The structure of the appellate process as to the federal courts is also important to understand.

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1 I know the demand letter you received sets forth violations of several sections of federal law, but generally speaking, the courts disallow multiple recoveries for the same misconduct. However, the Wiretap Act which is 18 U.S.C is a statutory anomaly (abnormality). For your convenience, I have attached an edited copy of the civil damages pursuant to the Wiretap Act. The anomaly lies in the fact that Wiretap Act damages are independent and exclusive from damages under another statute (e.g., the Cable Act - 47 U.S.C. 605). Although the judge can make awards under both the Cable Act and the Wiretap Act, a Wiretap Act damages award is solely at the discretion of the judge (the one with great discretion), and if made, it must be for at least $10, Actually, I am unaware of an instance of a judge making a Wiretap Act award in a garden variety end user unauthorized interception case. Therefore, the Cable Act (the same chapter that I analyze herein) is usually the sole basis of damages awards in these cases. But, it shows you how much discretion the judge has. So don t try to B.S. the judge! For those who would like to further improve their knowledge, I have selected two cases (an appellate case and a district court case). Before studying these cases however, you should first improve your knowledge as to the basic structure of the federal courts. Go to: The structure of the appellate process as to the federal courts is also important to understand. As you can see, there are thirteen circuits, each with its own Circuit Court, which provides the first level of appeal for cases originating from within its respective circuit. The second level of appeal is the U.S. Supreme Court. As relatively few cases go on to the U.S. Supreme Court, the various Circuit Courts usually have the last word as to appeals from within their respective circuits. When a Circuit Court decides an appeal, each of the lower (District) courts within that circuit must follow the ruling in their future decisions. Not so for District Courts outside that particular circuit; although they will usually give great weight to the decision, they are not compelled to follow it. Now, it is important to understand that the above referenced characteristics of the federal courts breed inconsistency as to how the law is interpreted from circuit to circuit; moreover, and absent a Circuit Court ruling on a legal issue, there can be inconsistencies amongst District Court

2 interpretations of the same law. This is one reason that the decisions contain so many references to other cases. Another aspect of our federal system is that federal law is superior to and preempts any conflicting state law. Although a Preemption Doctrine analysis can be a complex study and can itself become an object of litigation, I think it sufficient for our purposes to simply be aware of it. Also, the Congress leaves many legal issues to state law sometimes in full, sometimes in part. Areas such as tort, contract law, domestic relations, service of process, and rights and obligations of incompetents (minors in particular), and many other areas. In fact, it is not uncommon that a federal court, faced with a legal issue situation that federal law doesn t speak to, will utilize relevant (the state with the closest connection to the basis for the action) state law in rendering their decision. (This is sometimes the case for statute of limitations determinations pursuant to the Cable Act.) Here follows relevant law:

