default (Dkt. 5) and a Motion for Default Judgment (Dkt. 4).
The Clerk entered Beck’s default, pursuant to Fed. R. Civ. P.
55(a), on August 19, 2013.
J&J’s Motion for Default
Judgment seeks recovery pursuant to 47 U.S.C. § 605 alone.
Dkt. 4 at 19-20.)
By defaulting, a defendant “admits the plaintiff’s wellpleaded allegations of fact, is concluded on those facts by the
judgment, and is barred from contesting on appeal the facts thus
Nishimatsu Const. Co., Ltd. V. Houston Nat. Bank,
515 F.2d 1200, 1206 (5th Cir. 1975).
However, a defendant’s
default “does not in itself warrant . . . entering a default
Rather, “[t]here must be a sufficient basis in
the pleadings for the judgment entered.”
must be proven through “a hearing or a demonstration by detailed
affidavits establishing the necessary facts.”
I. Beck’s Liability
An individual violates the Communications Act (“the Act”)
by “intercept[ing] any radio communication . . . or receiv[ing]
communication by radio . . . for his own benefit or for the
benefit of another not entitled thereto.”
47 U.S.C. § 605(a).
The pleadings establish that the Event’s broadcast originated
via satellite (i.e., a radio signal), and that Beck intercepted
(See Dkt. 1 at 3-4.)
Accordingly, she is
liable under the Act.
The “party aggrieved” by a violation of § 605 may elect to
recover either actual damages or statutory damages in a sum not
That is, the base statutory damages must
financial advantage or private financial gain, the court in its
discretion may increase the award of damages . .
of not more than $100,000 . . . .”
by an amount
Id. § 605(e)(3)(C)(ii).
certain circumstances, then, a party may be entitled to $100,000
damages or base statutory damages.
The aggrieved party shall
It asks for base statutory damages of $10,000, the
maximum amount available.
To support its damages claims, J&J
submits an affidavit of Thomas P. Riley, an attorney hired by
J&J to deal with infringement claims.
(Dkt. 4-1, Ex. A at ¶¶2-
He avers that losses suffered by J&J include lost licensing
fees and lost good will from establishments that paid licensing
(Dkt. 4-1, Ex. A at ¶¶12-14.)
[t]he continued viability of [J&J] as a business
concern depends upon the willingness and ability of
legitimate commercial establishments to pay sublicense
fees for the right to broadcast closed-circuit sports
and entertainment programming, such as the Event. If
such programming is made available to the public for
no fee at unauthorized commercial establishments which
have not purchased the right to broadcast such
programming, legitimate commercial establishments will
find no reason to purchase the right to legally
broadcast this type of programming.
(Dkt. 4-1, Ex. A at ¶15.)
Moreover, to adequately deter piracy,
the cost of piracy must be significantly higher than the cost of
buying a license.
Entm't by J & J, Inc. v. Al-Waha Enterprises,
Inc., 219 F. Supp. 2d 769, 776 (S.D. Tex. 2002); (Dkt. 4-1, Ex.
A at ¶17).
Here, the licensing fee would have been between
$1,200 and $1,600.1
In these circumstances, the Court will award
$5,000 in base statutory damages.
See Al-Waha, 219 F. Supp. 2d
licensing fee would have been $1,500).
claiming that Beck’s interception of the Event’s broadcast was
willful and undertaken for the purpose of direct or indirect
The J&J investigator predicted that Double A’s maximum
occupancy was approximately 120 people.
(Dkt. 4-1, Ex. A-2.)
For establishments with maximum occupancies of up to 100 people,
the licensing fee was $1,200; for maximum occupancies of 101 to
200 people, the fee was $1,600.
(Dkt. 4-1, Ex. A-3.)
Accordingly, the licensing fee for Double A’s would have been
between $1,200 and $1,600.
commercial advantage or private financial gain.
(Dkt. 4 at 14-
J&J argues that one does not “innocently” or accidentally
(Dkt. 4 at 14-15.)
That is, to intercept a
scrambled broadcast such as the broadcast of the Event,
there must be some wrongful action, such as using an
obtaining cable or satellite service and illegally
altering the cable or satellite service to bring the
signal of the Event into the establishment, or moving
an authorized decoder or satellite card from its
authorized location to the commercial establishment.
(Dkt. 4-1, Ex. A at ¶10.)
J&J does not allege the use of any
particular descrambling technique, and it does not offer direct
evidence of willfulness.
[b]ased on the limited methods of intercepting closed
circuit broadcasting of pay-per-view events and the
low probability that a commercial establishment could
intercept such a broadcast merely by chance . . .,
courts have held conduct such as that of [the
defendant] in this case to be willful and for the
purposes of direct or indirect commercial advantage or
private financial gain.
Al-Waha, 219 F.Supp.2d at 776.
Accordingly, the Court finds
that Beck’s actions were willful.
advantage or private financial gain.
Though Beck apparently did
not impose a cover charge for viewing the Event, Beck’s “patrons
purchased food and/or drinks while viewing the Event.”
establishments show sports programs to draw business, not out of
J&J asks for the award of additional statutory damages of
patrons viewed the Event, and J&J does not allege that Beck is a
Therefore, the Court will only award total
damages of $15,000, or three times the base award amount.
47 U.S.C. § 605(e)(3)(C)(iii) (award of additional damages is at
the Court’s discretion); see also Al-Waha, 219 F.Supp.2d at 776
(awarding treble damages in similar case where violation was
willful and for financial advantage).
J&J additionally seeks an award of attorneys’ fees.
support of its requested fees, it submits an affidavit from one
of its attorneys.
(Dkt. 4-1, Ex. B.)
awarded to [J&J] . . . .”
J&J seeks fees in the
(Dkt. 4 at 19.)
In the alternative,
J&J seeks an award of $1,000 based on an hourly rate of $250 and
four hours of work.
Dkt. 4-1, Ex. B at ¶¶2, 8-9.)
Court finds that the latter figure is reasonable and accordingly
awards J&J attorneys’ fees in the sum of $1,000.
J&J also seeks additional attorneys’ fees based on certain
(Dkt. 4 at 20.)
For example, J&J
seeks $15,000 “in the event a defendant files an appeal to the
reversal of the Judgment obtained in this action . . . .”
4-1, Ex. B at ¶10.)
To support its request for contingent post-
judgment attorneys’ fees, the affidavit of J&J’s attorney merely
is . . .
reasonable . . . .”
reasonableness of the post-judgment attorneys’ fees, the Court
declines to award such fees.
unauthorized program in violation of the Federal Communications
(Dkt. 4 at 20.)
Such an injunction would essentially
enjoin Beck from violating the law, which of course is already
J&J does not explain why it needs or wants this
The request for injunction is denied.
DONE at Laredo, Texas, this 9th day of October, 2013.
George P. Kazen
Senior United States District Judge
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