United States District Court, N.D. Illinois
April 20, 2004.
DIRECTV, INC., Plaintiff,
JAMES RAJKOVAC, Defendant
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, DirecTv, Inc., filed suit against Defendant, James
Rajkovac, alleging that the Defendant purchased and used devices designed
primarily for the purpose of pirating DirecTv's satellite transmissions in
derogation of DirecTv's rights to receive compensation for receipt of its
signals. Plaintiff seeks civil damages in the form of actual or statutory
damages, as well as injunctive relief pursuant to 18 U.S.C. § 2512, as
set forth in Count III of the Complaint.
Presently before the Court is Defendant's Motion to Dismiss Count III
of Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure
In reviewing a motion to dismiss, the court considers all facts alleged
in the complaint and any reasonable inferences drawn therefrom in the
light most favorable to the plaintiff. See Marshall-Mosby v. Corporate
Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). A plaintiff is not
required to plead the facts or the elements of a claim, with the
exceptions found in Federal Rule of Civil Procedure 9. See Swierkiewicz
v. Sorema, 534 U.S. 506, 511 (2002); Walker v. Thompson, 288 F.3d 1005,
1007 (7th Cir. 2002) (Walker). Dismissal is warranted only if "it appears
beyond a doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). The "suit should not be dismissed if it is
possible hypothesize facts, consistent with the complaint, that would make out a
claim." Graehling v. VIII of Lombard, Ill., 58 F.3d 295, 297 (7th Cir.
A reading of the Complaint supports the following summary of the
alleged operative conduct of the parties.
DirecTv is a California-based company in the business of distributing
satellite television broadcasts throughout the United States. DirecTv
developed a satellite system capable of transmitting various digitized
video and audio signals to homes and businesses nationwide to be used for
entertainment purposes, also known as "satellite programming." DirecTv
relays digital signals from the United States to satellites orbiting many
miles above Earth. Those signals are then broadcast back to Earth where
fixed outdoor satellite dishes can receive DirecTv's satellite
programming. The satellite dish is connected by cable to an indoor
satellite receiver which is then connected by cable to a television
The signal beamed from space to various areas in the United States can
be received by installing a satellite dish and paying DirecTv a fee to
use its television broadcast services. DirecTv uses encryption technology
to digitally scramble the signal. The signal is unusable before it is
unscrambled. Each indoor satellite receiver contains a removable access
card that holds a computer-type chip that stores and applies the
information necessary to unscramble the satellite signals being received
through the satellite dish. DirecTv electronically programs these access
cards to close or open television channels based upon the particular
programming package a customer has purchased.
The encryption technology used by DirecTv has not prevented the
development of devices and equipment (pirate access devices) which
provide the user with access to all of DirecTv's satellite programming
with no payment to the company. On or about May 25, 2001, DirecTv, with the help of law enforcement,
obtained a substantial body of shipping records, email communications,
credit card receipts, and other records confirming the existence of
distribution sources for the country-wide "transmission of devices
primarily designed for the unauthorized interception" of DirecTv's
satellite programming by use of pirate access devices.
Defendant is one of the purchasers of pirate access devices from a
member of the Fulfillment Pirate Group. The Defendant received the
satellite programming by means including but not limited to: (a)
maintaining satellite dishes capable of receiving satellite programming
on television monitors and further maintaining electronic devices which
enable the Defendant to unscramble, receive, and exhibit encrypted
satellite programming transmissions without authorization; and/or (b) by
such other means to effectuate the unauthorized reception of the
satellite programming which are unknown to DirecTv and known only to
Defendant contends that Count III of Plaintiff s Complaint should be
dismissed because, as a matter of law, 18 U.S.C. § 2520 does not
support a civil cause of action for violations of 18 U.S.C. § 2512.
Count III alleges a private cause of action under section 2512.
Specifically, the Defendant "possessed, manufactured, and/or assembled an
electronic, mechanical or other device," knowing, or having a reason to
know, that the design of such a device renders it primarily useful for
the interception of satellite television broadcasts in violation of
Section 2512, and that DirecTv is entitled to damages under Section 2520,
as a result of Defendant's violation of Section 2512.
Although it is a crime under Section 2512(1)(b) to manufacture,
assemble, possess or sell any device designed to intercept electronic
communications, such conduct does not subject a person to civil liability. Directv, Inc. v. Cardona, 275 F. Supp.2d 1357, 1367
(M.D. Fla. 2003). Section 2520(a) only provides a private right of action
for "any person whose wire, oral, or electronic communication is
intercepted, disclosed, or intentionally used in violation of this
chapter" to seek damages from "the person or entity . . . which engaged
in that violation." 18 U.S.C. § 2520(a).
The plain and unambiguous language of Section 2520(a) limits those
against whom a private cause of action lies to persons who intercept,
disclose or use electronic communications. That class of persons does not
include manufacturers, assemblers, possessors, and sellers of satellite
decrypters. Flowers v. Tandy Corp., 773 F.2d 585, 588-89 (4th Cir.
1985); Cardona, 275 F. Supp.2d at 1367. Section 2520(a) does not, by its
express terms, incorporate Section 2512(1)(b) into its private cause of
action language. Flowers, 773 F.2d at 588-89; Cardona, 275 F. Supp.2d at
1362-70; Directv v. Amato, 269 F. Supp.2d 688, 689-91 (E.D. Va. 2003).
It is apparent that Congress expressly intended to create a private
cause of action by Section 2520(a). DirecTv, Inc. v. Westendorf, 2003 WL
22139786, *2. When Congress does so, an implied right of action may not
be inferred "without powerful support in the legislative history."
Comty. and Econ. Dev. Assoc. of Cook County v. Suburban Cook County Area
Agency on Aging, 770 F.2d 662, 666 (7th Cir. 1985), "Implied causes of
action are disfavored and should be found only where a statute clearly
indicates that the plaintiff is one of a class for whose benefit the
statute was enacted and there is some indication that Congress intended
such a cause of action to lie." Flowers, 773 F.2d at 589. Section 2520(a)
includes the same particular language of the criminal offenses set forth
in Section 2511(1)(a) but specifically excludes the language of Section
2512(1)(b) (i.e., "manufactures," "assembles," "possesses," and
"sells"). Therefore, Section 2520(a), in creating a private cause of
action, must be construed to exclude that type of conduct proscribe only
in Section 2512(1)(b). Where "Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion." MBH Commodity Advisors, Inc. v.
Commodity Futures Trading Comm., 250 F.3d 1052, 1062 (7th Cir. 2001).
Moreover, nothing in the legislative history of Section 2520(a) or
Section 2512 indicates Congress intended to create an implied cause of
action beyond that expressly provided in Section 2520(a). Westendorf,
2003 WL 22139786 at 2. In light of the foregoing, there is not a private
cause of action, express or implied, under Section 2512 as alleged in
Count III. See Westendorf, 2003 WL 22139786 at 2; Cardona, 275 F. Supp.2d
For the foregoing reasons, Defendant's Motion to Dismiss Count III is
granted. Count III of Plaintiff's Complaint is dismissed with prejudice.
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