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4 Directv, Inc. v. Huynh, 318 F.Supp.2d 1122 (M.D. Ala., 2004) 318 F.Supp.2d 1122 DIRECTV, INC., Plaintiff, v. James HUYNH, Defendant. Civil Action No. 1:03cv0826-T. United States District Court, M.D. Alabama, Northern Division. May 19, Page 1123 COPYRIGHT MATERIAL OMITTED Page 1124 COPYRIGHT MATERIAL OMITTED Page 1125 Enrique Jose' Gimenez, Sara Anne Ford, Suzanne Alldredge Fleming, Lightfoot Franklin & White LLC, Birmingham, AL, for Plaintiff. James Huynh, Dothan, AL, Pro se. OPINION MYRON H. THOMPSON, District Judge. Plaintiff DIRECTV, Inc. brought this action against defendant James Huynh alleging violations of the Federal Communication Act of 1934, as amended, 47 U.S.C.A. 605(a), the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, 18 U.S.C.A. 2511(1)(a) & 2512(1)(b), and state law. The claims in this case arise from Huynh's alleged use of devices to receive DIRECTV's satellite television service without paying for it. The court's jurisdiction has been properly invoked. 47 U.S.C.A. 605(e)(3)(A); 28 U.S.C.A & 1367(a). This case is now before the court on DIRECTV's motion to strike Huynh's answer and for default judgment. I. Background DIRECTV provides satellite television programming on a subscription and pay-per-view basis. In order to protect its transmissions from unauthorized reception, DIRECTV encrypts or scrambles its satellite signal, and each DIRECTV customer is required to purchase system hardware and an access card. The access cards function as decoders or descramblers; they allow subscribers to view the programming for which they have paid and only that programming. In order to view DIRECTV programming without paying for it, satellite television pirates have found ways to modify their access cards. In response, DIRECTV has developed electronic countermeasures or ECMs, which are streams of data sent along with its satellite signal that target and disable modified access cards. In turn, the pirates have countered with a variety of devices referred to as pirate-access devices that restore their modified access cards' ability to gain unauthorized access to DIRECTV's programming. 1 On August 21, 2003, DIRECTV filed an amended complaint against Huynh. 2 The complaint alleges that, on or about May 21, Page , Huynh purchased three pirate-access devices. The amended complaint alleges four causes of action. Count one alleges that Huynh received satellite television programming without authorization. 47 U.S.C.A. 605(a). Count two alleges that Huynh intentionally intercepted, endeavored to intercept, or procured other persons to intercept or endeavor to intercept DIRECTV's satellite transmission. 18 U.S.C.A. 2511(1)(a). Count three alleges that Huynh "manufactured, assembled, distributed, sold, possessed, and/or used pirate access devices, knowing or having reason to know that the design of such devices renders them primarily useful for the purpose of surreptitious interception of DIRECTV's satellite transmissions." 3 18 U.S.C.A. 2512(1)(b). Count four alleges a state-law conversion claim. Along with declaratory and injunctive relief, DIRECTV seeks compensatory and punitive damages, attorneys' fees and costs, and statutory damages pursuant to 47 U.S.C.A. 605(e) and 18 U.S.C.A. 2520(c)(2)(B). "In the event of a default," according to the amended complaint, DIRECTV seeks "an award of statutory damages of $ 10,000 for each pirate access device purchased and used in violation of 47 U.S.C. 605(a), and a further award of DIRECTV's reasonable attorneys' fees and costs in the amount of $ 850." 4-1 -

5 Directv, Inc. v. Huynh, 318 F.Supp.2d 1122 (M.D. Ala., 2004) Huynh filed an answer on May 5, 2003, but that was the last time he was heard from on this matter. He did not participate in the Federal Rule of Civil Procedure 26 conference held before the case was severed; he did not respond to requests to participate in a Rule 26 conference after severance; and, he did not respond to written discovery served in July Further, he failed to appear for the scheduling conference on November 12, 2003, and he did not respond to the court's subsequent order to show cause why he did not appear. Finally, Huynh failed to appear for the court's April 15, 2004, pretrial conference. After Huynh did not appear at the April 15 pretrial conference, DIRECTV filed the instant motion to strike his answer and for default judgment. The court issued an order directing Huynh to show cause by April 30, 2004, why DIRECTV's motions should not be granted. Huynh did not respond. 5 II. Discussion DIRECTV's motion for default judgment presents three issues: First, is DIRECTV entitled to a default judgment under Rule 16(f) of the Federal Rules of Civil Procedure? Second, has DIRECTV adequately stated its causes of action in its amended complaint such that the court can enter a default judgment? Third, to what relief is DIRECTV entitled? A. Rule 16(f) DIRECTV brings its motion for default judgment under Rule 16(f) of the Federal Rules of Civil Procedure. Rule 16(f) provides that "[i]f a party or party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference... the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D)." Rule 37(b)(2)(C) authorizes the Page 1127 court to enter "[a]n order striking out pleadings or parts thereof, or... dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party." "The sanctions contained in Rule 16(f) were designed to punish lawyers and parties for conduct which unreasonably delays or otherwise interferes with the expeditious management of trial preparation." Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985). Whether to grant a motion for default judgment is within the trial court's discretion. Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1542 (11th Cir.1985). The court concludes that a default judgment is appropriate in this case. Huynh has failed to participate in this case since he filed his answer. He has ignored three scheduled conferences, and he has failed to respond to two show-cause orders. The court also finds that it is more likely than not that Huynh's failure to appear at scheduled conferences is wilful; the fact that he filed an answer and the fact that the court's orders mailed to his address have not been returned indicate that he is aware of the lawsuit. Furthermore, because it appears very unlikely that there will ever be any actual litigation of this matter, other sanctions such as "refusing to allow [Huynh] to support or oppose designated claims or defenses, or prohibiting [him] from introducing designated matters in evidence," Fed.R.Civ.P. 37(b)(2)(B) would be ineffectual. B. Causes of Action That the conditions of Rule 16(f) are met in this case does not end the court's inquiry. "[A] defendant's default does not in itself warrant the court entering a default judgment. There must be a sufficient basis in the pleadings for the judgment entered... The defendant is not held to admit facts that are not wellpleaded or to admit conclusions of law. In short,... a default is not treated as an absolute confession of the defendant of his liability and of the plaintiff's right to recover." Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.1975) 6 ; see also Bruce v. Wal-Mart Stores, Inc., 699 F.Supp. 905, 906 (N.D.Ga.1988) (Forrester, J.); 10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure 3688, at 63 (3d ed. 1998) ("Even after default, however, it remains for the court to consider whether the unchallenged facts constitute a legitimate cause of action, since a party in default does not admit mere conclusions of law."). Accordingly, the court must consider whether the allegations in the amended complaint and the reasonable inferences derived therefrom state a claim for relief. The court's efforts in this regard have been hampered by DIRECTV's motion for default judgment, which does not make entirely clear on which counts of its amended complaint it is moving - 2 -

