National Satellite Sports, Inc. v. Eliadis, Inc., D/B/A Melody Lane Lounge, Time Warner Entertainment Company, L.P., D/B/A Time Warner CableNational Satellite Sports, Inc. v. Eliadis, Inc., D/B/A Melody Lane Lounge, Time Warner Entertainment Company, L.P., D/B/A Time Warner Cable
- Reporters:
- , ,
- Before:
- Gilman
OPINION
GILMAN, Circuit Judge.On the night of December 14, 1996, the Melody Lane Lounge, a commercial bar located in Massillon, Ohio, showed the live broadcast of a boxing match between Rid-dick Bowe and Andrew Golota (the event). National Satellite Sports, Inc. (NSS) had obtained the exclusive right to broadcast the event to commercial establishments in Ohio. Time Warner Entertainment Company, L.P. had obtained the exclusive right to broadcast the event on a pay-per-view basis to its Ohio residential customers. The Melody Lane Lounge, erroneously listed as a residential customer of Time Warner, ordered the event through Time Warner’s service.
After learning that the Melody Lane Lounge had shown the event to its patrons on the night in question, NSS brought suit against Eliadis, Inc., the corporate owner of the bar. The suit also named Eliadis’s two owners and Time Warner as defendants. NSS alleged that the showing of the event in a commercial establishment through Time Warner’s residential service constituted a violation of the Federal Communications Act of 1934,
Eliadis and its co-owners reached a prompt settlement with NSS. NSS and Time Warner then filed cross-motions for summary judgment against each other. The district court first granted summary judgment to NSS on the issue of liability, and subsequently entered a final judgment awarding NSS damages, costs, and attorney fees.
Time Warner appeals the district court’s rulings, claiming that the court erred in failing to give preclusive effect to an adverse judgment against NSS in prior litigation between the parties on an allegedly controlling issue. In the alternative, Time Warner claims that NSS lacks standing to sue under the Communications Act and, in any event, that NSS has failed to establish a violation of that statute. For all of the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual background
NSS and Time Warner obtained their respective rights to broadcast the event through separate contracts. New Jersey Sports Productions, Inc., d/b/a Main Events (Main Events), produced the event. It granted Pay Per View Networks, Inc., d/b/a Viewer’s Choice (Viewer’s Choice), the exclusive right to broadcast the event to residential households. Viewer’s Choice, in turn, licensed Time Warner to make the telecast of the event available to residential customers in Ohio. Main Events
Main Events created a single telecast of the event and sent it to a transmission station. From the transmission station, the signal was sent to two different satellites. Viewer’s Choice received the signal from one of the satellites. It decoded the signal, rescrambled it, and sent it to another set of satellites that transmitted the signal to a Time Warner facility in Akron, Ohio. The Akron facility, known as a “head end,” receives programs via satellite and distributes them to subscribers in the Akron region. Because the event was a pay-per-view program, Time Warner encrypted it at the Akron head end so that only subscribers who had ordered the event would be able to decode and view the program.
NSS received its transmission of the telecast from a chain of distribution that traces back to the second satellite that received the initial signal from Main Events. As a result, the signals that NSS and Time Warner received in their respective Ohio facilities both originated from the same initial transmission sent by Main Events, and neither party disputes the right of the other to receive the signals in Ohio according to their separate contracts. Rather, the dispute centers on Time Warner allowing a commercial establishment to view the event on its residential-customer cable network.
Melody Lane Lounge’s account was listed in the individual name of Gust Eliadis, a co-owner of Eliadis, Inc. In February of 1996, Ken Sovacool, a Time Warner employee, serviced Eliadis’s cable account. Time Warner concedes that Sovacool should have recognized that the Melody Lane Lounge was a commercial establishment and not a residence. The structure of the building, an exterior identification sign, and neon beer signs in the window made this obvious. Nevertheless, having obtained residential-cable service, the Melody Lane Lounge had the capability to order pay-per-view programs.
Time Warner’s account records show that Melody Lane Lounge had ordered one earlier program at the commercial rate. But Melody Lane Lounge ordered the event in question from Time Warner at the residential rate of $39.95. As a commercial establishment, Melody Lane Lounge should have paid NSS for the right to show the event, which would have cost it $987.50.
