*1 4, testify, der to obtain conviction on Count police would “have no case” (1) government required prove was and that stop that he wanted to Hollis from going to drug Reid court. Reid recruited Anderson guilty conspiracy was (2) Simpson, and 1; engaged whom he had charged during in Count and transactions, drug carry numerous underlying conspiracy relation to that Reid out the murder. Following Hollis’s mur- firearm, used or or in carried further- der, Reid continued drugs to sell ance of conspiracy, possessed that a fire- together, Anderson. Taken this evidence arm; (3) that Reid used the firearm to was jury sufficient to conclude that (or murder Hollis aided abetted anoth- weapon the murder was carried “in rela- so). er in doing See United States v. tion to” or “in the ongoing furtherance of’ Foster, Cir.2007). 233, drug conspiracy involving Reid beсause it argues Reid conviction potential had at least the to facilitate that Count 4 must be reversed because the dead, conspiracy. With Hollis Reid was government prove failed to that the fire conviction, more likely escape arm kill used to Hollis was used or carried therefore likely more able to contin- “in or relation to” “in furtherance of’ the drugs. ue selling Accordingly, drug conspiracy alleged in Count court properly denied Reid’s Rule 29 mo- 924(c). required § by 18 U.S.C. We have tion. previously explained “in that the relation requirement to” is to be construed liberal IV ly, by proof and is satisfied the “fire reasons, For foregoing we affirm arm purpose has some or effect with re Reid’s convictions. spect drug trafficking crime. The AFFIRMED gun at least must facilitate have the рotential facilitating drug trafficking Lipford,
offense.” United States v. (4th Cir.2000) (internal
F.3d quo omitted).
tations and Although citations requirement this is not satisfied if the DIRECTV, INCORPORATED, presence aof firearm “the result of Plaintiff-Appellant, accident or coincidence ... is enough 924(e)(1) if purposes the firearm was RAWLINS, present John protection Defendant-Appellee. J. or to embolden the (internal actor.” Id. quotations and cita No. 06-1430. omitted). tions United Appeals, States Court of standard, Under argument Reid’s Fourth Circuit. must fail. The testimony at trial indicated Argued: Dec. 2007. that Reid wanted Hollis murdered because April Decided: Hollis had participated in controlled drug buys leading to prosecu- Reid’s arrest and
tion. Reid if stated Hollis did not (c)(1)(A) crime, Subsection penally any possesses makes 924's such a firearm.’’ Sec-
provisions who, applicable person 924(с)(2) “any "drug trafficking defines during and in relation “any crime of vio- felony punishable crime” to include un- drug trafficking (21 lence or crime ... uses or der the Controlled Substances firearm, who, carries a seq.).” in furtherance of 801 et *2 Rubin, Son- Howard Robert
ARGUED: Rosenthal, L.L.P., nenschein, & Nath D.C., Ray Appellant. Washington, Kline, Carolina, for Raleigh, North Martin Bryant Appellee. ON BRIEF: Samuel Sonnenschein, Davidoff, & Rosen- Nath thal, D.C., L.L.P., Appel- Washington, lant. DUNCAN, Judge, Circuit
Before HAMILTON, Judge, and Circuit Senior BLAKE, United States CATHERINE C. Judge the District District by designation. sitting Maryland, by published Vacated and remanded through subscription tomers services Judge opinion. DUNCAN wrote pay-per-view options. con- Programming Judge opinion, which Senior tent en- distributed customers via joined. Judge HAMILTON BLAKE (i.e., scrambled) crypted signals, which are *3 a separate concurring opinion. wrote dishes, sent decrypted by to satellite re- сeivers, and then delivered to customers’
OPINION manages televisions. DIRECTV DUNCAN, Judge: Circuit type provided amount and of content to cards,” (“DI- customers the use of “access Appellant Inc. RECTV”), small credit containing card-sized devices a satellite television service chips that provider, decrypt commenced this instruct to action receivers against only signals Western District of North Carolina those covered individual appellee John Rawlins. DIRECTV al- subscription packages. customers’ These leged that Rawlins utilized illegal devices access cards also monitor pay- customers’ to access DIRECTV television program- per-view purchases. ming beyond paid subscrip- level of This method of home television viewing of, here, as relevant fairly is a H.R.Rep. recеnt innovation. See Policy Cable Communications Act of 1984 100-887(II), (1988), No. reprinted at 10 (the Act”), 605(a), “Cable 47 U.S.C. 1988 U.S.C.C.A.N. (discussing