6 Directv, Inc. v. Huynh, 318 F.Supp.2d 1122 (M.D. Ala., 2004) for default judgment. The first sentence of the motion reads, "Plaintiff DIRECTV, Inc..., pursuant to Rules 55[sic] and Rule 16(f) of the Federal Rules of Civil Procedure, 47 U.S.C ; 18 U.S.C ; and relevant Local Rules, moves to strike the Answer and for the entry of a Default Judgment against Defendant James Huynh." 7 Later in its motion, Page 1128 however, DIRECTV cites only 2511(1)(a) and 2512(1)(b) as the "statutes applicable to this case." 8 Still later in its motion, DIRECTV suggests that it is seeking default judgment on only its 2512(1)(b) claim: "DIRECTV's Complaint requested that the Court award... statutory damages of $ 10,000 for each illegal device Huynh purchased and possessed... in violation of 18 U.S.C. 2512(1)(b) and 18 U.S.C. 2520(c)(2)." 9 Notwithstanding DIRECTV's lack of clarity, the court construes its motion as one for default judgment on all three statutory counts. 10 This court thus turns to each of DIRECTV's statutory claims to determine whether it has properly stated a claim for which this court can grant relief. 1. Count One: 47 U.S.C.A. 605(a) Count one alleges that Huynh violated 47 U.S.C.A. 605(a), which provides in relevant part that "[n]o 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." Although 605(a) is a criminal statute, 605(e)(3)(A) provides that "[a]ny person aggrieved by any violation of [ 605(a)] or [605(e)(4)] may bring a civil action in a United States district court." Section 605(e)(3)(A) thus authorizes DIRECTV to bring a private cause of action to enforce 605(a). See, e.g., DIRECTV v. Tasche, 316 F.Supp.2d 783, 785, 2004 WL , at * 2 (E.D.Wis. May 4, 2004) (Griesbach, J.). DIRECTV has adequately alleged that Huynh violated 605(a). In its amended complaint, DIRECTV alleged that Huynh received its satellite transmission without authorization, and, by his default, Huynh has admitted this allegation. Moreover, Huynh has also admitted that he purchased three pirate-access devices, and the court can infer from his possession of the devices that he received DIRECTV's signal without authorization in violation of 605(a). 11 See, e.g., DIRECTV, Inc. v. Cardona, 275 F.Supp.2d 1357, 1362 (M.D.Fla.2003) (Conway, J.) ("[P]ossession of equipment used to intercept satellite transmissions... is evidence that satellite transmissions were in fact intercepted."). Accordingly, the court finds that DIRECTV's amended complaint properly states a claim for relief under 605(a) and that, by defaulting, Huynh has admitted his liability for a violation of 605(a). 2. Count Two: 18 U.S.C.A. 2511(1)(a) Huynh is similarly liable on count two, DIRECTV's 18 U.S.C.A. 2511(1)(a) claim. A criminal statute, 2511(1)(a) provides that "any person who intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or Page 1129 electronic communication" shall be fined or imprisoned. Section 2520(a) of Title 18 creates a private cause of action under 2511(1)(a) for "any person whose wire, oral, or electronic communication is intercepted." See, e.g. DIRECTV v. Baker, 318 F.Supp.2d 1113, 1116, 2004 WL , *2 (M.D.Ala.2004) (Thompson, J.); DIRECTV, Inc. v. Childers, 274 F.Supp.2d 1287, 1288 (M.D.Ala.2003) (Albritton, C.J.). DIRECTV's amended complaint properly alleged that Huynh intercepted its electronic communication in violation of 2511(1)(a), and therefore, by his default, Huynh has conceded his liability to DIRECTV. 3. Count Three: 18 U.S.C.A. 2512(1)(b) In count three, DIRECTV alleges that Huynh manufactured, assembled, distributed, sold, possessed, or used pirate access devices, knowing or having reason to know that the design of such devices renders them primarily useful for the purpose of surreptitious interception of DIRECTV's satellite transmissions in violation of 18 U.S.C.A. 2512(1)(b). Like 2511(1)(a), 2512(1)(b) is a criminal statute. However, while 2520(a) creates a private cause of action for violations of 2511(1)(a), this court has previously held that 2520(a) does not create a private right of action to enforce 2512(1)(b). DIRECTV v. Baker, 318 F.Supp.2d , 2004 WL , *2-8 (M.D.Ala.2004) (Thompson, J.). Accordingly, DIRECTV does not allege a proper ground for relief, and default judgment is therefore not appropriate against Huynh on this count

