J&J Sports Productions v. Brady , 672 F. App'x 798 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 29, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
J&J SPORTS PRODUCTIONS, INC.,
Plaintiff - Appellee,
v. No. 16-6097
(D.C. No. 5:15-CV-00454-HE)
MAXINE BRADY, a/k/a Elizabeth M. (W.D. Okla.)
Brady, d/b/a Cantina the Amazons,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
_________________________________
In this anti-piracy case brought under the Cable Television Consumer Protection
and Competition Act, 47 U.S.C. § 553, and the Federal Communications Act, 47 U.S.C.
§ 605, Maxine Brady appeals from district court orders that granted J&J Sports
Productions, Inc.’s motion for summary judgment and denied her motion for summary
judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
BACKGROUND
J&J Sports is “a commercial distributor of sporting events.” Aplt. App., Vol. I at
12. It held “the exclusive nationwide television distribution rights to [the May 4, 2013]
Floyd Mayweather v. Robert Guerrero, WBC Welterweight Championship Fight
Program.” Id. at 11 (italics omitted). “The event originated via satellite uplink and,
subsequently was transmitted to cable systems and satellite companies.” Id., Vol. II at
406-07.
On fight night, a J&J Sports investigator went into Cantina The Amazons, a
“[l]ow-point beer” bar operated by Brady inside a small building she rented in Oklahoma
City. Id. at 228. There, the investigator counted thirty-seven patrons and “observed the
11th round of the [fight].” Id., Vol. I at 62.
Nearly two years later, J&J Sports sued Brady, alleging that she or her employees
willfully intercepted a transmission of the fight and exhibited it to bar patrons, despite not
paying the licensing fee and having no “right[ ] to publicly exhibit the Program.” Id. at
12. J&J Sports sought damages under 47 U.S.C. § 553(a) (prohibiting the unauthorized
interception or receipt of “any communications service offered over a cable system”) and
§ 605(a) (prohibiting the unauthorized interception, receipt, or publication of a “radio
communication”).
Both parties moved for summary judgment. In her motion, Brady submitted an
affidavit and argued there was no evidence showing (1) “the means by which [she]
allegedly intercepted the signal”; or (2) that she personally intercepted the fight. Aplt.
2
App., Vol. I at 80-81. Nevertheless, an exhibit to her motion included photos of a DISH
Network satellite dish attached to an outer wall of her bar. Id. at 146-48.
J&J Sports’ summary judgment motion included (1) an affidavit from its
investigator; (2) a discovery admission from Brady stating that the bar’s “bartenders,
and/or the manager, act[ed] as [her] agents,” id., Vol. II at 240-41; and (3) an affidavit
from J&J Sports’ president discussing possible means of pirating cable and satellite
signals. J&J Sports asserted that its evidence was sufficient to establish Brady’s liability
under “both statutes,” id. at 182, but that it was seeking damages under only § 605 for
satellite-signal piracy.
The district court found no issue of fact as to whether the fight had been exhibited.
Consequently, it denied Brady’s motion. But it deferred ruling on J&J Sports’ motion
until Brady notified the court whether a satellite dish was in fact attached to the bar.1
Brady responded, conceding the existence of the satellite dish, but insisting that
she “did not personally intercept a satellite signal.” Id. at 429. Also, she submitted a
letter from DISH Network stating it could not “identify an account” associated with the
bar’s address. Id. at 424.
The district court granted summary judgment to J&J Sports, pointing to the
uncontroverted evidence that the fight was shown in the bar and that a satellite dish was
on the building. As for the amount of damages, the district court awarded J&J Sports the
statutory minimum amount of $1,000, see 47 U.S.C. § 605(e)(3)(C)(i)(II).
1
The district court found that the photos showing the satellite dish were
inadmissible because they had not been authenticated.
3
Brady now appeals.
DISCUSSION
I. Standards of Review
We review summary judgment decisions de novo. Pirkheim v. First Unum Life
Ins., 229 F.3d 1008, 1010 (10th Cir. 2000). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When considering
cross-motions for summary judgment, we view each motion separately, in the light most
favorable to the non-moving party, and we draw all reasonable inferences in favor of that
party. See Pirkheim, 229 F.3d at 1010.
II. Signal Piracy
J&J Sports pleaded violations of 47 U.S.C. § 553 and § 605. Section 553 covers
the piracy of communications “offered over a cable system.” 47 U.S.C. § 553(a).
