United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion for
Summary Judgment [DE 24], filed by Plaintiff on July 25,
2016, and on Defendants' Cross Motion for Summary
Judgment [DE 26], filed on August 1, 2016. Plaintiff filed a
response to Defendants' Cross Motion for Summary Judgment
on August 17, 2016. The parties did not file any other
responses or replies, and the time to do so has passed.
filed its Complaint on March 11, 2015, alleging that
Defendants unlawfully published a TV program to which
Plaintiff had exclusive commercial distribution rights. On
July 8, 2016, by written consent of the parties, this case
was reassigned to the undersigned United States Magistrate
Judge to conduct all further proceedings and to order the
entry of a final judgment in this case. Therefore, this Court
has jurisdiction to decide this case pursuant to 28 U.S.C.
Summary Judgment Standard
Federal Rules of Civil Procedure mandate that motions for
summary judgment be granted “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). Rule 56 further requires the entry of
summary judgment, after adequate time for discovery, against
a party “who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P.
56(c)). “[S]ummary judgment is appropriate - in fact,
is mandated - where there are no disputed issues of material
fact and the movant must prevail as a matter of law. In other
words, the record must reveal that no reasonable jury could
find for the non-moving party.” Dempsey v.
Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832,
836 (7th Cir. 1994) (citations and quotations omitted). To
demonstrate a genuine issue of fact, the nonmoving party
“must do more than simply show that there is some
metaphysical doubt as to the material facts, ” but must
“come forward with ‘specific facts showing that
there is a genuine issue for trial.'”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)).
viewing the facts presented on a motion for summary judgment,
a court must construe all facts in a light most favorable to
the non-moving party and draw all legitimate inferences in
favor of that party. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986); Srail v. Vill. of Lisle,
588 F.3d 940, 948 (7th Cir. 2009); NLFC, Inc. v. Devcom
Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A
court's role is not to evaluate the weight of the
evidence, to judge the credibility of witnesses, or to
determine the truth of the matter, but instead to determine
whether there is a genuine issue of triable fact. See
Liberty Lobby, 477 U.S. at 249-50.
parties do not dispute the following facts. Plaintiff owned
the exclusive commercial distribution rights to a TV
broadcast of Ultimate Fighting Championship 158: Georges
St. Pierre v. Nick Diaz, a series of mixed-martial-arts
fights on March 16, 2013. Plaintiff sold licenses to various
commercial establishments, such as bars and restaurants, so
that they could show UFC 158 publically.
UDL, LLC, and its officer, Defendant Robert J. Matijevich,
own and operate L.F. Nortons, a bar in Lake Station, Indiana.
On March 16, 2013, Peter Skoubas, an L.F. Nortons patron,
brought his personal DIRECTV satellite box into the bar and
asked that it be hooked up to the bar's TVs. Mr. Skoubas
had paid to watch UFC 158 on pay-per-view through
his DIRECTV box. Bar staff plugged the box into the LF
Nortons TV system, and at least one TV displayed UFC
158 while several people were in the bar. None of
Defendants nor Mr. Skoubas purchased a license from Plaintiff
to show UFC 158 in a commercial setting.
Defendants' showing of UFC 158, Plaintiff
asserts three claims: violation of 47 U.S.C. § 605
(unauthorized publication or use of communications),
violation of § 47 U.S.C. 553 (unauthorized reception of
cable service), and conversion. Plaintiff did not move for
summary judgment on the conversion claim, so the Court
likewise does not address that claim. A. Sections 605
& 553 Sections 605 and 553 independently criminalize
unlawful interceptions of cable programming. Both sections
provide a civil right of action to any “person
aggrieved by” the unlawful interceptions. 47 U.S.C.
§§ 605(e)(3), 553(c).
threshold question, though, is whether Plaintiff may pursue
relief under both sections. Plaintiff argues that there is a
“split of authority among the district courts as to
whether an interception may violate both 47 U.S.C. § 605
and 47 U.S.C. § 553.” Def. Mot. at 5 [DE 25].
However, “Congress intended for § 605 to apply to
the unlawful interception of cable programming transmitted
through the air, while it intended for § 553 to apply to
the unlawful interception of cable programming while it is
actually being transmitted over a cable system.”
United States v. Norris, 88 F.3d 462, 469 (7th Cir.
Defendants are liable under either § 605 or § 553,
then, depends on how UFC 158 was transmitted -
through the air or by cable. Although the parties provide no
argument one way or the other, Mr. Skoubas's affidavit
says that he purchased the pay-per-view rights to UFC
158 “through [his] satellite provider Direct
TV” and that he took his “satellite box with
[him] to LF Nortons” on March 16 to watch the fights.
Defendants do not dispute these facts. Accordingly, §