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: 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.
In 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) which states:
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.
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.
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
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 ...