                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-15-2005

DIRECTV Inc v. Pepe
Precedential or Non-Precedential: Precedential

Docket No. 04-4333




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                                      PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 04-4333


       DIRECTV INC, a California Corporation,

                               Appellant

                          v.

ROBERT F. PEPE; HUEY PHAM; ANTHONY PORPORA;
 RONALD POWELL; GARY PRANZO; SEAN PRYCE;
      CHRIS REUTER; ROBIN L. RICHARD;
      WILLIAM ROACH; MIKE ROMANEK.


    On Appeal from the United States District Court
              for the District of New Jersey
              (D.C. Civil No. 03-cv-02414)
  District Court Judge: Honorable Katharine S. Hayden



                     No. 04-4471


       DIRECTV INC, a California Corporation,

                               Appellant

                          v.

 ANTHONY DE CROCE; NICK L. KEAL; BERNARD
  KHUANG; LEONARD KORMAN; TOM TEAGUE.
      On Appeal from the United States District Court
                for the District of New Jersey
                (D.C. Civil No. 03-cv-05199)
    District Court Judge: Honorable Katharine S. Hayden


     Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                    December 6, 2005

  Before: RENDELL, FISHER, and VAN ANTWERPEN,
                   Circuit Judges.

                (Filed: December 15, 2005)

Marc J. Zwillinger
Howard R. Rubin
Shane M. McGee
Sonnenschein Nath & Rosenthal LLP
Washington, D.C. 20005

             Attorneys for Appellant

John W. Gibson
Pittsburgh, PA 15219

             Attorney for Amici Curiae Edward Semulka,
             Joseph Rodkey, Frank Pienkosky, Mark Livesky,
             Bennie Leto, Joseph S. Jarvis, Daniel Galbraith,
             Bruce Figler and Michael Gignarella



               OPINION OF THE COURT



VAN ANTWERPEN, Circuit Judge



                             1
        In this consolidated appeal, we are asked to determine
whether a private right of action under 18 U.S.C. § 2520
exists for violations of 18 U.S.C. § 2511(1)(a), which, as a
joint civil-criminal provision of the Electronic
Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C.
§§ 2510-2521, imposes sanctions against anyone who
“intentionally intercepts, endeavors to intercept, or procures
any other person to intercept or endeavor to intercept, any . . .
electronic communication.” Section 2520(a) provides for
civil actions by “any person whose wire, oral, or electronic
communication is intercepted, disclosed, or intentionally used
in violation of” the ECPA. 18 U.S.C. § 2520(a). Specifically
at issue are default judgments entered by the United States
District Court for the District of New Jersey against the
Appellees, who are alleged by Appellant DIRECTV, Inc. to
have pirated its encrypted satellite television broadcasts. In
those cases, the District Court concluded that §§ 2511(1)(a)
and 2520(a) of the ECPA did not allow DIRECTV a cause of
action. It did allow claims under § 705 of the
Communications Act, 47 U.S.C. § 605, which proscribes the
unauthorized reception of radio or wire signals.

        On January 20, 2005, DIRECTV moved to consolidate
its appeals in DeCroce and Pepe, and this Court granted the
motion on February 2, 2005. In both cases, we have
jurisdiction to review the final orders of the District Court
under 28 U.S.C. § 1291.1 For the following reasons, we will
reverse the judgment of the District Court that no private right
of action exists under 18 U.S.C. § 2520(a) for violations of 18

    1
       DIRECTV did not immediately appeal the Order as to
defendant Keal in DeCroce, but was compelled by Fed. R. Civ.
P. 54(b) to await the dismissal of the final defendant in the case.
Thereupon the Order became final and appealable. This Court
requested that DIRECTV clarify the jurisdictional issue of the
timeliness of its appeal. Because no final order existed until the
last defendant was dismissed, we conclude that the appeal was
timely filed, and that there is no jurisdictional defect.

                                2
U.S.C. § 2511(1)(a) where the defendant has, without
authorization, intercepted a plaintiff’s encrypted satellite
television broadcast.

                                I.