7 Directv, Inc. v. Huynh, 318 F.Supp.2d 1122 (M.D. Ala., 2004) C. Relief Having concluded that DIRECTV is entitled to default judgment on counts one and two, the court turns to the question of relief. As a general rule, the court may enter a default judgement awarding damages without a hearing only if the amount of damages is a liquidated sum, an amount capable of mathematical calculation, or an amount demonstrated by detailed affidavits. Adolph Coors Co., 777 F.2d at ; Directv, Inc. v. Griffin, 290 F.Supp.2d 1340, 1343 (M.D.Fla.2003) (Conway, J.). However, the decision whether to call for a hearing before awarding damages in a default judgment rests in the district court's discretion. Fed.R.Civ.P. 55(b)(2) ("If... it is necessary to... determine the amount of damages..., the court may conduct such hearings or order such references as it deems necessary and proper."); Pope v. United States, 323 U.S. 1, 12, 65 S.Ct. 16, 22, 89 L.Ed. 3 (1944) ("It is a familiar practices and an exercise of judicial power for a court upon default, by taking evidence when necessary or by computation from facts of record, to fix the amount of which the plaintiff is lawfully entitled to recover and to give judgment accordingly."). Here, DIRECTV has not requested a hearing and has moved only for statutory, and not actual, damages. Accordingly, the court finds that a hearing is not necessary to calculate damages. 1. Count One: 47 U.S.C.A. 605(a) DIRECTV seeks costs, attorneys' fees and damages for Huynh's violation of 47 U.S.C.A. 605(a). The statute provides that the court "shall direct the recovery of full costs, including awarding reasonable attorneys' fees to any aggrieved party." 47 U.S.C.A. 605(e)(3)(B)(iii). In its motion for default judgment, DIRECTV requested "$ 4, as reasonable attorney's fees and costs." 12 A footnote indicated that "DIRECTV, Inc. will supplement the record in this case with a Page 1130 statement showing the attorney's fees and costs incurred and billed in this action." 13 DIRECTV subsequently filed an affidavit with the court on May 3, 2004, appended to which was an invoice showing the costs and fees incurred by DIRECTV's attorneys through April 16, This invoice indicates $ in costs 15 ; accordingly, a default judgment will be awarded in the amount of $ for costs. As noted above, the statute provides that the court shall award reasonable attorneys' fees. While the court is required to award attorneys' fees, the determination of the fee amount is left to the court's discretion, Dowdell v. City of Apopka, 698 F.2d 1181, 1187 (11th Cir.1983), as guided by the factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, (5th Cir.1974). The court finds three factors particularly relevant here. First, this case presented no particularly complicated legal issues. See DIRECTV, Inc. v. Hamilton, 215 F.R.D. 460, 463 (S.D.N.Y.2003) (Marrero, J.) (reducing DIRECTV's request for $ 11, in attorneys' fees to $ 1, because "these types of cases are routine, straightforward and do not require extensive research"). Second, DIRECTV's attorneys in this case are handling a large number of cases practically identical to this one; thus, it is not unreasonable to expect some economy of scale. Further, DIRECTV has brought cases nearly identical to the present case all over the country, giving its attorneys a large pool of experience from which to draw. Third, the amount that DIRECTV's attorneys have requested is more than three times the highest award of attorneys' fees the court could find in similar cases brought by DIRECTV. See DIRECTV, Inc. v. Lackey, NO. CIV.A. 1:02-CV-181-C, 2004 WL 42254, *1 (N.D.Tex. Jan. 4, 2004) (Cummings, J.) (awarding $ 1, in attorneys' fees in case decided at summary judgment stage). The court is aware that DIRECTV's attorneys have had to appear at a number of hearings on this matter; however, the bulk of the fee request as itemized in the invoice submitted by DIRECTV's attorneys is for time spent on researching and writing the motion for default judgment. The court thus finds that DIRECTV's attorneys' fee request is not reasonable but that an award of $ 1,500 in attorneys's fees is reasonable. See Hamilton, 215 F.R.D. at 463. Accordingly, default judgment in that amount will be entered. In addition to costs and fees, the court has the discretion to award damages. 47 U.S.C.A. 605(e)(3)(B)(ii); Griffin, 290 F.Supp.2d at If the court decides to award damages, DIRECTV may choose to recover either "actual damages suffered... as a result of the violation" or "statutory damages for each violation of subsection (a) of [ 605] involved in [this] action in a sum not less than $ 1,000 or more than $ 10,000, as the court considers just." 47 U.S.C.A. 605(e)(3)(C)(i)(I) & (II). Based on the references to statutory damages in its amended complaint, the court finds that DIRECTV has opted for statutory damages

