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Section 605(a) of the Federal Communications Act (“FCA”) explained

Posted by Steve Vondran | Mar 19, 2021 | 0 Comments

Attorney Steve® - Satellite TV signal piracy defense

satellite PPV piracy

Introduction

If you received a letter that states you are facing a large legal judgment for pirating satellite signals or selling illegal access to cable or satellite shows call us for a free initial discussion.  Here is what an allegation may look like:

Typical Allegations

Defendant violated Section 605(a) of the Federal Communications Act (“FCA”) through his operation and distribution of the Service.

Section 605(a) states that:

“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 contained therein) for his own benefit or for the benefit of another not entitled thereto.”

47 U.S.C. § 605(a). DISH's satellite transmissions of television programming constitute protected radio communications under subsection (a).  See Cable/Home Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 848 (11th Cir. 1990).  The Court found NO FAIR USE!

Defendant's operation of and control over the Service is established by the fact that the Service was disabled a short period of time after Defendant's received DISH's demand letter.

Defendant's sale of device codes providing access to the Service also violates Section 605(e)(4) of the FCA, which makes it unlawful to distribute 

Defendant's sale of device codes assists end users in receiving DISH programming without authorization and are intended for use in that very activity, thus violating sections 605(a),(e)(4). See, e.g., DISH Network L.L.C. v. SET Broadcast LLC, No. 8:18-cv-01334-VMC-AAS, Dkt. 15, 63 (M.D. Fla.) (granting injunction and asset freeze upon finding DISH likely to succeed on section 605(a) and (e)(4) claims based on retransmission of DISH programming on SetTV streaming service and the sale of access codes for that service); DISH Network L.L.C. v. Droid Tech. LLC, No. 8:19-cv-672-WFJ-AEP, (M.D. Fla.) (awarding same relief in the context of the SimplyTV streaming service).

Damages for Selling illegal access codes

Statutory damages for Defendant's violations of section 605(e)(4) are properly awarded in the sum of $10,000 to $100,000 for each device code that was sold. 47 U.S.C. § 605(e)(3)(C)(i)(II); see § 605(e)(4).  Under the code:

(II). the party aggrieved may recover an award of statutory damages for each violation of subsection (a) involved in the action in a sum of not less than $1,000 or more than $10,000, as the court considers just, and for each violation of paragraph (4) of this subsection involved in the action an aggrieved party may recover statutory damages in a sum not less than $10,000, or more than $100,000, as the court considers just.
 
(ii). In any case in which the court finds that the violation was committed willfully and for purposes of direct or indirect commercial advantage or private financial gain, the court in its discretion may increase the award of damages, whether actual or statutory, by an amount of not more than $100,000 for each violation of subsection (a).
 
(iii).  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 $250.
 
Affirmative Defenses 
 
These TV and PPV piracy cases can be tough to defend.  Here is a case showing how the Plaintiff attacked Defendant's filing of affirmative defenses (by filing a motion to strike):
 
JOE HAND PROMOTIONS, INC. Plaintiff, vs. Case No. 16-2154-JTM DONNIE CLARK, et al., Defendants.
 
Moreover, courts have typically found such generic equitable affirmative defenses irrelevant to claims under the Cable Act. See J&J Sports Productions v. Olivio, 2015 WL 3604457, (S.D. Cal. June 8, 2015) (dismissing affirmative defenses of waiver and unclean hands as “superfluous to the instant case” and essentially “a refutation of Plaintiff's assertions in the complaint, rather than an affirmative defense.”). See also J&J Sports Productions v. Angulo, 2015 WL 5020725,(E.D. Cal. Aug. 21, 2015) (striking unjust enrichment defenses); J & J Sports Prod., Inc. v. Ramirez Bernal, 2014 WL 2042120, at *6 (E.D. Cal. May 16, 2014).
 
The same is true of the affirmative defenses advanced here of lack of mitigation of damages, see J & J Sports Productions v. Coyne, 2011 WL 227670, at *2 (N.D. Cal. 2011) (striking this defense of failure to mitigation damages as irrelevant to Cable Act claim); G & G Closed Circuit Events, 2010 WL 3749284, at *5 (same); and ignorance of illegality. See Joe Hand Promotions v. Davis, 2012 WL 4803923, *7 (N.D. Cal. Oct. 9, 2012) (striking affirmative defense that “defendant was not aware and had no reason to believe that his acts constituted any violation of law” as essentially an “ignorance of the law” argument). 

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337

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