         These cases arise as part of a program of litigation
undertaken by DIRECTV to deter the illegal interception of
the company’s encrypted satellite broadcasts. Because the
cases arise from default judgments, we draw the relevant facts
from the two Complaints that initiated each case presently
before us.2 See Comdyne I, Inc. v. Corbin, 908 F.2d 1142,
1149 (3d Cir. 1990). The first Complaint named ten
defendants, Robert F. Pepe, Huey Pham, Anthony Porpora,
Ronald Powell, Gary Pranzo, Sean Pryce, Chris Reuter, Robin
L. Richard, Winston Roach, and Mike Romanek; DIRECTV
filed it on May 23, 2003 (“Pepe”). The second Complaint,
filed on October 31, 2003, named five: Anthony DeCroce,
Nick L. Keal, Bernard Khuang, Len Korman, and Tom
Teague (“DeCroce”). Both complaints allege that the
defendants separately purchased devices which could enable
them to intercept and decode DIRECTV’s satellite
transmissions. While DIRECTV refers to these items as
“Pirate Access Devices,” they consist of different designs and
functions, and are variously known as unloopers, bootloaders,
emulators, and access card “programmers.”

       DIRECTV made the same substantive legal claims in

   2
      We pause to decline the request of Amici that this Court
find the defendants in DeCroce and Pepe were improperly
joined under Fed. R. Civ. P. 20(a). Amici cannot raise issues not
raised by the parties below. United Parcel Service, Inc. v.
Mitchell, 451 U.S. 56, 61 n.2 (1981). Furthermore, without the
presence of the adverse parties to raise the issue of improper
joinder, we must treat it as waived. See, e.g., Harvey v. Plains
Tp. Police Dept., 421 F.3d 185, 192 (3d Cir. 2005) (arguments
not raised in party’s opening brief to Court of Appeals waived).

                                3
both Complaints. It asserted first that the “[d]efendants have
received and/or assisted others in receiving DIRECTV’s
satellite transmissions of television programming without
authorization, in violation of 47 U.S.C. § 605(a) [§ 705 of the
Communications Act].” App. 70 & 83. Section 605 provides
a civil remedy for the unauthorized use or publication of
various wire or radio communications, including encrypted
satellite broadcasts. See 47 U.S.C. § 605. Second, DIRECTV
claimed that “[b]y using Pirate Access Devices to decrypt and
view DIRECTV’s satellite transmissions of television
programming,3 defendants intentionally intercepted,
endeavored to intercept, or procured other persons to intercept
or endeavor to intercept, DIRECTV’s satellite transmission of
television programming, in violation of 18 U.S.C. §
2511(1)(a).” App. 71. As discussed, § 2511(1)(a) prohibits
the intentional and unauthorized interception of “electronic
communication[s].” Third, DIRECTV alleged that
“[d]efendants possessed and used Pirate Access Devices,
knowing or having reason to know that the design of such
devices render then primarily useful for the purpose of
surreptitious interception4 of DIRECTV’s satellite
transmissions of television programming, and that such
devices, or any component thereof, have been or will be sent
through the mail or transported via interstate or foreign
commerce, in violation of 18 U.S.C. § 2512(1)(b).” App. 72
& 85. Section 2512(1)(b) criminalizes the manufacture,
assembly, possession, or sale of so-called “Pirate Access
Devices” in interstate or foreign commerce. With each claim,
DIRECTV alleged that it suffered lost revenue, breach of its
security and accounting systems, infringement of its


   3
     The Pepe Complaint refers to these as “satellite television
transmissions.” The difference is immaterial. App. 84.
   4
     Section 2510(4) of the ECPA defines “intercept” to mean
“the aural or other acquisition of the contents of any wire,
electronic, or oral communication through the use of any
electronic, mechanical, or other device.”

                               4
proprietary information and trade secrets, and interference
with business relations. On these bases, it sought damages,
attorneys fees, costs, and injunctive relief.

        When defendant Keal made no response to its October
31, 2003 Complaint in DeCroce, DIRECTV moved for a
default judgment against him on all three counts.5 On August
19, 2004, the District Court granted default judgment as to the
first claim, brought under 47 U.S.C. § 605(a). DirecTV v.
DeCroce, 332 F. Supp. 2d 715, 718 (D.N.J. 2004). Based on
that claim, it permanently enjoined Keal from unauthorized
interception of DIRECTV’s satellite television programming
and entered a judgment against him for damages in the
amount of $1,755.97, reflecting statutory damages, costs and
attorney’s fees. Id. The Court dismissed with prejudice the
claims under §§ 2511 and 2512 of the ECPA. Id. at 722. It
noted that while the factual allegations in a complaint, other
than those as to damages, are treated as conceded by the
defendant for purposes of a default judgment, legal issues
remain subject to its adjudication.6 Id. at 717. It concluded


