The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff DirecTV, Inc. ("DirecTV") has filed a five-count
complaint against Martin Bjornson alleging violations of
provisions of the Federal Communications Act of 1934, as amended,
47 U.S.C. § 605, and the Electronic Communications Privacy Act,
18 U.S.C. § 2510-2521, as well as conversion under Illinois law.
Bjornson has moved to dismiss Counts III and V of the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
following reasons, we grant the motion to dismiss.
For purposes of this motion, the following facts are taken as
true. DirecTV is one of the nation's leading direct satellite
broadcast systems distributing digitalized audio and video
signals to approximately 11 million subscribers nationwide.
DirecTV's satellite transmissions are encrypted to prevent
unauthorized viewing of its programming. These transmissions may
be lawfully viewed only by subscribers who have purchased
specialized receiving equipment from DirecTV or on a pay-per-view
basis. DirecTV's satellite receivers contain an access card developed specifically for the DirecTV satellite system. This
access card stores information and permits DirecTV's customers to
view the programming for which they have paid.
In its complaint, DirecTV alleges that various companies and
individuals have engaged in the sale and manufacture of devices
designed to unscramble DirecTV's encryption measures allowing
purchasers to view DirecTV's programming without paying
subscription or pay-per-view fees. In Count III of its complaint,
DirecTV claims that it is entitled to civil remedies for
Bjornson's alleged possession of such an unscrambling device in
violation of 18 U.S.C. § 2512 of the Electronic Communications
Privacy Act. Count V of DirecTV's complaint is based Bjornson's
alleged conversion of DirecTV's satellite signals. Bjornson has
moved to dismiss both claims pursuant to Federal Rule of Civil
In ruling on a motion to dismiss, the Court must accept all
factual allegations in the complaint as true and draw all
reasonable inferences in favor of the plaintiff. Szumny v. Am.
Gen. Fin., Inc., 246 F.3d 1065, 1067 (7th Cir. 2001). The
purpose of a motion to dismiss is not to decide the merits of the
challenged claims but to test the sufficiency of the complaint.
Weiler v. Household Fin. Corp., 101 F.3d 519, 524 n. 1 (7th
Cir. 1996). A court will grant a motion to dismiss only if it is
impossible for the plaintiff to prevail under any set of facts
that could be proven consistent with the allegations. Forseth v.
Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). DISCUSSION
I. Private Right of Action under 18 U.S.C. § 2512
In his motion to dismiss, Bjornson has asserted that Count III
of DirecTV's complaint should be dismissed because there is no
civil cause of action for possession of equipment under
18 U.S.C. § 2512 of the Electronic Communications Privacy Act. 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 reason
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. . . ."
18 U.S.C. § 2512(1)(b). DirecTV asserts that it may seek damages for
Bjornson's alleged violation of § 2512 pursuant to
18 U.S.C. § 2520, which provides that "any person whose wire, oral, or
electronic communication is intercepted, disclosed, 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. . . ."
18 U.S.C. § 2520(a).
Although the Seventh Circuit has not yet considered this issue,
numerous courts in this District have addressed it. The majority
position is that § 2520 of the Electronic Communications Privacy
Act does not create a private cause of action based on mere
possession of an unscrambling device in violation of § 2512
because liability under § 2520 only arises if a defendant
intentionally intercepts, discloses or uses a wire, oral or
electronic communication in violation of § 2511 of the Act, which
punishes wrongful use of communications. See, e.g., Directv,
Inc. v. Kamba, 2004 U.S. Dist. LEXIS 8937, No. 03 C 8402 (N.D.
Ill. May 13, 2004) (Manning, J.); Directv, Inc., v. Delaney,
2003 U.S. Dist. LEXIS 24262, No. 03 3444 (N.D. Ill. Nov. 21, 2003) (Kocoras, J.); Directv, Inc. v. Castillo, 2004
U.S. Dist. LEXIS 8525, No. 03 C 3456 (N.D. Ill. Jan. 2, 2004)
(St. Eve, J.); Directv, Inc. v. Bazzoli, 2004 U.S. Dist. LEXIS
801, No. 03 C 3485 (N.D. Ill. Jan. 23, 2004) (Lefkow, J.);
Directv, Inc. v. Hinton, 2004 U.S. LEXIS 6850, No. 03 C 8477
(N.D. Ill. Apr. 21, 2004) (Darrah, J.); Directv, Inc. v. Frey,
2004 U.S. Dist. LEXIS 6366, No. 03 C 3476 (N.D. Ill. Apr. 14,
2004) (Zagel, J.); Directv, Inc. v. Hauser, 2004 U.S. Dist.
LEXIS 6360, No. 03 C 8396 (N.D. Ill. Apr. 13, 2004) (Moran, J.);
Directv, Inc. v. Rath, 2004 U.S. Dist. LEXIS 6151, No. 03 C
50299 (N.D. Ill. Apr. 12, 2004) (Reinhard, J.); Directv, Inc. v.
Horn, 2004 U.S. Dist. LEXIS 8225, No. 03 C 7803 (N.D. Ill. May
6, 2004) (Der-Yeghiayan, J.).
In contrast, however, other courts have found that § 2520 does
allow a private right of action for mere possession under § 2512
because of the language in § 2520 allowing a civil remedy for use
of a communication "in violation of this chapter." See, e.g.,
Directv, Inc. v. Dillon, 2004 U.S. Dist. LEXIS 7229, No. 03 C
8578 (N.D. Ill. Apr. 27, 2004) (Aspen, J.); Directv, Inc. v.
Dyrhaug, 2004 U.S. Dist. LEXIS 5008, No. 03 C 8389 (N.D. Ill.
Mar. 26, 2004) (Shadur, J.); Directv, Inc. v. Perez,
279 F. Supp.2d 962 (N.D. Ill. 2003) (Coar, J.).
We are more persuaded by the majority's interpretation of §
2520. The plain language of § 2520 indicates that a private cause
of action may only be had after interception, disclosure or use
in violation of the Electronic Communications Privacy Act.
Section 2512 criminalizes only the production, sale or possession
of equipment primarily useful for unscrambling protected
communications. These acts occur separately from interception and
persons who engage in such acts may never engage in violations of
§ 2520. Directv, Inc. v. Delaney, 2003 U.S. Dist. LEXIS 24262, at *10. Therefore, we conclude that there is no private
right of action based on allegations of mere possession of an
unscrambling device in violation of § 2512.
Moreover, DirecTV has alleged that Bjornson violated
18 U.S.C. § 2511 in Count II. Section 2511 criminalizes any intentional
attempted interception or use of protected communications. Thus,
DirecTV may obtain relief under § 2511 if it can establish that
Bjornson used the unscrambling device to intercept DirecTV's
signals. This provides further support for the Court's conclusion
that there is no private right of action for mere ...