NSS hired investigators to visit various commercial establishments to monitor whether those showing the event had obtained the right to do so through NSS as the proper distribution channel. An investigator visited the Melody Lane Lounge on the night in question and ultimately determined that it was broadcasting the event through Time Warner’s residential pay-per-view system. The Melody Lane Lounge claims that it would not have chosen to show the event had it been required to pay NSS’s high commercial rate. Only 23 patrons were in the bar at the time the event was broadcast.
B. Procedural background and prior litigation between the parties
NSS commenced its action in the United States District Court for the Northern District of Ohio in November of 1997. El-iadis, Inc. and its co-owners soon settled with NSS, agreeing to the entry of judgment against them for violating
First, Time Warner contends that the district court erred by failing to give pre-clusive effect to a separate district court judgment rendered in July of 1998 that arose from a substantially identical claim by NSS against Time Warner. NSS learned that a commercial establishment in Akron, Ohio called Lyndstalder, Inc., d/b/a Coach’s Corner, had shown a boxing match between Evander Holyfield and Bobby Czyz that Coach’s Corner obtained via residential-cable service from Time Warner in March of 1996. As in the case before us, Time Warner had obtained the exclusive right from the producer to distribute the match to residential customers in Ohio, while NSS received the exclusive license to sell the same program to Ohio’s commercial establishments.
NSS commenced an action against Coach’s Corner and its owner in the United States District Court for the Northern District of Ohio in August of 1997. When NSS learned of Time Warner’s role in providing the broadcast to Coach’s Corner, it added Time Warner as a defendant. In that suit,
National Satellite Sports, Inc. v. Lyndstalder, Inc. d/b/a/ Coach’s Corner, et al.,
No. 5:97 CV 2039 (N.D.Ohio 1998), NSS alleged that both Coach’s Corner and Time Warner had violated
The district court held a hearing on Time Warner’s motion for summary judgment in July of 1998. It issued a bench ruling at that hearing, granting Time Warner’s motion for summary judgment on the basis that NSS “failed to state a claim pursuant to the terms of the contracts [for distribution] at issue in this case as well as
Second, even if we conclude that NSS is not bound by the
Coach’s Comer
decision, Time Warner argues that NSS does not qualify as a “person aggrieved” under
Finally, as its last line of defense, Time Warner argues that NSS’s cause of action under
II. ANALYSIS
A. Standard of review
We review de novo the district court’s grant of summary judgment.
See, e.g., Holloway v. Brush,
220 F.3d 767, 772 (6th Cir.2000). Summary judgment is proper when there are no genuine issues of material fact in dispute and the moving
We will not disturb a district court’s determination of an award for damages unless clearly erroneous. See Meyers v. City of Cincinnati, 14 F.3d 1115, 1119 (6th Cir.1994).
B. NSS is not bound by the decision in Coach’s Corner
NSS brought suit in both this case and in the
Coach’s Comer
case under
In its motion before the court in
Coach’s Comer,
Time Warner argued that it was entitled to summary judgment because NSS was not a “person aggrieved” within the meaning of
The district court granted Time Warner’s motion for summary judgment in the
Coach’s Corner
case. In articulating its reasoning from the bench on July 13, 1998, the court held that NSS had failed to state a claim under
both
the contracts at issue in that case
and
under
With regard to the ruling, [NSS] has failed to state a claim pursuant to the terms of the contracts at issue in this case as well as47 United States Code Section 605 .
Paragraph 14(e) of the Television Licensing Agreement provides for the enforcement of unauthorized display of the closed circuit television feed. That also provides that Joe Hand Promotions [the licensor of the event] could not assert any piracy claim without prior notice.
[The agreement] provides that a subli-censee [NSS] has no rights to enforceability, quote, “It being understood that your sublicensee shall have no right to commence or settle any claim or litigation hereunder.”
The other relevant agreement is the March 12,1996 Closed Circuit TelevisionAgreement entered into between [the licensor] and [NSS].
That agreement at paragraph 7 provides that there is no right to a piracy action to be pursued by [NSS].
[NSS’s] effort to overcome the language of the contract does not create a material fact for trial.
Time Warner now argues that the district court below should have given preclu-sive effect to the earlier ruling in
Coach’s Comer.
