United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, UNITED STATES DISTRICT COURT JUDGE
J&J Sports Productions, Inc. has moved for summary
judgment against Defendant Yong K. Kim, d/b/a Wing's
Cafe, LLC. Doc. 9. The Plaintiff alleges that the Defendant
individually violated sections of the Federal Communications
Act and the Cable and Television Consumer Protection and
Competition Act (collectively, “the Acts”),
specifically 47 U.S.C. § 553 and § 605. Doc. 5. For
the following reasons, that motion (Doc. 9) is
GRANTED in part and DENIED in
case arises out of the September 13, 2014 broadcast of
“Mayhem” Floyd Mayweather, Jr. v. Marcos Rene
Maidana, II - WBC World Lightweight Championship Fight
Program at Wing's Cafe, a bar then owned and operated by
Wing's Cafe, LLC, a Georgia limited liability company.
Docs. 9-2; 11-1. Wing's Cafe was open to the public with
a maximum occupancy of ninety-nine people. Doc. 9-3 at 2.
Wing's Cafe, LLC has since been dissolved. Doc. 11-1.
Defendant Yong K. Kim is the former sole LLC member and
manager of Wing's Cafe. Docs. 11-1; 13-1 at 22:13-23:8.
night of September 13, 2014, the Defendant allowed a
promoter, George Henley, to broadcast the Program in
Wing's Cafe. Doc. 9-6 at 13:9-20. Henley brought a
residential television box to Wing's Cafe and used the
device to broadcast the Program on three of the televisions
in Wing's Cafe. Docs. 9-1 ¶ 8; 9-6 at 15:4-13. It is
unclear whether Henley used a cable box or satellite device
to broadcast the Program. Doc. 9-6 at 16:1-5. The Defendant
charged a $10.00 cover for each patron to enter Wing's
Cafe and allowed Henley to keep the money, and the Defendant
kept the profits made off of the food and drinks sold. Docs.
9-1 ¶¶ 4, 7; 13-1 at 13:18-20. The Defendant was
“in and out” of Wing's Cafe the night the
Program was broadcast. Docs. 9-3 at 3; 9-6 at 16.
Plaintiff is in the business of licensing commercial
exhibitions of pay-per-view closed-circuit events. Docs. 9-2;
9-5. On September 13, 2014, the Plaintiff was the only
official licensor of the Program for commercial
establishments nationwide. Doc. 9-2. Accordingly, commercial
establishments in Georgia were required to obtain a
sublicense from the Plaintiff to broadcast the Program.
Id. The sublicense fee to broadcast the Program
depended on the commercial establishment's occupancy
capacity. Doc. 9-5. If the capacity was between one and 100
people, as was the capacity of Wing's Cafe, then the
sublicense rate for the Program was $2, 200. Docs. 9-3 at 2;
9-4; 9-5. Neither the Defendant nor Henley paid the $2, 200
rate to the Plaintiff before broadcasting the Program. Doc.
9-6 at 20:3-11.
April 10, 2018, the Plaintiff filed a complaint alleging that
the Defendant, d/b/a Wing's Cafe, LLC, violated the Acts,
specifically 47 U.S.C. § 553 and §
Doc. 1. The Plaintiff alleges that the Defendant individually
violated both § 553 and § 605 by “us[ing]
unlawful means to receive the cable signal required to
exhibit the Program.” Doc. 5 ¶¶ 12, 22. The
Plaintiff now brings this motion for summary judgment. Doc.
MOTION FOR SUMMARY JUDGMENT STANDARD
shall grant summary judgment “if the movant shows that
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). “When the moving party has
the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of
material fact: it ‘must support its motion with
credible evidence . . . that would entitle it to a directed
verdict if not controverted at trial.' In other words,
the moving party must show that, on all the essential
elements of its case on which it bears the burden of proof at
trial, no reasonable jury could find for the nonmoving
party.” United States v. Four Parcels of Real
Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (emphasis
in original) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 331 (1986) (Brennan, J., dissenting)) (other
citation omitted). “Only when that burden has been met
does the burden shift to the non-moving party to demonstrate
that there is indeed a material issue of fact that precludes
summary judgment.” Clark v. Coats & Clark,
Inc., 929 F.2d 604, 608 (11th Cir. 1991).
determining whether a genuine dispute of material fact
exists, the Court must avoid weighing conflicting evidence or
making credibility determinations. Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th
Cir. 1999). Instead, “[t]he evidence of the non-movant
is to be believed, and all justifiable inferences are to be
drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (citation omitted). A
material fact is any fact relevant or necessary to the
outcome of the suit, and a factual dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Plaintiff alleges that the Defendant violated both § 553
and § 605. Doc. 5. Section 605 makes it unlawful to
assist in intercepting a satellite broadcast, and § 553
makes it unlawful to assist in intercepting a cable
broadcast. J&J Sports Prods., Inc. v. Thang,
2018 WL 623497, at *4 n.5 (E.D. Cal. 2018) (citing 47 U.S.C.
§§ 553, 605).
Defendant does not deny that the broadcast of the Program was
unlawful, but he appears to argue that he is not liable for
the violation because Wing's Cafe was owned and operated
by Wing's Cafe, LLC. See generally Docs. 11;
11-1. However, the Plaintiff does not seek to hold the
Defendant liable for Wing's Cafe, LLC's violation.
See generally Doc. 5. Rather, the Plaintiff contends
that the undisputed facts establish that the Defendant was
the actual manager of Wing's Cafe and personally
committed the violations by working with Henley to show the
Program. Doc. 9-6 at 16:10-16, 19:16-20. The Court agrees.
Plaintiff argues that it “does not really matter”
whether the Defendant intercepted the broadcast via cable or
satellite “as it is clear that Defendant Kim violated
both §§ 553 and 605, ” and because those are
strict liability statutes, the Plaintiff “only needs to
show that the Program was shown in Defendant's
establishment without [the Plaintiff's]
authorization.” Doc. 9-7 at 3-4 (citing Joe Hand
Promotions, Inc. v. Moctezuma Club, Inc., 2012 WL
2358254, at *2 (N.D. Tex. 2012) (holding that the plaintiff
could only recover statutory damages under one statute when
the plaintiff alleged violations of both statutes),
abrogated on other grounds by J&J Sports Prods., Inc.
v. Mandell Family Ventures, LLC. 751 F.3d 346, 348 (5th
Cir. 2014)). The Plaintiff argues that to establish a
violation of both § 553 and § 605, it must only
prove that “(1) the Program was intercepted, (2) the
Defendant did not ...