the Electronic Privacy Communications history satellite-relayed program cable (the “Wiretap Act”), 18 U.S.C. ming). In Home Box Office Inc. § 2511. After respond, Rawlins failed to (“HBO”) began delivering movies to cable the district court judgment entered default operators television via satellite. These against him under both statutes. The HBO, operators cable pay would and later permanently enjoined Rawlins from carriers, other satellite per-subscriber fees continuing to violate the laws and awarded signals, access to their attorney’s DIRECTV and then fees and deliver costs. However, the signals the court declined to award the subscribers over cable wire. statutory damages requested DIRECTV Prоblems arose after technological ad under either of the pro- relevant backyard vances enabled owners of satel visions. lite dishes receive sig satellite carriers’ directly, nals without paying the carriers appeal, challenges
On only operators. the cable legality of this court’s denial of dam- practice was immediately challenged. ages under Wiretap Act. Finding that Though not explicitly prohibited by stat discretion, court abused its ute, practice illegal by was considered judgment vacate the and remand for fur- the Federal Communications proceedings ther Commission consistent with opin- this (“FCC”) and held several courts ion. to be
prohibited use of signal. satellite Howev I. er, satellite carriers were not content to rely system on the legal prevent litigation This arises in the wake re- type Thus, of access signal. they cent dramatic to their technological changes began industry, using encryption home technology entertainment a brief de- scription provides of which providing decryption the context capacity pay customers, our decision here. provides effectively cutting off ac satellite television programming cus- cess to others. Id. devices,” enacted, ability of which restore the dis- Act was the Cable
In use of this cards to unscramble DI- respecting abled access clarifying the law signals and use legalized encrypted It the sale otherwise technology. RECTV’S dishes, owners of backyard gain authorized to DI- allow their users access unencrypted signals to receive signal paymеnt. these dishes RECTV’S without circumstances, and increased certain availing itself of techno addition signal reception, penalties for unauthorized remedies, logical has increas reception encrypted sig- including the legal system. Utilizing turned to the ingly later, Congress passed years Two nals. mechanisms contained in civil enforcement priva- Act to Federal enhance DI the Cable evolving tele- *4 cy rapidly protection by to piracy filing RECTV has aimed curb industry. Cong. See communications violators, alleged complaints against seek 1986) 1, ed. (daily Oct. Rec. S14441-04 relief, attorney’s injunctive damages, (statement Leahy) (describing of Sen. date, costs. To DIRECTV has fees and law updates then-existing for need anti-piracy en initiated anti-fraud and advances and the technological of light 25,- against more than forcement actions telecommuni- structure cumbersome DIRECTV, Inc. v. 000 defendants. See years following industry). In the cations 847, 850 Cir. Huynh, Hoa 503 F.3d Acts, televi- of these satellite passage 2007) by DI (citing maintained website dollar business. sion became a multi-billion anti-piracy litiga its chronicling RECTV to industry grew, so too did efforts As the efforts). The case before us one program- gain unauthorized access to such action. ming. entered the market II. cable televi- providing, an alternative to 1, 2001, January 28, and On December sion, multi-channel television all-digital the assistance the United directly to home delivered programming Service, exe- States Marshals long, techno- via satellite. Before viewers Computer “The of seizure on cuted writs scofflaws found logically sophisticated Stuff,” аlleged two sell- Shanty” “EQ replacing or reprogramming methods Among the pirate access devices. cards with illicit decoder ers DIRECTV access viewers, were business records or items confiscated home technology that allowed Rawlins, among others. “end-users,” implicated gain access to DIRECTV records, seized Rawlins According In re- payment. programming without illegal devices following purchased electronic sponse, developed Shanty: “Netsig- counter-measures, Computer one including, example, from The X Su- Programmer,” one “ULPRO of data that nia transmitting occasional bursts “ULTCOMBO,” and one per Unlooper,” unauthorized disabling had effect a “Shanty Unlooper,” a legitimate consists of harming which access cards without Emulator,” “Shanty order, “Shanty a PS2 Blue In short DIRECTV aсcess cards. “Shanty a Bootload- however, emerged Programmer,” around a market Stuff, EQ purchased Rawlins er.” From