It claims that
Coach’s Corner
determined that when a commercial establishment shows a sporting event ordered through a residential-cable service rather than properly paying the fees exacted by the commercial distributor, the distributor does not have standing to sue the authorized residential-service provider under
Our circuit has held that a prior decision shall have preclusive effect on an issue raised in a later ease if four elements are met:
(1) the precise issue raised in the present case must have been raised and actually litigated in the prior proceeding;
(2) determination of the issue must have been necessary to the outcome of the prior proceeding; (3) the prior proceeding must have resulted in a final judgment on the merits; and (4) the party against whom estoppel is sought must have had a full and fair opportunity to litigate the issue in the prior proceeding.
Smith v. SEC, 129 F.3d 356, 362 (6th Cir.1997) (en banc) (quoting Detroit Police Officers Ass’n v. Young, 824 F.2d 512, 515 (6th Cir.1987)).
In the present case, the district court concluded that Time Warner had failed to establish the second and fourth elements of this test. Because Time Warner and NSS disagree as to whether these four elements were met, an analysis of each is necessary in order to decide if the district court erred by failing to give preclusive effect to the Coach’s Comer decision.
1. Identity of issues
Time Warner argues that the
Coach’s Comer
court was faced with the precise threshold question that the district court encountered in the current case. This question is whether NSS has standing to sue under
NSS counters that there is no identity of issues in these two cases. First, it con-, tends that the transmissions at issue in Coach’s Corner are distinguishable from the ones involved in the present case. Specifically, Time Warner distributed the Holyfield/Czyz boxing match to its residential customers through its Home Box Office (HBO) service, not through a pay-per-view network. The difference is that all residential HBO subscribers had access to view the Holyfield/Czyz match, whereas only the residential customers who ordered the Bowe/Golota event through the pay-per-view network could view the program. Second, NSS argues that the licensing agreements as between Time Warner and NSS were fundamentally different.
We believe that Time Warner’s argument is the more persuasive on this “identity of issues” element. Although HBO and pay-per-view are different subscriber services, the key issue in both cases is the same — the consequences of a commercial
2. Necessary to the outcome of the pri- or proceeding
The district court held that Time Warner failed to establish that NSS’s lack of standing under
Time Warner argues that the district court erred in reaching this conclusion. It notes that Coach’s Corner is a case in which two alternative but independent grounds support the court’s ultimate judgment. Time Warner claims that under the “weight of federal authority, a plaintiff is precluded from relitigating an issue actually decided against it in a prior case, even if the court in the prior case rested its judgment on alternative grounds.” It cites the Second, Seventh, Ninth, and D.C. Circuits as upholding this general principle of issue preclusion. See Williams v. Ward, 556 F.2d 1143, 1154 (2d Cir.1977); Magnus Elecs., Inc. v. La Republica Argentina, 830 F.2d 1396, 1402 (7th Cir.1987); In re Westgate California Corp., 642 F.2d 1174, 1176 (9th Cir.1981); Yamaha Corp. of America v. United States, 961 F.2d 245, 255 (D.C.Cir.1992).
This principle of issue preclusion, however, is counterbalanced by courts and commentaries that have adopted the opposite conclusion. For example, the American Law Institute (ALI) endorses NSS’s position that “[i]f a judgment of a court of first instance is based on determinations of two issues, either of which standing independently would be sufficient to support the result, the judgment is not conclusive with respect to either issue standing alone.” Restatement (Second) of Judgments § 27 cmt. i (1980). Furthermore, one leading commentary describes the Restatement’s view as the “new” and “modern” rule. See 18 James Wm. Moore et al., Moore’s Federal Practice ¶ 132.03[4][b] at 132-111 to 132-113 (3d ed. 1997). At least four circuits (the Third, Fourth, Eighth, and Tenth) have adopted this modern rule. See Arab African Int’l Bank v. Epstein, 958 F.2d 532, 535 (3d Cir.1992); Ritter v. Mount St. Mary’s College, 814 F.2d 986, 993-94 (4th Cir.1987); Baker Elec. Co-op v. Chaske, 28 F.3d 1466, 1475-76 (8th Cir.1994); Turney v. O’Toole, 898 F.2d 1470, 1472 n. 1 (10th Cir.1990). In addition, the Seventh Circuit has embraced the modern rule in the context of the Black Lung Benefits Act in Peabody Coal Co. v. Spese, 117 F.3d 1001, 1008 (7th Cir.1997) (en banc), without citing its contrary holding in Magnus Electronics, 830 F.2d at 1402.
