J & J Sports Productions Inc. v. Rubio

          ORDER

          David G. Campbell Senior United States District Judge

         Plaintiff 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.

         I. Background.

         Two 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.

         On both 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.

         II. Summary Judgment 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 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).

         III. Discussion.

         Counts 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 mutually exclusive.”).

         The 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.

         A. J.R.R.'s Liability Under § 605.

         Section 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).

         J.R.R. 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).

         B. Rubio's Liability ...