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Dish Network LLC v. Tendler

United States District Court, D. New Hampshire

January 9, 2015

DISH Network L.L.C., et al.
v.
Gerson Tendler.

REPORT AND RECOMMENDATION

ANDREA K. JONSTONE, Magistrate Judge.

DISH Network L.L.C. ("DISH Network"), Echostar Technologies L.L.C. ("Echostar"), and Nagrastar LLC ("Nagrastar") brought suit against Gerson Tendler, asserting claims arising out Tendler's alleged use of piracy software to unlawfully obtain DISH Network's satellite broadcasting of television programs without authorization. When Tendler failed to appear, default was entered against him. See Doc. No. 7. Before the court for a Report and Recommendation is the plaintiffs' motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2). For the reasons that follow, the court recommends that the plaintiffs' motion be granted.

Standard of Review

After default is entered and when the amount at issue is not a sum certain, "the party must apply to the court for a default judgment." Fed.R.Civ.P. 55(b)(2); see also KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 19 (1st Cir. 2003). "Although a defaulting party admits the factual basis of the claims asserted against it, the defaulting party does not admit the legal sufficiency of those claims." 10 James Wm. Moore, Moore's Federal Practice § 55.32[1][b] (3d ed. 2013). To recover on a motion for default judgment, "[t]he claimant must state a legally valid claim for relief." Id .; see also Ramos-Falcon v. Autoridad de Energia Electrica, 301 F.3d 1, 2 (1st Cir. 2002). Therefore, before entering default judgment, the court must determine whether the admitted facts state actionable claims. See Hop Hing Produces Inc. v. X & L Supermarket, Inc., No. CV 2012-1401(ARR)(MDG), 2013 WL 1232919, at *2 (E.D.N.Y. Mar. 4, 2013); E. Armata, Inc. v. 27 Farmers Market, Inc., No. 08-5212 (KSH), 2009 WL 2386074, at *2 (D.N.J. July 31, 2009).

Background

By virtue of his default, Tendler concedes the following facts: DISH Network operates a satellite distribution system by which it broadcasts "movies, sports, and general entertainment services to consumers who have been authorized to receive such services after payment of a subscription fee, or in the case of a pay-per-view movie or event, the purchase price." Compl. ¶ 10. The content broadcast by DISH Network is copyrighted, and it "has the authority of the copyright holders to protect the works from unauthorized reception and viewing." Id . ¶ 12.

DISH Network's signals are encrypted. Echostar and Nagrastar each provides components which together "convert DISH Network's encrypted satellite signal into viewable programming that can be displayed on the attached television of an authorized DISH Network subscriber." Id . ¶ 18.

"Various devices have appeared on the black market over the years for the purpose of illegally decrypting or pirating' DISH Network programming." Id . ¶ 19. A commonly used form of satellite pirating is called "Internet key sharing" or "IKS." IKS uses internet-enabled "Free to Air" ("FTA") satellite receivers, onto which piracy software is loaded. Through IKS, the FTA receiver contacts a specific computer server over the internet, the IKS server, which provides control words - in essence, a password - necessary to descramble various channels of DISH Network's programming. Once the control words are obtained, they are sent from the IKS server over the Internet to an FTA receiver, where they are used to decrypt DISH Network's signal and view programming without paying a subscription fee.

There are various IKS services through which members purchase a subscription to obtain control words to circumvent DISH Network's security system and receive programming without authorization. Two such services are called IKS Rocket and Nfusion Private Server ("NFPS"). Tendler purchased a one-year subscription to IKS Rocket on November 8, 2011. Tendler also purchased a one-year subscription to NFPS in November of 2012. Tendler used both IKS Rocket and NFPS to access DISH Network programming unlawfully and without paying a subscription fee.

Discussion

The plaintiffs brought this action against Tendler alleging three claims: (i) Violation of the Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(1); (ii) Violation of the Federal Communications Act ("FCA"), 47 U.S.C. § 605(a); and Violation of the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. §§ 2511(1)(a) and 2520. After default was entered against Tendler, the plaintiffs moved for default judgment under Rule 55(b)(2) on only Count III, their ECPA claim (doc. no. 8).

Under the ECPA, any person who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any... electronic communication... shall be subject to suit as provided in subsection (5)."[1] § 2511(1)(a). Subsection (5) refers to § 2520, which allows for a private right of action against all who violate § 2511.

The ECPA provides that a plaintiff in a civil action may recover "from the person or entity... which engaged in [a] violation such relief as may be appropriate." § 2520(a). It further provides that appropriate relief may include "equitable or declaratory relief" and damages as provided under the statute. Id. at (b).

In their motion for default judgment, the plaintiffs seek statutory damages under the ECPA in the amount of $10, 000 and ask the ...


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