illegal “pirate access design and sale of were disabled misuse fled cards that “Programmer” used clone access is a device A counter-meas- electronic DIRECTV’s card to receive unau- program an access an card links access “Unlooper” is ures. An "Emulator” programming. An thorized personal receiver a functionality on a DIRECTV illegally modi- slot used to restore (a emulator) “EQ Relying plain Zapulator” type language one Act. in each Programmer.” Raw- “EQ statute, that, and one Amtel the court found under the shipped lins had each these devices dam- “[t]he Cable award of Carolina, Charlotte, and used them North ... ages is committed to the Court’s dis- display program- and view DIRECTV cretion,” that, paid authorization. Rawlins ming without discretion, “may, a court likewise in its these total devices. $852.00 any damages.” refuse to award J.A. J.A. 42-44. 67; Nalley Nalley, see (4th Cir.1995) (holding information,
On the basis of this DI- against “gives a civil court complaint RECTV filed discretion to 3; 2004, September alleging, Rawlins on though decline to award even alia, occurred.”). inter violations of the Act and Cable may Though have ap- Act. When Rawlins failed to “an recognized award of pear, the clerk entered Rawlins’s default statutory damages the Wiretap [under upon DIRECTV’s motion.2 DIRECTV may legitimate Act] serve the and useful moved judgment, thereafter for default deterrence,” purpose of it found “that this seeking injunction, permanent purpose can be met an award of costs *5 damages,3 attorney’s fees On and costs. attorneys’ on particular fees” the facts 8, 2006, granted March the district court similarly of this case. J.A. 68. The court summary judgment the motion for declined to award statutory damages un- respect to DIRECTV’s Cable Act and Act, relief, finding injunctive der the Cable Wiretap Act claims.4 costs, and fees to “sufficient deter- Turning requested relief, the rents.” J.A. 74. permanently enjoined Rawlins from 605(a) appeal, On
violating § DIRECTV seeks review 47 U.S.C. or 18 U.S.C. § of the district and awarded court’s refusal to award DIRECTV costs and statutory in damages fees the total of under Wiretap amount the $556.96. however, 2520(c)(2). not, grant § district court did DI- 18 U.S.C. DI Significantly, statutory dam-ages RECTV under either appeal RECTV did not the dam- denial of that, computer, allowing user run software judgment, note in its motion for default computer on the $10,000 еmulate the of functions prayed statutory for in susceptibility an access card without to DI- damages specify did but not whether be- it RECTV’s electronic A counter-measures. lieved such should be awarded un- "Bootloader” allows user to circumvent der the Cable Act or the Act. In its deployed certain electronic counter-measures supplemental support memorandum in of its DIRECTV disable unauthorized access motion, however, explained it that (Whalen 12-15). cards. See J.A. 36-39 Alf. at seeking was an statutory award under Acts, damage provisions presumably of both default, accept 2. Due to Rawlins's DI- in alternative. allegations against RECTV’s as See him true. Network, Ryan Homecomings v. Fin. 253 F.3d Cir.2001) (4th ("The defendant, 4.The judgment district court denied default 780 default, against willfully plaintiff’s well-pleaded admits on claim Rаwlins for as- fact, allegations sembling modifying equipment, concluded on those facts or or devices judgment, 605(e)(4). and is barred brought from contest- pursuant § 47 U.S.C. established.”). appeal on the facts thus appeal did not this denial. DI- RECTV also included law various state claims statutory damages 3. DIRECTV moved for complaint, in its but abandoned these when only, damages, for actual because moving judgment. for default Rawlins's default made it difficult for DI- prove damages. RECTV to actual We also by end-users, crypted 47 U.S.C. signal under the Cable ages 605(a), manufacture, 605(e)(3)(C)(I)-(II), assembly, § and the acknowledged at § modification, importation, exportation, did the district court argument oral sale, or or equip- distribution devices regard. its discretion not abuse in such un- ment used to assist end-users denial of district court’s We review the 605(e)(4). reception, authorized id. Act liability, imposing addition to criminal Nalley, 53 See for abuse discretion. aggrieved party also an its Cable Act allows A court abuses F.3d at 654. as elect to recover ei- such DIRECTV to “adequately if to take it fails discretion ther actual or viola- judicially recognized factors into account exercise,” provisions. tions these Id. if it its constraining bases 605(e)(3)(C)(i). seeking For those statu- fac- of discretion on an erroneous exercise Jacobson, tory damages, DIRECTV did legal premise. James tual or Cir.1993). Act sets forth a two-tiered Cable system. portion The relevant
