SUSAN ILLSTON, District Judge.
On April 12, 2002, the Court heard argument on plaintiffs motion for default judgment. Having considered the arguments of counsel and the papers submitted, the Court hereby GRANTS plaintiffs motion.
BACKGROUND
On October 15, 2001, plaintiff Kingvision Pay-Per-View, Ltd. filed a complaint against defendant James A. Dailey, individually and d.b.a. Golden Bear Sports Bar, a.k.a. Golden Bear Sports Cafe. The complaint alleges that on November 13, 1999, defendant willfully and without authorization broadcast the Evander Holyfield v. Lennox Lewis, II Championship Fight Program in violation of 47 U.S.C. § 605, 47 U.S.C. § 553, 17 U.S.C. § 501, and California Business and Professions Code §§ 17200, et seq. The complaint also states a cause of action for conversion. The complaint seeks statutory damages for the violation of 47 U.S.C. § 605 and 553, compensatory damages for all other claims, and attorney's fees and costs. On December 6, 2001, defendant was served personally with copies of the Summons and Complaint.
Since that time, no answer or pleading has been filed by defendant; nor has he entered an appearance. On January 3, 2002, this Court entered default against defendant. Subsequently, plaintiff served upon defendant, by United States mail, a notice of application and application for default judgment along with a notice of hearing specifying April 12, 2002 as the hearing date. Defendant again failed to appear.
LEGAL STANDARD
Upon default, the factual allegations of the complaint will be taken as true. See TeleVideo System Inc. v. Heidenthal, 826 F.2d 915,917 (9th Cir. 1987). The exception to this rule involves allegations relating to the amount of damages, for which evidentiary support must be provided.See id. Dundee Cement Co. v. Howard Pipe Concrete Prods., 722 F.2d 1319,1323 (7th Cir. 1983). Damages on default may be established via an evidentiary hearing, declarations or affidavits, or affidavits, an accounting, or reference to a master or magistrate judge. See, e.g., James v. Frame, 6 F.3d 307,310 (5th Cir. 1993).
DISCUSSION
1. Statutory Damages
Based on the pleadings, defendant is liable for conduct that violates both 47 U.S.C. § 605 and 553. Plaintiff requests that this Court award $50,000 under 47 U.S.C. § 605 and an additional $50,000 under 47 U.S.C. § 553. Under 47 U.S.C. § 605(e)(3)(C)(i), a plaintiff may elect recovery of statutory damages of $1,000 to $10,000 per violation, and the court may award the amount that it "considersjust." Similarly, 47 U.S.C. § 553(c)(3)(ii) authorizes statutory damages of $250 to $10,000 per violation.
These statutes authorize the court to award additional damages for a willful violation for the purpose of financial gain or commercial advantage of up to $100,000 under 47 U.S.C. § 605(e)(3)(C)(ii) and up to $50,000 under 47 U.S.C. § 553(c)(3)(B).
When liability exists under both §§ 553 and 605, damages are imposed pursuant to § 605 alone rather than cumulatively. See Joe Hand Promotions, Inc. v. Pete, No. C-99-053 1-VRW, 1999 WL 38215 *1 (N.D.Cal. Aug. 17, 1999) (citing International Cablevision, Inc. v. Sykes, 997 F.2d 998, 1009 (2d Cir. 1993)); Don King Productions/Kingvision v. Lovato, No. C-95-2827-TEH, 1996 WL 682006 *4 n. 4 (N.D.Cal. Nov. 15, 1996) (same). But see Spencer Promotions, Inc. v. 5th Quarter Enterprises. Inc., No C-94-0988-CW, 1996 WL 438789*7 (N.D.Cal. Feb.21, 1996) (awarding damages under both statutes). The Court will award damages only under 47 U.S.C. § 605. For each violation of section 605, plaintiff is entitled to damages of $1,000 to $10,000, the exact amount to be determined by what the Court "considers just." See 47 U.S.C. § 605 e)(3)(C)(i)(II). In addition, the Court has discretion to increase the award of damages for each violation in an amount up to $100,000 when a "violation was committed willfully and for purposes of direct or indirect commercial advantage or financial gain." 47 U.S.C. § 605(e)(3)(C)(ii). Plaintiff urges the Court to find that its allegations of willfulness are deemed admitted and that enhanced penalties are therefore available. However, since plaintiffs allegations of willfulness bear directly on the question of damages, the mere assertion that defendant acted willfully is insufficient to justify enhanced damages. See Geddes v. United Financial Group, 559 F.2d 557, 560 (9th Cir. 1977).
