The opinion of the court was delivered by: Charles P. Kocoras, District Judge
This matter comes before this court on a motion for summary judgment by Plaintiff Comcast of Illinois X, LLC ("Comcast"). For the following reasons, Comcast's motion is granted.
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, are able to access Comcast's cable transmissions without payment to Comcast.
Pursuant to a Court Order dated September 17, 2002, Richard Killian, Comcast's Manager of Security, along with other Comcast employees and U.S. Marshals entered Modern Electronics, Inc. ("Modern Electronics") and recovered business records indicating that in November 2001 Defendant Dennis Toguchi purchased a VM Boss VII unit (the "Boss VII"). According to Killian, the Boss VII is a device that is capable of intercepting, receiving and/or exhibiting all of Comcast's programming without Comcast's authorization or knowledge.
Among the records seized from Modern Electronics were return/exchange forms filled out by Toguchi. In one such form, Toguchi wrote:
Enclosed is Boss VII 4000 series unit...about a month ago I ordered 1 unit for myself 3 more unit the following week to get a discount on two unit I sold all three unit to my friends...I'm very satisfied but the last unit the friend bought said it don't work I tried to find out whats wrong at his place couldn't get a response.
In another such letter dated March 13, 2002, Toguchi wrote: I bought a few cable box units and was very satisfied and the people I know...The problem is there's no sound and the picture jitters not stabled on memory two otherwise without the memory the picture is very clear no snow. One of my f[riends] ask me if I had an extra unit. I did.
An examination of Toguchi's responses to Comcast's requests to admit yields additional information regarding Toguchi's letters to the return Department at Modern Electronics. First, Toguchi admits that he wrote the above-mentioned letters to Modern Electronics. He also admits that he ordered a Boss VII unit from Modern Electronics on November 29, 2001. He acknowledges that in December 2001, he contacted Modern Electronics and advised them "that he had a device that was abused [and]...agreed to purchase 3 additional boxes at a reduced price including an extended warranty." In his responses to Comcast's request to admit, Toguchi disclosed that he returned a Boss VII to Modern Electronics on or about January 22, 2002, and received a replacement device at some later date which he forwarded to his friend. Toguchi is also forthcoming that on or about March 18, 2002, he returned another Boss VII to Modern Electronics and received a replacement unit on or about March 20, 2002.
Although Toguchi admits to purchasing Boss VIIs from Modern Electronics, he maintains that he was unaware that Boss VIIs were illegal and had no reason to suspect they were illegal because they were advertised in national magazines at the time. In his sworn affidavit, Toguchi states that he "never used the VM Boss VII device at issue in this case to receive cable signals, premium or otherwise, from the Plaintiff" and that he does not know anyone who has or uses such a device. He explains that he "found the VM Boss VII devices [he] obtained from Modern Electronics to be unsatisfactory and unable to deliver the results the Plaintiff claims; vis A vis. Reception of premium channels, pay per view, et al."
Comcast contends that Toguchi's purchase, use, and sale of Boss VIIs violated § 553(a) of the Cable Communications Act. 47 U.S.C. § 553(a). Comcast seeks actual damages, statutory damages, and attorneys' fees and costs as permitted by statute.
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 ...