penalty provides: III. Cable aggrieved party may recover an [T]he argu- principal DIRECTV raises two statutory damages award of for each First, argues appeal. ments 605(a) involved [§ ] violation ato only grants discretion action in a sum of not less than district court to decline to $10,000, more as the court than consid- violations of statute. de minimis just, and each ers (citing Nalley, Br. at Appellant’s 605(e)(4) action an 653). ] involved Second, [§ argues *6 F.3d at aggrieved party may recover that, did to the extent the district court $10,000, damages in a sum not than less have to decline to award dam- discretion $100,000, than as the court con- or more by relying ages, it abused such discretion just. siders failing and to considerations improper severity viola- of Rawlins’s recognize 605(e)(3)(C)(i)(II) added). § (emphasis Id. tion of the statute. words, violate the In other end-users who subject to of statuto- Act are awards Cable
A. $10,000 per viola- ry damages of manufacturers, tion, begins, programmers, as it while Analysis arguments оf these sellers, conduct facilitating others such must, underlying and language with $10,000to statutory damage awards of prohibits face The Cable statutes.5 $100,000per en- violation.6 reception of DIRECTV’s unauthorized 605(e)(4) might properly § appeals only Pemites—whether Though 5. Wiretap Many respect to the applied with end-users like Rawlins. court's decision Act, prudent 605(e)(4) we find to discuss the Cable targets only § it courts held that have conjunction Wiretap Act in here Act and upstream manufacturers distributors statutory backdrop provide complete pirating de not the ultimate consumers analysis. the district court’s (col Huynh, at 855 vices. Hoa 503 F.3d See DIRECTV, Neznak, cases); lecting Inc. v. 371 held, unpub in an previously 6. This 130, (D.Conn.2005); F.Supp.2d DI 133 605(e)(4) opinion, § cat "that does not lished 03-4603, RECTV, Albright, No. Civ.A. Inc. v. egorically exempt DI individual users.” Deс.9, 22956416, (E.D.Pa. *2 at 2003 WL 257, Pernites, RECTV, Fed.Appx. 200 Inc. v. DIRECTV, Borich, 2003); v. No. Civ.A. Inc. curiam). Cir.2006) (4th (per offer no We 258 2359414, 1:03-2146, *3 WL at 2004 opinion regarding addressed here the issue 324 any piracy also violate inde- other action under this section [1]n
Such acts [including involving those pendent statutory encrypted scheme embodied communications], may the court assess subjects Act. The greater as is the ... whichever punishment “any person criminal who of— intercepts, intentionally endeavors to inter- (A) procures any person or other to in-
cept, the sum of the actual suf- any wire, tercept intercept, plaintiff or endeavor profits fered oral, or other electronic communication.” made the violator as a result of the 2511(l)(a). violation; § limited ex- 18 With or here, ceptions applicable (B) statutory damages of whichever is provides like the Cable also greater day each day $100 remedy any party aggrieved by civil $10,000. violation or 2520(a). § § violation of Id. The 2520(c)(2) added). § Id. (emphasis Be- “may aggrieved party in a civil action re- interception cause is the of DIRECTV’s may ... be appropri- cover such relief encrypted at signal satellite is issue ate,” 2520(a), § appropriate which includes 2520(c)(2) § controls the award relief, declaratory damages, or equitable of statutory damages. costs, attorney’s and reasonable fees and recognized, This court has consis 2520(b). § tent language with the of the statute and damages provi- Act’s civil majority our views sister sion, turn, circuits, parts. is divided into two that the award of 2520(c)(2) provides The first that if the violation in- discretionary. Nalley, private viewing 652-53; “the private volved is of a 53 at F.3d see also Brown, (11th satellite video communication that is not Inc. v. 371 F.3d Cir.2004); Absher, scrambled ... encrypted then the court Dorris v. 179 F.3d (6th Cir.1999); shall actual damages assess” Reynolds Spears, (8th Cir.1996). in an ranging amount from to F.3d $50 But see $1,000. 2520(c)(1) added). Wood, (emphasis Id. Rodgers v. that, Cir.1990).7 part provides
