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ENTERTAINMENT BY J J, INC., Plaintiff, v. EZEQUIEL TORRES NUNO, d/b/a MEXICO LINDO CANTINA and EZEQUIEL TORRES NUNO, Indi

MEMORANDUM OPINION AND ORDER

BAREFOOT SANDERS, United States District Senior Judge

Before the Court is Plaintiff's Motion for Judgment by Default, filed July 26, 2001. The Court's records indicate that the Clerk of the Court entered default on July 26, 2001. Upon consideration of the motion, the accompanying brief and appendices, and the relevant authorities, the Court concludes that Plaintiff has established that it is an aggrieved party as defined by the statute, and recognizes Plaintiff's election to seek statutory damages. See 47 U.S.C. § 605(d)(6), 605(e)(3)(C)(i). The Court further concludes that Plaintiff is justly entitled to the maximum amount of statutory damages for Defendants' violation of this section, considering Plaintiff's loss of revenue, loss of business opportunities and goodwill, and the statute's intent to deter wrongful interception, receipt and broadcasting of the type of closed-circuit program at issue in this case.

Because Plaintiff moves for default judgment only on its § 605 claim, the Court therefore makes no ruling on the related claim brought under § 553 of the same statute. Even if Defendants were found to have violated both sections of the Communications Act, Plaintiff would not be entitled to cumulative remedies. See Cablevision Systems Corp. v. Maxie's North Shore Deli Corp., 1991 WL 58350 at *2 (E.D.N.Y. Mar. 20, 1991).

The Court concludes, however, based on the Complaint and the instant motion pleadings, that Plaintiff has not established that Defendants willfully violated § 605(a), a necessary predicate to a discretionary increase of statutory damages. See 47 U.S.C. § 605(e)(3)(C)(ii). Without reaching whether Defendants acted for purposes of direct or indirect commercial advantage or private financial gain, the Court cannot find, based on the record before it, that Defendants had actual or constructive knowledge that his actions were unlawful.

Finally, regarding Plaintiff's request for attorneys' fees, the Court recognizes that a one-third contingent fee arrangement is standard practice in collections actions, and concludes that this case has all the earmarks of a collections action. As prevailing party, Plaintiff is therefore entitled to reasonable attorneys' fees equalling one-third of the statutory damage award, in addition to costs of court. See 47 U.S.C. § 605(e)(3)(B)(iii).

Judgment will be entered accordingly.

SO ORDERED.

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ENTERTAINMENT BY J J, INC. v. NUNO, (N.D.Tex. 2001)
(Aug 1, 2001)