Opinion
NO. 4:03-CV-1377-A.
August 18, 2004
MEMORANDUM OPINION and ORDER
Came on for consideration the motion of defendant, Eddie Hampton, for summary judgment. The court, having considered the motion, the response, the record, the summary judgment evidence, and applicable authorities, finds that the motion should be granted in part as set forth herein.
I. Plaintiff's Claims
On November 26, 2003, plaintiff filed its original complaint. Plaintiff is in the business of distributing satellite television broadcasts throughout the United States. It alleges that defendant purchased one or more pirate access devices used for illegally obtaining its satellite television broadcasts. Plaintiff asserts claims for violations of 47 U.S.C. § 605(e)(3)(C), 18 U.S.C. § 2511, 18 U.S.C. § 2512, and 47 U.S.C. § 605(e)(4), for civil conversion, and for damages under Chapter 123 of the Texas Civil Practice and Remedies Code. Plaintiff also seeks injunctive relief to prevent defendant from further interception of its satellite programming.
II. Grounds of the Motion
Defendant first contends that there is no evidence of actual interception or of intent to intercept plaintiff's programming, and thus, plaintiff cannot prevail on any of its claims. Def.'s Mot. for Summ. J. at 2. Second, he urges that there is no private right of action for possession, manufacture or assembly of devices under 28 U.S.C. § 2512. And, third, defendant urges that plaintiff does not have a cause of action for conversion.
Pursuant to LR 56.3 of the Local Civil Rules of the United States District Court for the Northern District of Texas, plaintiff was required to state all of the grounds in support of his motion either in the motion itself or in the brief. The rule does not allow for some grounds to be set forth in the motion and others in the brief. Here, plaintiff attempts to urge additional grounds in his brief that are not mentioned in the motion. One ground, apparently having to do with document production, is not sufficiently explained. Others, regarding limitations, do not appear to have any merit. Plaintiff is an aggrieved person under 47 U.S.C. § 605(e)(4). DirecTV, Inc. v. Hoverson, 319 F. Supp. 2d 735, 738-39 (N.D. Tex. 2004). Further, plaintiff's claims under chapter 123 of the Texas Civil Practice and Remedies Code are not preempted. Id. at 740; 47 U.S.C. § 414.
III. Applicable Summary Judgment Principles
A party is entitled to summary judgment on all or any part of a claim as to which there is no genuine issue of material fact and as to which the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that there is no genuine issue of material fact. Anderson, 477 U.S. at 256. The movant may discharge this burden by pointing out the absence of evidence to support one or more essential elements of the non-moving party's claim "since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). Once the moving party has carried its burden under Rule 56(c), the non-moving party must do more than merely show that there is some metaphysical doubt as to the material facts.Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party opposing the motion may not rest on mere allegations or denials of pleading, but must set forth specific facts showing a genuine issue for trial. Anderson, 477 U.S. at 248, 256. To meet this burden, the nonmovant must "identify specific evidence in the record and articulate the `precise manner' in which that evidence support[s] [its] claim[s]." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). An issue is material only if its resolution could affect the outcome of the action. Anderson, 477 U.S. at 248. Unsupported allegations, conclusory in nature, are insufficient to defeat a proper motion for summary judgment. Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).The standard for granting a summary judgment is the same as the standard for a directed verdict. Celotex Corp., 477 U.S. at 323. If the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 597. See also Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc) (explaining the standard to be applied in determining whether the court should enter judgment on motions for directed verdict or for judgment notwithstanding the verdict).