The second parameters The proper of this *7 (S.D.W.Va. 2004). (1) Sept. Other The courts court should first the determine persua- damages have taken the view this court found plaintiff amount of actual the to violator, plus in profits sive Pemites. See Inc. Rob- the derived the if son, Cir.2005). 2520(c)(2)(A). any. 420 F.3d § 543-44 In See U.S.C. (2) brought a this claim under The court should next the ascertain 605(e)(4) § judgment days and moved for default number of that the statute was violat- ed, on the multiply claim. The district court denied the by $100. See 18 U.S.C. motion, 605(e)(4) finding § targeted only 2520(c)(2)(B). § distributors, upstream (3) manufacturers and cit- tentatively The court should then award ing failing Borich but to mention Pemites. plaintiff greater the the of the above two amounts, 70. did appeal $10,000, J.A. not the denial unless is each less than claim, of this and we will $10,000 therefore not ad- pre- in which case is be the it. dress sumed award. See id. (4) Finally, the court should exercise its damages 7. When a court plain- does award under discretion to determine whether the 2520(c)(2), requires § the any damages statute the tiff at should receive all in the $10,000. 2520(c)(2). award amount to at least The Sixth § case before it. See 18 U.S.C. provided Dorris, a helpful description Circuit has 179 F.3d at In case a 430. no will statute, workings step in the form of court reach three and conclude that the guidance step-by-step 2520(c)(2) § to district courts: tentative award under is less Nalley, none. 53 F.3d trict court awardеd appeal, crux of this form the discretion therefore, at 650. parameters and, it is those turn.
that we now impression an Confronting issue first circuit, this decided that the court “gives the district court dis-
B. decline to award even cretion to our argues first may though a violation have occurred.” Nalley bright-line created a in precedent in Nalley grounded Id. The decision was test, mandatory an award of dam making 2520(c)(2), § language 18 U.S.C. any Act for viola ages under may states that “the court assess which that is not de minimis tion of the statute (em- appropriate case damages,” ... an hand, Rawlins, in other on the nature. added). court contrasted the phasis The the rule that “Nalley stands for sists that 2520(c)(2) § language of with the mandato- may decline to award any eou[rt] 2520(c)(1) § ry language appearing in invоlving case (“... the court shall assess 2520(c)(2).” (empha Br. at 6 Appellee’s § ....”) added). held, (emphasis added). sis give contrasting language mean- “To 2520(c)(2) ing, embody § read must Nalley a useful provide The facts of grant congressional intent courts appli- of its to our consideration backdrop damages in to award discretion decline Nalley, cability present case. cov- particular all but the circumstances audiotape an contain- woman who received 2520(c)(1), Congress ered where between her telephone conversation clearly did not manifest an intent confer tape paramour played and a husband at Nalley, discretion.” such children, attorney, her for her The woman’s hus- paramour’s husband. us read DIRECTV would have wife his lover sued his band and Nalley limiting thе court’s discretion to Act, seeking statutory damages of under Wire decline to disclosure of the for her intentional Fairly violations. tap to de minimis conversation, telephone contents of their however, read, Nalley language having to know that “knowing or reason is such a It support does not construction. through was obtained [an the information from fact that the solely inferable interception.” Nalley, unauthorized] de in that was found case (alteration original) (quoting cir F.3d at 650 minimis that court’s discretion 2511(l)(c)). Rather, stipu- The wife 18 U.S.C. on that basis. cumscribed one-day favorably violation of a number of factors lated to a cites opinion *8 the of whether to trial on proceeded weigh and the case that determination the damages appropriate: Thе court found is damages. an award of issue of violation; intentionally disclosing severity con- minimal nature of the the or the act of damage to the a de minimis was actual audiotape to be whether there tents the of victim; the any intrusion into Concluding the extent of Wiretap Act. violation of the financial bur the relative privacy; victim’s to decline to award that it had discretion there was parties; of whether dis- dens the the where, here, $10,000. Therefore, of "its dis- step: exercise the district court’s than plaintiff the amount whether plaintiff minimum cretion to determine seeks $10,000, step from the Id. any damages relevant all.” of at should receive in is the fourth procedure outlined Dorris 326 violation; purpose for the purposes
reasonable
devices
commercial
or
any
purpose
whether there was
useful
purchased the device for resale. There
imposing
be served
dam
allegations
are no
that
in-
Defendant
(cit
ages
Nalley,
amount.
at 654
53 F.3d
duced others to commit similar viola-
ing Reynolds
Spears,
F.Supp.
v.