8 Directv, Inc. v. Huynh, 318 F.Supp.2d 1122 (M.D. Ala., 2004) In calculating damages under 605(e), the first question for the court to determine is how many violations of 605(a) Page 1131 are "involved in [this] action." 47 U.S.C.A. 605(e)(3)(C)(i)(II). In its amended complaint, DIRECTV requested "$ 10,000 for each pirate access device purchased and used in violation of 74 U.S.C.A. 605(a)." 16 DIRECTV thus appears to assume that, because it alleged that Huynh purchased three pirate-access devices, he is liable for three violations of 605(a). DIRECTV is not alone in this assumption. There are a number of cases that make the same assumption: equating, for purposes of calculating damages under 605(e)(3)(C)(i)(II), the number of access devices the defendant allegedly possessed or purchased with the number of violations of 605(a). See, e.g., Directv, Inc. v. Albright, No. Civ.A , 2003 WL , *3 (E.D.Pa. Dec. 9, 2003) (Rufe, J.). The court cannot square this assumption with the plain language of the statute. Section 605(a) provides in relevant part that "no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication... for his own benefit or for the benefit of another not entitled thereto." While possession of an access device can be evidence of a violation of this section, it is clear from the statute's language that possession of a pirate access device standing alone does not amount to a violation. Rather, a plaintiff must prove that the defendant received or assisted another in receiving an interstate communication. The court has found that Huynh violated 605(a) because he has admitted as a result of his default DIRECTV's allegation that he did so. In contrast, his admission that he possessed three access devices does not amount to three violations of 605(a). Thus, the court finds that Huynh committed one violation of 605(a). The court's conclusion is bolstered by its understanding taken from DIRECTV's pleadings of how these pirate-access devices work. As the court understands it, the devices purchased by Huynh are not used to intercept DIRECTV's signal directly, but rather they are used to "restore pirate access cards' ability to illegally circumvent DIRECTV's encryption protection" after the pirate-access cards are disabled by DIRECTV's electronic countermeasures. 17 Thus, it is conceivable that a person might purchase a number of these devices to restore a single pirate-access card and then use the card to receive one unauthorized satellite transmission. Similarly, a person might purchase a single access device, use it to restore a single access card, and then use that card to receive a large number of DIRECTV's transmissions. Thus, the facts as presented by DIRECTV do not suggest an easy equation of one pirate access device to one violation of 605(a). Based on one violation of 605(a), DIRECTV shall recover "a sum not less than $ 1,000 or more than $ 10,000, as the court considers just." 47 U.S.C.A. 605(e)(3)(C)(i)(I)(II). Courts have cited a number of factors in determining a "just" amount of damages: (1) whether the defendant profited as a result of his violation, DirecTV, Inc. v. Perrier, No. 03-CV-400S, 2004 WL , *3 (W.D.N.Y. March 15, 2004) (Skretny, J.); (2) whether the defendant assisted or induced others in violating the statute, id.; (3) whether the defendant's violation was willful or flagrant, Albright, 2003 WL , at *3; (4) whether the damage award will be sufficient to deter similar conduct, id.; and (5) whether the damage award is comparable to awards in similar cases, Perrier, 2004 WL , at *3. The burden is on Page 1132 DIRECTV to provide justification for why damages in excess of the minimum should be awarded. See Hamilton, 215 F.R.D. at 462. Based on the foregoing principles, the court finds that an award of $ 1,000 in damages is just. There are no allegations that Huynh profited as a result of his actions or that he induced others to commit violations. Furthermore, the court is convinced that a default judgment in the amount of $ 1,000 combined with the award of attorneys' fees will be sufficient to deter future violations. Finally, an award of $ 1,000 in damages is in line with the awards in similar DIRECTV cases. See, e.g., DIRECTV v. Kaas, 294 F.Supp.2d 1044, 1049 (N.D.Iowa 2003) (Zoss, M.J.) (awarding damages of $ 1,000 under 605(e)(3)(C)); Albright, 2003 WL , at *3 (same). Accordingly, default judgment in the amount of $ 1,000 will be entered against Huynh. 2. Count Two: 18 U.S.C.A. 2511(1)(a) DIRECTV also seeks relief for Huynh's violation of 2511(1)(a). Section 2520(c)(2) - 5 -

