United States District Court, D. Oregon, Eugene Division
JOE HAND PROMOTIONS, INC., Broadcast Licensee of the November 21, 2015 Cotto/Canelo Program, Plaintiff,
SOTERO ENCISO CHAVEZ, an individual, and SOTENO LLC, d/b/a SEVEN SEAS RESTAUTRANT & BAR, a/k/a 7 MARES RESTAURANT, Defendants.
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE
Joe Hand Promotions, Inc., initiated this action on October
10, 2017 against defendants, Sotero Enciso Chavez and Soten
LLC, doing business as Seven Seas Restaurant & Bar
("7 Mares Restaurant"). Plaintiff alleges
defendants infringed plaintiffs exclusive rights under
sections 553 and 605 of the Communications Act by illegally
intercepting and exhibiting the Cotto vs. Canelo broadcast
(the "Program") on November 21, 2015. Further,
plaintiff alleges the conduct of defendants has and will
continue to cause harm to plaintiff unless the unlawful
activity is enjoined.
Court entered an order of default against defendant on
January 23, 2018. Plaintiff now moves for default judgment
against defendants. Specifically, plaintiff seeks statutory
damages from each defendant in the amount of $15, 000, a
permanent injunction, attorney fees in the amount of $3, 022,
and costs in the amount of $1, 150.
47 U.S.C. § 553 and § 605
establish a claim of unlawful interception of satellite
programs, plaintiff must demonstrate that it has a
proprietary interest in the Program, and that the defendants
unlawfully intercepted, received, published, displayed,
and/or exhibited the Program without plaintiffs
authorization. 47 U.S.C. § 553(a); 47 U.S.C. §
605(a); J&J Sports Prods, v. Segura, 2018 U.S.
Dist. LEXIS 66291, *8-9 (N.D. Cal. 2018), Direct evidence of
unlawful satellite interception is not required to establish
a violation under sections 553 or 605. DirecTV, Inc. v.
Webb, 545 F.3d 837, 844 (9th Cir. 2008). Circumstantial
evidence may be equally persuasive. Id.
default, the factual allegations of the complaint are taken
as true, except the allegations relating to the amount of
damages. Geddes v. United Financial Group), 559 F.2d
557, 560 (9th Cir. 1977). The complaint establishes that
plaintiff had a proprietary interest in the Program and that
defendants were not on Oregon's list of authorized
commercial purchasers of the Program. Pl.'s Comp. at 4-5,
Defendant 7 Mares Restaurant is a commercial establishment
and, as such, could only have lawfully obtained the Program
if plaintiff had contracted with defendants for the rights to
show it. While plaintiff is unable to determine the direct
method of interception, an auditor witnessed the Program
being displayed on five television sets at defendants'
commercial establishment. Pl.'s Aff. Ex. A, at 7. Taking
the allegations as true, plaintiffs complaint establishes the
elements of unlawful satellite interception required to state
a claim under sections 553 and 605.
Vicario us Liability
claims defendant Sotero Enciso Chavez should be held
personally liable, alongside defendant 7 Mares Restaurant,
for the unlawful activities occurring within the restaurant
on November 21, 2015. In order for defendant Chavez to be
held liable, plaintiff must demonstrate that he authorized
the violations alleged in the complaint, or had a "right
and ability to supervise" the violations and a strong
financial interest in such activities. Joe Hand
Promotions, Inc. v. Prezio, 2009 U.S. Dist. LEXIS
137101, *4-5 (S, D. Cal. 2009) (citing J&J Sports
Prods, v. Potions Bar & Lounge, Inc., 2009 WL
763624, *9 (E.D.N.Y. 2009)).
contends that defendant Sotero Enciso Chavez is the
owner/operator of 7 Mares Restaurant, where the violation
took place, and has oversight and management thereof.
Pl.'s Comp. at 2-3. Plaintiff further alleges defendant
Chavez received a financial benefit from the operations of 7
Mares Restaurant. Id. at 3. As these allegations are
undisputed, the Court finds this ownership/operation and
strong financial interest sufficient to establish vicarious
Statutory Damages Under 47 U.S.C. §
plaintiff may elect to recover damages under sections 553 and
605, but not both. J&J Sports Prods, v. Ro, 2010
U.S. Dist. LEXIS 21425, *8 (N.D. Cal. 2010). Here, plaintiff
elects to recover damages under section 605(a). Pl.'s
Mem. in Supp. of Default J. at 10. Plaintiff is entitled to
recover actual damages attributable to the unauthorized
interception of the Program or may elect to recover statutory
damages. Plaintiff seeks statutory damages in the amount of
$5, 000 and enhanced statutory damages in the amount of $10,
000 from each defendant. The court may award statutory
damages "in a sum of not less than $1, 000 or more than
$10, 000." 47 U.S.C. § 605(e)(3)(C)(i)(II).
However, where the interception is committed willfully,
"the court in its discretion may increase the award of
damages ... by an amount not more than $100, 000." 47
U.S.C. § 605(e)(3)(C)(ii).
use a variety of methods for calculating an award of
statutory damages under section 605. "A traditional
method of determining statutory damages is to estimate either
the loss incurred by the plaintiff or the profits made by the
defendants." Garden City Boxing Club, Inc. v.
Zavala, 2008 U.S. Dist. LEXIS 79647, *3 (N.D. Cal.
2008). See also Joe Hand Promotions, Inc. v. Holmes,
2015 U.S. Dist. LEXIS 116899, *20 (D. Or. 2005);
Kingvision Pay-Per-View, Ltd. v. Lake Alice Bar, 168
F.3d 347, 350 (9th Cir. 1999).
the traditional approach, the Court considers the losses and
profits resulting from defendants' unlawful interception.
In this case, it would be impossible to calculate the full
extent of the profits obtained by defendants; however,
plaintiff indicates that defendants' cost to legally
license the Program would have been $4, 200. Pl.'s Mem.
in Supp. of Default J. at 13. The Court shall base the award
of statutory damages off of the cost of the licensing fee had
the defendants legally purchased the Program. The Court finds