857
tions. Although
alleges
Directv
(W.D.Ark.1994),
1348
C.
(citation omitted) (alteration
J.A. 67-68
alternative,
In the
argues
emphasis
original).
that, to
extent the
district court had
Nalley
discretion under
to decline
analysis
flaws
the district court’s
damages,
it abused that discretion
First,
are manifest.
analysis relies
by giving weight
both
to improper consid-
a number of irrelevant factors. The Wire
by failing
adequately
erations and
con-
tap
any
criminalizes the actions оf
factors,
sider
Nalley
including
several
person
“intentionally intercepts,
who
en
severity
piracy
of Rawlins’s
and the harm
intercept,
procures
deavors to
any
other
upon
it exacted
agree.
DIRECTV.9 We
person to intercept” electronic communica
2511(1)(a).
tions. 18 U.S.C.
It
analyzed
The district court
allows
recovery
brought
claim for
civil action
as follows:
person whose electronic communications
exercising
[its]
[under
discretion
disclosed,
intentionally
are “intercepted,
Act]
the instant
§ 2520(a);
used.” Id.
Inc.
Court concludes that
are not
Nicholas,
(4th Cir.2005).
appropriate.
from
re
potentially
Aside
Therefore,
the fact that Rawlins neither
ceiving Directv’s satellite
pro
television
used the devices for
gramming
charge
period
purposes
free
for a
commercial
time,
purchased
there
no
nor
them for
is
ger
indication that De
resale
fendant
profited
analysis
otherwise
from
mane to an
his con
related
duct. There is no
patent
evidence
he used
violation of the statute.
*9
Nalley may
8. While
merely
be read
presents
cogent counterargu-
allud-
9. Rawlins
no
factors,
ment,
to these non-exclusive
we find
except
repeat
to
the district court
provide
them to
a useful framework
ex-
granted
should be
wide discretion
in its
ploring
equities
the
at stake in a
exer-
court’s
awarding
Wiretap
of
under
the
Act.
discretion,
cise
adopt
of
and we therefore
them here.
Whalen,
weight
by
submitted
DIRECTV. Whal-
gives
court also
to
district
The
en
the
was
Senior Director in DIRECTV’s
to show that Rawlins
lack of evidence
the
Signal Integrity,
investigat-
Offiсe of
which
Wiretap
to
the
Act.
violate
induced others
ed
of
reports of theft DIRECTV’s satellite
might
be
Although
consideration
such
signal.
provided significant
His affidavit
charged
pro-
if Rawlins were
relevant
regarding
detail
DIRECTV’s costs and
person
intercept
to
elec-
curing another
billing practices,
history,
Rawlins’s account
communications
tronic
particular
and the
devices Rawlins utilized.
2511(l)(a), it
no
apparent
has
id.
evidence, standing
See J.A. 25-61. Such
in-
culpability
his
for his own
bearing on
by
uncontroverted
virtue of Rawlins’s de-
terception.10
fault, certainly warranted careful consider-
Furthermore,
district court’s reason-
the
James,
be to be served award- for under the purpose Wiretap a useful case, in statutory amount this as we for a proper must remand consider- damages the court offered the bald assertion ation of whether such should purpose mandate, that the of deterrence “can be met The particulars awarded. of our however, attorneys’ an award of costs and fees.” warrant elaboration. J.A. 68. outset, At highlight limita- whole, find
On the we also the district tions what remains to be decided in this incongruent to be posture court’s conclusion case. Two make facts of this Congress’s approach seriousness case unusual —the district failure court’s interception encrypted signals. award damages, and de- DIRECTV’s Nicholas, F.3d at 227-28. In Nich- appeal only cision to olas, provider this court held that a victim- First, above, claim. in as described detail 2511(1) § ized violation 18 U.S.C. the district court declined to dam- award against bring could civil action the viola- ages under the Cable Act and also de- tor. Id. at In holding, 228. so the court clined to award under the Wire- Congress’s noted intent “that violators tap Act. That places decision case transmissions, intercept encrypted who re- judgments outside the heartland of greater efforts, quiring savvy technical in thousands cases which DIRECTV has greater punishments are tо face than those pursued defendants who stole DIRECTV in who take fewer measures order to inter- programming through use of pirate cept nonencrypted Id. at transmissions.” cases, many access devices. such 227. defendants, Rawlins, like defaulted. How- ever, those district courts often elected to reasons, For these we conclude that the award damages to DIRECTV district court abused its discretion under the Cable ranging amounts approach analyzing whether $1,000 $10,000, from and then exercised damages should have been awarded under their under Wiretap discretion Act to 2520(c)(2). 18 U.S.C.