9 Directv, Inc. v. Huynh, 318 F.Supp.2d 1122 (M.D. Ala., 2004) provides that the court may assess damages for violations of 2511(1)(a). The court has discretion whether to award damages at all, see, e.g., Dorris v. Absher, 179 F.3d 420, (6th Cir.1999); DirecTV v. Guzzi, 308 F.Supp.2d 788, 790 (E.D.Mich.2004) (Steeh, J.), but the court, if it decides to award damages, has no discretion as to the amount. The statute provides that the amount of damages is "whichever is the greater of (A) the sum of actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or (B) statutory damages of whichever is the greater of $ 100 a day for each day of violation or $ 10,000." 18 U.S.C.A. 2520(c)(2)(A) & (B). In its motion for default judgment, DIRECTV makes it clear that it seeks statutory damages for Huynh's violation of 2511(1)(a). In deciding whether to award damages under 2520(c)(2), courts in similar DIRECTV cases have looked at a number of factors: (1) whether the defendant profited by his violation, e.g., Kaas, 294 F.Supp.2d at 1049; (2) whether there was any evidence that the defendant actually used his pirate access devices, id.; (3) the extent of DIRECTV's financial harm, Guzzi, 308 F.Supp.2d at 790; (4) the extent of the defendant's violation, id.; (5) whether the defendant had a legitimate reason for his actions, id.; (6) whether an award of damages would serve a legitimate purpose, id.; and (7) whether the defendant was also subject to another judgment based on the same conduct, Perrier, 2004 WL , at *4. Based on these principles, the court exercises its discretion to award no damages to DIRECTV for Huynh's violation of 2511(1)(a). Foremost among the court's reasons is that DIRECTV will receive a judgment against Huynh for his violation of 605, a violation premised on the same underlying conduct. The court finds that its award of damages under 605 "appropriately punishes [Huynh] for his illegal actions, adequately compensates [DIRECTV] for any damage it suffered, and sufficiently deters other from engaging in similar unlawful conduct." Perrier, 2004 WL , at *4. In reaching this conclusion, the court has also kept in mind "the potential of [ 2520(c)] to bring financial ruin to persons of modest means, even in cases of trivial transgressions." Reynolds v. Spears, 93 F.3d 428, 435 (8th Cir.1996). III. Conclusion For the foregoing reasons, the court finds that DIRECTV is entitled to a default judgment against Huynh on its first and second causes of action. Furthermore, the court finds that DIRECTV is Page 1133 entitled to $ in costs, $ 1, in attorneys' fees, and $ 1, in damages for Huynh's violation of 47 U.S.C.A. 605(a). Finally, the court finds that DIRECTV is entitled to no damages for Huynh's violation of 18 U.S.C.A. 2511(1)(a). An appropriate judgment will be entered. JUDGMENT In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court: (1) The motion to strike answer and for default judgment against defendant James Huynh, filed by plaintiff DIRECTV, Inc. on April 15, 2004 (doc. no. 14), is granted in part and denied in part. (2) Judgment is entered in favor of plaintiff DIRECTV, Inc. and against defendant Hunyh on counts one and two of plaintiff DIRECTV, Inc.'s amended complaint, filed August 21, 2003 (doc. no. 2). (3) Plaintiff DIRECTV, Inc. shall have and recover the sum of $ in costs from defendant Huynh. (4) Plaintiff DIRECTV, Inc. shall have and recover the sum of $ 1, in attorneys' fees from defendant Huynh. (5) Plaintiff DIRECTV, Inc. shall have and recover the sum of $1, in statutory damages under 47 U.S.C.A. 605(e)(3)(C)(i)(II), from defendant Huynh. It is further ORDERED the motion striking defendant's answer, etc., filed by plaintiff DIRECTV, Inc. on May 3, 2004 (doc. no. 19), is denied as moot. The clerk of this court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure Notes: - 6 -

