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J & J Sports Productions, Inc. v. Brewster "2" Café, LLC

United States District Court, E.D. Arkansas, Western Division

October 2, 2014




J & J Sports Productions, Inc. (J & J), a California corporation, brings this action against Brewster "2" Cafe, LLC d/b/a Brewsters "2" Cafe (Brewsters), a commercial establishment in Little Rock, Arkansas, pursuant to the Communications Act of 1934, as amended, 47 U.S.C. §§ 553, 605. J & J also asserts a claim of conversion under Arkansas law. J & J claims Brewsters violated its rights as the exclusive commercial domestic distributor of the televised fight program, "Number One" Floyd Mayweather, Jr. v. Juan Marquez Championship Fight Program (the "Program").

Before the Court are cross-motions of J & J and Brewsters for summary judgment [doc.#'s 52, 53]. J & J and Brewsters have responded in opposition to each other's motion and each has replied to the other's response. For the reasons that follow, the Court grants in part and denies in part J & J's motion for summary judgment and grants in part and denies in part Brewsters' motion for summary judgment.[1]


J & J was granted the exclusive commercial distribution rights to the Program, which also encompassed all undercard events. The Program telecast nationwide on September 19, 2009, and was exhibited at that time by Brewsters at its commercial establishment located on South Arch Street in Little Rock, Arkansas.

J & J's commercial licensing fee to exhibit the Program for an establishment the size of Brewsters was $2, 200. Brewsters did not pay a licensing fee to J & J to exhibit the Program and did not otherwise have permission from J & J to exhibit the Program at its establishment. Rather, Brewsters ordered the Program from its cable provider, Comcast Cable Television (Comcast), for $152.93 (plus taxes, surcharges, and fees).

Investigator John Sutton states in a Declaration that on September 19, 2009, at approximately 10:15 p.m., he observed the exhibition of the Program at Brewsters on three televisions of various sizes. Sutton estimated the capacity of Brewsters to be 100 and that at the time he was present, there were between 89-102 patrons. He further states that Brewsters charged a $7.00 cover charge to enter the establishment that night and that this was explained to him when he asked if the Program was being exhibited.

Brewsters does not dispute that between 89 and 102 patrons were present when the Program was exhibited and it acknowledges that a $7.00 cover charge was required to enter the establishment that night. Brewsters claims, however, that it rented out its establishment for a private birthday party on that night and that the cover charge was required and retained by the group holding that party, who was also in control of the television(s) at the time the Program was exhibited.


J & J moves for summary judgment on grounds that Brewsters unlawfully intercepted and exhibited the Program at its commercial establishment in violation of 47 U.S.C. §§ 553, 605, thereby entitling it to statutory and enhanced damages, and that it is also entitled to damages for conversion. Brewsters, in turn, moves for summary judgment on grounds that it was authorized to receive and exhibit the Program, that § 605 does not apply to cable signals, and that J & J's conversion claim is duplicative of its federal claims. Both parties argue there are no genuine issues of material fact with respect to any of these issues and that they are each entitled to summary judgment as a matter of law.


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). To support an assertion that a fact cannot be or is genuinely disputed, a party must cite "to particular parts of materials in the record, " or show "that the materials cited do not establish the absence or presence of a genuine dispute, " or "that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). "The court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). The inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (citations omitted). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation and quotation marks omitted). However, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Id.


47 U.S.C. § 553 deals with theft of cable television communications, while 47 U.S.C. § 605 deals with theft of satellite television communications. J & J Sports Productions, Inc. v. Alcantara, Civil No. 13-00220 LEK-RLP, 2014 WL 1669070, *2 (D. Hawaii April 25, 2014). J & J notes that there is a split of authority regarding whether a single interception may violate both § 553 and § 605, see id., and that it in any case may not recover damages under both sections for one violation. See, e.g., J & J Sports Productions, Inc. v. Onyx Dreams Inc., No. 12-CV-5355 (SLT) (LB), 2013 WL 6192546, *3 (E.D.N.Y. Nov. 26, 2013) (where a defendant's liability can be established pursuant to both §§ 553 and 605, a plaintiff may recover damages under only one of those sections). Given also ...

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