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Joe Hand Promotions, Inc. v. Windham

United States District Court, S.D. Alabama

November 29, 2017

JOE HAND PROMOTIONS, INC., Plaintiff,
v.
JASON WINDHAM d/b/a BATTER UP SPORTS BAR, Defendant.

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff's Motion for Summary Judgment (doc. 14). The Motion has been briefed and is now ripe for disposition.

         I. Background Facts.[1]

         A few minutes past 10:00 p.m. on January 3, 2015, Douglas Sharp walked into the Batter Up Sports Bar and Grill in Demopolis, Alabama. (Doc. 14, Exh. A(3).) Batter Up is a small establishment, with an estimated capacity of just 48 patrons. (Id.; doc. 17-1, ¶ 6.) Although it was a Saturday night, the sports bar was not full; to the contrary, between the hours of 10:00 p.m. and midnight, there were approximately 21-22 customers inside Batter Up at any given time. (Doc. 14, Exh. A(3).) Batter Up was no busier on January 3, 2015 than it was on a typical Saturday night during that time of year, and its gross receipts were no higher than average. (Doc. 17-1, ¶ 8.) Neither Sharp nor any of the other patrons were required to pay a cover charge to enter the establishment. (Doc. 14, Exh. A(3); doc. 17-1, ¶ 7.)

         Sharp remained inside Batter Up for nearly two hours that night. (Doc. 14, Exh. A(3).) He ordered a beer and some food, and watched live sporting events on the 13 television sets positioned inside and outside the venue. (Id.) Four of those televisions were showing the Ultimate Fighting Championship 182: Jones v. Cormier broadcast, including undercard bouts and commentary. (Id.) Sharp watched the entire three-round match between undercard fighters Donald Cerrone and Myles Jury, and then watched the entire five-round main event between Jon Jones and Daniel Cormier. (Id.) In Sharp's opinion, Jones (who won by unanimous decision) controlled the action throughout and Cormier ran out of steam well before the bout's conclusion. (Id.) At around 11:55 p.m., Sharp left the establishment. (Id.)

         These events inside Batter Up Sports Bar and Grill were entirely typical of a scene that played out in bars and restaurants throughout the country exhibiting this UFC event (the “Event”), with one important difference. Douglas Sharp was no ordinary customer or enthusiast of the pugilistic arts; rather, he was there in his capacity as a private investigator with Sharp One Investigations. He had been retained by Joe Hand Promotions, Inc., a closed circuit distributor of sports and entertainment programming that owned the exclusive commercial exhibition rights to the Event. (Doc. 15, Exh. A, ¶ 3.) Joe Hand marketed the sublicensing (commercial exhibition) rights to the Event to its commercial customers, consisting of bars, restaurants, casinos, racetracks and so on. (Id.) Any domestic commercial establishment that wished to broadcast the Event was required to pay a commercial sublicense fee to Joe Hand. (Id., ¶ 7.) The amount of the fee varied depended on the size of the establishment; however, for a facility the size of Batter Up (i.e., one with a capacity of 50 or fewer patrons), the sublicense fee for the Event was $900. (Id.) The problem was that Batter Up never lawfully licensed the Event from Joe Hand, and never paid the requisite $900 sublicense fee for the rights to broadcast it commercially. (Id., ¶ 8.) For that reason, Joe Hand filed a Complaint (doc. 1) against Jason Windham, the manager of Batter Up, in this District Court alleging that, by virtue of Batter Up's unauthorized exhibition of the event, Windham had engaged in satellite or cable piracy, in violation of 47 U.S.C. §§ 605 or 553. Joe Hand seeks statutory damages, in the discretion of the Court, for willful violation of the statute, as well as interest, costs and attorney's fees.

         Nearly all of these facts are undisputed. Indeed, defendant's Response specifically concedes that “he showed the event in question at … Batter Up Sports Bar and did so under a residential account with DirecTV and not a commercial account.” (Doc. 17, at 3.) The only additional facts offered by defendant, Windham, are as follows: Batter Up originally established its DirecTV service in 2006 or 2007, when the restaurant first opened. (Doc. 17-1, ¶ 3.) Windham was not the manager of Batter Up at that time, and had no involvement in setting up the facility's DirectTV service. (Id.) Batter Up's DirecTV service was established as a residential account; however, Windham was unaware of that fact. (Id., ¶ 4.) When he learned that the restaurant had a residential DirecTV account (sometime after the Event but before Windham was in communication with Joe Hand or its agents), Windham promptly reclassified the account as a commercial account. (Id.) The only promotion that Windham did for the Event consisted of “a couple of Facebook posts.” (Id., ¶ 9.)

         II. Summary Judgment Standard.

         Summary judgment should be granted only “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.” Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987) (citation omitted).

         Here, of course, the movant is the plaintiff, seeking summary judgment on issues for which it would bear the burden of proof at trial. In that context, the movant “must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence … that would entitle it to a directed verdict if not controverted at trial. In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (citation omitted); see also Adams v. BSI Management Systems America, Inc., 523 Fed.Appx. 658, 659-60 (11th Cir. July 17, 2013). If Joe Hand meets that burden, then Windham, “in order to avoid summary judgment, must come forward with evidence sufficient to call into question the inference created by the movant's evidence on the particular material fact.” Fitzpatrick, 2 F.3d at 1116. Summary judgment is to be granted for the movant in these circumstances “[o]nly if after introduction of the non-movant's evidence, the combined body of evidence … is still such that the movant would be entitled to a directed verdict at trial - that is, that no reasonable jury could find for the non-movant.” Id.

         III. Analysis.

         Plaintiff's claims are asserted under the Federal Communications Act of 1934. The key statutory language is as follows:

“No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, [or] substance … of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate … communication by radio and use such communication … for his own benefit or for the benefit of another not entitled thereto.”

47 U.S.C. § 605(a). Although § 605(a) is framed in terms of “radio communication, ” it is well settled that the statute also reaches piracy of satellite signals. See, e.g., TKR Cable Co. v. CableCity Corp., 267 F.3d 196, 207 (3rd Cir. 2001) (“We therefore conclude that § 605 encompasses the interception of satellite transmissions to the extent reception or interception occurs prior to or not in connection with, distribution of the service over a cable system ….”) (citation and internal quotation marks omitted).[2] Again, Windham has admitted that he showed the Event at a commercial establishment (Batter Up Sports Bar) without authorization from Joe Hand, the entity holding exclusive commercial exhibition rights to said Event. Those undisputed facts establish defendant's liability under § 605, without regard for Windham's intent or good faith or lack thereof. See, e.g., DirecTV v. Crespin, 224 Fed.Appx. 741, 757 (10th Cir. Mar. 16, 2007) (“§ 605(a) does not have an intent requirement”); Joe Hand Promotions, Inc. v. Young, 2010 WL 1979388, *4 (W.D. Ky. May 14, 2010) (determining in § 605(a) context that “a finding of intent, knowledge or ...


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