2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-27-2004

Kingvision v. 898 Belmont Inc

Precedential or Non-Precedential: Precedential

Docket No. 02-1770

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1

PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

 

No: 02-1770

 ____

KINGVISION PAY-PER-VIEW,

CORP., LTD.,

 Appellant

 v.

898 BELMONT, INC.,

d/b/a EL TORO BAR;

BERHANU DEGIFE

___________________

Appeal from the United States District

Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 01-cv-02970)

District Judge: Honorable Berle M.

Schiller

_______________

Argued on March 4, 2003

Before: ROTH, BARRYand FUENTES

CIRCUIT JUDGES

(Filed: April 27, 2004)

Francine R. Strauss, Esquire (Argued)

11917 Gainsborough Road

Potomac, MD 20854

Bradley H. Trushin, Esquire

Marcus W. Corwin, P.A.

7777 Glades Road, Suite 208

Boca Raton, FL 33424

Counsel for Appellants

Donald M. Moser, Esquire (Argued)

Washington West Building

235 South 8th Street

Philadelphia, PA 19106-3519

Counsel for Appellees

 

OPINION

 

ROTH, Circuit Judge:

Once again, we must determine

what statute of limitations to apply when a

federal statute does not specify a

limitations period. In this case, involving

the Federal Communications Act (FCA),

KingVision claims that defendants

exhibited a closed circuit telecast through

the use of an illegal decoding device. The

District Court applied the two year

limitations period of the Pennsylvania

cable piracy statute instead of the three

year limitations period of the Copyright

Act. We hold that the two year state

limitations period does apply to

KingVision’s FCA claims because the

Pennsylvania piracy statute is directly

analogous to § 553 of the FCA and neither
2

the “practicalities of litigation” nor federal

policy or law are frustrated by such

application. See North Star Steel Co. v.

Thomas, 515 U.S. 29, 34-35 (1995); Reed

v. Transp. Union, 488 U.S. 319, 327

(1989). Accordingly, we will affirm the

decision of the District Court granting

defendants’ Motion for Judgment on the

Pleadings and dismissing all claims against

defendants.

I. Facts and Procedural History

Plaintiff KingVision, a licensee of

sports programming, sued defendants 898

Belmont, Inc., d/b/a the El Toro Bar, and

Berhanu Degife, its owner and operator, in

the District Court for the Eastern District

of Pennsylvania under 47 U.S.C. §§ 553

(unauthorized reception of cable service)

and 605 (unauthorized publication or use

of communications), the “piracy statutes”

of the FCA, as amended by the Cable

Communications Policy Act of 1984. It is

uncontested that on March 13, 1999,

without KingVision’s authorization, the El

Toro Bar intercepted and broadcast the

Evander Holyfield/Lennox Lewis

champion ship boxing match and

“associated undercard bouts” to its

patrons. It is also uncontested that

KingVision did not provide defendants

with the decoding equipment or the

satellite coordinates necessary to receive

the signal, nor did KingVision receive a

sublicense fee or revenue from El Toro

Bar for patron admissions to the broadcast.

KingVision wrote to the El Toro Bar about

the unauthorized broadcast in April 1999

but failed to bring suit until June 2001.

Defendants filed an Answer and a Motion

for Judgment on the Pleadings on the

ground that the Complaint was filed after

the expiration of the two year state

limitations period applicable to the

Pennsylvania cable piracy statute, 18 Pa.

Con. Stat. § 910, as specified in 42 Pa.

Cons. Stat. § 5524(7) for actions not

otherwise subject to a specific limitations

period. 

The District Court applied the two

year statute of limitations of § 5524(7) and

dismissed KingVision’s claims as timebarred. KingVision Pay-Per-View, Ltd. v.

898 Belmont, Inc., No. 01-2970, 2002 U.S.

Dist. LEXIS 2275, at *8 (E.D. Pa. Feb. 13,

2002). On February 24, 2002, KingVision

filed a timely Motion for Reconsideration,

arguing that the Copyright Act more

closely parallels the piracy sections of the

FCA, so that the limitations period of the

Copyright Act should be applied instead of

the state limitations period. KingVision’s

motion was denied on March 8, 2002, and

this appeal followed.