10 Directv, Inc. v. Huynh, 318 F.Supp.2d 1122 (M.D. Ala., 2004) 1. These counter-ecm pirate-access devices go by names like "bootloaders," "dead processor boot boards," "glitchers," "HU loaders," "emulators," and "unloopers." 2. DIRECTV filed its original complaint in this matter against Huynh and seven other defendants on April 17, By order entered on August 6, 2003, United States Magistrate Judge Susan Russ Walker ordered that DIRECTV's actions against all of the defendants be severed from each other and that DIRECTV file separate amended complaints against each individual defendant. 3. Amended Complaint, filed August 21, 2003 (amended complaint), at Amended complaint at The court notes that none of its orders mailed to Huynh's address has been returned. The court thus assumes that Huynh has been aware of these conferences and orders. 6. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, Motion to strike answer and for default judgment, etc., filed April 15, 2004 (motion for default judgment), at Id. at Id. at 5. In addition to being confusing, this statement is not accurate. As discussed above, DIRECTV's complaint asks for "an award of statutory damages of $ 10,000 for each pirate access device purchased and used in violation of 47 U.S.C. 605(a)." Amended complaint at 11 (emphasis added). 10. It is clear that DIRECTV does not seek default judgment on its state-law conversion claim. 11. The court emphasizes that, had DIRECTV alleged only that Huynh possessed a pirate-access device, this would not have been sufficient to state a claim under the plain language of 605(a). Similarly, to establish liability under 605(a), a plaintiff must prove that the defendant received or assisted in receiving a communication to which he was not entitled. 12. Motion for default judgment, at Id. at 5 n Affidavit in support of plaintiff's request for attorney's fees, filed May 3, On the same day, DIRECTV filed its affidavit in support of its request for attorneys' fees, it filed a second motion styled "motion striking defendants and for entry of default judgment." DIRECTV acknowledges that this second motion was filed in error; accordingly the court will deny this second motion as moot. 15. See id., exh. A, invoice for fees through January 31, 2004 and invoice for costs and fees through April 16, Amended complaint, at Amended complaint at

