United States District Court, N.D. Illinois
February 25, 2004.
DIRECTV, INC., a California corporation Plaintiff
ZIGGY WIERZBA, P. Michael Mahoney, Defendant
The opinion of the court was delivered by: P. MICHAEL MAHONEY, Magistrate Judge
Report and Recommendation
DIRECTV, Inc. ("DIRECTV") filed suit against numerous individuals
alleging violations of the Federal Communications Act, 47 U.S.C. § 605
and the Electronic Communications Privacy Act, 18 U.S.C. § 2510-2521.
Some of the individual defendants served in this case did not answer or
otherwise plead to DIRECTV's complaint. DIRECTV then filed motions for
default as to those individuals who failed to answer or otherwise plead
to the complaint. Judge Reinhard granted those motions for default and
requested that this court determine a proper damage amount for each
individual. This court held a hearing on February 24, 2004 to determine a
proper damage amount for each individual. Therefore, it is the report and
recommendation of this court that judgment be entered against the
following individuals for the following amounts: l) Robert Peterson
$4920.00; 2) Mark White $9020.00; 3) Garth Huckabay $8610.00; 4) Michael
Chavez $10,000; 5) Richard Dailey $10,000; 6) Ziggy Wierzba $10,000;
and 7) Jerry Best $6970.00.
In his attempt to combat piracy of its satellite television signal,
DIRECTV has sued numerous
individuals, both subscribers and nonsubscribers, for the alleged
use of devices that descramble and/or decode DIRECTV's signal. By way of
background, and to fully understand the complexity of the pirating
efforts against DIRECTV, DIRECTV relays signals from within the United
States up to satelites hovering thousands of miles above the Earth. Those
signals ARB then broadcast back to Earth. DIRECTV's signal is received
through the use of a fixed outdoor satellite dish which is connected by
cable to an indoor satellite receiver which is then connected by cable to
To prevent the unauthorized use of its signal, DIRECTV uses encryption
technology to digitally scramble the signal. The satellite receiver is
the component that makes descrambling possible. Each satellite receiver
contains a removable access card. This card dictates what channels ARB
scrambled and which ARB not based on the subscription package. Once a
DIRECTV customer pays a subscription fee, DIRECTV electronically directs
the access card to unscramble portions of the signal depending on what
the customer requested.
In May 2001, DIRECTV, with the assistance of local law enforcement,
raided several major distributors of pirate access devices. During and
subsequent to these raids, DIRECTV obtained shipping records, email
communications, credit card receipts and other records identifying
individual customers who purchased pirating devices. The pirating devices
recovered included Bootloaders, Unloopers, and Emulators. A Bootloader is
generally used to rectify DIRECTV's electronic counter measures. An
Unlooper is designed to repair access cards that have been rendered
unusable and is specifically designed for use with certain software. An
Emulator works through a computer so that the access card cannot be
looped by DIRECTV's electronic counter measures.
DIRECTV seeks damages against the individual defendants pursuant to
47 U.S.C. § 605 (e)(3)(C)(i)(II)
the party aggrieved may recover an award of statutory
damages for each violation of subsection (a) of this
section involved in the action in a sum of not less
than $1,000 or more than $10,000, as the court
considers just, and for each violation of paragraph
(4) of this subsection involved in the action an
aggrieved party may recover statutory damages in a sum
not less than $10,000, or more than $100,000, as the
court considers just.
DIRECTV does not seek damages pursuant to paragraph (4) so this court
need not discuss that section. Thus, this court must determine reasonable
damages for each individual defendant in an amount not less than $1,000
and not more than $10,000. While the statutory minimum generally would be
appropriate where DIRECTV failed to offer any justification in excess of
the statutory minimum, DIRECTV v. Hamilton, 215 F.R.D. 460,462 (S.D.N. Y
2003)(finding that Plaintiff failed to proffer any justification for an
award in excess of the statutory minimum), this court does not believe
this to be such a case. Rather, this court finds that DIRECTV has
provided more then ample justification for a finding above the statutory
minimum, In fact, this court finds that DIRECTV clearly established a
typical loss of $205.00 a month for the illegal use of its signal. This
court will discuss each individual defendant below.
1. Robert Peterson
At the February 24, 2004 hearing, DIRECTV presented evidence that Mr.
Robert Peterson purchased a Loader/Unlooper in February 2001. DIRECTV
also presented evidence that established Mr. Peterson previously
subscribed for and received DIRECTV's NFL package. However, as of
February 2001, Mr. Peterson failed to renew his subscription for the NFL
package. Therefore, it appears that Mr. Peterson has been using the
piracy equipment, namely the Unlooper, for 24 months.
