     Case: 13-10485   Document: 00512617378    Page: 1   Date Filed: 05/02/2014




                        REVISED MAY 2, 2014

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

                                                                    FILED
                                                                   May 2, 2014
                               No. 13-10485
                                                                  Lyle W. Cayce
                                                                       Clerk
J&J SPORTS PRODUCTIONS, INCORPORATED, as Broadcast Licensee of
the December 8, 2007 “Undefeated”: Mayweather/Hatton Event,

                                         Plaintiff - Appellee
v.

MANDELL FAMILY VENTURES, L.L.C., Individually and doing business as
Greenville Avenue Pizza Company; SAMUEL J. MANDELL, III, Individually
and doing business as Greenville Avenue Pizza Company,

                                         Defendants - Appellants



                Appeal from the United States District Court
                     for the Northern District of Texas


Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.
HAYNES, Circuit Judge:
      Defendants Mandell Family Ventures, L.L.C. and Samuel J. Mandell, III
(collectively, the “Defendants”) appeal the district court’s grant of summary
judgment in favor of Plaintiff J&J Sports Productions, Inc. (“J&J”) on J&J’s
Federal Communication Act (“FCA”) claims pursuant to 47 U.S.C. §§ 553 &
605. We REVERSE and REMAND.
                               I. Background
      This case concerns the live broadcast of the Floyd “Money” Mayweather,
Jr. v. Ricky Hatton WBC Welterweight Championship Fight (the “fight”) on
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                                    No. 13-10485
December 8, 2007. The rights to broadcast the fight were held by various
entities, including Time Warner Cable (“TWC”) and J&J. TWC was granted
the rights to broadcast the fight by means of pay-per-view to only those venues
“not accessible to the public in general.” The agreement granting TWC these
rights contemplated that TWC might inadvertently broadcast the event to
“commercial subscribers” and provided for a liquidated-damages fee to be paid
by TWC under such circumstances. Conversely, J&J was granted the rights to
broadcast the fight to only “commercial closed-circuit television exhibition
outlets.”
      Greenville Avenue Pizza Company (“GAPC”) is a restaurant in Dallas,
Texas, which is owned by the Defendants. At all times relevant to this case,
GAPC received commercial cable television services from TWC pursuant to a
“Commercial Services Agreement.” On December 8, 2007, GAPC purchased
the pay-per-view broadcast of the fight from TWC for $54.95 and displayed the
fight in its restaurant during business hours. GAPC did not advertise the fight
or charge an entry fee or any other fee to view the fight. Representatives of
both GAPC and TWC attest that TWC authorized GAPC’s receipt of the
broadcast.    A representative of TWC described the authorization as an
inadvertent error on its part. 1
      On December 7, 2010, J&J initiated this action against the Defendants,
alleging that they violated §§ 553 and 605 by receiving and displaying the fight
without first paying a licensing fee to J&J. At the conclusion of discovery, J&J
filed a motion for summary judgment, which the district court granted,
awarding J&J statutory damages of $350 and costs and attorney’s fees of
$26,780.30. Defendants timely appealed.



      1 For this error, TWC offered to pay J&J $2,000 in liquidated damages pursuant to
TWC’s pay-per-view broadcast agreement.
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                             II. Standard of Review
      Summary judgment is appropriate when “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
FED. R. CIV. P. 56(a). We review a district court’s grant of summary judgment
de novo, construing all facts and evidence in the light most favorable to the
non-moving party. See EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606,
615 (5th Cir. 2009).
                                III. Discussion
      J&J alleged below that the Defendants violated both §§ 553 and 605.
While granting judgment in J&J’s favor, the district court refrained from
deciding which of the two sections applied to the Defendants’ conduct,
implicitly finding that J&J was entitled to judgment as a matter of law under
at least one of the two sections. As explained more fully below, because we find
a dispute of material fact exists as to J&J’s § 553 claim, we must determine
whether § 605 applies to the facts of this case. We hold that it does not.
   A. Whether § 553’s Safe Harbor Applies
      Section 553(a)(1) imposes civil and criminal liability for “intercepting or
receiving any communications service offered over a cable system.” 47 U.S.C.
§ 553(a)(1) (2006). But it includes an essential exclusion, often referred to as
a “safe harbor,” that precludes the imposition of liability on the majority of
cable recipients—customers of cable providers. This exclusion constrains the
reach of the statute by exempting from liability those individuals who receive
authorization from a cable operator:
      No person shall intercept or receive or assist in intercepting or
      receiving any communications service offered over a cable system,
      unless specifically authorized to do so by a cable operator or as may
      otherwise be specifically authorized by law.
Id. (emphasis added).


