United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
This matter is before the court on plaintiff's motion for default judgment (DE # 15). For reasons given, plaintiff's motion is granted, and the court awards damages and attorneys' fees to the extent set forth herein.
Plaintiff filed this action on August 14, 2014, alleging unauthorized publication or use of communications, in violation of 47 U.S.C. § 605(a); interception and disclosure of wire, oral or electronic communications, in violation of 18 U.S.C. § 2511; and civil conversion. Defendants were served on August 19, 2014, but neither have filed an answer or otherwise appeared. Plaintiff now seeks default judgment under section 605(a), including statutory damages in the amount of $10, 000, enhancement damages in the amount of $25, 000, and attorneys' fees and costs in the amount of $3, 225.15.
Plaintiff alleges in its complaint that it provides interstate direct broadcast satellite television programming to customers with specialized satellite equipment who pay a subscription fee. Plaintiff charges commercial establishments a higher subscription fee than residential customers. However, both commercial establishments and residential customers use the same satellite equipment and receive the same programming. As a result, it is possible for an individual to move satellite equipment authorized only for residential use to their commercial establishment to receive television programming there at the lower residential subscription fee.
On October 20, 2012, defendants received and displayed plaintiff's television programming in a commercial establishment. According to plaintiff's affidavit, an auditor working for plaintiff observed that the programming was an Alabama Crimson Tide vs. Tennessee Volunteers football game. Plaintiff alleges that defendants did not have a commercial account with plaintiff and were not authorized to display plaintiff's television programming in their commercial establishment.
Defendants, by their default, admit plaintiff's well-pleaded allegations of fact. Ryan v. Homecomings Financial Network, 253 F.3d 778, 780 (4th Cir. 2001) (quoting Nishimatsu Constr. Co., Ltf. V. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). Defendants are not, however, held to admit conclusions of law. Id . Further, "the allegations of the complaint regarding the amount of damages suffered are not controlling." Joe Hand Promotions, Inc. v. Coaches Sports Bar, 812 F.Supp.2d 702, 703 (E.D. N.C. 2011). The court may consider evidence outside of the complaint to determine damages. See Anderson v. Found. for Advancement, Educ. & Emp't of Am. Indians, 155 F.3d 500, 507 (4th Cir. 1998) (remanding for hearing on damages for default judgment); J & J Sports Prod., Inc. v. Segura, No. 5:12-CV-241-FL, 2013 WL 1498963, at *2, 3 (E.D. N.C. Apr. 10, 2013) (considering evidence in affidavits to determine damages).
Section 605(a) of the Communications Act provides, in part, as follows:
[N]o person receiving... any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee.... No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.
47 U.S.C. § 605(a). Here, plaintiff has established that defendants violated section 605(a). Defendant Green, although authorized to receive plaintiff's television programming for residential use, was not authorized to receive or display the programming for commercial use. Further, defendant Big Shots Entertainment Sports Bar & Grill was not authorized to receive or display plaintiff's television programming for any use.
1. Statutory ...