United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
J. Tharp, Jr., United States District Judge
Walter and Mandy Yuen run a Chinese restaurant called Great
Wall of China (“Great Wall”) in Plainfield,
Illinois. On November 19, 2013, an auditor employed by
Plaintiff DirecTV entered Great Wall and requested that Mandy
turn on a television in the dining room so he could watch a
specific channel. The auditor then took photographs of the
television displaying that channel and sent a report to
DirecTV, which then sued the Yuens and Great Wall for
displaying DirecTV programming without authorization. DirecTV
has filed a motion for summary judgment as to
liability. There is a dispute of material fact as to
whether or not the defendants were authorized to display the
programming, so the motion for summary judgment is denied.
motion for summary judgment, all fact disputes are resolved
in the nonmovant's favor and reasonable inferences from
the facts must be construed in the light most favorable to
the non-moving party (here, the defendants). Ripberger v.
Corizon, Inc., 773 F.3d 871, 876 (7th Cir. 2014).
DirecTV provides satellite television programming to its
subscribers. Pl.'s Statement of Facts
(“PSOF”) ¶ 4, ECF No. 23. Walter and Mandy
Yuen are the owners and managers of Plainfield China Garden,
Inc., which does business as a Chinese restaurant called
Great Wall of China. Id. at ¶ 5-6. For
simplicity, the Court will refer to Walter, Mandy, and Great
Wall as “the Yuens” wherever possible.
Yuens subscribed to DirecTV's service through an account
in Walter's name. Id. at ¶ 24. The account
address was not the address of Great Wall. Id. At
some point, the Yuens moved a DirecTV receiver into Great
Wall. Id. at ¶ 26-27. DirecTV offers both
residential and commercial accounts; the Yuens' account
was classified by DirecTV as residential. PSOF ¶ 24;
Mader Aff. ¶ 6, ECF No. 22-5.
however, maintains that he did not know his account was
classified as “residential.” Supp. Walter Yuen
Aff. ¶ 6-8, ECF No. 37. In fact, when Walter bought the
DirecTV service, he explained to the representative that he
would like to watch a Hong Kong television channel while
working in his restaurant. Walter Yuen Aff. ¶ 4, ECF No.
32-1. Walter asked whether he could bring the DirecTV
receiver to the restaurant and the representative said he
could. Id. DirecTV disputes this claim,
which is central to DirecTV's cause of action under
§ 605. In reliance on those statements, Walter purchased
the service and brought a receiver to the restaurant.
Id. at ¶ 5. There were two televisions, located
in the dining room of the restaurant, in locations plainly
visible to patrons; it is unclear whether both, or just one,
was connected to the DirecTV service. The restaurant did not
advertise that it showed DirecTV and the service was
primarily for Walter and Mandy's personal use.
November 19, 2013, a DirecTV auditor named Kevin Karlak went
to Great Wall. Mader Aff. ¶ 10. The televisions were off
when Karlak entered. Mandy Yuen Aff. ¶ 7. Karlak asked
Mandy to turn on a television and change it to channel 212,
which she did. Id.; Karlak Aff. at 1, ECF No. 22-6.
When she changed the channel, Karlak observed a DirecTV on
screen guide and channel information bar on the television
screen. Karlak Aff. at 2. He took photographs of television
screen with the DirecTV bar on it. See Mader Aff.
Ex. C, ECF No. 22-8. Both Walter and Mandy state they did not
know they were doing anything wrong and stopped immediately
when DirecTV notified them that they were not authorized to
use DirecTV in the restaurant. Id. at ¶ 6,
Mandy Yuen Aff. ¶ 8, ECF No. 32-2. DirecTV filed this
suit against the Yuens on September 1, 2015, claiming
violations of 47 U.S.C. § 605, 18 U.S.C. § 2511,
and common law civil conversion.
motion for summary judgment may be granted only if “the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). DirecTV bears the
burden of proving that there is no dispute of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
sued the Yuens under 47 U.S.C. § 605(a). As relevant
here, the statute prohibits a communications recipient (such
as a satellite television subscriber) “not being
authorized by the sender” from
“divulg[ing]” a communication “for his own
benefit or for the benefit of another not entitled
thereto.” There is no question that the Yuens did
show a DirecTV program to the auditor at his request, which
at least one court has found constitutes a divulgence even if
no other patrons are present. Compare DIRECTV, LLC v.
Perugini, 28 F.Supp.3d 351, 355 (M.D. Pa. 2014) (auditor
alone sufficient) with See DirecTV, LLC v. Spina,
No. 115CV00104JMSTAB, 2016 WL 4528458, at *19 (S.D. Ind. Aug.