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                                      No. 13-10485
       The Defendants maintain that they fall within this safe harbor. To
support their argument, they provided evidence that GAPC (1) was a paying
commercial customer of TWC; (2) paid a separate fee for the pay-per-view
broadcast of the fight; and (3) was authorized by TWC, a cable operator, 2 to
receive the broadcast of the fight. J&J, however, contends that the Defendants’
conduct falls outside the safe harbor because, as the license holder for the
closed-circuit broadcast of the fight, it did not authorize the Defendants’ receipt
of the broadcast.      The district court appeared to accept J&J’s contention,
holding that J&J only had to prove “(1) that the Event was Shown in Greenville
Avenue Pizza and (2) that J&J Sports did not authorize such exhibition of the
Event.”
       We conclude that this ruling misconstrues § 553(a)(1). The text of the
statute unambiguously states that liability extends only to the receipt of cable
services not authorized by a cable operator. Therefore, in order for a cable
customer to ensure that it is not criminally or civilly liable under § 553(a)(1),
it need only receive authorization from a cable operator for the cable services
it receives. J&J’s argument, in essence, is that a cable customer who receives
such authorization may still face liability under § 553 unless it takes the
additional step of ensuring that the cable operator itself is licensed to
distribute the various broadcasts that the customer views. 3 Interpreting the




       2 The parties do not dispute that TWC is a cable operator and that J&J is not. See 47
U.S.C. § 522(5) (2006) (defining cable operator).

       3 J&J frames the argument as follows: “Time Warner cannot give Appellants authority
that Time Warner does not have.” See, e.g., J & J Sports Prods. v. Phelan, No. 08-CV-00486-
OWW-DLB, 2009 U.S. Dist. LEXIS 103626, at *24–25 (E.D. Cal. Nov. 5, 2009) (employing
the same reasoning); Nat’l Satellite Sports, Inc. v. Time Warner Entm’t, 217 F. Supp. 2d 466,
468 (S.D.N.Y. 2002) (same). While this concept has facial appeal, it is hard to imagine why
a “safe harbor” would be needed in the situation J&J posits. Further, J&J is not left without
a remedy as the unauthorized cable operator may itself be liable for its actions (as TWC
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                                       No. 13-10485
safe harbor in this highly restrictive manner finds no support in the text of the
statute. The statute does not hinge liability on the cable customer taking
additional steps or the cable operator being licensed to distribute a broadcast:
The exclusion from liability simply applies to those who receive authorization
from a cable operator. See J&J Prods. v. Schmalz, 745 F. Supp. 2d 844, 851
(S.D. Ohio 2010); see also Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000) (“Congress says in a statute what it means
and means in a statute what it says there.” (citation and internal quotation
marks omitted)). Moreover, applying the safe-harbor provision in the manner
J&J advocates would expand liability under the statute to ends not
encompassed by the text, holding liable cable customers who unknowingly
receive broadcasts that the cable company was not licensed to distribute, even
though they were authorized by the cable operator to receive the broadcast.
       We interpret the statute in accordance with its plain language: liability
under § 553(a)(1) does not extend to those who are “specifically authorized . . .
by a cable operator” to receive a broadcast. 47 U.S.C. § 553(a)(1) (emphasis
added); see Hartford Underwriters, 530 U.S. at 6 (“[W]hen the statute’s
language is plain, the sole function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it according to its terms.”
(citation and internal quotation marks omitted)). 4


acknowledged here by offering the $2,000 liquidated damages); the “safe harbor” protects
only the innocent recipient, such as a small business like GAPC.

