                                                            FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                 September 14, 2007
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 DIR ECTV, IN C.,

              Plaintiff - Appellee,                      No. 06-3434
       v.                                                (D. Kansas)
 W ILLIAM TURNER,                                (D.C. No. 03-CV-2287-CM )

              Defendant - Appellant.



                           OR DER AN D JUDG M ENT*


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      In M ay 2003 DIRECTV, Inc. filed a complaint in the United States District

Court for the D istrict of K ansas against W illiam Turner and other defendants,

seeking damages and injunctive relief under several federal statutes, including the

Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq, and the

Electronic Communications Policy Act of 1986, 18 U.S.C. § 2510 et seq. The

_______________

       *After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
complaint alleged that M r. Turner had illegally used and distributed devices

designed to intercept and decrypt DIRECTV’s satellite signal, permitting free

viewing of DIRECTV’s television programming. After a bench trial the district

court found that M r. Turner had accessed DIRECTV’s programming in violation

of 47 U.S.C. § 605(a) and 18 U.S.C. § 2511, but that he had not distributed

devices in violation of 47 U.S.C. § 605(e)(4). It awarded damages of $10,000

under 47 U.S.C. § 605(e)(3)(C)(i)(II) and injunctive relief under

§ 605(e)(3)(B)(i). The court entered judgment against M r. Turner on July 19,

2006.

        M r. Turner filed a notice of appeal on December 22, 2006, but because

unresolved claims remained against at least one other defendant, there was no

final judgment until the court granted Rule 54(b) certification on June 18, 2007.

See D&H M arketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1444 (10th

Cir. 1984) (“Jurisdiction to consider an appeal is not discretionary but is

circumscribed by 28 U.S.C. § 1291, which has consistently been held to require

the termination of all matters as to all parties and causes of action before an

appeal may be taken.” (emphasis added)). W e now have jurisdiction under

28 U.S.C. § 1291. See Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir.

1988). Finding no merit to M r. Turner’s arguments, we affirm.

        M r. Turner raises six issues on appeal. First, he argues that the district

court should not have denied his motion for sanctions in response to a motion

                                           -2-
filed by DIRECTV. But he never filed a motion for sanctions before the district

court, so there is nothing for him to appeal on this issue. 1

      Second, M r. Turner argues that his motion for summary judgment should

have been granted because (1) there was no “actual evidence” that he intercepted

DIRECTV’s signal, Aplt. Br. at 1; and (2) he lacked the “requisite [k]nowledge

and materials” for such interception, id. But “the denial of summary judgment

based on factual disputes is not properly reviewable on an appeal from a final

judgment entered after trial.” Haberman v. Hartford Ins. Group, 443 F.3d 1257,

1264 (10th Cir. 2006). If M r. Turner means instead to argue that the evidence at

trial w as insufficient to sustain the judgment against him, we cannot address this

issue because he has not included a trial transcript in the record on appeal. See

Sanjuan v. IBP, Inc., 275 F.3d 1290, 1298 n.3 (10th Cir. 2002) (“‘W hen

sufficiency of the evidence is raised, the entire relevant trial transcript must be

provided.’ 10th Cir. R. 10.1(A )(1)(a).”).

      Third, M r. Turner argues that the district court should have granted his

motions for dismissal and judgment on the evidence because D IRECTV is a

system for “aeronautical communications,” and it is not unlawful to intercept

signals from such systems. Aplt. Br. at 12 (internal quotation marks omitted).

But he cites no motions in which he raised this issue below, and we can find

      1
       This and several other issues M r. Turner raises are inapposite to his case,
having apparently been drawn from a brief filed by another defendant against
DIR ECTV in a separate trial.

                                           -3-
none. (The only motion to dismiss that he filed does not raise this issue.)

Accordingly, the issue is forfeited. See Parker v. Scott, 394 F.3d 1302, 1309 n.1

(10th Cir. 2005).

      Fourth, M r. Turner contends that he cannot be liable under 47 U.S.C.

§ 605(e)(3)(A), which provides a private right of action to a “person aggrieved.”

He makes two arguments: One argument is that DIRECTV was not a “person

aggrieved,” within the statutory definition of that term in § 605(d)(6). But

M r. Turner does not cite any portion of the record where he raised this issue

below, and we have found none. Accordingly, we need not address this argument.

See Parker, 394 F.3d at 1309 n.1. M r. Turner’s other argument is that he was not

a member of the class civilly liable for violations of § 605. But on appeal and

below he has raised this argument only with respect to violations of § 605(e)(4).

M r. Turner, however, was held liable only for violations of § 605(a) (interception

and use); the district court ruled that he had not violated § 605(e)(4)

(distribution). This argument therefore is moot.

      Fifth, M r. Turner contends that the district court erred in excluding

evidence of his financial hardship before assessing damages. Again, however, he

does not cite, and we cannot find, any indication in the record that he ever sought

to introduce such evidence. He also argues that the court misconstrued 18 U.S.C.

§ 2520 by treating damages under that section as mandatory when they are in fact

discretionary. But the court explicitly stated that § 2520 “provid[es] for

                                         -4-
discretionary statutory damages of $100 a day or $10,000 per violation.”

R. Doc. 453 (M em. & Order, July 13, 2006) (emphasis added).

      Sixth, M r. Turner asserts that the evidence failed to establish that he was

not authorized to intercept DIRECTV’s signal. In the absence of a trial transcript,

however, w e cannot review this assertion. See Sanjuan, 275 F.3d at 1298.

      To the extent that M r. Turner’s reply brief raises issues not addressed in his

opening brief, we decline to consider them. See Coleman v. B-G M aint. M gmt. of

Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997) (“Issues not raised in the

opening brief are deemed abandoned or waived.”).

      Accordingly we AFFIRM the district court’s judgment. W e also DENY as

moot M r. Turner’s “M otion to Dismiss Appellee[’s] M otion to Dismiss Appeal for

Lack of Jurisdiction,” and we DISM ISS his M ay 14, 2007, motion under Fed. R.

Civ. P. 60(b) for want of jurisdiction.

                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge




                                           -5-