11 Directv, Inc. v. Pepe, 431 F.3d 162 (Fed. 3rd Cir., 2005) 431 F.3d 162 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. DIRECTV INC, a California Corporation, Appellant v. Anthony De CROCE; Nick L. Keal; Bernard Khuang; Leonard Korman; Tom Teague. No United States Court of Appeals, Third Circuit. Submitted pursuant to Third Circuit L.A.R. 34.1(a) December 6, Decided December 15, Page 163 Marc J. Zwillinger, Howard R. Rubin, Shane M. McGee, Sonnenschein Nath & Rosenthal LLP, Washington, D.C., for Appellant. John W. Gibson, Pittsburgh, PA, for Amici Curiae Edward Semulka, Joseph Rodkey, Frank Pienkosky, Mark Livesky, Bennie Leto, Joseph S. Jarvis, Daniel Galbraith, Bruce Figler and Michael Gignarella. Before RENDELL, FISHER, and VAN ANTWERPEN, Circuit Judges. OPINION OF THE COURT VAN ANTWERPEN, Circuit Judge. In this consolidated appeal, we are asked to determine whether a private right of action under 18 U.S.C 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 , 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, In both cases, we have jurisdiction to review the final orders of the District Court under 28 U.S.C For the following reasons, we Page 164 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 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 - 1 -

12 Directv, Inc. v. Pepe, 431 F.3d 162 (Fed. 3rd Cir., 2005) 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 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 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 Page 165 interception 4 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 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 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 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 Page 166 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 & DIRECTV timely 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 and 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 - 2 -

13 Directv, Inc. v. Pepe, 431 F.3d 162 (Fed. 3rd Cir., 2005) 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. 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, (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, (9th Cir. Page ); United States v. Davis, 978 F.2d 415, (8th Cir.1992); United States v. Splawn, 982 F.2d 414, (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 its plain language. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (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, 109 S.Ct. 1026, 103 L.Ed.2d 290 (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 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." 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 general public; or Page 168 (ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls, - 3 -

14 Directv, Inc. v. Pepe, 431 F.3d 162 (Fed. 3rd Cir., 2005) 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 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 See Lande, 968 F.2d at (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, 105 S.Ct. 2587, 86 L.Ed.2d 168 (1985) (citing Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (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 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, Page 169 and not by chapter 119 of title 18 of the United States Code [ECPA, 18 U.S.C ]. 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 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 - 4 -

15 Directv, Inc. v. Pepe, 431 F.3d 162 (Fed. 3rd Cir., 2005) 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 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 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 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 Page 170 transmissions are covered by both 47 U.S.C. 605 and the ECPA, including 18 U.S.C 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, 122 S.Ct. 754, 151 L.Ed.2d 755 (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. In refusing to find a cause of action under 2511(1)(a), the District Court also relied on the proprivacy 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 - 5 -

16 Directv, Inc. v. Pepe, 431 F.3d 162 (Fed. 3rd Cir., 2005) 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 Notes: 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. 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, 101 S.Ct. 1559, 67 L.Ed.2d 732 (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. The Pepe Complaint refers to these as "satellite television transmissions." The difference is immaterial. App 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." 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 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 In that Order, the 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. 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 - 6 -

17 Directv, Inc. v. Pepe, 431 F.3d 162 (Fed. 3rd Cir., 2005) 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). 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