DIRECTV, Inc. v. Minor

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 9, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-50793

DIRECTV INC,

Plaintiff-Appellant,

versus

RANDALL MINOR,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Texas

Before HIGGINBOTHAM, BARKSDALE, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

DIRECTV, Inc. (“DTV”) appeals the district court’s grant of

summary judgment on its claims for illegal interception of its

satellite transmissions in violation of 47 U.S.C. § 605(a) and 18

U.S.C. § 2511(1)(a), and for modification of a pirate access device

in violation of 47 U.S.C. § 605(e)(4). We vacate and remand.1

1
We heard oral argument in this case on May 11, 2005, with two related
cases, which are also issued today. See DIRECTV, Inc. v. Budden, No. 04-20751,
--- F.3d ---- (5th Cir. Aug. 9, 2005); DIRECTV, Inc. v. Robson, No. 04-30861, ---
F.3d ---- (5th Cir. Aug. 9, 2005).
 I

DTV is a nationwide provider of direct-to-home satellite

programming, including movie channels, sports, major cable

networks, and local channels. A typical DTV system consists of a

small DTV-compatible satellite dish, a DTV receiver, and a DTV

access card. Although DTV encrypts its transmissions to guard

against unauthorized access, numerous “pirate access devices”2 have

been developed to allow users to view DTV programming without

paying for it, usually by altering a valid access card.

Defendant Randall Minor is a professional network engineer and

website administrator, with a degree in computer information

systems in addition to post-graduate training. DTV first became

aware of Minor following its execution of a writ of seizure at a

mail shipping facility used by a device merchant named PC Ease.

Records acquired subsequent to the raids indicate that Minor

purchased a Vector Fusion Unlooper (“the unlooper”) from PC Ease in

April 2001. DTV claims that the unlooper has no commercially

significant purpose other than to modify DTV access cards, and that

its primary function is to gain unauthorized access to DTV

satellite programming. More specifically, the unlooper can be used

to alter or restore functionality to DTV access cards that have

2
See DIRECTV, Inc. v. Nicholas, 403 F.3d 223, 224 (4th Cir. 2005) (“pirate
access devices” are those devices “that can surreptitiously steal DIRECTV’s
transmissions”); DIRECTV, Inc. v. Brown, 371 F.3d 814, 816 (11th Cir. 2004)
(“pirate access devices” are those used “to circumvent this conditional access
technology and allow users to receive the satellite transmissions provided by DTV
without paying DTV any fees”); see also DIRECTV, Inc. v. Barnes, 302 F. Supp. 2d
774, 776 (W.D. Mich. 2004).

2
been disabled by misuse or by an ECM;3 it acts as a smart card

reader/writer, but with additional capabilities. Upon further

investigation, DTV discovered that Minor had a DTV dish installed

on the outside of his house. Minor is not a DTV subscriber.4

Minor claimed that he ordered the unlooper to prevent “[his]

son, kids, anybody in the family from accessing my [computer]

system when I wasn’t home.” He paid between $100 and $300 for it;

however, he claims that after he was unable to make the unlooper

work to secure his computer, and after he was unsuccessful in

soliciting help via telephone, he threw the device away.

As to the DTV dish, he claimed that he had “a company come in

and do . . . wiring . . . for telephone, cable[--]any possible

communications.” Minor later described this company as “just

workers in the area that needed some extra money.” In his

appellate brief Minor explained the dish as an improvement that

would increase the value of his home. Although Minor testified

that the dish was “to be used as an antenna” and that “[t]here’s a

round device over the top of it . . . that gathers reception for

local channels,” according to DTV, the satellite dish attached to

Minor’s house is incapable of functioning as an antenna to receive

3
In order to combat the proliferation of illegally modified access cards,
DTV periodically sends out electronic countermeasures (“ECMs”) embedded within
its satellite transmissions. ECMs detect and disable modified access cards,
sending them into an infinite “loop.” See Robson, No. 04-30861, at 4 n.4, ---
F.3d at ---- n.4.
4
DTV also produced evidence that at some point after the commencement of
suit Minor accessed a website that offers advice to would-be pirates.

3
local station broadcasts.

Before us are DTV’s claims against Minor for violations of the

Communications Act of 1934,5 as well as for violations of Title III

of the Omnibus Crime Control and Safe Streets Act of 1968 (Wiretap

Act).6 Specifically, DTV brought claims against Minor for illegal

interception of its satellite transmissions, in violation of 47

U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a), and for the illegal

modification of a device primarily used for piracy, in violation of

47 U.S.C. § 605(e)(4).7

The district court granted summary judgment to Minor on these

three claims.8 The court treated as dispositive its conclusion

that there was insufficient evidence to support a factual finding

that Minor intercepted DTV’s signal.9 DTV timely appeals.

