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J&J Sports Productions Inc. v. Mosqueda

United States District Court, Ninth Circuit

June 11, 2013

J & J Sports Productions Incorporated, Plaintiff,
v.
Adrian Mosqueda, individually and doing business as Adrian's Restaurant, Defendant.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff J & J Sports Productions Incorporated has filed a motion for summary judgment. Doc. 25. The motion is fully briefed. Docs. 26, 28. No party has requested oral argument. For the reasons set forth below, the Court will grant Plaintiff's motion in part and deny it in part.

I. Background.

A boxing match titled "The Event": The Manny Pacquiao v. Joshua Clottey WBO Welterweight Championship ("the Program") was telecast nationwide on March 13, 2010. Doc. 25-1 ¶ 1; Doc. 26 at 2. Plaintiff owned the exclusive commercial distribution rights to the Program, including undercard events and all color commentary. Doc. 25-1 ¶ 2. Plaintiff's investigator Frank Balkcom, Sr., observed the Program being displayed at Adrian's Restaurant on March 13, 2010. Id. ¶ 7. Defendant did not pay a commercial licensing fee to Plaintiff to broadcast the Program (Doc. 25-1 ¶ 4; Doc. 26 at 2), and did not have permission from Plaintiff to broadcast the Program at Defendant's commercial establishment (Doc. 25-1 ¶ 5; Doc. 26 at 2).

II. Legal Standard.

A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, 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). Summary judgment is also appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment - the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

III. Analysis.

A. Claims under 47 U.S.C. §§ 553 and 605.

Plaintiff brings claims under 47 U.S.C. § 553 and § 605. Section 605 prohibits the "unauthorized publication or use of communications." The Ninth Circuit has clarified that communications protected by § 605(a) include satellite television signals. DirecTV v. Webb, 545 F.3d 837, 844 (9th Cir. 2008). Section 553 prohibits the unauthorized reception of cable service. There is some disagreement as to the extent of the overlap between the two statutes, but the Court need not resolve the issue to decide this case. Kingvision Pay Per View, Ltd. v. Guzman, No. CV-07-0963-PHX-PGR, 2008 WL 1924988, at *1 (D. Ariz. Apr. 30, 2008) ("The position taken by a majority of courts is that signals broadcast through the air via radio and satellite are generally within the purview of § 605, including programming transmitted via satellite to cable operators for their transmission to cable subscribers, and signals broadcast through a coaxial cable system are generally within the purview of § 553."). Even where both sections are applicable, damages typically are awarded only under § 605. Id; see also Kingvision Pay-Per-View. Ltd. v. Backman, 102 F.Supp.2d 1196, 1197 (N.D. Cal. 2000).

"[T]o be held liable for a violation of section 605, a defendant must be shown to have (1) intercepted or aided the interception of, and (2) divulged or published, or aided the divulging or publishing of, a communication transmitted by plaintiff." Nat'l Subscription Television v. S & H TV, 644 F.2d 820, 826 (9th Cir. 1981); see also DirecTV 545 F.3d at 844 ("Section 605(a) of the Communications Act prohibits the unauthorized receipt and use of radio communications for one's own benefit or for the benefit of another not entitled thereto.'").

In support of its motion for summary judgment, Plaintiff submits the affidavit of its president, Joseph M. Gagliardi. Doc. 25-5. Gagliardi asserts that Plaintiff purchased and retained the commercial exhibition licensing rights to the Program and thereafter sublicensed those rights to its commercial customers. Id ¶ 3. Gagliardi states that domestic commercial establishments who wished to broadcast the Program were required to pay Plaintiff a commercial sublicense fee based on the size of the establishment. Id ¶ 8. For an establishment with a capacity of less than 100 persons, like Adrian's Restaurant, the fee for the Program was $1, 800. Id. (citing Doc. 25-5 at 18.). Gagliardi states that Defendant did not purchase a license to broadcast the Program. Id. Furthermore, according to Gagliardi, the nature of the broadcast is such that it could not be inadvertently intercepted by a commercial establishment. Id. ¶ 9

Plaintiff also submits the affidavit of private investigator Frank Balkcom, Sr., who states that he entered Adrian's Restaurant on the night the Program was telecast, March 13, 2010, at approximately 9:50 p.m. Doc. 25-4 at 4. Balkcom states that he observed the Pacquiao-Clottey fight (the Program's "main event") displayed on a television with approximately 80 persons inside the establishment. Id. At the time he entered the restaurant, Balkcom believed the fight to be in its third round. Id.

Plaintiff's evidence tends to show that Defendant (1) intercepted or aided the interception of the Program and (2) divulged or published, or aided the divulging or publishing of the Program without Plaintiff's authorization. Although the evidence of interception is circumstantial, the Ninth Circuit has held that circumstantial evidence can be sufficient to support a factual finding, particularly in cases of signal piracy. DirecTV, Inc., 545 F.3d at 844 ("The law does not require direct evidence to support a factual finding. Circumstantial evidence may be sufficiently persuasive. Signal piracy is by its very nature a surreptitious venture and direct evidence may understandable be hard to come by.").

Defendant's only evidence is his own affidavit. Doc. 27 at 5-6. In the affidavit, Defendant states that he "does not recall" being present in his restaurant on March 13, 2010. Id at 5. He also states: "I believe that the boxing match at my Restaurant may have been tape delayed because I have no records of a purchase of this broadcast." He further states that the restaurant did not ...


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