J & J SPORTS PRODUCTIONS, INC.
TUCKERS FOOD & BEVERAGE, LLC, t/a TUCKERS.
REPORT AND RECOMMENDATION
JILLYN K. SCHULZE, Magistrate Judge.
This case was referred to me pursuant to 28 U.S.C. § 636(b) and Local Rule 301.6 for review of Plaintiff's Motion for Judgment by Default. ECF No. 8. Defendant was properly served, failed to plead or otherwise respond to the complaint, and the Clerk of the Court entered default against it. ECF Nos. 5, 7. For the following reasons, I recommend that Plaintiff's motion be granted in part, with the requested damage award reduced as set forth below.
On July 31, 2013, Plaintiff, J&J Sports Productions, Inc., filed a complaint against Defendant, Tuckers Food & Beverage, LLC t/a Tuckers, claiming that Defendant's alleged display of a televised boxing match was an unauthorized publication in violation of Sections 605 and 553 of Title 47 of the United States Code. Plaintiff also set forth a claim for conversion.
The complaint alleges that Plaintiff was "granted the exclusive nationwide television distribution rights to the Manny Pacquiao v. Timothy Bradly, [sic] WBO World Welterweight Championship Fight Program which telecast nationwide on Saturday, June 9, 2012." ECF No. 1 at 3. The rights "included all under-card bouts and fight commentary encompassed in the television broadcast of the event." Id. Plaintiff then entered into various sublicensing agreements with hotels, bars and restaurants, allowing the venues to show the event to their patrons. Id. Plaintiff contends that Defendant knowingly intercepted the event for its direct financial gain without obtaining the necessary licensing rights from Plaintiff. Plaintiff requests a statutory damage award of $100, 000 under 47 U.S.C. § 605, a statutory damage award of $50, 000 under 47 U.S.C. § 553, a compensatory damage award of $1, 500 for its conversion claim, and recovery of costs and reasonable attorneys' fees. ECF No. 1 at 6-7; ECF No. 8 at 2.
II. Standard of Review.
In determining whether to award default judgment, the court takes as true the wellpleaded factual allegations in the complaint as to liability, but not as to damages. Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001). "Where the amount of damages is uncertain, the court is required to make an independent determination of the sum to be awarded." J&J Sports Prods. v. Melgar, Civ. No. PJM 11-3339, 2012 U.S. Dist. LEXIS 69391, at *5 (D. Md. May 15, 2012) (citations and quotation marks omitted). "While the court may hold a hearing to prove damages, it is not required to do so; it may rely instead on detailed affidavits or documentary evidence to determine the appropriate sum." Id.
Where there are allegations comparable to those found in this case,
Courts have held that the alleged conduct violated both §§ 553 and 605. Plaintiffs, however, cannot recover under both statutes for the same conduct, so courts typically grant recovery under only § 605, as it provides for greater recovery. Courts have similarly not allowed recovery for claims of conversion, as they would not exceed those under §§ 553 or 605 and would result in double-recovery.
Id. at *5-6. Here, Plaintiff has stated a valid claim under section 605 and the court should consider damages under this section only. Plaintiff may recover up to $10, 000 in statutory damages, the maximum allowable under section 605(e)(3)(C)(i)(II), and $100, 000 in enhanced damages, the maximum amount under section 605(e)(3)(C)(ii).
A. Statutory Damages under 47 U.S.C. § 605.
Plaintiff has elected an award of statutory, rather than actual, damages. In J&J Sports Prods. v. Quattrocche, Civ. No. WMN 09-3420, 2010 U.S. Dist. LEXIS 55482 (D. Md. June 7, 2010), the court set forth the relevant considerations in the damages analysis under section 605(e)(3)(C)(i)(II):
Here, Plaintiff has elected an award of statutory damages, which under 47 U.S.C. § 605(e)(3)(C)(i)(II) entitles Plaintiff to an award "as the court considers just, " between a range of $1000 to $10, 000 for each unauthorized reception and publication of a radio communication by the defendants in violation of section 605(a). Courts in this Circuit have used two different approaches to exercising discretion in awarding damages under § 605(e)(3)(C)(i)(II). The first approach has two variations. This approach involves multiplying a certain amount by either the number of patrons observed in the defendant's establishment at the time the program was shown or by the maximum occupancy of the establishment. The first variation seeks to approximate the defendant's profits or the plaintiff's lost earnings assuming each patron would have ordered the event for residential ...