II

We review a grant of summary judgment de novo, applying the

5
48 Stat. 1064, as amended (codified in relevant part at 47 U.S.C. § 605).
6
Pub. L. No. 90-351, tit. III, § 802, 82 Stat. 211, 212-23, as amended
(codified at 18 U.S.C. §§ 2510-2522).
7
The remaining claims are not at issue here. DTV previously dismissed its
claim for civil conversion and does not challenge the district court’s ruling
regarding claims per 18 U.S.C. § 2512 and TEX. CIV. PRAC. & REM. CODE § 123.002.

8
See DIRECTV, Inc. v. Minor, No. SA-03-CA-782-OG (W.D. Tex. Jun. 29,
2004).
9
See id. at 2 (“In order to prevail on these claims [under § 605(a) and
§ 605(e)(4)], Directv must prove that Minor received, assisted in receiving, or
intercepted DIRECTV’s proprietary satellite transmissions.”); id. at 5 (“Directv
has failed to meet its burden to raise a fact issue that Minor actually
intercepted and then divulged its communication.”); id. at 7 (granting summary
judgment on § 2511 claim because DTV “has failed to raise a fact issue that Minor
intercepted Directv’s signal”).

4
same standard as the district court.10 “Summary judgment is proper

when the pleadings and evidence demonstrate that no genuine issue

of material fact exists and the movant is entitled to judgment as

a matter of law.”11

The district court was obligated to “consider the evidence in

the light most favorable”12 to DTV as the nonmovant, and to “indulge

every reasonable inference from the facts” in favor of DTV.13 If

a movant alleges an absence of specific facts necessary for a

nonmovant to establish an essential element of its case, then the

nonmovant “must respond by setting forth ‘specific facts showing

that there is a genuine issue for trial.’”14 “After the nonmovant

has been given an opportunity to raise a genuine factual issue, if

no reasonable juror could find for the nonmovant, summary judgment

will be granted.”15

III

DTV urges that it presented sufficient evidence to forestall

10
See Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir.
2005); Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002); FED. R.
CIV. P. 56.
11
Pluet v. Frasier, 355 F.3d 381, 383 (5th Cir. 2004) (citing FED. R. CIV.
P. 56(c)).
12
Caboni, 278 F.3d at 451 (internal quotation marks and citation omitted);
see Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994).

13
Newport Ltd. v. Sears, Roebuck & Co., 6 F.3d 1058, 1064 (5th Cir. 1993).

14
Slaughter v. S. Talc Co., 949 F.2d 167, 170 (5th Cir. 1991) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
15
Caboni, 278 F.3d at 451 (citing FED. R. CIV. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)).

5
summary judgment on its claims for violation of § 605(a) and

§ 2511(1)(a). We agree.

Section 605(a) provides, in part, that

no person receiving [or] assisting in
receiving . . . any interstate or foreign
communication by wire or radio shall divulge
or publish the . . . contents . . ., except
[in authorized circumstances.] No person not
being authorized by the sender shall intercept
any radio communication and divulge or publish
the . . . contents . . . of such intercepted
communication to any person. No person not
being entitled thereto shall receive or assist
in receiving any interstate or foreign
communication by radio and use such
communication . . . for his own benefit or for
the benefit of another not entitled thereto.16

Section 605(e)(3)(A), in turn, provides a civil remedy for “[a]ny

person aggrieved by any violation of [§ 605(a)] or [§ 605(e)(4)].”17

Similarly, § 2511(1)(a) imposes criminal liability upon any

person who “intentionally intercepts, endeavors to intercept, or

procures any other person to intercept or endeavor to intercept,

any wire, oral, or electronic communication.”18 A civil action is

provided in § 2520(a): “[A]ny person whose wire, oral, or

electronic communication is intercepted, disclosed, or

intentionally used in violation of this chapter may in a civil

action recover from the person or entity, other than the United

States, which engaged in that violation such relief as may be

16
47 U.S.C. § 605(a) (emphasis added).
17
47 U.S.C. § 605(e)(3)(A).
18
18 U.S.C. § 2511(1)(a).

6
appropriate.”19

DTV’s claims per § 605(a) and § 2511(1)(a) hinge here upon

whether DTV has created a triable issue on the key element of

actual interception.20 While circumstantial evidence can serve this

end,21 we have cautioned that where “circumstantial evidence of

interception is confined largely to demonstrating the purchase and

possession of the devices at issue, rather than the use of those

devices to intercept DTV’s transmissions,” summary judgment may be

proper.22 In DIRECTV, Inc. v. Robson, we affirmed summary judgment

for the defendant where evidence was lacking as to other DTV

components--dish, receiver, and access card--and the quantum of

evidence added up to little more than purchase and possession.23

As we noted in Robson, there is “no civil action for merely

possessing or purchasing a pirate access device.”24

The evidence in the present case differs in that there is a

DTV dish on the roof of an individual who is not and has never been

a DTV subscriber. With the dish, then, comes the possibility of

surreptitious interception, recognizing that the other equipment is

19
18 U.S.C. § 2520(a).
20
See Robson, No. 04-30861, at 9; --- F.3d at ----.
21
See id.; Walker v. Darby, 911 F.2d 1573, 1578 (11th Cir. 1990).
22
Robson, No. 04-30861, at 11; --- F.3d at ----.
23
See id.