The issue is a close one given the policy implications involved. Time Warner argues that by not recognizing Coach’s Corner as precluding relitigation of whether NSS has standing to sue under § 605, NSS is free to relitigate the same issue again. NSS counters by arguing that because the Coach’s Corner court decided that NSS was contractually barred from pursuing a claim against Time Warner, NSS had no incentive to appeal that court’s secondary decision that NSS failed to state a claim under § 605.
This circuit has not decided whether alternative grounds for a judgment are each “necessary to the outcome” for the purposes of issue preclusion in a subsequent case involving only one of the grounds. Based on the actual decision in Coach’s Corner, we do not find it necessary to fully resolve this issue at the present time. We do hold, however, that where, as in Coach’s Corner, one ground for the decision is clearly primary and the other only secondary, the secondary ground is not “necessary to the outcome” for the purposes of issue preclusion. Coach’s Corner’s secondary holding that NSS failed to state a claim under § 605 was thus not necessary to the granting of Time Warner’s motion for summary judgment.
3. Final judgment on the merits
Although the district court held that the
Coach’s Comer
decision was a final judgment on the merits for the purpose of issue preclusion, NSS argues that it was not. In particular, it claims that the court’s judgment in
Coach’s Corner
was a dismissal of NSS’s suit without prejudice’ for failure to state a claim. This argument is without merit.
Coach’s Corner
granted Time Warner’s motion for summary judgment pursuant to
j. Full and fair opportunity to litigate
Turning to the final element, Time Warner contends that the district court in Coach’s Corner granted its motion for summary judgment after full briefing and argument, and that both parties had a sufficient opportunity to litigate the § 605 issue before that court. NSS, however, argues that the district court in Coach’s Comer primarily focused on the question of whether NSS’s license agreement contractually barred it from initiating a suit against Time Warner. It therefore contends that the question of whether NSS had a proprietary right in the communication under § 605 was secondary. The district court agreed with NSS.
We believe that Time Warner has the more persuasive argument on this issue. Nothing in the
Coach’s Corner
case prevented either NSS or Time Warner from raising all potential arguments about the applicability of § 605 to the circumstances of their case. Despite the contractual language that was ultimately held to bar NSS from raising a claim against Time Warner in
Coach’s Corner,
NSS still had a full and fair opportunity to litigate the claim that it
In sum, we agree with the district court that the second element (“necessary to the outcome”) set forth in Smith v. SEC, 129 F.3d 356, 362 (6th Cir.1997) (en banc), has not been met, but disagree that the fourth element (“full and fair opportunity to litigate”) was lacking. But because all four elements of Smith must be satisfied before the prior opinion will be given preclusive effect, NSS is not bound by the decision in Coach’s Comer. We therefore turn to the issues of whether NSS has standing to sue under § 605 of the Communications Act and whether it has sufficiently established a claim against Time Warner for a violation of that Act.
C. NSS has standing to sue Time Warner because the definition of a “person aggrieved” in § 605(d)(6) is nonexclusive
Congress enacted the Cable Communications Policy Act of 1984 to address “a problem which is increasingly plaguing the cable industry — the theft of cable service.” H.R.Rep. No. 98-934, at 83 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4720. This statute amended and supplemented the Communications Act. See id. The 1984 legislation added subsections (b)-(e) to § 605. These new provisions were intended to address “the growing practice of individuals taking down satellite delivered programming for private, home viewing by means of privately owned backyard earth stations.” See 1984 U.S.C.C.A.N. at 4745. The original prohibitions contained in § 605, however, were retained without amendment in what is now codified at § 605(a).
Section 605(a), therefore, lists the types of unauthorized publication or use of electronic communications that have been prohibited since the Communications Act first became law. It sets forth separate prohibitions in each sentence. The first sentence states:
[N]o person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception ... to any person other than the addressee, his agent, or attorney....
No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.
Id. Finally, the third sentence provides:
No 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.
Id.
Congress has criminalized the unauthorized interception of communications prohibited by
(d) Definitions
For purposes of this section — ...