Because there is no evidence in this case of piracy of a cable transmission, we focus
solely on § 605, which provides in relevant part that “[n]o person not being authorized by
the sender shall intercept any radio communication and divulge or publish the existence,
contents, substance, purport, effect, or meaning of such intercepted communication to
any person.” Id. § 605(a). This provision covers communications transmitted by
satellite. See DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir. 2008).2
2
There is a split of authority as to whether § 605 covers both cable and
satellite piracy. The majority view is that § 553 and § 605 are mutually exclusive,
with the latter applying only to the piracy of satellite signals. See, e.g., J&J Sports
(continued)
4
Section 605 imposes strict liability. Joe Hand Promotions, Inc. v. 152 Bronx,
L.P., 11 F. Supp. 3d 747, 753 (S.D. Tex. 2014); see also 47 U.S.C. § 605(e)(3)(C)
(providing for liability without a finding of intent). To establish liability, a plaintiff must
show: (1) interception of a satellite transmission; (2) lack of authorization; and
(3) publication to any person. See 47 U.S.C. § 605; Cal. Satellite Sys. v. Seimon,
767 F.2d 1364, 1366 (9th Cir. 1985). Because “[s]ignal piracy is by its nature a
surreptitious venture[,] . . . direct evidence of actual interception may understandably be
hard to come by.” Webb, 545 F.3d at 844. Thus, “[c]ircumstantial evidence can support
a finding that a communication was intercepted, even absent direct evidence.” Id.
(internal quotation marks omitted).
The following is undisputed: the fight was shown in Cantina The Amazons; there
was no authorization for the showing; and there was a satellite dish attached to an outer
wall of the bar.3 The logical inference to be drawn from these facts is that someone at the
Prods., Inc. v. Mandell Family Ventures, L.L.C., 751 F.3d 346, 352-53 (5th Cir.
2014); Charter Commc’ns Entm’t I, DST v. Burdulis, 460 F.3d 168, 176-78 (1st Cir.
2006); TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 205-07 (3d Cir. 2001);
United States v. Norris, 88 F.3d 462, 466 (7th Cir. 1996). The minority view is that §
605 reaches both cable and satellite piracy. See, e.g., Int’l Cablevision, Inc. v. Sykes,
75 F.3d 123, 133 (2d Cir. 1996); Joe Hand Promotions, Inc. v. Wing Spot Chicken &
Waffles, Inc., 920 F. Supp. 2d 659, 666 (E.D. Va. 2013). We need not choose a side
in this debate, as there is no evidence in this case showing piracy of a cable
transmission.
3
In the section of her appellate brief summarizing her arguments, Brady
claims “the district court inappropriately transferred the burden of proof from [J&J
Sports] to [her] when it directed [her] to advise the court if she disputed that Cantina
the Amazons had a DISH Network satellite dish on May 4, 2013.” Aplt. Br. at 9.
But advancing only a summary of an argument is generally insufficient to preserve
(continued)
5
bar intercepted a satellite transmission of the fight and displayed it on one or more of the
bar’s five television screens for patrons to view.
Brady maintains she did not “personally intercept” the signal or “show[ ] the
fight.” Aplt. Br. at 12. But these facts are immaterial, as J&J Sports seeks to impose
liability against “the commercial establishment doing business as Cantina The Amazons.”
Aplt. App., Vol. I at 10-11. It was this entity, operated by Brady, that unlawfully
broadcast the fight. Because there is no legal distinction between Brady as an individual
and Brady doing business as Cantina The Amazons, she is subject to liability even if she
did not personally effectuate the piracy. See Meacham v. Okla. Bank & Trust Co.,
600 P.2d 868, 870 (Okla. Ct. App. 1979) (stating that a person “who does business under
some other name . . . remains one person, personally liable for all his obligations”
(internal quotation marks omitted)); see, e.g., Joe Hand Promotions, Inc. v. Albright,
No. CIV. 2:11–2260 WBS CMK, 2013 WL 2449500, at *3-4 (E.D. Cal. June 5, 2013).