24
Id.; see id. at 11-12 (citing, inter alia, 18 U.S.C. § 2520(a); 18
U.S.C. § 2512(1)(b); DIRECTV, Inc. v. Treworgy, 373 F.3d 1124, 1129 (11th Cir.
2004)).

7
capable of being kept in secret; in Robson, evidence of such a

visible component--necessary for actual interception--was lacking.

Of course, whether or not Minor’s explanations for this particular

fixture are credible is not something we gauge here. Together with

his purchase of the unlooper, these facts are sufficient to raise

a question whether Minor used the unlooper to intercept DTV’s

transmissions. Indulging all reasonable inferences, we are

persuaded that the evidence here takes us sufficiently beyond

purchase and possession of the unlooper; that is, the admitted

purchase of the unlooper in conjunction with the DTV dish on the

home of this technically savvy non-subscriber creates a triable

fact issue on the key element of interception.

IV

DTV also argues that summary judgment should not have been

granted as to its claims under § 605(e)(4), per the corresponding

civil action provided for in § 605(e)(3)(A), for modification of a

pirate access device. We agree.

Section 605(e)(4) reads:

Any person who manufactures, assembles,
modifies, imports, exports, sells, or
distributes any electronic, mechanical, or
other device or equipment, knowing or having
reason to know that the device or equipment is
primarily of assistance in the unauthorized
decryption of satellite cable programming, or
direct-to-home satellite services, or is
intended for any other activity prohibited by
[§ 605(a)], shall be [criminally liable].25

25
47 U.S.C. § 605(e)(4) (emphasis added).

8
In its brief on appeal, DTV describes its claim for violation of

this provision as follows:

DIRECTV alleges that Minor violated 47 U.S.C.
§ 605(e)(4) by using a device called an
unlooper to illegally modify a DIRECTV access
card to enable the access card to decrypt
DIRECTV’s satellite transmissions.

The district court disposed of this claim based on its conclusion

that it was unsupportable absent a showing of actual interception,26

and we are persuaded that this was in error. Nothing on the face

of § 605(e)(4) requires interception, as it addresses “[a]ny

person” who engages in any of the listed activities, including

“modifi[cation].”27 Further, no interception is required for DTV

to qualify as “[a]ny person aggrieved” in order to bring a civil

action under the terms of § 605(e)(3)(A).28 The district court

cited a portion of § 605(d)(6)--which is a provision that provides

guidance as to “any person aggrieved”29--in reaching its conclusion

that civil claims brought for violation of § 605(e)(4) require

26
See supra note 9.
27
47 U.S.C. § 605(e)(4).

28
See 47 U.S.C. § 605(e)(3)(A) (“Any person aggrieved by any violation of
[§ 605(a)] or [§ 605(e)(4)] may bring a civil action in a United States district
court or in any other court of competent jurisdiction.”).
29
47 U.S.C. § 605(d)(6) provides:
[T]he 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, and,
in the case of a violation of [§ 605(e)(4)], shall also
include any person engaged in the lawful manufacture,
distribution, or sale of equipment necessary to
authorize or receive satellite cable programming.

9
actual interception.30 This implicitly treats § 605(d)(6) as an

exhaustive list of those who fit within the scope of “any person

aggrieved.” We rejected such a contention today in a related case

and need not plow the same ground here.31 We offer no opinion on

whether Minor’s alleged actions using the unlooper to alter a DTV

access card qualifies as “modifi[cation]”32 within the meaning of

§ 605(e)(4). We leave that to the district court to consider again

in the first instance. We further decline to address Minor’s

additional arguments raised for the first time on appeal.

V

For the foregoing reasons, we vacate the district court’s

summary judgment in favor of Minor. The evidence presented permits

a reasonable of inference of actual interception, as is required

for civil claims alleging violations of § 605(a) and § 2511(1)(a).

Actual interception is not required to sustain a § 605(e)(4) claim.

VACATED and REMANDED.

30
See Minor, No. SA-03-CA-782-OG, at 2.
31
See Budden, No. 04-20751, at 9-14, --- F.3d at ----; see also Robson,
No. 04-30861, at 24; --- F.3d at ----.

32
Cf. MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 225
(1994); United States v. Crawford, 52 F.3d 1303, 1309-10 (5th Cir. 1995); United
States v. Harrell, 983 F.2d 36, 37-39 (5th Cir. 1993).

10