(6) the term “any person aggrieved” shall include any person with proprietary rights in the intercepted communication by wire or radio, including wholesale or retail distributors of satellite cable programming....
Time Warner contends that Congress would not have amended
The district court held that the use of the word “include” in the statutory phrase “any person aggrieved shall
include
any person ...” does not mean that
only
persons who meet that definition have standing to sue. We agree. The district court’s interpretation is consistent with the legislative history of
Section 5 of [the Satellite Home Viewer Act of 1988] amends [§ 605 ] of the Communications Act pertaining to the piracy of satellite cable programming. The Committee’s amendment is intended to deter piracy practices by (1) stiffening applicable civil and criminal penalties, (2) expanding standing to sue, and (3) making the manufacture, sale, modification ... of devices or equipment with knowledge that its primary purpose is to assist in unauthorized decryption of satellite cable programming expressly actionable as a criminal act.
H.R.Rep. No. 100-877(11), at 28, reprinted in 1988 U.S.C.C.A.N. 5638, 5657 (emphasis added).
Limiting the availability of civil actions to those persons who meet the definition of a “person aggrieved” in
But this explicit reference to a subset of persons aggrieved was not intended to exclude others who sustain injuries from a violation of any of the prohibitions originally listed in
Our circuit has previously recognized Congress’s intent to expand rather than contract the reach of the Communications Act when it amended
In view of [promoting the growth of satellite programming and facilitating individual reception of unencrypted satellite signals], Congress amended the Communications Act to authorize the receipt of unscrambled satellite programming for private viewing[, w]hile leaving intact the prohibitions against unauthorized use of radio or wire communications contained in I7 U.S.C. § 605(a) .
Loschiavo v. City of Dearborn,
33 F.3d 548, 551 (6th Cir.1994) (emphasis added). Time Warner, however, argues that
Smith,
for example, involved an employee of the Domestic Relations Court in Hamilton County, Ohio who had a telephone conversation with Howard Wunker, a private citizen. The court employee told Wunker that he could arrange a “fix” in a divorce case pending in that court. Wunker recorded this conversation and released the recording to the local newspaper, which published the contents of the Smith Wunker conversation.
See Smith,
475 F.2d at 740-41. Smith sued both the newspaper and Wunker. The decision in
Smith,
a two-page per curiam opinion, primarily discusses Smith’s claim under the Federal Wiretap Law,
Because Wunker was the intended addressee/recipient of Smith’s telephone conversation and no “interception” of a communication was involved,
Bufalino
is also distinguishable. In that case, William Bufalino was a residential customer of a Michigan telephone company. Two company linemen were working on a telephone pole to transfer lines in a cable box.. Because one of the servicemen had incomplete information, he tried to call the office by connecting to an unknown
This court affirmed the dismissal of Bu-falino’s complaint, concluding that there was no intercepted communication involved.
Bufalino,
404 F.2d at 1027. Consequently,
Bufalino’s
statement that “[i]n order to constitute a violation of
In conclusion, we find no merit in Time Warner’s argument that NSS does not have standing to sue under
D. Time Warner violated the first sentence of
Time Warner next argues that the district court erred in holding Time Warner liable for violating
To start with, Time Warner argues that NSS had no proprietary right in the telecast that Time Warner was distributing. Essentially, according to Time Warner, an electronic
transmission
can be severed from the
content
of the material that is being transmitted. To support the view that
But
Goldman
actually supports the conclusion that the Communications Act was designed to protect the content of a transmission as well. In that case, federal agents used nonelectronic eavesdropping instruments to listen to conversations in an enclosed room by persons who were eventually indicted for conspiracy to violate the
What is protected is the message itself throughout the course of its transmission by the instrumentality or agency of transmission. Words written by a person and intended ultimately to be carried as so written to a telegraph office do not constitute a communication within the terms of the Act until they are handed to an agent of the telegraph company.
Id. at 133, 62 S.Ct. 993.
The above passage underscores the protection provided by
Both NSS and Time Warner had contracted with distributors authorized by Main Events for the right to obtain a transmission of the event on the night of December 16, 1996. The difference between their rights was that NSS contracted for the right to distribute the communication to commercial establishments, while Time Warner obtained the right to relay the communication to residential customers. As such, both parties had proprietary interests in the transmission of the content of the boxing match, regardless of the satellite transfers or encryptions that the transmissions underwent in the process.
