1 We heard oral argumen t in this case on May 11, 2005, with two related

cases, which are also issued today. S ee 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). United States Court of Appeals

Fifth Circuit



## FILED

August 9, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 cou rt’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. 12 See DIRECTV, Inc. v. Nicholas

, 403 F.3d 223, 224 (4th Cir. 2005) (“pirate

access devices” are those dev ices “that can surreptitiously steal DIRECTV’s

tr ansmissions”); D IRECTV, 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 I

DTV is a nationwi d e 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 D TV programming without

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

Defendant Randall Minor is a professional network engineer and

website administrat or, with a degree in computer information

systems in ad dition to post-graduate training. DTV first became

aware of Minor following its execution of a writ of sei zure at a

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

Records acquired subseq uent 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 t o DTV

satellite programming. More specifically, the unlooper can be used

to alter or restore functionality to DTV access cards that have3 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 been disabled by mi suse or by an ECM; 3 it acts as a smart card

r eader/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 mo n ey.” 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 dev ice 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 receive5 48 Stat. 1064, as amended (codified in relevant part at 47 U.S.C. § 605).

6 Pub. L. No. 90-351, ti t. 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 T EX

. C IV

. P RAC

. & R EM

. C ODE § 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

h as failed to meet its burden to raise a fact issue that Minor ac tually

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 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 trans missions, 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 the10 See Boudreaux v. Swift Transp. Co. , Inc ., 402 F.3d 536, 540 (5th Cir.

2005); Caboni v. Gen. Motors Corp.

, 278 F.3 d 448, 451 (5th Cir. 2002); F ED

. R.

C IV

. P. 56.

11 Pluet v. Frasier

, 355 F.3d 381, 383 (5th Cir. 2004) (citing F ED

. R. C IV

. 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 Slaugh ter 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 F ED

. R. C IV

. P. 56(c); Celotex Corp. v.

Catrett , 477 U.S. 317, 322 (1986)).

5 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 fact s” in favor of DTV. 1 3 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 forestall16 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 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 forei g n

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

communi cation 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

pro cures 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 be19 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 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 evi dence 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 D IRECTV, Inc. v. Robson

, we affirmed summary judgment

for the defendant where evidence was lacking as to other DTV

comp onents--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 evidenc e 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 is25 47 U.S.C. § 605(e)(4) (emphasis added).

8 capable of being kept in secret; in R obson

, 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 wheth er 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 ha ve 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 electr onic, 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 se rvices, or is

intended for any other activity prohibited by

[§ 605(a)], shall be [criminally liable]. 2526 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 “an y 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

inc lude any person engaged in the lawful manufacture,

distribut i on, or sale of equipment necessary to

authorize or receive satellite cable programming.

9 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 decry p t

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 add resses “[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 term s of § 605(e)(3)(A). 2 8 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) require30 See Minor , No. SA-03-CA-782-OG, at 2.

31 See Budden

, No. 04-20751, at 9-14,

--- F.3d at ----; see also R obson

, No. 04-30861, at 24; --- F.3d at ----.

32 Cf. MCI Telecomms. Corp. v. Am. Tel. & Tel. Co.

, 5 12 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 actual interception. 30 This implicitly treats § 605(d)(6) as an

exhaustive list of those who fit within t he 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 distr ict 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.