At $205.00 a month, this court recommends a judgment be entered against
Mr. Peterson in the amount of $4920.
2. Mark White
Mr. Mark White purchased an Unlooper in July 2000. Additionally,
DIRECTV presented evidence that Mr. White is not a DIRECTV subscriber.
Mr. White probably bought a DIRECTV satellite dish and receiver from an
outside source*fn1 and used the Unlooper to obtain pay per view service
illegally. Therefore, it appears that Mr. White has been using the piracy
equipment, namely the Unlooper, for 44 months. At $205.00 a month, this
court recommends a judgment be entered against Mr. White in the amount of
3. Garth Huckabay
Mr. Garth Huckabay purchased an Unlooper in September 2000. Like Mr.
White, DIRECTV also presented evidence that Mr. Huckabay is not a DIRECTV
subscriber. DIRECTV again argued that Mr. Huckabay bought DIRECTV
hardware and used the Unlooper to obtain pay per view service illegally.
Therefore, it appears that Mr. Huckabay has been using the piracy
equipment, namely the Unlooper, for 42 months. At $205.00 a month, this
court recommends a judgment the entered against Mr. Huckabay in the
amount of $8610.
4. Michael Chavez
Mr. Michael Chavez purchased three Unloopers in October 2000. It is not
known whether Mr. Chavez used the three Unloopers in his house or if he
gave or sold two of the three. While Mr.
Chavez is a DIRECTV subscriber,*fn2 DIRECTV presented evidence that up
until February 2001, Mr. Chavez purchased at least one pay per view movie
a month. However, since February 2001, Mr. Chavez ceased purchasing any
pay per view movies even though he still subscribes to DIRECTV.
Therefore, it appears Mr. Chavez has been using the piracy equipment,
namely the Unloopers, for 36 months.*fn3 At $205.00 a month, Mr. Chavez
would pay $7380.00. However, because Mr. Chavez purchased three
Unloopers, this court recommends a judgment be entered against Mr. Chavez
in the amount of $10,000.
5. Richard Dailey
Mr. Richard Dailey has been a DIRECTV subscriber since 1998. DIRECTV
presented evidence that Mr. Dailey purchased many pay per view titles
until May 2000. The records from the raid indicate Mr. Dailey purchased
an Unlooper in March 2001 and an Emulator in April 2001. Therefore, it
appears Mr. Dailey has been using the piracy equipment, namely the
Unlooper and the Emulator, for 35 months.*fn4 At $205.00 a month, Mr.
Dailey would pay $7175.00. However, because Mr. Dailey purchased an
Unlooper and an Emulator, this court recommends a judgment be entered
against Mr. Dailey in the amount of $10,000.
6. Ziggy Wierzba
Mr. Ziggy Wierzba is the most egregious of all the present defendants,
In March 2001, Mr.
Wierzba purchased two Boot Loaders, one Emulator and one Programer.
Mr. Wierzba has been using these items for 35 months. Mr. Wierzba's
multiple purchases dictates that this court recommend a judgment be
entered against Mr. Wierzba for the statutory maximum of $10,000.
7. Jerry Best
Mr. Jerry Best purchased an Unlooper combo with programer in April
2001. DIRECTV's records indicate Mr. Best, who is still a DIRECTV
customer, previously purchased the NFL package but from 1998 to 2003, Mr.
Best purchased no pay per view titles. Even more disturbing, at the
February 24, 2004 hearing, DIRECTV presented evidence that Mr. Best is a
subscriber to Pirates Den, a website geared to informing individuals how
to hack into DIRECTV signal. In fact, DIRECTV presented evidence that Mr.
Best posted a message in Pirates Den's chatroom in November 2000.
Therefore, it appears Mr. Best has been using the piracy equipment,
namely the Unlooper combo with programer, for 34 months. At $205.00 a
month, this court recommends a judgment be entered against Mr. Best in
the amount $6,970.
For the above stated reasons, it is the Report and Recommendation of
the Magistrate Judge that a judgment be entered against the following
individuals for the following amounts: 1) Robert Peterson-$4920.00; 2)
Mark White-$9020.00; 3) Garth Huckabay $8610.00; 4) Michael
Chavez-$10,000; 5) Richard Dailey $10,000; 6) Ziggy Wierzba $10,000; and
7) Jerry Best $6970.00. The parties ARB given ten days from service of
this Order, as calculated under Rule 6, to appeal to Judge Philip G.
Reinhard, pursuant to Rule 72 of the Federal Rules of Civil Procedure.