United States District Court, D. Arizona
G. Campbell Senior United States District Judge
J & J Sports Productions, Inc. filed a complaint against
Defendants Arturo Rubio and J.R.R. Restaurant, LLC, d/b/a
Filiberto's Mexican Food, for violations of the
Television Consumer Protection and Competition Act of 1992
and the Federal Communications Act of 1934, 47 U.S.C.
§§ 553, 605 et seq. Doc. 1. Defendants
move for summary judgment on all claims against Rubio and on
Plaintiff's claim for enhanced statutory damages against
J.R.R. Doc. 31. Plaintiff cross-moves on all claims. Doc. 32.
The motions are fully briefed, and no party requests oral
argument. Docs. 33, 34, 35, 38, 40. For the following
reasons, the Court will deny Defendants' motion and grant
Plaintiff's motion in part.
championship sports fights were broadcasted nationwide on
April 9 and May 7, 2016: the former between Manny Pacquiao
and Timothy Bradley, Jr., and the latter between Saul Alvarez
and Amir Khan (“the programs”). Doc. 35-1 at 1-2.
Plaintiff had the exclusive commercial distribution rights to
the programs. Id. at 2.
dates, J.R.R. owned Filiberto's Mexican Food, LLC, in
Phoenix, Arizona. Rubio was an employee of the restaurant,
and he was and remains the sole member and owner of J.R.R.
Id. Defendants ordered the programs through a
satellite television service and broadcasted them at
Filiberto's without paying a commercial licensing fee to
Plaintiff. Id. For J.R.R.'s establishment, the
commercial licensing fee was $2, 000 for the April 9 program
and $2, 200 for the May 7 program. Id. at 3.
Summary Judgment Standard.
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 summary judgment, and 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).
1 and 2 allege violations of 47 U.S.C. § 605 and §
553, respectively. Doc. 1. Plaintiff asks the Court to find
Defendants liable only under § 605, noting that many
courts have held that § 553 applies only to cable
broadcasts and that the statutes are mutually exclusive. Doc.
32-1 at 9; see J&J Sports Prods. Inc. v.
Mosqueda, No. CV-12-0523 PHX DGC, 2013 WL 2558516, at
*1-*2 (D. Ariz. June 11, 2013) (“Even where both
[§ 533 and § 605] are applicable, damages typically
are awarded only under § 605.”); Kingvision
Pay Per View, Ltd. v. Guzman, No. CV-07-0963-PHX-PGR,
2008 WL 1924988, at *1 (D. Ariz. April 30, 2008) (noting
same); see also Joe Hand Promotions Inc. v. Spain,
No. CV-15-00152-PHX-SMM, 2016 WL 4158802, at *3 (D. Ariz.
Aug. 5, 2016) (“The Ninth Circuit has not opined on the
distinction of signals received via cable and satellite[.]
District courts in the Ninth Circuit have, however, held that
section 553 applies only to cable signals, and section 605
applies to satellite signals. A majority of the circuit
courts of appeals . . . interpret sections 605 and 553 to be
Court accordingly will rule only on Plaintiff's §
605 claim and will dismiss the § 553 claim as moot.
See Mosqueda, 2013 WL 2558516, at *3.
J.R.R.'s Liability Under § 605.
605 prohibits the unauthorized reception, interception, and
publication of certain communications, including
satellite-delivered television programming. 47 U.S.C. §
605; DirecTV, Inc. v. Webb, 545 F.3d 837, 843 (9th
Cir. 2008). “[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). The statute provides a private right of
action to those aggrieved by violations. § 605(e)(3)(A).
concedes that it is liable for the alleged conduct and that
the Court should enter judgment in Plaintiff's favor.
Doc. 35 at 2-3, 7. The Court will grant Plaintiff's
motion on its § 605 claim against J.R.R. See Joe
Hand Promotions Inc., v. Sizemore, No.
2:15-cv-00695-DLR, 2016 WL 6143042, at *2 (D. Ariz. Oct. 21,
2016) (granting summary judgment against defendant only under
§ 605 at plaintiff's request where plaintiff had
also alleged a claim under § 553).
Rubio's Liability ...