                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   May 2, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-20417
                          Summary Calendar



DIRECTV INC.,

                                     Plaintiff-Appellee,

versus

JAMES RANDALL FORMAN,

                                     Defendant-Appellant.


                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:03-CV-1770
                       --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     James Randall Forman appeals the district court’s order

granting summary judgment to DirecTV, Inc. in a suit filed under

47 U.S.C. § 605, 18 U.S.C. §§ 2511 and 2512, and TEX. CIV. PRAC.

& REM. CODE § 123.002 for the unauthorized interception of

DirecTV’s satellite signal.   DirecTV alleged that Forman

purchased more than 40 pirate satellite decoding devices so that

he and his friends and co-workers could receive unauthorized

satellite television programming.

     *
       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this opinion should not be published and is not precedent except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.
                             No. 04-20417
                                  -2-

     Forman argues, inter alia, that 1) the district court

erroneously granted summary judgment and determined the amount of

damages in violation of his right to have a jury determine any

damages, 2) TEX. CIV. PRAC. & REM. CODE § 123.002 does not apply to

the interception of satellite signals and that, even if it does

apply, the statute is preempted by the federal Copyright Act, and

3) 18 U.S.C. § 2511 applies only to electronic communications

transmitted through a wire or cable and does not apply to

satellite signals.    Forman did not present these arguments in

opposition to summary judgment, and they are waived.     See

Vaughner v. Pulito, 804 F.2d 873, 877 n.2 (5th Cir. 1986).

     Forman also argues that there is no private right of action

available under 18 U.S.C. § 2512.    Because the district court

agreed with this argument and did not refer to 18 U.S.C. § 2512

in calculating damages, the argument is moot and we do not

address it.   See DeFunis v. Odegaard, 416 U.S. 312, 316 (1974).

     Forman argues that the district court miscalculated damages

based on the purchase of 47 devices when he actually purchased

only 42 devices.    The record supports the district court’s

decision, and Forman has failed to show a genuine issue of

material fact.     See Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994)(en banc).    Although Forman also argues that

DirectTV’s notice of cross-appeal was untimely, we do not address

the issue because the cross-appeal has been dismissed on

DirecTV’s motion.
            No. 04-20417
                 -3-

AFFIRMED.