   5
     DIRECTV moved for and obtained defaults against Keal
and DeCroce, but pursued default judgment against Keal only.
Of the five defendants named in this Complaint, DIRECTV
pursued default judgment against Keal only. No defendant has
participated in this appeal.
       6
       Where a court enters a default judgment, “the factual
allegations of the complaint, except those relating to the amount
of damages, will be taken as true.” Comdyne I, Inc. v. Corbin,
908 F.2d 1142, 1149 (3d Cir. 1990) (quoting 10 C. Wright, A.
Miller, & M. Kane, Federal Practice and Procedure, § 2688 at
444 (2d ed. 1983)) (quotations omitted). In a related vein, the
District Court raised an important concern:

           Prompted by a growing concern over the
           magnitude of the damages requested, the Court
           sua sponte has undertaken a close examination of

                                  5
that neither § 2511 nor § 2512 provided DIRECTV with a
basis for recovery. Id. at 722. DIRECTV then appealed the
denial of its § 2511 claim to this Court, docket number 04-
4471.

        The earlier May 23, 2003 Complaint in Pepe followed
a similar course, though the District Court ultimately issued
its final order in that case after its final disposition of
DeCroce. DIRECTV moved for default judgment against
Pham and Richard, two defendants in that case. The record
does not reveal the fate of the other defendants, except to the
extent that the District Court docket shows that they were
dismissed from the case. Recapitulating its reasoning in
DeCroce, the District Court entered an Order on October 29,
2004, granting DIRECTV’s motion for default judgment with
respect to its claims under 47 U.S.C. § 605, but denying its
claims under 18 U.S.C. §§ 2511 & 2512.7 DIRECTV timely


       the statutes involved. It must be noted that in this
       Court’s experience these lawsuits either quickly
       are settled for unspecified sums, or are presented
       to the Court in the context of a default judgment
       application, exactly like the present one, that does
       not subject DirecTV’s claims to the rigors of the
       adversary system. As a result, the question
       whether all of these statutes were intended to
       apply in this particular context has not arisen.
       There is good reason to ask that question if, as
       appears to be the case, the United States district
       courts regularly are being asked to act as a rubber
       stamp.

DirecTV v. DeCroce, 332 F. Supp. 2d 715, 717 (D.N.J. 2004).

   7
    On November 18, 2004, following DIRECTV’s Notice of
Appeal in Pepe, the District Court filed an Order Amplifying
Prior Written Opinion Pursuant to L.A.R. 3.1. In that Order, the

                                6
appealed.

       The Appellees in these cases have not filed briefs with
this Court, apparently a continuation of their silence in the
District Court. A group of individuals who are defendants in
other cases brought by DIRECTV in other district courts of
this Circuit have filed a brief as amici curiae, observing that
our decision in this case will affect their interests in their own
cases.

                                II.

        The sole issue for review is whether the District Court
erred by determining that no private cause of action exists
under 18 U.S.C. §§ 2511 and 2520.8 We exercise plenary
review over questions of statutory interpretation. Fraser v.
Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003);
Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98,
103 (3d Cir. 1981). DIRECTV argues that it should be
allowed to assert a claim for unauthorized interception of
satellite television broadcasts against Appellees under these
sections. We agree.

       The District Court concluded that the legislative
history of the ECPA, case law, and a comparison of the
damages provisions of 47 U.S.C. § 605 and 18 U.S.C. § 2520,
which admittedly overlap, all indicate that private claims
cannot arise under § 2511(1)(a). In the view of the District
Court, 47 U.S.C. § 605, provided DIRECTV’s sole remedy.


District Court referenced and incorporated its reasoning in
DeCroce.
  8
    DIRECTV does not appeal the District Court’s denials of its
claims under § 2512, rooted in defendants’ mere purchase or
possession of unauthorized interception devices. We express no
opinion as to the merits of District Court’s denial of the § 2512
claims.

                                7
We find that the plain language of § 2511 compels the
opposite result, a conclusion that is supported–not
contradicted, as the District Court found–by the legislative
history. Accordingly, we are constrained to reverse.

                                A.