Although the Program was broadcast in a commercial setting, there is no evidence of significant "commercial advantage or private financial gain" here. The affidavit of Kingvision's investigator gives no indication that the price of drinks or food was increased during the fights or that the establishment advertised that it would be showing the bouts. Nor does the affidavit provide an estimate of how many of the 18-21 individuals present at the establishment were even watching the fight. See Gravelyn Affidavit at 1-2. Accordingly, the Court will not grant a significantly enhanced award. See Don King Productions/Kingvision v. Carrera, No. C-95-4545-TEH, 1997 WL 362115*2 (N.D.Cal. June 24, 1997) (evidence of willful exhibition for financial gain insufficient when there was no showing that a cover was charged, that the program was advertised, or that food or drink prices were increased, and when establishments were not filled to capacity). The affidavit does state that there was a $10.00 cover charge at the establishment. Id. For the foregoing reasons, the Court awards the statutory minimum damages amount of $1,000 with a $500 enhancement based on the existence of a cover charge, for a total award of $1,500.
2. Compensatory Damages
Plaintiff also requests $10,000 for violation of 17 U.S.C. § 501, $5,000 for violation of Cal. Bus. Prof Code § 17200 and $1,000 for the conversion cause of action. Plaintiff claims that $1,000 is an estimate of the actual damages suffered given the standard charge of$ 10-20 per seat based on maximum capacity of the establishment. Plaintiff also seeks future damages based on lost revenue from customers who will no longer pay to broadcast fights because they lose patrons to pirating establishments that do not charge any cover. This Court has refused to award cumulative damages for separate claims stemming from the same conduct. Instead, the Court has awarded a total amount of compensatory damages for both actual and future losses. See Joe Hand Promotions. Inc. v. De Miguel, No. C 99-02171, at *4. The affidavit of the investigator does not state the maximum capacity of the establishment, but does report a maximum crowd count of 21 individuals. This Court will therefore award $315, the number of individuals in attendance multiplied by a $15 per seat charge. Because the estimate of lost profits that will result from discouraged customers is not supported by any evidence other than a general declaration by the Vice President of Kingvision's Pay-Per View Operations, and its application to these defendants is entirely speculative, this Court declines to award damages based on future losses.
Plaintiff seeks damages under 47 U.S.C. § 501 and Cal. Bus. Prof Code § 17200. Plaintiff has not established that such damages are legally appropriate. Indeed, plaintiffs memorandum contains no analysis of either claim.
Costs and attorney's fees.
This Court finds that plaintiffs request for $525 in costs for the expense of filing the complaint ($150), service of process ($100) and investigation ($275) is reasonable, and awards that amount. In the motion for default judgment, plaintiff also sought $2,500 in attorney's fees, but provided no
documentation in support of the fee request. The Court therefore ordered plaintiff to submit an itemized list of attorney's fees detailing the actual time expended by task and the hourly rate charged. Plaintiffs counsel subsequently submitted a declaration seeking a significantly larger amount in fees. Plaintiff now seeks attorney's fees of $4,025 based upon counsel's declaration, in which he states that he customarily bills his time at $350 per hour and that he spent 11.25 hours working on this case. Plaintiff does not explain the discrepancy between the amount sought in the motion itself and in counsel's declaration. The Court is satisfied that the number of hours billed is reasonable. However, plaintiff has submitted no evidence regarding the prevailing market rate in the relevant community, and this Court finds that $175 is a more reasonable hourly fee. See Blum v. Stenson, 465 U.S. 886,895 n. 11 (1984) (attorney's fees are awarded based on prevailing market rate in relevant community). Therefore, plaintiff has documented 11.25 hours of time which, if billed at $175 per hour, justifies an award of $1,968.75.
CONCLUSION
For these reasons, plaintiffs motion for default judgment is GRANTED and $1, 815 in damages and $2,493.75 in costs and fees are awarded. [Docket No. 10]