The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Directv, Inc. ("Directv"), a direct broadcast
satellite television system, has filed a five-count complaint
against defendant, Jaime Rosario ("Rosario"), for allegedly
purchasing by mail and possessing and/or using equipment capable
of receiving and decrypting Directv's satellite broadcast signal
without permission from or payment to Directv. Count I alleges
that Rosario violated provisions of the Cable Communications
Policy Act, 47 U.S.C. § 605. Count II alleges that Rosario
violated provisions of 18 U.S.C. § 2511 and is brought under
18 U.S.C. § 2520. Count III alleges that Rosario violated provisions
of 18 U.S.C. § 2512 and is brought under 18 U.S.C. § 2520.
Rosario now moves to dismiss Counts I-III.*fn1 For the
reasons stated below, the court denies the motion as to Counts I
and II and grants it as to Count III. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) challenges the sufficiency of the complaint for failure
to state a claim upon which relief may be granted. General Elec.
Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080
(7th Cir. 1997). Dismissal is appropriate only if it appears
beyond a doubt that the plaintiff can prove no set of facts in
support of his claim that would entitle him to relief. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957); Kennedy v. Nat'l Juvenile
Det. Ass'n, 187 F.3d 690, 695 (7th Cir. 1999). In ruling on
the motion, the court accepts as true all well pleaded facts
alleged in the complaint, and it draws all reasonable inferences
from those facts in favor of the plaintiff. Jackson v. E.J.
Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999); Zemke v.
City of Chicago, 100 F.3d 511, 513 (7th Cir. 1996).
Rosario's only argument in support of his motion to dismiss
Counts I and II is that Directv has "failed to provide any
evidence to support a cause of action against this
Defendant. . . ." Rosario clearly misunderstands the 12(b)(6)
standards set forth above. The issue on 12(b)(6) motion to
dismiss is not whether the plaintiff has offered evidence to
support a cause of action, but "whether the plaintiff is entitled
to offer evidence to support his claims." Scheuer v. Rhodes,
416 U.S. 232, 236 (1974), overruled on other grounds by Harlow
v. Fitzgerald, 457 U.S. 800 (1982). At this stage, Directv only
needs to provide "a short plain statement showing the plaintiff
is entitled to relief, the purpose of which is to give the
defendant notice of the claims and the grounds they rest upon."
Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cit. 2002). Dismissal is appropriate only if it is clear
on the face of the complaint that the plaintiff can prove no set
of facts in support of his claim. Conley, 355 U.S. at 45-46.
There is no question that Directv has stated a claim in Counts
I and II. Count I alleges that Rosario violated § 605(a) of the
Cable Communications Policy Act by installing and using a "pirate
access device" to intercept, receive, and exhibit satellite
programming from Directv. Section 605(a) explicitly prohibits
surreptitious interception of any encrypted satellite signal,
whether the individual receives the signal directly by satellite
or through a cable operator and whether the piracy is for private
or commercial use. United States v. Harrell, 983 F.2d 36
(5th Cir. 1993). When a violation of § 605(a) has occurred, §
605(e)(3) grants a private right of action to the aggrieved
person or entity. International Cablevision, Inc. v. Sykes,
997 F.2d 998, 1007 (2nd Cir. 1993). Thus, Directv has stated a
claim for a violation of § 605(a).
Count II alleges that Rosario violated provisions of
18 U.S.C. § 2511 by knowingly possessing a device to unlawfully intercept
satellite signals and by using the device to unlawfully intercept
satellite signals. Such activity is explicitly prohibited by
18 U.S.C. § 2511. 18 U.S.C. § 2520 expressly provides for a private
cause of action for violations of § 2511. Thus, Directv has
stated a claim for a violation of § 2511.
Count III seeks to recover damages for alleged violations of
18 U.S.C. § 2512(1)(b). This section provides that a person commits
a federal crime if he intentionally
manufactures, assembles, possesses, or sells any
electronic, mechanical, or other device, knowing or
having reasons to know that the design of such device
renders it primarily useful for the purpose of the
surreptitious interception of wire, oral, or
electronic communications. . . ." Directv also alleges in Count II that Rosario
actually intercepted Directv's communications in
violation of 18 U.S.C. § 2511. Accordingly, Count III
constitutes an independent cause of action only if
Directv can recover for the defendant's mere
possession (or manufacture, possession or sale) of a
prohibited device, without proof that the defendant
participated in actual interception, disclosure, or
use of an electronic communication. See Directv v.
Beecher, 296 F. Supp.2d 937, 940 (S.D. Ind. 2003).
Section 2512 is a criminal statute and by itself does not allow
a private party to recover damages for behavior that violates its
terms. To support its claim for civil remedies on both Count II
and Count III, Directv relies on 18 U.S.C. § 2520(a), which
provides, in pertinent part, that
[A]ny person whose . . . electronic communication is
intercepted, disclosed, or intentionally, or
intentionally used in violation of this chapter may
in a civil action recover from the person or entity,
other than the United States, which engaged in that
violation such relief as may be appropriate.
In his motion to dismiss Count III, defendant contends that §
2520(a) does not provide a private right of action for violations
of § 2512. The court agrees. In Flowers v. Tandy Corp.,
773 F.2d 585
(4th Cir. 1985), the Fourth Circuit held that §
2520(a) "expressly limits those against whom private action lies
to the person who `intercepts, discloses, or uses . . . such
communication.'" Id. at 588. The court reasoned that a broad
construction of § 2520(a) would support a civil action against
those who violate § 2512 (manufacture, assembly, possession, or
sale of a prohibited device) but who do not actually intercept
electronic communications in violation of § 2511. Id. at 589.
The court held that the plain language of the § 2520(a) did not support such an outcome and, thus, held that §
2520(a) does not provide a private cause of action for violations
of § 2512. Id.
Directv argues that § 2520 provides a private cause of action
for any "violation of this chapter," which includes § 2512.
Directv seeks support for this view in Oceanic Cablevision,
Inc. v. M.D. Elec., 771 F. Supp. 1019 (D. Neb. 1991). In
Oceanic, the court was faced with a 12(b)(6) challenge to two
counts of a complaint against a distributor of cable
descramblers: one premised on § 2511 and another premised on §
2512. In its analysis of the viability of the § 2511 count, the
court concluded that the plaintiff had not stated a cognizable
claim because the distributor was not alleged to have engaged in
any of the activities listed in § 2520-interception, disclosure,
or use. Id. at 1027-28.
The Oceanic court questioned the continued vitality of
Flowers, noting that it was decided at a time when § 2520
contained language that directly mirrored the activities listed
in § 2511, including procurement of another to intercept,
disclose, or use another's communication. Id. at 1027.
Subsequent to the decision in Flowers, Congress amended § 2520
to eliminate any mention of civil liability based on procuring
interception, disclosure, or use. The Oceanic court attempted
to capture the different situations by stating, "Clearly, § 2520
only confers a private cause of action upon persons when the
action is brought against parties that have violated the
provisions of §§ 2510-2521." Id. The court ignored the fact
that this statement is not accurate even in the limited context
of § 2511 actions. The removal of the reference to procuring
another person to intercept, disclose, or use another's
communication from § 2520 was not accompanied by a removal of
analogous language from § ...