The opinion of the court was delivered by: Schenkier, United States Magistrate Judge.
MEMORANDUM OPINION AND ORDER
This case arises out of a dispute concerning the closed-circuit
telecast of a professional prizefight between Evander Holyfield
and Michael Moorer on November 8, 1997, and associated under-card
and preliminary bouts. Plaintiff KingVision Pay Per View, Ltd.
("KingVision") claims that it had the exclusive rights to exhibit
and distribute that telecast, and that defendants Boom Town
Saloon, Inc. ("Boom Town") and its owner/manager, Eugene Perry,
violated those exclusive rights by willfully intercepting or
receiving the signal for those fights, and then telecasting them
without making proper payment to KingVision. Plaintiff alleges
that in so doing, defendants have violated 47 U.S.C. § 553 and
605 of the Cable Communications Policy Act (the "Cable Act"), and
seeks statutory damages, attorneys' fees and other relief.
Defendants seek a technical knockout of KingVision's claim,
arguing that this complaint comes too late. Defendants claim that
KingVision's Cable Act claims are governed by the Illinois
two-year statute of limitations covering statutory penalties,
codified at 735 ILCS 5/13-202. Accordingly, defendants have filed
a motion to dismiss [doc. # 11-1] on the ground that the action
is time-barred, as this complaint was filed slightly more than
two years after the acts in question. Plaintiff counters that
this Court should apply either the three-year statute of
limitations found in the Copyright Act, 17 U.S.C. § 507(b), or
the five-year statute of limitations provided by Illinois law for
actions claiming conversion, codified at 735 ILCS 5/13-205, under
either of which this action would be timely. The Court finds that
KingVision has the better of this argument, and accordingly
denies the motion to dismiss.*fn1
We begin with the observation that the only reason that there
is any dispute about the applicable statute of limitations is
that when enacting Sections 553 and 605 of the Cable Act,
Congress failed to provide a statute of limitations. When that
occurs, courts must look elsewhere to borrow a limitations
period. See Dell v. Board of Educ., 32 F.3d 1053, 1058 (7th
Cir. 1994). Generally, a federal court will look to the state in
which the conduct occurred in order to borrow the most analogous
state-law statute of limitations period. See Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 355-56,
111 S.Ct. 2773, 115 L.Ed.2d 321 (1991). However, a federal court
instead may borrow a statute of limitations from federal law if
it is "clearly more analogous to the legislation than the state
statutes, . . . and if the state statutes of limitation are
`unsatisfactory vehicles' for enforcing the federal law." Dell,
32 F.3d at 1058 (quoting DelCostello v. International Bhd. of
Teamsters, 462 U.S. 151, 161, 171-72, 103 S.Ct. 2281, 76 L.Ed.2d
In determining whether to select a federal rather than state
statute of limitations, courts apply a "hierarchical inquiry"
that asks three questions:
(1) whether a uniform statute of limitations is
required, because the federal cause of action in
question may "`encompass numerous and diverse topics
(2) whether such a uniform limitations period should
be derived from a state or federal source, an inquiry
that requires consideration of whether the multistate
character of the federal cause of action might give
rise to application of multiple state statute of
limitations periods, which would present the danger
of forum shopping and would "`virtually guarantee . .
. complex and expensive litigation over what should
be a straightforward matter'"; and
(3) whether there is an analogous federal statute of
limitations that "truly affords a `closer fit' with
the cause of action at issue than does any available
Lampf, 501 U.S. at 356-58, 111 S.Ct. 2773 (citations omitted).
In applying this analysis, federal courts must be mindful of the
presumption that by its silence Congress ordinarily intends that
state law be borrowed, and that resort to a federal statute of
limitations is a "`closely circumscribed exception'" to that
presumption. Dell, 32 F.3d at 1058 (quoting Lampf, 501 U.S.
at 356, 111 S.Ct. 2773 (citations omitted)).
In order to apply these principles to borrow the appropriate
statute of limitations, we begin with an examination of the
structure and purpose of Sections 553 and 605 of the Cable
The legislative history reveals that "[o]ne of the primary
purposes behind the enactment of [Sections 553 and 605] was to
discourage the theft of cable services." Kingvision Pay Per
View, Ltd. v. Wilson, 83 F. Supp.2d 914, 918 (W.D.Tenn. 2000)
(citing H.R. REP. NO. 98-934, at 84 (1984), U.S.Code Cong. &
Admin.News 1984, p. 4655). To that end, Congress provided for a
variety of penalties and remedies, designed "to protect the
revenue of television cable companies from unauthorized reception
of their transmissions." Time Warner
Entertainment/Advance-Newhouse Partnership v. Worldwide Elec.,
L.C., 50 F. Supp.2d 1288, 1293 (S.D.Fla. 1999) (quoting United
States v. Coyle, 943 F.2d 424, 427 (4th Cir. 1991)).
Section 553(a)(1) of the Cable Act provides that "[n]o 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(a)(1). Congress provided an array of criminal sanctions and
civil remedies for violations of that provision. In Section
553(b), which is entitled "Penalties for Willful Violation,"
Congress provided a range of terms of imprisonment and fines.
47 U.S.C. § 553(b). In Section 553(c)(1), entitled "Civil Action in
District Court; Injunctions; Damages; Attorneys' Fees and Costs;
Regulation by States or Franchising Authorities," Congress
granted a private right of action to "[a]ny person aggrieved by
any violation of subsection (a)(1)." 47 U.S.C. § 553(c)(1).
Section 553(c)(2) provides that a prevailing party may obtain
injunctive relief, damages, and attorneys' fees and costs.
47 U.S.C. § 553(c)(2). Congress then went on to define the types of
damages that may be recovered: either (1) actual damages suffered
by the plaintiff as well as recovery of profits gained by the
person who unlawfully intercepted the communications, or (2)
statutory damages of an amount not less than $250 and not more
than $10,000, "as the Court considers just."
47 U.S.C. § 553(c)(3)(A). Moreover, Congress provided the Court with the
discretion to increase any damage award — "whether actual or
statutory" — by an amount ...