decline to award additional damages for IV. the same conduct.11 Having determined that Such an entirely exercise discretion is analysis erred in its of DIRECTV’s Nalley. consistent with Where a court DIRECTV, v. Inc. Lankesler is [thе emblematic. defendants] [ ] violation[s] of the Ca (D.Md. 25, 2005) ..., May No. premised 8:03-CV-1631 ble Act violation^] on the same (memorandum opinion). Lankester, granted The court underlying conduct.” 8:03- No. CV-1631, judgment default in favor of (citing DIRECTV at 10 v. Inc. defendants, against fifty-eight Huynh, (M.D.Ala. F.Supp.2d individual find- ing just, 2004)) (internal grant omitted) (altera each the minimum quotations $1,000 statutory damage per original). award of viola- tions in Numerous other district (which interpreted "per that court courts in this and other circuits have ren device") See, under the resulting Cable Act. The judgments. e.g., dered similar awards, attorney's Haynes, (E.D.N.C. exclusive of fees Inc. v. No. 5:03-CV-872 costs, $1,000 $6,000. 2005) $1,000 ranged from (awarding statutory damages The court against then declined to award separate each of four defendants un citing Nalley nothing der the Cable Act and under proposition Act); that such an аward was discre- Yancey, Inc. No. commented, tionary. “[fjoremost (W.D.Va. The court 4:04-CV-1 WL Dec. among 12, 2005) (memorandum declining court's [for reasons opinion) (awarding $10,000 Act] statutory damages of 47 605(a) judgments] against will receive for violation of
329 however, for us to possible, It is not purposes the reasonably concludes that served Wiretap adequately Act are the case for remand this reconsideration Act, the Cable damages under an award Act Wiretap the Act and claims both Cable $10,000 award an additional and that has damages because be would on same conduct the premised district court’s denial of appealed the purpose” is no “useful gratuitous, there Chao, Doe v. Wiretap damages. Act See imposition additional the be served Cir.2007) (dis- (4th F.3d 465-66 511 18 damagеs under statutory noting cussing rule that the mandate 2520(c)(2). v. Inc. See courts from re- prohibits the rule Cir.2004) Brown, 814, 819 parties failed to considering issues the defaulting a involving in (upholding, a case the Having on made strate- appeal). raise Rawlins, court’s a district like defendant ruling the appeal only under gic decision sub- augment its award of not to decision Act, Wiretap DIRECTV cannot now any the Act with Wire- damages stantial Cable award decision, additional tap damages, Act consequences of its escape the easily gratuitous”); viewed as “could strategy placed cf. has and the strictures its such circum- at 654. In Nalley, 53 F.3d The district scope on the of the remand. stances, useful it would serve no because option to longer no has the award court not a district court does abuse рurpose, By damages Act.13 the under the Cable discretion, with more though faced even token, however, Rawlins, by his de- same violation, declining minimis than a de fault, ability contest lost has Wiretap Act. damages under the award allegations complaint of the well-pleaded Brown, Indeed, at DI- F.3d 819. See 371 guilt under either statute. propriety has acknowledged RECTV bottom, then, at At it Ryan, F.3d 780. Act award withholding Wiretap solely question appropriate- noting argument at such a oral statutory damages under Wire- ness of sought pursue not ever “DIRECTV has Act reconsidera- tap remand damages under the two statutes.”12 double be, then, may had 605(e)(4), It well declining award further awarded. but Act); here some actual or Wiretap district court awarded damages under the additional 03-CV-4590, damages, DI- Rodriguez, statutory under either No. Inc. v. appeal. (E.D.N.Y. pursued this would not have June RECTV WL at *2-3 $2,000 2007) Act (awarding under Cable Act); Wiretap nothing DI- under Cable Act is It not follow that the does 13. Kaas, F.Supp.2d part Inc. entirely RECTV v. remand. As of its irrelevant on 2003) (N.D.Iowa (finding requested whether on remand as to there determination excessive; $1,000 $10,000 awarding by impos- purpose” award to be served is a "useful nothing under the Act and the dis- ing damages Cable under the Moulder, Act); No. may DIRECTVInc. that DI- consider fact trict court (E.D.Pa.2005) (awarding sought 2.