        As a threshold matter, we must decide whether
DIRECTV’s satellite television transmissions are “electronic
communications” within the meaning of the ECPA. We hold
that they are. The ECPA defines “electronic communication”
as “any transfer of signs, signals, writing, images, sounds,
data, or intelligence of any nature transmitted in whole or in
part by a wire, radio, electromagnetic, photoelectronic or
photooptical system that affects interstate or foreign
commerce.” 18 U.S.C. § 2510(12). A television broadcast is
self-evidently a “transfer of . . . signals,” including, at the very
least, images and sounds. The means of transmission is by
radio wave from the satellite to a ground-based antenna. We
conclude, therefore, that DIRECTV’s satellite broadcasts are
“electronic communications” as defined by the ECPA. Where
our sister courts of appeals have considered the issue, they
have reached the same conclusion. See DIRECTV Inc. v.
Nicholas, 403 F.3d 223, 225-26 (4th Cir. 2005); United States
v. One Macom Video Cipher II, SN A6J050073, 985 F.2d 258,
261 (6th Cir. 1993); United States v. Herring, 993 F.2d 784,
787 (11th Cir. 1993); United States v. Lande, 968 F.2d 907,
909-10 (9th Cir. 1992); United States v. Davis, 978 F.2d 415,
417-18 (8th Cir. 1992); United States v. Splawn, 982 F.2d
414, 415-16 (10th Cir. 1992) (en banc).

                                B.

       The plain language of § 2511(1)(a) and § 2520(a)
compels us to conclude that private parties can bring a cause
of action for damages and injunctive relief where aggrieved
by a defendant’s violation of § 2511(1)(a). Where we are
called upon to interpret a statute, we must always begin with


                                 8
its plain language. Robinson v. Shell Oil Co., 519 U.S. 337,
340 (1997). Where “the statutory language is unambiguous
and ‘the statutory scheme is coherent and consistent,’” we
cannot look further. Id. (quoting United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 240 (1989)).

       Section 2511 provides in relevant part that “[e]xcept as
otherwise specifically provided in this chapter any person
who . . . intentionally intercepts . . . any . . . electronic
communication” is subject to criminal penalties or civil suit
by the federal government.9 18 U.S.C. § 2511(1)(a).10
Appearing later in the same chapter, § 2520 expressly
authorizes private suits by “any person whose . . . electronic
communication is intercepted . . . in violation of this chapter.”




   9
     The civil suit provisions in § 2511(5) do not concern civil
suits brought by private parties; rather, they enable the federal
government to bring civil suits and to seek civil penalties for
certain activities not at issue here, including the interception of
unencrypted “private satellite video communication[s]” for
legal, non-tortious purposes. Section 2520 addresses civil suits
by private parties.
   10
        Section 2511(1)(a) provides:

         (1) Except as otherwise specifically provided in
         this chapter any person who--
                (a) intentionally intercepts, endeavors to
                intercept, or procures any other person to
                intercept or endeavor to intercept, any
                wire, oral, or electronic communication;
         ....

         shall be punished as provided in subsection (4) or shall
         be subject to suit as provided in subsection (5).

                                9
18 U.S.C. § 2520(a).11 Both sections reference the
interception of electronic communications. The linguistic
interlock between the two provisions could not be tighter, nor
more obviously deliberate: § 2511(1)(a) renders unlawful the
unauthorized interception of electronic communications,
including encrypted satellite television broadcasts, while §
2520(a) authorizes private suit against those who have
engaged in such activities.

        To illustrate the point, we observe that the ECPA
excepts a number of activities from its reach; however, it
nowhere provides an exception for the interception of
electronic communications in the form of encrypted satellite
television broadcasts. For example, another subsection of §
2511 excludes interception of certain unencrypted satellite
transmissions from its scope, but is silent on encrypted
satellite television broadcasts:

         Conduct otherwise an offense under this
         subsection that consists of or relates to the
         interception of a satellite transmission that is
         not encrypted or scrambled and that is
         transmitted--

                (i) to a broadcasting station for
                purposes of retransmission to the

   11
        Section 2520(a) provides in full:

         (a) In general.--Except as provided in section
         2511(2)(a)(ii), any person whose wire, oral, or
         electronic communication is intercepted,
         disclosed, or intentionally used in violation of this
         chapter may in a civil action recover from the
         person or entity, other than the United States,
         which engaged in that violation such relief as may
         be appropriate.


                                  10
              general public; or

              (ii) as an audio subcarrier intended for
              redistribution to facilities open to the
              public, but not including data
              transmissions or telephone calls,

       is not an offense under this subsection unless the
       conduct is for the purposes of direct or indirect
       commercial advantage or private financial gain.