       4  Because the language of the statute is plain, it is not necessary to consider the
legislative history. See United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989). However,
we note that J&J’s interpretation finds no support there either, as the legislative history
suggests that Congress was concerned with the “theft of cable service,” including “obtain[ing]
cable service without paying the installation and hook-up costs” and “gaining access to
premium movie and sports channels without paying for the receipt of those services.” H.R.
REP. NO. 98-934, at 83 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4720 (emphasis added).
Here, the Defendants paid TWC for both the receipt of commercial cable service and the pay-
per-view broadcast of the fight. There is no contention that the Defendants stole the
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                                       No. 13-10485
       Even under this interpretation, J&J alternatively argues that TWC did
not authorize the Defendants’ receipt of the broadcast of the fight because it
was distributed by HBO, and the “Business Class Service Agreement” (“Service
Agreement”) between GAPC and TWC included the following language:
       Customer understands and agrees that premium program
       services, such as HBO, Cinemax, Showtime, and The Movie
       Channel, may not be received or shown on any television receivers
       located in any public areas, such as lounges, dayrooms, visiting
       areas, or other common areas used by groups or the general public,
       nor shall Customer authorize or approve any copying, taping or
       duplicating thereof. 5
However, this language does not unambiguously encompass this situation
because the fight was not shown on a traditional HBO subscription channel,
but was delivered via a pay-per-view broadcast that the Defendants requested
and purchased separately from TWC. 6 Additionally, other language in the



broadcast of the fight; instead, TWC admits that it mistakenly distributed the broadcast to
the Defendants in return for a fee. We find no indication in the legislative history that
Congress sought to hold cable customers vicariously liable for the actions of cable operators
as J&J would effectively have us do here. Cf. id. at 84 (in regards to the definition of “assist
in intercepting or receiving” in § 553(a), the House Committee on Energy and Commerce
expressed that it “d[id] not intend a person’s clearly legal conduct to become illegal because
of the actions of others about which such person had no knowledge”).

       5 J&J also points to the following language in the Service Agreement: “As between the
Parties, Customer is solely responsible for (a) all use (whether or not authorized) of the
Service by Customer . . . .” This language is unhelpful to J&J as it simply acknowledges that
some uses of the cable service may be authorized while some uses may not be authorized.

       6 J&J cites to various district court cases that found lack of authorization based on a
contract between a defendant and a different cable operator (primarily Comcast). These
cases are distinguishable because, among other reasons, the contracts in those cases differ
from the contract here. In particular, the Comcast contract specifically addressed pay-per-
view broadcasts of sporting events in addition to the premium program services that are
mentioned in the TWC agreement. See, e.g., Joe Hand Promotions, Inc. v. Phoenix
Promotions LLC, No. 10-15102, 2012 U.S. Dist. LEXIS 102534, at *3 (E.D. Mich. July 24,
2012) (citing the language of the contract, which stated, “Comcast does not have the right to
distribute pay-per-view video programming (including programming such as sporting events)
and certain premium video services to commercial establishments. Therefore, Customer
agrees that it shall not exhibit or assist in the exhibition of any such programming unless
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                                       No. 13-10485
Service Agreement suggests that TWC obligated itself to ensure that the
services it distributed to the Defendants were authorized and made pursuant
to the proper license: “As between the Parties, TWC will obtain and maintain
at its own expense all licenses, approvals and regulatory authority required by
law with respect to TWC’s operation and provision of the Services . . . .”
       The Defendants submitted uncontroverted affidavits by representatives
of the two parties to the Service Agreement (TWC and GAPC) stating that
TWC authorized the receipt of the broadcast despite the language in the
Service Agreement. The affidavits show that the Defendants did not steal,
intercept, or obtain the broadcast under false pretenses. They further show
that TWC: (1) was aware that GAPC was a commercial establishment holding
a commercial cable account; (2) sold the broadcast of the fight to GAPC for
$54.95; and (3) affirmatively delivered the broadcast of the fight to GAPC via
pay-per-view broadcast. 7 Most significantly, a Vice President of TWC averred
that “Greenville Avenue Pizza Company was authorized by Time Warner
Cable to receive the broadcast on cable television of the [fight] on December 8,
2007.”
       In light of this evidence, there is at least a dispute of material fact as to
whether the Defendants violated § 553. Accordingly, J&J failed to meet its
summary judgment burden under § 553. See FED. R. CIV. P. 56(a).




