The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before this court on motion for summary judgment by Defendant Comcast of Illinois X, LLC ("Comcast"). For the following reasons, Comcast's motion is denied without prejudice.
Comcast owns and operates a cable television system in Illinois. To access Comcast's cable programming, subscribers buy a "package" of services that corresponds to particular channels and programs. To prevent theft of its transmissions, Comcast scrambles the electronic signals it sends out over the cable. Comcast then "authorizes" its subscribers' converters to decode the scrambled signals so that subscribers can view the specific programming for which they have paid. Individuals who install unauthorized or "pirate" converters/descrambling devices, however, can access Comcast's cable transmissions without payment to Comcast.
Comcast alleges that Defendant Dennis Toguchi has done precisely that. On or about November 29, 2001, Toguchi bought a VM Boss VII unit (the "Boss VII") from Modern Electronics, Inc. According to the affidavit of Richard Killian, a Comcast security investigator, the Boss VII is a "known illegal cable scrambling device designed specifically for the purpose of intercepting, receiving, and exhibiting" Comcast's programming without authorization. Killian states that Toguchi intercepted Comcast's programming with the Boss VII and distributed Boss VIIs to three other individuals so that each of those individuals could intercept Comcast's programming. Killian also asserts that Toguchi knew his actions were illegal because he was neither authorized to receive the specific programming nor did he inform Comcast of his purchase of the Boss VII.
Comcast contends that Toguchi's actions violated Section 553(a) of the Cable Communications Act, 47 U.S.C. § 553(a), and 720 ILCS 5/16-18. Comcast seeks actual damages, statutory damages, and attorneys' fees and costs as permitted by statute.
Toguchi counters that he was not aware that the Boss VII was illegal and had no reason to suspect it was illegal because it was advertised in national magazines.
Although he admits to purchasing the units, he explains that he did not notify Comcast of his purchase because Comcast was not in existence at that time and he was unaware of any notification requirement. Further, he states that Comcast never provided cable service at the address at which Comcast claims he intercepted their cable services. While he admits to distributing the Boss VII units to three other individuals, he denies that he did so with an intent to facilitate illegal activity. In his sworn affidavit, Toguchi admits he purchased the Boss VII, but says that it was unsatisfactory and did not work. He says that he never used the Boss VII unit to receive, show, or tape cable signals.
An examination of the record yields additional information. Toguchi states, in his responses to Comcast's interrogatories, that he purchased the initial Boss VII unit for a friend, John, who did not have a credit card. When that unit malfunctioned, Toguchi returned the unit to Modern Electronics. Modern Electronics offered him a replacement unit at full price and the opportunity to order two more boxes at half price. Toguchi claims he sold one unit to John at cost, sold one to another friend, also at cost, and gave the remaining unit away to a third friend. He claimed that he didn't keep the boxes for more than a few days. Toguchi admits to writing at least two letters to the technical department at Modern Electronics, complaining about one Boss VII unit that did not work. In one letter, he explained that [sic] "about a month ago I ordered one unit for myself and three more unit the following week to get a discount on two unit.
I sold all three unit to my friends. Two was pleased. I'm very satisfied but the last unit the friend bought said it don't work." In another complaint to Modern Electronics, he stated that his unit worked, although his friend's unit did not. In his responses to Comcast's requests to admit, Toguchi denies keeping any of the units, stating instead that he gave away or sold at his cost every Boss VII unit he purchased.
Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact by specific citation to the record, at which time the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). At summary judgment, we construe all facts and draw all inferences from the record in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Comcast contends that Toguchi's actions violate § 553(a)(1) of the Cable Communications Act, which prohibits any person from "intercept[ing], receiv[ing], or assist[ing] in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law." Under §553(a)(2), "assisting" also includes the "distribution of equipment intended by the manufacturer or distributor...for unauthorized reception of any communications service offered over a cable system in violation of § 553(a)(1)." Section ...