United States District Court, E.D. Wisconsin
ORDER ON PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
J&J Sports Productions, Inc. brought this action alleging
that defendant Julia Otto, individually and as the operator
of Josh's Place, knowingly and willfully violated 47
U.S.C. §§ 553 and 605 by unlawfully intercepting
and exhibiting “Floyd Mayweather, Jr. v. Manny Pacquiao
Championship Fight Program, ” including undercard bouts
and the entire television broadcast, on May 2, 2015, at
Josh's Place in Appleton, Wisconsin. Jurisdiction exists
under 28 U.S.C. § 1331. Defendant has failed to appear
in this action. The Clerk entered default against the
defendant on January 31, 2018. Plaintiff now moves for entry
of default judgment and an award of damages, attorney's
fees, and costs. ECF No. 9.
background facts of this case, except for those relating to
damages, are taken from the allegations of Plaintiff's
Complaint and the affidavit and supporting documents filed
with Plaintiff's motion for default judgment. ECF No. 1.
They are deemed admitted as a consequence of the
defendant's default. See, e.g., Black v.
Lane, 22 F.3d 1395, 1397 n.4 (7th Cir.1994). Plaintiff
has established that it owned the distribution rights to the
fight program, which was broadcast by closed circuit
television or by encrypted satellite signal. The broadcast
originated via satellite uplink and was subsequently
re-transmitted to cable systems and satellite companies via
satellite signal. Plaintiff entered into contracts with
commercial establishments in Wisconsin and throughout North
America to enable them to publicly exhibit the program to
Plaintiff's investigators visited Josh's Place at
11:50 p.m. on May 2, 2015. Aff. of Russell D. Joseph, ECF No.
10-2. The investigator observed two flat screen televisions
displaying the fight. Id. One was mounted on the
wall behind the bar, the other was mounted on the west wall
of the dining room. Id. The fight had concluded, but
the investigator observed Mayweather and Pacquiao waiting for
the decision to be announced. Id. The investigator
did not pay a cover charge to enter the bar, and he conducted
three separate head counts with constant results of
ninety-three people inside the building and eight onlookers
observing from outside. Id. Josh's Place has a
capacity of approximately 50 people. Id. The
investigator left the establishment at 12:05 a.m.
alleges that Defendant violated 47 U.S.C. §§ 553
and 605, but without the benefit of discovery or an admission
from Defendant, Plaintiff cannot determine exactly how
Defendant intercepted its signal (i.e., via coaxial cable or
satellite). As Plaintiff acknowledges, it may not
simultaneously pursue relief under §§ 553 and 605
because the sections target two distinct types of piracy.
See United States v. Norris, 88 F.3d 462, 468 (7th
Cir. 1996) (holding that 47 U.S.C. § 605 governs the
interception of programming as it travels through the air,
while 47 U.S.C. § 553 governs the interception of cable
television programing traveling over a cable network).
Plaintiff requests relief under § 605, which often
produces higher damages awards, but cannot demonstrate
conclusively that Defendant intercepted a satellite signal on
May 2, 2015. Nevertheless, since Defendant's failure to
appear or defend deprived Plaintiff of the opportunity to
conduct discovery regarding the transmission at issue, I
conclude that liability is appropriately established under
§ 605. Accord J & J Sports Prods., Inc. v.
Aguilera, No. 09-4719, 2010 WL 2362189, at *2 (N.D. Ill.
June 11, 2010).
result of Defendant's default, they are deemed to have
unlawfully intercepted the program and shown it to patrons
and to have done so willfully and for purposes of direct or
indirect commercial advantage or private financial gain.
See Time Warner Cable of N.Y. City v. Googies
Luncheonette, Inc., 77 F.Supp.2d 485, 490 (S.D.N.Y.
1999) (“Signals do not descramble spontaneously, nor do
television sets connect themselves to cable distribution
systems.”); see also Kingvision Pay-Per-View, Ltd.
v. Scott E'S Pub., Inc., 146 F.Supp.2d 955, 959
(E.D. Wis. 2001) (“‘Willful' as used in these
statutes means a ‘disregard for the governing statute
and an indifference for its requirements.'”)
(quoting ON/TV v. Julien, 763 F.2d 839, 844 (7th
Cir. 1985)). “‘In addition, the court may draw an
inference of willfulness from a defendant's failure to
appear and defend an action in which the plaintiff demands
increased statutory damages based on allegations of willful
conduct.'” Garden City Boxing Club, Inc. v.
Frezza, 476 F.Supp.2d 135, 138 (D. Conn. 2007) (quoting
J & J Sports Prods., Inc. v. Drake, No. 06-246,
2006 WL 2927163, at *5 (E.D.N.Y. Oct. 11, 2006)).
claimant entitled to relief under § 605 may elect actual
or statutory damages pursuant to § 605(e)(3)(C).
Plaintiff has elected statutory damages, which range from a
minimum of $1, 000 to a maximum of $10, 000, in the
discretion of the court. § 605(e)(3)(C)(i)(II).
Plaintiff also seeks enhanced damages for a willful
violation. Section 605 permits enhanced damages of up to
$100, 000, at the discretion of the court, where the
defendant has exhibited disregard for the governing statute
and indifference to its requirements. See, e.g.,
Kingvision, 146 F.Supp.2d at 959-61. Finally, under
§ 605(e)(3)(B)(iii), Plaintiff has requested an award of
attorneys' fees and costs in the amount of $1, 716.
turn to the question of what amount of statutory damages is
appropriate in this case. There are various ways in which
courts have gone about calculating statutory and enhanced
damages for violations of § 605:
Some courts have assessed statutory damages using as a
yardstick the number of patrons in the establishment viewing
the show. See, e.g., Googies Luncheonette,
Inc., 77 F.Supp.2d at 489 (listing cases); Time
Warner Cable v. Taco Rapido Rest., 988 F.Supp. 107, 111
(E.D.N.Y.1997) (same). Some courts have awarded a flat sum
for each violation. See, e.g., Googies
Luncheonette, Inc., 77 F.Supp.2d at 489-90 (listing
cases); Taco Rapido Rest., 988 F.Supp. at 111
(same). A multiplier has been used in cases of willful
violations. See, e.g., Googies Luncheonette,
Inc., 77 F.Supp.2d at 491 (recommending for willful
violation an additional three times the base statutory
damages award for one defendant, an additional four times the
award for another defendant, and an additional eight times
the award for a third defendant); Cablevision Sys. Corp.
v. Maxie's N. Shore Deli Corp., No. CV 88 2834(ASC),
1991 WL 58350, *2 (E.D.N.Y.1991) (awarding an additional
amount for willful violation in the amount of five times the
initial statutory damages award).
Kingvision, 146 F.Supp.2d at 960. The court in
Kingvision calculated the statutory damages based
upon the rate the plaintiff charged its customers for the
right to exhibit the program, which in turn was based upon
the maximum fire code occupancy of the building in which the
exhibition was to take place.
Plaintiff has provided its rate card indicating what it would
charge to permit the defendants to show its fight program
based on the maximum capacity of the facility where the event
is broadcast. Rate Card from J & J Sports Productions,
Inc., ECF No. 10-1. Because Josh's Place had a capacity
of 50 people, Plaintiff's corresponding ...