18 U.S.C. § 2511(4)(b) (emphasis added). The clear
implication, for present purposes, is that encrypted satellite
transmissions are not excepted from § 2511. In § 2511(4)(b),
Congress made express provision for “conduct otherwise an
offense” under § 2511 relating to unencrypted, non-scrambled
satellite transmissions to except it out of the general rule that
such interceptions would indeed violate § 2511. See Lande,
968 F.3d at 909-10 (holding that § 2511(1) bars unauthorized
interception of encrypted satellite television broadcasts
because “no exception is ‘specifically provided’ for the
unauthorized viewing of [such] signals”).

        Furthermore, as DIRECTV correctly observes, §
2511(1)(a) cannot be read to exclude the interception of
encrypted satellite television broadcasts from its reach
without rendering § 2511(4)(b) meaningless. When
interpreting statutory language, we must, whenever possible,
read the statute in such a manner as to give effect to every
part of it. Mountain States Tel. & Tel. Co. v. Santa Ana, 472
U.S. 237, 249 (1985) (citing Reiter v. Sonotone Corp., 442
U.S. 330, 339 (1979)). Here, Congress included § 2511(4)(b)
to provide a specific exception for the interception of certain
unencrypted satellite transmissions where the purpose is
neither commercial nor for private financial gain. To read §
2511(1)(a) as excluding from its reach the interception of
satellite transmissions in general, encrypted or not, would be
to obviate the need for a particularized exception for


                               11
unencrypted satellite transmissions.

        Our conclusion that § 2511(1)(a) supports a civil claim
comports with that of every other court of appeals to have
considered the question. See, e.g., DIRECTV Inc. v. Robson,
420 F.3d 532, 537 (5th Cir. 2005); Nicholas, 403 F.3d at 226.
Having concluded that § 2511(1)(a) renders the interception
of encrypted satellite television broadcasts unlawful, it is
plain that § 2520(a), as discussed above, authorizes private
suit for such activity: “any person whose . . . electronic
communication is intercepted . . . in violation of this chapter
may in a civil action recover from the person or entity . . .
which engaged in that violation such relief as may be
appropriate.”

                              C.

        Relying on the statute’s legislative history, case law,
and a comparison of the damages provisions in the ECPA and
the Communications Act, the District Court concluded that 47
U.S.C. § 605 supplants a private cause of action under the
ECPA’s provision in 18 U.S.C. § 2511(1)(a) for the
interception of encrypted satellite television broadcasts. As
we will discuss, these considerations do not overcome the
plain language of the statute, which controls our analysis.

                               1.

       The District Court singled out an excerpt from the
record of Senate debate on the ECPA to conclude that §
2511(1)(a) does not authorize private suit on the present facts:

       The private viewing of satellite cable
       programming, network feeds and certain audio
       subcarriers will continue to be governed
       exclusively by section 705 of the
       Communications Act, as amended, and not by
       chapter 119 of title 18 of the United States Code


                              12
       [ECPA, 18 U.S.C. §§ 2510-2522].

132 Cong. Rec. S14441 (daily ed. Oct. 1, 1986) (statement of
Sen. Leahy). Taken on its face, this statement does state that
47 U.S.C. § 605 would govern exclusive of the ECPA.
Notwithstanding, however, that we are bound not by
legislative history but by plain statutory language, the balance
of the legislative history directly contradicts this view. On the
same date, a colloquy between Senators Danforth and Mathias
is squarely contrary:

       Mr. DANFORTH. This legislation covers some
       conduct that also is prohibited under section 705
       of the Communications Act of 1934. Do I
       understand correctly that the sanctions
       contained in this legislation would be imposed
       in addition to, and not instead of, those
       contained in section 705 of the Communications
       Act?

       Mr. MATHIAS. That is correct. This legislation
       is not intended to substitute for any liabilities
       for conduct that also is covered by section 705
       of the Communications Act. Similarly, it is not
       intended to authorize any conduct which
       otherwise would be prohibited by section 705.
       The penalties provided for in the Electronic
       Communications Privacy Act are in addition to
       those which are provided by section 705 of the
       Communications Act.

       As a general rule, conduct which is illegal
       under section 705 of the Communications Act
       would also be illegal under this bill. . . .