Given that NSS had a proprietary interest in the transmission of the event, the next question is whether Time Warner “intercepted” that communication. We conclude that it did not. The Supreme Court has defined an interception for the purposes of
But the absence of an “interception” does not get Time Warner off the hook of
For the reasons previously discussed, however, this proposition is not a correct statement of the law.
Smith’s
holding is limited to an interpretation of the second
We are bound, however, to properly apply the first sentence of
When viewed in this light, we conclude that the district court did not err in holding that Time Warner violated the first sentence of
[e]ven assuming, as these defendants contend, that there was no “interception” here because [the bar] was “authorized” by [the residential distributor] to receive the Event on a pay-per-view basis, defendants still have violated the Act because they clearly were not authorized to then broadcast the Event to the patrons of a commercial establishment such as [the bar].... [T]he first and third sentences of [§ 605(a) ] do not ... require an “interception” of a cable transmission and clearly proscribe the unauthorized divulgence or use of communications which have been “received” legally for certain purposes.
Id. at 999.
A similar’ conclusion was reached in the unreported case of Joe Hands Promotions v. D.M.B. Ventures, Inc., Nos. CIV. A 93-2656, CIV. A. 93-3141, 1995 WL 328399 (E.D.La. May 31, 1995) (unpublished table decision). In Joe Hands Promotions, Cox Cable had the exclusive right to distribute a boxing match to its residential customers via pay-per-view programming, while Joe Hand Promotions had the exclusive right to distribute the event to commercial establishments. Just as NSS has sued Time Warner in the case before us, Joe Hand Promotions sued Cox Cable for providing the broadcast of the event to several commercial establishments that were erroneously receiving residential service from Cox Cable. See id. at *2. That court held as follows:
It is undisputed that Cox Cable received the pay-per-view event satellite signal, divulged the satellite signal via coaxial cable to three commercial establishments not authorized to receive the event, and that it received payment from the restaurants. These facts are sufficient to impose liability under the first and third sentences ofSection 605(a) .
Id. at *6.
We thus conclude that even though Time Warner did not intercept the communication in question, it nonetheless divulged the telecast of the event to an unauthorized addressee in violation of the first sentence of
We read the clause “no person not being entitled thereto” as referring to persons who were never authorized to receive the communication in question. Unlike the first sentence of
Time Warner does not fit within this definition, because it was contractually authorized to receive the communication of the event at its head end in Akron and to further relay that communication to its residential customers in the area. We therefore cannot agree with the district court that Time Warner violated the proM-bition enunciated in the third sentence of
Although Time Warner protests that this outcome results in a federal mandate of infallibility on the part of cable operators, we believe that Congress enacted the Commumcations Act and the subsequent amendments thereto to protect the integrity of electronic communications from negligent as well as willful divulgences by intermediaries.
E. The district court’s findings of statutory damages, attorney fees, and costs were not clearly erroneous
Finally, Time Warner challenges the district court’s award of $4,500 in statutory damages to NSS and its order for Time Warner to pay NSS’s attorney fees and costs in the sum of $26,389.65. It argues that the amount of damages was disproportionate, especially in light of what NSS’s measure of damages would have been under state contract law. The district court held a hearing in order to assess NSS’s damages and issued two separate memorandum opinions on this issue. It first determined the amount of damages according to its authority under
Time Warner’s basic argument is that the award is grossly disproportionate to any harm suffered by NSS. The district court, however, provided a detailed account of its findings of fact and conclusions of law with regard to the calculation of damages. Significantly, it found that Time Warner did not willfully violate the statute, and therefore the court did not impose any of the additional penalties provided by the statute for such a violation.
See, e.g.,
According to
We also find no error in the district court’s award of attorney fees and costs to NSS. Time Warner did not dispute the hourly rate charged by NSS’s attorneys as unreasonable. In addition, the district court disallowed the cumulative hours charged by a second NSS attorney that it felt should not be imposed on Time Warner. We therefore find no basis to set aside the award of attorney fees and costs to NSS.
III. CONCLUSION
In conclusion, we hold that NSS is not precluded from bringing this action against Time Warner, that NSS has standing to sue, and that NSS has established Time Warner’s violation of the first sentence of