explicitly authorized to do so, in advance and in writing, by Comcast and the applicable
program or event distributor.”).

       7 In this regard, the facts of this case are almost identical to those in Schmalz, where
the court found that J&J could not maintain a § 553 claim against a TWC commercial
customer who received a pay-per-view broadcast of a boxing match that TWC was not
authorized to distribute to commercial customers. See 745 F. Supp. 2d at 851 (“Defendants
were listed as a commercial customer, ordered the program as a commercial customer, were
billed and paid for such service, as commercial customers. At no time did Defendants
misrepresent their status as a commercial customer.”).
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                                        No. 13-10485
   B. Whether § 605 Applies to the Defendants’ Receipt of Cable Services
       J&J also sought summary judgment pursuant to § 605(a).                           The
Defendants argued below, citing cases from our sister circuits, that § 605 was
inapplicable because it prohibited only the unauthorized receipt of radio or
satellite communications and the summary judgment evidence established
that they received the fight via cable wire pursuant to TWC’s cable service. 8
See Charter Commc’ns Entm’t I v. Burdulis, 460 F.3d 168, 172–78 (1st Cir.
2006); TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 199–207 (3d Cir. 2001);
United States v. Norris, 88 F.3d 462, 464–69 (7th Cir. 1996). The district court
implicitly found that the Defendants were liable under either §§ 553 or 605,
maintaining that it was unnecessary to decide whether § 605 applied. In light
of this ambiguity, J&J argues on appeal that the district court’s grant of
summary judgment may be upheld under § 605 because the broadcast of the
fight originated via satellite transmission. See Int’l Cablevision v. Sykes, 75
F.3d 123, 129–33 (2d Cir. 1996).
       Because of our ruling on § 553, we must determine whether the
Defendants may be held liable under § 605, which does not contain the same
safe harbor exception. This is an issue of first impression for our circuit, and
our sister circuits are not uniform in their approach. See Prostar v. Massachi,
239 F.3d 669, 673 (5th Cir. 2001). We now join the majority of circuits in
holding that § 605 does not encompass the conduct presented here: the receipt
or interception of communications by wire from a cable system. 9 We conclude
the plain language of the statute compels this interpretation. See Hartford




       8   It is undisputed that GAPC received the broadcast by wire from TWC’s cable system.

       9 We specifically do not address how § 605 might apply to factual circumstances not
present here, such as the receipt or interception of satellite or radio signals intended for
receipt by a cable system.
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Underwriters, 530 U.S. at 6 (“[W]hen the statute’s language is plain, the sole
function of the courts—at least where the disposition required by the text is
not absurd—is to enforce it according to its terms.” (citation and internal
quotation marks omitted)).
       The relevant portions of § 605(a) address only the unauthorized
interception or receipt of radio communications:
       No person not being authorized by the sender shall intercept any
       radio communication and divulge or publish the existence,
       contents, substance, purport, effect, or meaning of such
       intercepted communication to any person. No person not being
       entitled thereto shall receive or assist in receiving any interstate
       or foreign communication by radio and use such communication
       (or any information therein contained) for his own benefit or for
       the benefit of another not entitled thereto. 10

