                                UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                No. 04-2483



DIRECTV, INCORPORATED,

                                               Plaintiff - Appellant,

             versus


RAUL PERNITES,

                                                Defendant - Appellee,

             and


JOHN MENHART; MICHAEL BASSHAM; DAVID CURTIS;
CURTIS EDWARDS; STAN MARSH; SOPHIA MITCHELL;
BILL PHOTINOS; DAVID RANDALL,

                                                           Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CA-03-386)


Submitted:    August 31, 2006            Decided:   September 21, 2006


Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Howard Robert Rubin, Christian Stephen Genetski, SONNENSCHEIN, NATH
& ROSENTHAL, LLP, Washington, D.C., for Appellant. Raul Pernites,
Appellee Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

             DIRECTV appeals a district court’s order accepting a

magistrate judge’s recommendation inter alia to dismiss DIRECTV’s

claims under 18 U.S.C. §§ 2511(1), 2520 (2000), and under 47

U.S.C.A. § 605(e)(4) (West 2001).           On appeal, DIRECTV challenges

the court’s dismissal of these two claims.          We vacate and remand.

             In the context of a default judgment, “‘[t]he defendant,

by his default, admits the plaintiff’s well-pleaded allegations of

fact”   so    a   court   must   “determine    whether   the   well-pleaded

allegations in [plaintiff’s] complaint support the relief sought in

th[e] action.” Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780

(4th Cir. 2001) (internal citations omitted).            “[A] defendant’s

default does not in itself warrant the court in entering a default

judgment.     There must be a sufficient basis in the pleadings for

the judgment entered.”       Nishimatsu Constr. Co. v. Houston Nat’l

Bank, 515 F.2d 1200, 1206 (5th Cir. 1975).          Further, a “defendant

is not held to admit facts that are not well-pleaded or to admit

conclusions of law.”      Id.

             With respect to DIRECTV’s claim under 18 U.S.C. § 2511

and § 2520, the district court accepted the magistrate judge’s

conclusion that DIRECTV did not have a cognizable claim, finding

that the legislative history of the Wiretap Act indicated that the

statute was not intended to protect commercial satellite services

from surreptitious interceptions by private individuals.             While


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this appeal was pending, we issued an opinion in DIRECTV, Inc. v.

Nicholas, 403 F.3d 223 (4th Cir. 2005), which is dispositive of

this claim.     In Nicholas, we specifically concluded that DIRECTV

could maintain a cause of action under 18 U.S.C. § 2511 and § 2520

against a private individual for the alleged interception of its

encrypted satellite transmissions.         See also DIRECTV, Inc. v.

Pepe, 431 F.3d 162 (3d Cir. 2005) (same). Accordingly, because the

district court erred in dismissing DIRECTV’s claim under 18 U.S.C.

§ 2511 and § 2520, for failure to state a claim, we vacate the

judgment and remand with respect to this claim.

           With respect to 47 U.S.C.A. § 605(e)(4), the district

court held that § 605(e)(4) is intended to cover sellers and

manufacturers    of    intercepting   devices,    not   end   users,   and

accordingly dismissed the count for failure to state a claim.           In

DIRECTV v. Robson, 420 F.3d 532 (5th Cir. 2005), the Fifth Circuit

rejected the district court’s construction that § 605(e)(4) exempts

individual users.      420 F.3d at 543-44.       Specifically, the court

held § 605(e)(4) pertains to commercial as well as individual

users.   Id. at 544.   We find the reasoning in Robson persuasive and

accordingly conclude that § 605(e)(4) does not categorically exempt

individual users.      We offer no opinion at this time on whether

Pernites’ alleged actions in removing and inserting pirate access

devices and/or inserting illegally programmed access cards into

valid DIRECTV receivers qualify as “assembly” and/or “modification”


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within the meaning of § 605(e)(4). Accordingly, we vacate judgment

on this claim also and remand to the district court for an

opportunity to consider in the first instance whether the evidence

is sufficient to demonstrate assembly or modification within the

meaning of § 605(e)(4).

     We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                             VACATED AND REMANDED




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