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J & J Sports Productions Inc. v. PTG LLC

United States District Court, E.D. Wisconsin

February 11, 2019

J & J SPORTS PRODUCTIONS, INC., Plaintiff,
v.
PTG LLC d/b/a COOPS TAVERN, and JASON L. MOELLER, Defendants.

          DECISION AND ORDER

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         PTG LLC does business as Coops Tavern. On May 2, 2015, it showed the pay-per-view fight between Floyd Mayweather and Manny Pacquiao. However, it did not pay the commercial rate for the fight. J&J Sports Productions, Inc., which owned the right to distribute the fight, brought this action against PTG and Jason L. Moeller, a member of PTG, alleging violations of 47 U.S.C. §§ 553 and 605.

         Based on the court's discussions with the parties at a January 23, 2019 status conference, there to be no dispute as to liability. It is undisputed that the defendants paid only the residential rate for the broadcast but showed it in their commercial establishment. (ECF No. 24.) Thus, the only remaining question to be tried is what amount of damages should be awarded to J&J. J&J is not seeking actual damages. Rather, it seeks only statutory damages. The defendants in their answer demanded a jury. (ECF No. 6 at 3.) J&J argues that the defendants have no right to a jury trial when the plaintiff seeks only statutory damages. The court ordered the parties to submit briefs on the question (ECF No. 24), and the parties have done so (ECF No. 26, 27).

         A right to a jury trial may emerge from statute or from the Constitution's Seventh Amendment. Because courts should try to avoid constitutional questions, Tull v. United States, 481 U.S. 412, 417 n.3 (1987), the court first considers whether 47 U.S.C. § 553 or 47 U.S.C. § 605 affords a party a right to a jury trial.

         Under 47 U.S.C. § 553(c)(3):

         (A) Damages awarded by any court under this section shall be computed in accordance with either of the following clauses:

(i) the party aggrieved may recover the actual damages suffered by him as a result of the violation and any profits of the violator that are attributable to the violation which are not taken into account in computing the actual damages; in determining the violator's profits, the party aggrieved shall be required to prove only the violator's gross revenue, and the violator shall be required to prove his deductible expenses and the elements of profit attributable to factors other than the violation; or
(ii) the party aggrieved may recover an award of statutory damages for all violations involved in the action, in a sum of not less than $250 or more than $10, 000 as the court considers just.

         (B) In any case in which the court finds that the violation was committed willfully and for purposes of commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory under subparagraph (A), by an amount of not more than $50, 000.

         (C) In any case where the court finds that the violator was not aware and had no reason to believe that his acts constituted a violation of this section, the court in its discretion may reduce the award of damages to a sum of not less than $100.

47 U.S.C. § 553(c)(3) (emphasis added). Similar provisions are set forth in 47 U.S.C. § 605(e).

         The penalty provisions of the statutes are silent as to the right to a trial by jury. While the language of the statutes does refer to determinations to be made by the court, including using the phrases “as the court considers just, ” “the court finds” and “the court in its discretion, ” the use of the term “the court” in that context does not indicate whether Congress intended damages to be determined by a judge or a jury . See, e.g., Feltner v. Columbia Pictures Tv, 523 U.S. 340, 346 (1998) (discussing similar language in the Copyright Act); but see id. at 356 (Scalia, J., concurring) (stating these phrases could be understood to refer to a jury, and because statutes should be read to avoid constitutional questions, should be read as conferring a right to a jury trial). Nor can any such intent be discerned from the statutes' legislative histories.

         The court agrees with the long list of other courts who have concluded that the plain language of sections 553 and 605 does not demonstrate whether Congress intended for a judge or a jury to hear claims for statutory damages. See Storer Cable Commc'ns, Inc. v. Joe's Place Bar & Rest., 819 F.Supp. 593, 595-96 (W.D. Ky. 1993); Gen. Instrument Corp. v. Nu-Tek Elecs. & Mfg., Civil Action 93-CV-3854, 1996 U.S. Dist. LEXIS 4946, at *2-5 (E.D. Pa. Apr. 12, 1996); Joe Hand Promotions v. Blarney Stone, 995 F.Supp. 577, 579 (E.D. Pa. 1998); No Frills Rest., 15 F.Supp.2d at 1362; Joe Hand Promotions v. Nekos, 18 F.Supp.2d 214, 216 (N.D.N.Y. 1998); Nat'l Satellite Sports, Inc. v. Prashad, 76 F.Supp.2d 1359, 1360-61 (S.D. Fla. 1999); Nat'l Satellite Sports, Inc. v. Cotter's Lounge, Inc., 88 F.Supp.2d 1024, 1025 (E.D. Mo. 2000); Time Warner Cable v. Kline, 00 Civ. 2897 (KMW)(HBP), 2000 U.S. Dist. LEXIS 18280, at *7 (S.D.N.Y. Dec. 12, 2000); Time Warner Cable of N.Y.C. v. Negovan, 99 Civ. 5910 (NG)(MDG), 2001 U.S. Dist. LEXIS 15900, at *2-3 (E.D.N.Y. July 30, 2001); J & J Sports Prods. v. Orellana, No. 08-05468 CW, 2010 U.S. Dist. LEXIS 45299, at *6-7 (N.D. Cal. Apr. 19, 2010); J&J Sports Prods. v. Jimenez, No. 10cv0866 DMS (RBB), 2010 U.S. Dist. LEXIS 118222, at *3 (S.D. Cal. Nov. 8, 2010).

         Therefore, the court must consider whether the Seventh Amendment guarantees a right to a jury trial for claims under 47 U.S.C. §§ 553 and 605. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ….” U.S. Const. Amend. 7. Although referring to “suits at common law, ” the guarantee to a jury trial applies also to statutory actions that present claims analogous to common law claims for which a right to a jury trial was recognized in the 18th century. Tull , 481 U.S. at 417; Feltner, 523 U.S. at 348. “To determine whether a statutory action is more analogous to cases ...


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