47 U.S.C. § 605(a) (2006).            Radio communications are defined as “the
transmission by radio of [communications] of all kinds, including all
instrumentalities, facilities, apparatus, and services . . . incidental to such
transmission.” 47 U.S.C. § 153(40) (emphasis added). Here, it is undisputed
that the communications were not transferred to the Defendants by radio, but
by cable, which makes them “communication[s] by wire” as that term was
separately defined by Congress in the FCA. See § 153(59) (“‘[C]ommunication
by wire’ means the transmission of [communications] of all kinds by aid of wire,
cable, or other like connection between the points of origin and reception of
such transmission, including all instrumentalities, facilities, apparatus, and



       10The first sentence of § 605 refers to the divulgence or publication of “communication
by wire or radio.” However, J&J does not argue that this sentence applies. This sentence is
also not traditionally applied in the piracy context because it does not refer to the
unauthorized interception or receipt of communications, and it is understood as “regulat[ing]
the conduct of communications personnel.” Edwards v. State Farm Ins. Co., 833 F.2d 535,
540 (5th Cir. 1987); see also TKR Cable Co., 267 F.3d at 201; Norris, 88 F.3d at 465; Int’l
Cablevision, 75 F.3d at 131 n.4; S. REP. NO. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N.
2112, 2197.
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                                      No. 13-10485
services (among other things, the receipt, forwarding, and delivery of
communications) incidental to such transmission.”).                Given that Congress
clearly defined both radio and wire communications, it presumably would have
included the word “wire” in the applicable sentences of § 605 if it intended for
them to apply to the communications at issue here. See Charter Commc’ns,
460 F.3d at 172–73 (“[I]t is a general principle of statutory construction that
when Congress includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion.” (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002))). 11
       J&J argues, however, that § 605(a) applies to the Defendants’ receipt of
wire communications because the definition for radio communications extends
to “all instrumentalities, facilities, apparatus, and services (among other
things, the receipt, forwarding, and delivery of communications) incidental to
[radio] transmission[s],” and the broadcast of the fight originated as a radio
communication prior to TWC retransmitting the broadcast by cable to GAPC.
§ 153(40) (emphasis added). While this interpretation has been adopted by the
Second Circuit, see Int’l Cablevision, 75 F.3d at 131, we agree with the Third
and Seventh Circuits that it “‘unacceptably blurs the line between radio and
wire communications,’” which are separately defined terms that both refer to
instrumentalities incidental to transmission of the communication. TKR Cable


