United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
E. MARTIN, UNITED STATES DISTRICT COURT MAGISTRATE JUDGE
matter is before the Court on Defendant's Submission of
Damages and Attorney Fees [DE 31], filed by Defendants on
April 4, 2017, and on Plaintiff's Reply to
Defendant's Damages Memorandum [DE 33], filed by
Plaintiff on April 17, 2017.
March 22, 2017, the Court ordered that judgment be entered on
Plaintiff's behalf on its 47 U.S.C. § 605 Cable Act
claim against Defendant UDL, LLC. The Court also ordered that
judgment be entered in Defendant Robert Matijevich's
favor on all Plaintiff's claims against him and in
Defendant UDL, LLC's favor on Plaintiff's 47 U.S.C.
§ 553 claim against it. The Court ordered the parties to
brief the issue of what damages and fees are appropriate in
the Court granted summary judgment in his favor on all
Plaintiff's claims, Defendant Matijevich argues that he
is entitled to $10, 625.00 in attorney fees “pursuant
to the statutes that allow for the prevailing party to be
granted damages and attorney fees.” Defendant UDL, who
was represented by the same counsel as Defendant Matijevich,
argues that the requested amount of $10, 625.00 covers its
fees for prevailing on Plaintiff's § 553 claim, as
the two Cable Act claims Plaintiff pursued, however, neither
Defendant is entitled to fees. Those sections authorize fees
to be paid only to “an aggrieved party who
prevails” in a civil suit. 47 U.S.C. § 553
(c)(2)(C); 47 U.S.C. § 605(e)(3)(B)(iii). Consequently,
the Cable Act fee statute is not a two-way street. Defendants
pointed to no other authority authorizing an award of fees in
their favor, and so the Court does not award them any fees.
Plaintiff's Fees & Damages
on the other hand, was an aggrieved party that prevailed in
its civil suit under the Cable Act. See 47 U.S.C.
§ 605(e)(3)(B)(iii). Plaintiffs represent that they
incurred $2, 635.50 in attorney fees and $520 in costs.
Defendants do not challenge these amounts, and the Court
finds them to be appropriate.
605 of the Cable Act also authorizes the Court to award
damages “computed, at the election of the aggrieved
party” by either actual damages and profits or
statutory damages from $1, 000 to $10, 000. 47 U.S.C. 47
U.S.C. § 605(e)(3)(C). Plaintiff elected to request the
maximum statutory damages in the amount of $10, 000.
Plaintiff argues that the Court should award the highest
statutory amount of damages to deter future violations.
Defendants did not respond to Plaintiff's damages
arguments, the Cable Act leaves to the discretion of the
Court to determine an appropriate damages award based on the
facts of the individual case. See 47 U.S.C.§
605(e)(3)(c)(II) (“[T]he aggrieved party may recover .
. . a sum of not less than $1, 000 or more than $10, 000,
as the court considers just.”) (emphasis
added). It is Plaintiff's burden to “provide
justification for why damages in excess of the [$1, 000]
minimum should be awarded.” DIRECTV, Inc. v.
Huynh, 318 F.Supp.2d 112, 1131-32 (M.D. Ala. 2004). In
determining a just award, courts consider various factors,
including whether the defendant profited from the violation,
whether the defendant assisted or induced others in the
violation, whether the violation was willful or flagrant,
whether the damage award will be sufficient to deter similar
conduct, and whether the damage award is comparable to awards
in similar cases. Id. at 1331 (collecting cases).
While courts acknowledge that “merely requiring
[Defendant] to pay the price it would have been charged to
obtain legal authorization to display the Event does nothing
to accomplish [the] objective” of the Cable Act, courts
routinely consider the would-be licensing fee in arriving at
an appropriate damages award. Entm't by J & J,
Inc. v. Al-Waha Enters., Inc., 219 F.Supp.2d
769, 776 (S.D. Tex. 2002).
case, Plaintiff has not sufficiently justified an award of
$10, 000. The affidavit attached to Plaintiff's damages
submission states that the licensing fee for the at-issue
program would have been, at most, $950.00. Awarding Plaintiff
over ten times that amount does not appear to be appropriate.
See Id. (awarding $5, 000 when the licensing fee was
$1, 500). Instead, “maximum statutory damages [in Cable
Act cases] should be reserved for cases where there is
evidence of more substantial injury to the plaintiff or
profit by the defendants.” Kingvision Pay-Per-View,
Ltd. v. Jasper Grocery, 152 F.Supp.2d 438, 442 (S.D.N.Y.
the Court awards Plaintiff $3, 000 in damages. This figure
equals over three times the licensing fee that Plaintiff
would have charged Defendant UDL, which should sufficiently
deter future piracy. However, this figure also takes into
consideration the somewhat strange facts of this case. A bar
patron brought his own cable box into Defendant UDL's bar
and asked the bar staff to plug in the box to show the fight.
As the Court previously determined, Defendant UDL is, of
course, liable for this conduct. However, this case does not
represent a flagrant violation, and it does not appear that
Defendant UDL profited significantly from the violation.
Furthermore, Plaintiff did not suffer a substantial injury,
and will be adequately compensated with the $3, 000 award and
attorney fees. See Huynh, 318 F.Supp.2d at 1131.
foregoing reasons, the Court hereby DIRECTS the Clerk of
Court to AMEND the judgment in this case to include $3, 000
in damages, $2, 632.50 in attorney fees, and $520 in costs ...