United States District Court, D. Arizona
PAUL G. ROSENBLATT, District Judge.
Before the Court is Plaintiff's motion for summary judgment. (Doc. 31.) Defendants filed a response in opposition. (Doc. 34.) The motion is granted for the reasons set forth herein.
On April 10, 2013, Plaintiff, a distributor of sports programs, filed a complaint alleging violations of the Federal Communications Act, 47 U.S.C. § 605, and the Cable & Television Consumer Protection and Competition Act, 47 U.S. § 553, as well as a claim for conversion (Doc. 1.) The complaint alleges that Defendants, owners of George's Famous Gyros, unlawfully intercepted and displayed the closed circuit telecast of a soccer game, Honduras v. Costa Rica World Cup Qualifier Game (the "Program"), on April 11, 2012, for which Plaintiff had exclusive distribution rights. ( Id. )
Defendants did not appear or otherwise respond to the complaint. On June 13, 2013, Plaintiff applied for entry of default, and default was entered on June 14, 2013. (Docs. 13, 14.) On June 26, 2013, Defendants filed an answer to the complaint, which Plaintiff moved to strike. (Docs. 15, 16.) On September 3, 2013, the court denied the motion and set aside entry of default. (Doc. 22.)
Subsequently counsel for Defendants moved to withdraw (Doc. 27), and the Court granted the motion on January 21, 2014. (Doc. 30.) Plaintiff filed the pending motion on March 14, 2014, seeking summary judgment on its claim under 47 U.S.C. § 605. (Doc. 31.)
1. Summary Judgement Standard
Summary judgment on a claim or defense is appropriate "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). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the nonmoving party's claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to identify "specific facts showing there is a genuine issue for trial." Id. The party opposing summary judgment must then present affirmative evidence from which a jury could return a verdict in that party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986).
The Federal Communications Act, 47 U.S.C. § 605 et seq., prohibits commercial establishments from intercepting and broadcasting to its patrons satellite cable programming. See DirecTV, Inc. v. Webb, 545 F.3d 837, 843 (9th Cir. 2008) (explaining that § 605 prohibits "unauthorized reception or interception of television programming."). Liability under § 605 requires proof that defendant has "(1) intercepted or aided the interception of, and (2) divulged or published, or aided the divulging or publishing of, a communication by the plaintiff." Cal. Satellite Sys. v. Seimon, 767 F.2d 1364, 1366 (9th Cir. 1985).
Plaintiff has presented evidence, through affidavits of its President, Doug Jacobs (Doc. 33), and the investigator who observed the broadcast (Doc. 31-3), that Plaintiff was granted the exclusive commercial distribution rights to the Program and that Defendants intercepted and exhibited the Program at their restaurant without paying a commercial licensing fee to Plaintiff or gaining permission from Plaintiff to broadcast the Program. (Doc. 32, ¶¶ 2, 6-8; see Doc. 33, ¶ 3.) Moreover, based on Defendants' failure to respond to Plaintiff's requests for admissions, these matters are deemed admitted and conclusively established. Fed.R.Civ.P. 36(a)(3) and (b).
Defendants filed a pro se response to the motion for summary judgment, in which they acknowledge showing the Program but state that it "was available on the internet" and no authorization was necessary to access it; they also assert that it was Plaintiff's investigator who asked them to turn the Program on. (Doc. 34.) These statements are insufficient under Fed.R.Civ.P. 56(c)(1)(A), which requires an assertion to be supported by citation to materials in the record, and LRCiv. 56.1(b), which requires a party opposing a motion for summary judgment to file a separate controverting statement of facts.
Rule 56(e)(3) provides that when a party "fails to properly address another party's assertion of fact, " a court may "grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it." Fed.R.Civ.P. 56(e)(3). "In the absence of specific facts, as opposed to allegations, showing the existence of a genuine issue for trial, a properly supported summary judgment motion will be granted." Nilsson, Robbins, et al. v. Louisiana Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988).
In light of the facts cited by Plaintiff, Defendants' admissions, and Defendants' failure to offer controverting facts, the Court will grant summary judgment on Plaintiff ...