     Case: 19-20458      Document: 00515326079         Page: 1    Date Filed: 02/28/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                       February 28, 2020
                                    No. 19-20458
                                  Summary Calendar                       Lyle W. Cayce
                                                                              Clerk


J & J SPORTS PRODUCTIONS, INCORPORATED, as Broadcast Licensee of
the May 2, 2015 “The Fight of the Century” Floyd Mayweather, Jr. v. Manny
Pacquiao Championship Fight Program,

               Plaintiff - Appellee

v.

ENOLA INVESTMENTS, L.L.C., doing business as Tea’ze Daiquiri Lounge;
TIFFANEY ENOLA SMALL, doing business as Tea’ze Daiquiri Lounge, also
known as Tiffaney E. Small, also known as Tiffaney Small, also known as
Tiffany Small,

               Defendants - Appellants



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CV-2893


Before WIENER, HAYNES, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:*
       This case is about a bar’s unauthorized telecast of the most recent “Fight
of the Century.” That grand title suggests it should be obvious which fight we
are talking about. But just as more than one trial is called the “Trial of the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 19-20458
Century,” more than one boxing match claims to be the “Fight of the Century.”
At least four fights enjoyed that label in the twentieth century: the 1910 match
between James Jeffries and Galveston’s Jack Johnson; the 1921 match
between Georges Carpentier and Jack Dempsey; the 1938 match between Joe
Louis and Max Schmeling amid rising tensions between the United States and
Nazi Germany; and, the bout most fans of the sweet science would bestow the
title on, the 1971 fight between Muhammad Ali and Joe Frazier. See Erik
Brady, Fight of the Century?, USA TODAY, April 29, 2015, at 1C.
      Only two decades into the new century, at least three fights have already
laid claim to the title. The first “Fight of the Century” was the 2002 match
between Mike Tyson and Lennox Lewis. The second was the 2007 Oscar De
La Hoya-Floyd Mayweather Jr fight. The most recent “Fight of the Century”
was the one this case involves: the 2015 match between Mayweather and
Manny Pacquiao. See id.
      J & J Sports owned the right to sublicense broadcasts of the
Mayweather-Pacquiao fight.      Without paying J & J,      Enola Investments
showed the fight at Tea’ze Daiquiri Lounge near Houston. So J & J filed suit
in federal court against Enola and its owner, Tiffaney Small. The district court
concluded that the defendants violated the Federal Communications Act and
awarded J & J $6,000 in statutory damages, another $6,000 because the
violation was willful, and $14,000 in attorney’s fees. Defendants appeal.
      In the district court, J & J asserted claims under sections 553 and 605 of
the Communications Act. Section 553 prohibits persons from “intercept[ing]
or receiv[ing] . . . any communications service offered over a cable system”
without authorization. 47 U.S.C. § 553(a)(1). Section 605 similarly bans the
unauthorized publishing of the contents of communications received or
transmitted “by wire or radio,” including satellite transmissions. Id. § 605(a);
see DIRECTV, Inc. v. Robson, 420 F.3d 532, 537–38 (5th Cir. 2005). Both
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                                   No. 19-20458
sections allow aggrieved parties to recover damages and attorney’s fees plus
additional damages for “willful” violations done “for purposes of commercial
advantage or private financial gain.”        47 U.S.C. § 553(c)(3)(A)–(B); see id.
§ 605(e)(3)(C)(i)–(ii).
      The district court held that defendants violated the “unauthorized
publication” statute (section 605) and awarded damages and attorney’s fees
under only that section. See id. § 605(e). Bizarrely, defendants devote most of
their appellate brief to the “unauthorized interception” statute (section 553)
the district court did not rely on. They argue, for example, that the district
court “rendered ‘willful’ meaningless in the context [of] § 553(c)(3)(B)” and
improperly calculated statutory damages under section 553(c)(3)(A)(i)–(ii). We
cannot review rulings that were not made, so these arguments are irrelevant.
      But even if defendants were challenging the finding of willfulness the
court did make under section 605, their argument would fail. A bar does not
mistakenly intercept and broadcast a transmission when it needs decoding or
descrambling equipment to do so. Indeed, defendants stipulated that they
needed to take affirmative acts to intercept or receive the transmission and
telecast the fight.       And it certainly broadcast the fight for commercial
advantage; the Lounge charged a cover fee the night of the fight. The district
court did not err, let alone clearly do so, in concluding that defendants willfully
violated the law.
      Defendants do eventually get around to making a couple arguments that
are directed at the district court’s ruling. They briefly argue that the district
court erred by imposing liability under section 605.          Before determining
whether to impose liability under section 553 or 605, the district court had to
determine whether the Lounge broadcasted the Fight via satellite, cable, or
internet. See J&J Sports Prods., Inc. v. Mandell Family Ventures, L.L.C., 751
F.3d 346, 353 (5th Cir. 2014) (holding that section 605 does not apply to
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                                  No. 19-20458
“communications by wire from [a] cable system”). The district court made the
following findings: (1) the Fight’s transmission “originated via satellite”; (2) the
defendants had “a commercial cable account through which [the Lounge]
received television and internet services”; and (3) J & J’s investigator “testified
that the [Fight] was being shown in high definition.” It then concluded that
the defendants were liable under section 605 for broadcasting a satellite
transmission.
      That finding was “plausible in . . . light of the record read as a whole.”
See Elementis Chromium L.P. v. Coastal States Petroleum Co., 450 F.3d 607,
613 (5th Cir. 2006) (quotation omitted). There is conflicting evidence about
how the Lounge broadcast the Fight.           Small claimed that an employee
streamed the Fight over the internet, but J & J’s investigator testified that
internet streaming typically results in lower quality video than the high-
definition broadcast he saw at the Lounge. J & J’s corporate representative
also testified that the Fight was not available to commercial establishments
via internet streaming. But J & J’s investigator muddled the waters by stating
that he did not see cable or satellite equipment at the Lounge. And now, on
appeal, defendants claim that the Lounge received the Fight via cable because
Enola maintained a business account with Comcast. The only undisputed
evidence is that the Fight was originally transmitted via satellite.
      The district court thus had several plausible options to choose from—
satellite, internet, or cable. Cf. J&J Sports Prods., Inc. v. Brady, 672 F. App’x
798, 802–03 (10th Cir. 2016) (noting that lack of an active satellite service
account does not preclude liability under section 605, as the statute “does not
require identification of the precise means used to accomplish the piracy of a
satellite signal”). And when “there are two permissible views of the evidence,
the fact-finder’s choice between them cannot be clearly erroneous.” Justiss Oil
Co. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1062 (5th Cir. 1996).
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                                 No. 19-20458
      Defendants also challenge the $14,000 award of attorney’s fees,
contending that the hours J & J’s counsel devoted to the case were
“exaggerated or fabricated.” But we see no problem with the district court’s
conclusion that it was reasonable for plaintiff’s counsel to devote 56 hours to
the case (at a rate of $250/hour).
      The judgment is AFFIRMED.




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