Nevertheless, as Brady stresses, a few district courts have stated that § 605
liability requires more than “mere ownership of the offending entity,” J&J Sports Prods.,
Inc. v. 291 Bar & Lounge, LLC, 648 F. Supp. 2d 469, 473 (E.D.N.Y. 2009). These courts
have required a showing that the defendant “had a right and ability to supervise the
violations,” J&J Sports Prods., Inc. v. Ribeiro, 562 F. Supp. 2d 498, 501 (S.D.N.Y. 2008)
that argument for appellate review. See Zinna v. Congrove, 755 F.3d 1177, 1182-83
(10th Cir. 2014). Moreover, Brady failed to raise this argument in the district court
and she does not argue on appeal for plain-error review. Consequently, that failure
“surely marks the end of the road for [her burden-of-proof] argument.” Richison v.
Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011).
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(internal quotation marks omitted). But that showing appears mostly limited to cases
with allegations against both a corporate defendant and an individual defendant.
See Albright, 2013 WL 2449500, at *3; see, e.g., 291 Bar & Lounge, LLC, 648 F. Supp.
2d at 473; Joe Hand Promotions, Inc. v. Blanchard, No. 409CV100, 2010 WL 1838067,
at *3 (S.D. Ga. May 3, 2010). The instant case, by contrast, involves the liability of a bar
owner who is legally inseparable from the commercial establishment she runs. Thus, the
concern that “it would not be appropriate to hold an individual jointly and severally liable
along with the business entity” where the individual has no right to authorize the piracy,
291 Bar & Lounge, LLC, 648 F. Supp. 2d at 473, is not present here.
In any event, there is no genuine dispute that Brady is liable under the standard she
seeks. Specifically, given Brady’s admission that the bar’s manager and bartenders serve
as her agents, she necessarily had the right and ability to supervise their piracy of the
fight. Cf. Bosh v. Cherokee Cty. Bldg. Auth., 305 P.3d 994, 998 (Okla. 2013) (“Under the
common law doctrine of respondeat superior a principal or employer is generally held
liable for the wilful acts of an agent or employee acting within the scope of the
employment in furtherance of assigned duties.”).
Brady further argues she did not profit from the fight’s exhibition. But financial
benefit from piracy is not required for a finding of liability or an award of statutory
damages. See 47 U.S.C. § 605(a) (“No person not being authorized by the sender shall
intercept any radio communication and divulge or publish the existence, contents,
substance, purport, effect, or meaning of such intercepted communication to any
person.”); id. § 605(e)(3)(C)(i)(II) (“[T]he party aggrieved may recover an award of
7
statutory damages for each violation of subsection (a) of this section involved in the
action in a sum of not less than $1,000 or more than $10,000, as the court considers
just[.]”); see also J&J Sports Prods., Inc. v. Tamayo, No. 2:14-cv-01997-KJM-CKD,
2016 WL 2855126, at *4 (E.D. Cal. May 16, 2016) (observing in the context of liability
that “[w]hether defendants . . . received any profit or financial benefit from the alleged
signal piracy . . . is irrelevant, if the defendants engaged in any piracy”).
Nevertheless, Brady urges that we require an “an obvious and direct financial
interest in the [piracy]” as a predicate to § 605 liability. See 291 Bar & Lounge, LLC,
648 F. Supp. 2d at 473. But that standard—like the right-and-ability-to-supervise
standard mentioned above—derives from cases involving both a corporate defendant and
an individual defendant. See id. Further, even if we were to apply that standard here, it
would not aid Brady, as there is no dispute she had an obvious and direct financial
interest in pirating the fight. Indeed, she admitted that Cantina The Amazons
“exhibit[ed] television programming . . . believed to be of interest to the [bar’s] patrons.”
Aplt. App., Vol. II at 241. And on fight night, she was able to secure the patronage of
thirty-seven customers while exhibiting the fight at no cost to the bar. That the bar did
not charge an entry fee is irrelevant, as she had an obvious and direct financial interest in
beer sales to bar patrons.
Finally, Brady points out that she “did not own any DISH Network service at the
bar from which to order the fight.” Aplt. Br. at 14. But the lack of an active DISH
Network account for Cantina The Amazons is hardly surprising in a satellite piracy case.
J&J Sports’ president identified several possible means of pirating a satellite signal,
8
including using illegal unencryption devices, acquiring illegal satellite authorization
codes, and diverting the signal from a nearby residence. And significantly, § 605 does
not require identification of the precise means used to accomplish the piracy of a satellite
signal.
Because there is no genuine dispute as to Brady’s liability for a § 605 violation,
the district court properly granted summary judgment to J&J Sports.
CONCLUSION
The judgment of the district court is affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
9