              The exception to the general rule is that we do
              not provide liability for the noncommercial

                               13
             private viewing of unscrambled network feeds
             to affiliated stations by the owners of home
             satellite dishes. Accountability for that conduct
             will be determined solely under section 705 of
             the Communications Act. The private viewing
             of any other video transmissions not otherwise
             excepted by section 705(b) could be subject to
             action under both the Communications Act and
             this legislation.

132 Cong. Rec. S14441 (daily ed. Oct. 1, 1986) (colloquy of
Sens. Danforth & Mathias) (emphasis added). Here, Sen.
Mathias took pains to state, several times even, that § 705 of
the Communications Act did not foreclose action under the
ECPA. An exchange in the House of Representatives covered
similar ground:

      Mr. MOORHEAD. [T]his legislation covers
      conduct that may be prohibited under section
      705 of the Communications Act of 1934. Do I
      understand correctly that the sanctions
      contained in this legislation would be imposed
      in addition to, and not instead of, those
      contained in section 705 and other sections of
      the Communications Act?

      Mr. KASTENMEIER. That is correct. This
      legislation is not intended to alter any rights or
      liabilities for conduct that also is covered by
      section 705 or other sections of the
      Communications Act. Similarly, it is not
      intended to authorize any conduct which
      otherwise would be prohibited by section 705 or
      other sections. It should be noted that we do not
      provide criminal liability for noncommercial,
      private viewing of unscrambled network feeds
      to affiliates by the owners of home satellite
      dishes. Accountability for that conduct will be


                             14
       determined solely under section 705 of the
       Communications Act. The private viewing of
       any other video transmission not otherwise
       excepted by section 705(b) will be subject to
       action under both the Communications Act and
       this legislation.

132 Cong. Rec. H8977 (daily ed. Oct. 1, 1986) (colloquy of
Reps. Moorhead & Kastenmeier) (emphasis added). Like the
colloquy cited above, this exchange unequivocally indicates
that encrypted satellite transmissions are covered by both 47
U.S.C. § 605 and the ECPA, including 18 U.S.C. § 2511.

         Based on a thorough reading of the legislative history
as a whole, we cannot agree with the District Court’s view
that it supports the conclusion that the Communications Act
provides DIRECTV’s sole remedy for interception of its
encrypted satellite television broadcasts.

                               2.

        The District Court also reasoned that the damages
provisions of the ECPA and the Communications Act were
irreconcilable, and that because damages awards under the
Communications Act afford the court more latitude than the
ECPA, the latter act did not provide a cause of action for the
unauthorized interception of satellite television broadcasts.
We cannot agree with this line of reasoning: the only
conclusion to be drawn from the differing damages provisions
is that courts should generally disallow double recovery. See
E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 297 (2002)
(courts should generally disallow double recovery). As we
noted in our discussion of the legislative history supra,
Congress intended that the damage provisions would not be
mutually exclusive.

                               3.



                               15
       In refusing to find a cause of action under §
2511(1)(a), the District Court also relied on the pro-privacy
policy considerations underlying the ECPA as expressed in
our opinion in Bartnicki v. Vopper, 200 F.3d 109, 122 (3d Cir.
1999). In adjudicating the First Amendment questions at
issue in Bartnicki, we noted that § 2511(1) protected victims
from “the surreptitious interception of private
communications” and “the dissemination of private
information so obtained.” 200 F.3d at 122. In this case the
District Court took our language in Bartnicki to mean that §
2511(1) would apply only to wrongs against private persons,
and not piracy against a commercial service such as
DIRECTV.

        Again, the plain language of the ECPA trumps other
considerations, and compels an opposite conclusion. Section
2520(a) provides that “any person whose . . . electronic
communication is intercepted . . .” can recover for violations
of the ECPA. (Emphasis added.) In turn, § 2510(6) defines
“person” to include “any individual, partnership, association,
joint stock company, trust, or corporation.” As a corporation,
DIRECTV is a “person” within the meaning of the ECPA,
and can therefore bring suit under it.

                             III.

        For the foregoing reasons, we conclude that Congress
has made a private right of action available under §§
2511(1)(a) and 2520 of the ECPA for the unauthorized
interception of encrypted satellite television broadcasts.
Accordingly, we reverse the District Court’s Orders in both
cases to the extent that they deny DIRECTV’s claims under
18 U.S.C. §§ 2511(1)(a) and 2520(a), and remand both cases
for further proceedings consistent with this opinion.




                              16