-03-CV-3266 could have relief RECTV $10,000 specifying forego without appeal, chose to it as but Cable Act suggest arose under Cable do strategy. whether We not a matter of Quell, Act); rule; instead, plaintiff Inc. v. bright-line when a se- or the (E.D.Pa.2004) (awarding lectively 2:03-CV-3274 under certain stat- pursues No. others, damages, unspecified). may also utes and not case-by-case whether on a basis consider sought assertion, particular awarding appears that line with this plaintiff in might represent windfall pursue appeals the vast DIRECTV did not available but light otherwise dam- of the Cable Act majority of the cases which sought. damages, were ages, but not *12 by judgment proceed- the district court.14 for further remand ings opinion. consistent with this parameters guide that should AND VACATED REMANDED reconsideration are not novel. The district carefully court must consider the evidence BLAKE, Judge, District concurring by already presented sup- separately: claim, port including, its most concur entirely I with all but III notably, Section Using the Whalen affidavit. this majority C, I opinion. C of As to III it, and other evidence before district concur with the need for remand but write court should examine the relevant factors separately my perspective because differs guide its exercise of discretion. In majority. somewhat from the particular, the court should consider the extent of Rawlins’s violation First, necessary agree that remand I is Act, as evidenced Whalen affidavit. it appear because does not that the district Moreover, the court should .consider court considered the Whalen affidavit. In parties, relative financial burdens of the opinion its the court refers paying attention to past close Rawlins’s potential value of the unauthorized access expenditures pirating equipment. The ($100,000 complaint noted in a single court also should determine whether a use- year) and states allegation there “no purpose ful would be served аn award to how long actually defendant used the statutory damages. All of these factors devices or the dollar amount DIRECTV against should backdrop be considered subscription would have received in fees of the seriousness with Congress which but did not as a result of Defendant’s has underlying treated the is- conduct at activity.” fact, J.A. 67. In the Whalen sue here. Weighing these factors and evi- affidavit asserts that Rawlins was a sub- balance, dence the district court September scriber from to at least carefully should exercise its discretion in October pur- and shows that he deciding whether to award DIRECTV chased devices between October 2000 and statutory damages under Wiretap Act. 2001; May provides it also what appears likely reasonable estimate of the
V. ($2,748.96) annual value piratеd pro- Indeed, gramming. J.A. 25-61. light of sum, a district court’s discretion to this obvious it discrepancy may be that the award or not judge inadvertently district overlooked the Wiretap Act is not restricted those affidavit. Remand is for warranted care- cases involving de minimis violations. ful consideration in light evidence boundless, Such discretion is not however. now explicitly factors adopted contrary, To the must care- majority. fully evidence, evaluate the relevant heed- Nalley ing the factors Second, invoked in however, as to the factors the adopted today, here exercising before its rely on, district court did consider and discretion. Because the in majority district court identifies as “irrelevant” the fact so, this case did not do we vacate that Rawlins neither used the devices fоr reconsideration, remanding 14. In govern we re- that must a district court's exercise of ject request DIRECTV’s that we awarding damages, reverse and discretion in find entry remand prudent to allow the district court to recon- 2520(c)(2). pursuant award of application analysis sider the of that Having proper analysis clarified the course of first instance. purchased them purposes nor commercial to show resale, and lack of evidence violate the others to
that Rawlins induced guidance As I believe this Act. never before been Circuit had
from the *13 have been and would not explicit,
made law, I not fault prior case would
clear from considered having court for analysis.
those factors need for summary, I with the agree majority’s appreciate
remand and permit court to
willingness with a full under- its discretion
exercise the factors that should be
standing of and therefore concur
considered joining as III C well
result of Section opinion. majority remainder of America, STATES
UNITED
Plaintiff-Appellee, NOLEN, E. Defendant-
Robert
Appellant.
No. 05-40859. Appeals, States Court of
United Fifth Circuit. Hechtkopf, Robert Alan L. Samuel Justice, Dept, Tax Lyons (argued), U.S. March DC, Lynn Hagan, Div., Washington, Terri Plano, TX, Atty., for U.S. Asst. U.S. (argued), Law Office Goldberger Peter Admore, PA, for No- Goldberger, of Peter len. WIENER, JOLLY, DAVIS, and
Before Judges. Circuit