       11 Moreover, the relevant sentences in § 605 previously referred to the receipt of
“communication by wire or radio,” Communications Act of 1934, Pub. L. No. 73-416, § 605,
48 Stat. 1064, 1103–04, but Congress later removed the references to wire communications.
See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197,
223. When making this change, Congress explained that “regulation of the interception of
wire or oral communications in the future is to be governed by proposed new chapter 119 of
title 18, United States Code” (which is now codified at 18 U.S.C. §§ 2510 et seq. and is
inapplicable here because it does not encompass television broadcasts). 1968 U.S.C.C.A.N.
at 2196. In other words, the legislative history suggests that Congress intentionally removed
the word “wire” from § 605.
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Co., 267 F.3d at 202 (quoting Norris, 88 F.3d at 467); see also § 153(40), (59).
Moreover, J&J’s interpretation ignores the plain meaning of the terms by
“demand[ing] undue contortion of the phrase ‘instrumentalities [or]
facilities . . . incidental to such transmission.’” TKR Cable Co., 267 F.3d at 202
(quoting § 153(40)). As the Third Circuit has recognized, “the entire cable
transmission infrastructure of a city or suburban area, a structure that
provides a foundation for a significant business, . . . cannot be considered a
mere instrumentality to transmission.” Id.
       The statutory framework of the FCA as a whole also confirms that § 605
does not apply to Defendants’ receipt of cable communications. Section 553
covers the interception or receipt of cable communications without mentioning
radio communications, just as § 605 covers the interception or receipt of radio
communications without mentioning cable communications. A logical reading
of the two provisions reveals a clear demarcation whereby “[§] 605 deals with
communications traveling through the air (via radio), [and] § 553 covers
communications traveling over cable wire.” Charter Commc’ns, 460 F.3d at
173. Applying § 605 as J&J requests would remove this demarcation and
require us to assume Congress’s enactment of § 553 was largely superfluous—
a course that we decline to take. See id. at 176; TKR Cable Co., 267 F.3d at
204; Norris, 88 F.3d at 468; see also United States v. Caldera-Herrera, 930 F.2d
409, 411 (5th Cir. 1991) (“Where possible, statutes must be read in harmony
with one another so as to give meaning to each provision.”).
       Accordingly, based on the plain meaning of § 605 and the statutory
framework of the FCA, we hold that § 605 does not apply to the Defendants’
receipt of communications by wire from TWC’s cable system. 12 The district


       12 Although we need not examine the legislative history surrounding the FCA, we note
that it simply confirms what is already evident from the text and statutory framework of the
FCA. In particular, a prior version of § 605 referred to the receipt of wire communications,
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                                        No. 13-10485
court’s grant of summary judgment, therefore, cannot be maintained under
§ 605 as J&J argues.
                                      IV. Conclusion
       Given our ruling, we need not reach the Defendants’ additional
arguments against summary judgment. 13 The grant of summary judgment is
REVERSED, and the case is REMANDED for further proceedings consistent
with this opinion.




but Congress removed the word “wire” when reenacting § 605 and enacted 18 U.S.C. §§ 2510
et seq. to regulate the interception of wire communications. See supra note 11. This left a
regulatory gap because the definition of wire communications in the newly enacted provisions
did not encompass cable television broadcasts. See 18 U.S.C. § 2510(1); Norris, 88 F.3d at
465–66. Section 553 was then passed to fill this void by prohibiting the unauthorized receipt
or interception of cable services, which Congress observed was becoming a pervasive problem.
See generally Charter Commc’ns, 460 F.3d at 176 (“Congress, in enacting § 553, was
attempting to create a comprehensive regulatory regime covering the theft of all
communications transmitted over a wire or cable—something that had largely been
unregulated since the enactment of the Crime Control Act in 1968 and the removal of most
references to ‘communications by wire’ from § 605.”); TKR Cable Co., 267 F.3d at 204 (“[T]he
legislative history accompanying § 553 demonstrates that Congress drafted the provision to
deter the newly emergent and previously unaddressed cable piracy . . . .”); Norris, 88 F.3d at
466. In short, the legislative history suggests that § 553 was enacted specifically because
§ 605 was inapplicable to wire communications.

       13  Defendants’ additional arguments are: (1) that J&J lacked statutory standing
because its license to broadcast the fight extended only to broadcasts in a “place of public
assembly” where “consideration is charged or received,” and (2) that a two-year statute of
limitations applies to J&J’s claims. Even were we to reach these arguments, the outcome of
this appeal would be the same: the former argument, at most, highlights an additional
dispute of material fact, and we are foreclosed from accepting the latter argument in light of
Prostar, in which an earlier panel of this court held that a three-year statute of limitations
applied to claims under §§ 553 & 605. 239 F.3d at 677–78; see Jacobs v. Nat’l Drug
Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth Circuit rule of
orderliness that one panel of our court may not overturn another panel’s decision, absent an
intervening change in the law, such as by a statutory amendment, or the Supreme Court, or
our en banc court.”).
                                              12