30, 2016), reconsideration denied, No.
115CV00104JMSTAB, 2017 WL 36296 (S.D. Ind. Jan. 4, 2017) (one
patron in addition to auditor during business hours
sufficient). In the video of the audit, other patrons are
present in the restaurant (although so far as the video
shows, no one other than the auditor appears to be viewing
the program once it is turned on). See Pl.'s Ex.
B (on file with the Court).
question of authorization, however, presents a material fact
dispute. DirecTV argues that authorization is only relevant
to questions of intent and willfulness, not liability, but
that is wrong. If the Yuens were authorized by DirecTV to
display transmissions at the restaurant, then they are not
liable. Cf. J&J Sports Productions v. Mandell Family
Ventures, LLC, 751 F.3d 346, 351 (5th Cir. 2014)
(“The relevant portions of § 605(a) address only
the unauthorized interception or receipt of radio
communications”) (emphasis added). If they were not
authorized but believed in good faith that they were, then
they are liable but not for enhanced damages of up to $100,
000; if they were not authorized and did not have a good
faith basis to believe that they were authorized, then their
violation may be found to have been willful. See 47
U.S.C. § 605(e)(2) (allowing damages of up to $100, 000
for willful violation); J & J Sports Prods., Inc. v.
Tu, No. 08 C 4119, 2008 WL 4833116, at *2 (N.D. Ill.
Oct. 29, 2008) (considering “(1) the number of
violations; (2) defendant's unlawful monetary gains; (3)
plaintiff's significant actual damages; (4) whether
defendant advertised for the event; and (5) whether defendant
collected a cover charge on the night of the event” to
determine enhanced damages award).
evidence fails to establish as a matter of law that the Yuens
were not authorized to display DirecTV transmissions at the
restaurant. The only evidence DirecTV has presented
that the Yuens were not authorized are a few brief statements
in the affidavit of Kent Mader, the Vice President of Risk
Management for DirecTV. In his affidavit, Mader states that
“commercial programming subscriptions are generally
more expensive since the programming will be displayed for
public viewing” and that “Defendants named above
did not have the right to exhibit DirecTV Satellite
Programming in their commercial establishment on November 19,
2013.” Mader Aff. ¶ 6, 9. DirecTV attached a
printout from its computer system showing that the Yuens had
a “residential” account. Mader Aff. Ex. D, ECF
No. 22-9. That document does not set forth any restrictions
on the use of the DirecTV service, however, and DirecTV did
not introduce any other evidence (such as a contract between
the parties) suggesting what the terms and conditions of a
“residential” DirecTV account are.
Yuens have contradicted DirecTV's evidence of its general
practice with their affidavits, which show they asked for
permission from a DirecTV representative-indeed, the
representative who sold them the DirecTV service-and were
told they could use the service in their restaurant.
See Walter Yuen Aff. ¶ 4-5. In response,
DirecTV attempted to introduce a “Customer
Agreement.” See Pl.'s Reply Ex. 1, ECF No.
33-1. Both Yuens, however, testified in response that they
had never received or seen such a document. See
Supp. Walter Yuen Aff. ¶ 1-4; Supp. Mandy Yuen Aff.
¶ 1-4, ECF No. 37. The Customer Agreement is not signed
and does not bear the Yuens' account number or any other
information that would link it to the Yuens. It is not even
clear that the agreement, dated April 24, 2009 and valid
“until replaced” would govern the 2013
interaction at the Yuens' restaurant. At summary
judgment, the Court may only (with a few exceptions not
relevant here) consider evidence that “would be
admissible or usable at trial, including properly
authenticated and admissible documents or evidence.”
Smith v. City of Chicago, 242 F.3d 737, 741 (7th
Cir. 2001); see also Giant Screen Sports v. Canadian
Imperial Bank of Commerce, 553 F.3d 527, 537 (7th Cir.
2009) (dispute about authenticity of signature is a dispute
of material fact). And even if genuine, DirecTV's
evidence still falls short because it has failed to show as a
matter of law that the Customer Agreement was provided to the
Yuens or otherwise bound them.
argues that the Yuens do not “claim they had an account
with DIRECTV to display or divulge DIRECTV Satellite
Programming, or that the Customer Service agent told them
they could do same.” Pl.'s Reply at 6. This
contention is simply wrong. The Yuens assert that a DirecTV
agent told them that they could watch DirecTV at their
commercial establishment and thus their conduct was
authorized. To the extent that DirecTV means to argue that
its representative's statement that the Yuens could watch
at their restaurant did not extend to doing so when other
customers were around, the Court finds it is a reasonable