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In a significant victory for satellite television providers, a federal appeals court has reversed a pair of lower court decisions and ruled that the Electronic Communications Privacy Act of 1986 provides a private cause of action for claims of piracy of encrypted satellite television broadcasts. In its 17-page opinion in DIRECTV Inc. v. Pepe, a unanimous three-judge panel found that U.S. District Judge Katharine S. Hayden of the District of New Jersey erred when she held that the statutory language of the ECPA and its legislative history showed that the law was not intended to provide a private right of action. Instead, Hayden found that DIRECTV’s only remedy against alleged pirates was under �605 of the Communications Act, which prohibits the unauthorized reception of radio or wire signals. Now the 3rd Circuit has ruled that Hayden’s analysis was flawed and that satellite television providers must be allowed to pursue claims against alleged pirates under both laws. Hayden had raised the issue on her own because none of the 15 defendants named in the two suits had presented any defense. The suits alleged that the defendants had purchased devices which enabled them to intercept and decode DIRECTV’s satellite transmissions that are known as “unloopers,” “bootloaders” and “emulators.” When lawyers for DIRECTV moved for default judgments, Hayden granted them, but only under the Communications Act. In an opinion, Hayden said she was concerned about “the magnitude of the damages requested,” and therefore took it upon herself to examine the two statutes DIRECTV was invoking. Hayden noted that most of the lawsuits filed by DIRECTV either settle or result in default judgments. “As a result,” Hayden wrote, “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.” Hayden concluded that the legislative history of the ECPA showed that Congress intended for the Communications Act to be the exclusive vehicle for satellite television providers to use. She also found 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, the ECPA may not be read to provide a cause of action for the unauthorized interception of satellite television broadcasts. But U.S. Circuit Judge Franklin S. Van Antwerpen disagreed, saying “the only conclusion to be drawn from the differing damages provisions is that courts should generally disallow double recovery.” Van Antwerpen, in an opinion joined by Circuit Judges Marjorie O. Rendell and D. Michael Fisher, noted that none of the defendants had filed briefs in the appeal, but that an amicus brief was filed by another group of defendants in other cases brought by DIRECTV, arguing that any decision by the 3rd Circuit to reverse Hayden’s rulings would affect their interests in their own cases. DIRECTV’s lawyers — Marc J. Zwillinger, Howard R. Rubin and Shane M. McGee of Sonnenschein Nath & Rosenthal in Washington, D.C. — argued that Hayden had erred in refusing to allow any claims under the ECPA. Van Antwerpen agreed, saying the “plain language” of the ECPA “compels us to conclude that private parties can bring a cause of action for damages and injunctive relief.” When two sections of the statute are read together, Van Antwerpen said, the intent of Congress to provide a private cause of action was clear. “Both sections reference the interception of electronic communications,” Van Antwerpen wrote. “The linguistic interlock between the two provisions could not be tighter, nor more obviously deliberate: Section 2511(1)(a) renders unlawful the unauthorized interception of electronic communications, including encrypted satellite television broadcasts, while Section 2520(a) authorizes private suit against those who have engaged in such activities.” Van Antwerpen noted that the ECPA established an explicit exception that bars claims related to “unencrypted” satellite transmissions. That provision would be rendered “meaningless,” Van Antwerpen found, if the law was also read to bar claims for encrypted transmissions. Van Antwerpen found that Hayden erred when she “singled out an excerpt” from the record of Senate debate on the ECPA to conclude that �2511(1)(a) does not authorize private suits. Hayden quoted Vermont Sen. Patrick Leahy’s comment that “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, and not by [the ECPA].” Van Antwerpen said courts are not bound by legislative history when the text of a statute is plain. But Leahy’s comment was also contradicted, Van Antwerpen found, by later comments from Sen. Charles Mathias in which he “took pains to state, several times even, that Section 705 of the Communications Act did not foreclose action under the ECPA.” And a debate in the House of Representatives, Van Antwerpen said, also showed that encrypted satellite transmissions are covered by both the Communications Act and the ECPA. “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,” Van Antwerpen wrote.

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