IV. Undisputed Evidence
The following is an overview of evidence pertinent to the motion for summary judgment that is undisputed in the summary judgment record:
Plaintiff is the nation's leading direct broadcast satellite programming provider. Plaintiff encrypts its satellite transmissions to provide security for, and prevent unauthorized viewing of, its satellite television programming. Plaintiff offers its television programming to residential and business customers on a subscription and pay-per-view basis only. Each customer is required to obtain plaintiff's satellite hardware (including a small satellite dish and receiver ("IRD") with an access card) and is required to establish an account with plaintiff. Each access card contains an embedded microprocessor and uses smart card technology to control which programming the IRD descrambles based on the programming package or other programming specifically purchased by the subscriber and to capture and transmit to plaintiff the subscriber's pay-per-view information (via a telephone modem in the IRD). Distributors of pirate access devices or illegally modified access cards routinely advise purchasers of piracy equipment not to plug their IRD units into a phone line to avoid a callback and to prevent detection by plaintiff. Plaintiff diligently protects its distribution rights, because of the very high expense incurred in acquiring rights to distribute its programming and service.
Piracy is a big problem for DirecTV. An individual using a pirated access card has access to over $1,000,000 in annual programming services that he would not have to pay for.
In connection with a lawsuit against a business that distributed electronic devices primarily designed for the surreptitious interception of satellite communications broadcast by plaintiff, plaintiff learned that defendant was one of the customers who had purchased pirate access devices. Specifically, in October 2000, defendant purchased a "Netsignia 210 Programmer" ("programmer") and a "Wildthing X Super Unlooper" ("unlooper"). The programmer can be used to clone access cards and to program access cards to allow unauthorized receipt of plaintiff's programming. The unlooper likewise allows unauthorized interception and decryption of plaintiff's programming. Specifically, the unlooper is designed to restore functionality to access cards that have been disabled by plaintiff's electronic security measures.
Defendant purchased a DirecTV system and subscribed to plaintiff's service in 1997. On the same day he purchased the unlooper, defendant downgraded his subscription to plaintiff's service. Prior to his purchase, defendant's satellite hardware would periodically allow plaintiff to upload various billing information. After purchase of the unlooper, defendant's equipment never again uploaded any usage and billing information.
Defendant testified that he acquired the programmer and unlooper to work on a project for Technology Outfitters, Inc. Technology Outfitters, Inc., denies having any contact with defendant until one year after his purchases and says that the work discussed with defendant did not involve any smart cards, smart card hardware, unloopers, or any other aspect of smart card technology.
V. Discussion
A. Fact Issue as to Interception.Defendant's motion is based on his denial that he engaged in any of the activities alleged in the original complaint. Plaintiff has come forward with probative summary judgment evidence to raise a genuine fact issue with regard to plaintiff's interception of its satellite programming. See DirecTV, Inc. v. Gemmell, 317 F. Supp. 2d 686, 693 (W.D. La. 2004); DirecTV, Inc. v. Vanderhoek, 302 F. Supp. 2d 814, 818-19 (W.D. Mich. 2004) (proof that defendant subscribed to plaintiff's service and purchased a pirate access device is circumstantial evidence of actual interception of plaintiff's signals).
B. Private Right of Action Under 18 U.S.C. § 2512.
As his second ground, defendant urges that there is no private right of action for damages as set forth in Count 3 of the complaint. In Count 3, plaintiff alleges that it is entitled to recover damages for defendant's possession, manufacture, and/or assembly of pirate access devices. As discussed in DirecTV, Inc. v. Hoverson, 319 F. Supp. 2d 735 (N.D. Tex. 2004), § 2512 does not support a claim based on the defendant's alleged possession, manufacture, and/or assembly of a pirate device. Accordingly, the motion will be granted as to this ground.
C. Conversion.
In his third ground, defendant urges that there can be no conversion of an intangible thing such as a satellite signal. Conversion is the wrongful exercise of dominion and control over the property of another, to the exclusion of, or inconsistent with, the owner's property rights. Pebble Beach Co. v. Tour 18 I, Ltd., 942 F. Supp. 1513, 1569 (S.D. Tex. 1996). Plaintiff makes no response to this ground, apparently conceding that conversion generally applies only to tangible property interests.
VI. Order
For the reasons discussed herein,
The court ORDERS that defendant's motion for summary judgment be, and is hereby, granted in part, and plaintiff take nothing on its claims against defendant asserted in Count 3 under 18 U.S.C. § 2512 and in Count 5 for conversion.
The court further ORDERS that defendant's motion be, and is hereby, otherwise denied.