(Update April 23, 2016) the below judgement survived a Motion to Alter or Amend with the court confirming the $1,000 damage assessment was appropriate.
One of the clearest trends when bars and other commercial establishments are sued for displaying UFC Pay Per View events without paying the proper commercial sub licencing fees is that the lawsuits that follow often seek maximum statutory damages and these are very rarely awarded.
Reasons for judgement were recently released by the US District Court, WD Kentucky, Lousiville Division, fitting this pattern. In the recent case (Joe Hand Promotions Inc v. Hernandez) Defendants were successfully sued for displaying UFC 143 in a restaurant witout paying the commercial sub licencing fees. Default judgement was obtained. The Plaintiff sought $110,000 in statutory damages but the Court only awarded $1,000 noting the case for more was ‘weak’. In arriving at this figure Senior District Judge Charles R. Simpson III provided the following reasons:
JHP seeks the maximum award of damages available under § 605 — $10,000 for the violation plus $100,000 in enhanced damages for willful conduct — in this case. 47 U.S.C. § 605(e)(3)(C)(ii). Its brief recites the standard “hit `em hard” rationale we see in most of these cases, seeking impressive awards to deter future violations. However, such significant sums are not warranted here.
The court concludes that an award of $1,000 in damages is appropriate and within the range of other awards ordered by this court. The court will decline to award enhanced damages as the plaintiff’s evidence is weak. Despite the fact that “Signals do not descramble spontaneously, nor do television sets connect themselves to cable distribution systems,” Time Warner Cable of New York City v. Googies Luncheonette, Inc., 77 F.Supp.2d 485, 489 (S.D.N.Y. 1999), the court will, in its discretion, decline to award enhanced damages for willful violation of § 605.Kingvision Pay-Per-View v. Langthorne, 2001 WL 1609366 (D. Mass. 2001).
The evidence offered by JHP, as gathered by its investigator on the night in question, was that
(1) The restaurant capacity was 120 patrons, but the investigator counted only 9, 11, and 14 patrons at the various times during his visit that he took a head count.
(2) There was no external advertising of the broadcast nor were there promotional materials in the establishment.
(3) There was no cover charge.
(4) The investigator made no mention of any fight-related food or beverage sales.
Thus there is little to establish a basis for an enhancement beyond damages awarded for the violation itself.
We would contrast this case with Joe Hand Promotions, Inc. v. Young, No. 5:09CV-157-R, a case from this district where it was established by JHP that a cover fee was charged, and food and drinks were sold to approximately 76 patrons on the premises. JHP was awarded $3,800 in statutory damages plus enhanced damages of $1,000 for what the court described as “clearly profiting” from the unlicensed broadcast. Such evidence has not been offered in this case to suggest that the violation was undertaken for purposes of commercial advantage or private financial gain. See, e.g., Young, supra. (willfulness found where establishment advertised in local newspaper that it would televise fight; showed fight on 17 television screens, and drew 76 patrons to premises). Enhanced damages are not warranted here.
A separate order and judgment will be entered in accordance with this opinion.
IT IS SO ORDERED.