III. Jurisdiction and Standard of

Review

The District Court had jurisdiction

to hear this case pursuant to 28 U.S.C. §§

1331, as it is a civil action arising under

the laws of the United States. We have

jurisdiction pursuant to 28 U.S.C. § 1291,

because the District Court’s February 14,

2002, order is final and appealable. 

We review de novo the District

Court’s dismissal of the case on statute of

limitations grounds. See Lake v. Arnold,

233 F.3d 360, 365 (3d Cir. 2000) 
3

IV. Discussion

Determining the statute of

limitations period for activity governed by

a federal statute is a question of federal

law. Nevertheless, as recognized by the

Supreme Court in North Star Steel Co. v.

Thomas, 515 U.S. 29 (1995), when a

federal statute fails to provide a statute of

limitations, a court should look to

analogous state statutes. The Court stated,

“our practice has left no doubt about the

lender of first resort. Since 1830, ‘state

statutes have repeatedly supplied the

periods of limitations for federal causes of

action’ when the federal legislation made

no provision.” Id. at 34 (citing Automobile

Workers v. Hoosier Cardinal Corp., 383

U.S. 696, 703-704 (1966)). The rule is

that “courts look to the state statute ‘most

closely analogous’ to the federal Act in

need.” Id.; Reed v. Transp. Union, 488

U.S. 319, 323 (1989); DelCostello v.

Teamsters, 462 U.S. 151, 158 (1983).1

The reason for this judicially-created rule

is that Congress has an “appropriate” and

“realistic” expectation that, given longstanding practice, courts will look to

analogous state statutes of limitations for

federal laws that do not provide them.

North Star, 515 U.S. at 34, 37 (Scalia, J.,

concurring). Thus, while courts are not

required to choose a state statute of

limitations period, they generally choose a

state limitations period “as a matter of

interstitial fashioning of remedial details

under the respective substantive federal

statutes.” DelCostello, 462 U.S. at 160. 

In North Star, the Supreme Court

notes two exceptions to this rule. First, 28

U.S.C. § 1658 provides a general, fouryear limitations period for federal statutes

passed after December 1, 1990, that do not

contain their own limitations period. Id. at

34 n.*. Section 1658 is not at issue here,

however, since the FCA was passed in

1934, and the Cable Communications

Policy Act amendments were passed in

1984. 

Second, a court may turn to a

limitations period provided within an

analogous federal statute when the state

limitations periods would “‘frustrate or

interfere with the implementation of

national policies’. . . or be ‘at odds with

the purpose or operation of federal

substantive law.’” Northstar, 515 U.S. at

34 (internal citations omitted). This

second exception is very narrow;

“reference to federal law is the exception,

and we decline to follow a state limitations

period only when a rule from elsewhere in

federal law clearly provides a closer

analogy than available state statutes, and

when the federal policies at stake and the

practicalities of litigation make that rule a

significantly more appropriate vehicle for

1

Lampf v. Gilbertson, 501 U.S.

350 (1991) articulates a slightly different

version of the rule for choosing

limitations periods when federal statutes

fail to specify them. In Lampf, the Court

considered the need for uniformity, the

“geographic character” of the claim, and

the “closest fit,” provided statutory

purpose and elements. Id. at 357-58. 

This expression of the rule is not

followed by the Court in North Star.
4

interstitial lawmaking.” Id. at 35 (internal

quotations omitted). 

In other words, if there is a parallel

state statute, there is no reason to explore

federal law, unless the state limitations

period impedes the implementation of

national policies, is at odds with the

purpose or operation of federal substantive

law, or is demanded by the practicalities of

litigation. See, e.g., Reed, 488 U.S. at 327

(“In light of the analogy between §

101(a)(2) and personal injury actions, and

of the lack of any conflict between the

practicalities of § 101(a)(2) litigation and

state personal injury limitations periods,

we are bound to borrow state personal

injury statutes absent some compelling

demonstration that ‘the federal policies at

stake’ in § 101(a)(2) actions make a

federal limitations period ‘a significantly

more appropriate vehicle for interstitial

lawmaking.’”) (quoting DelCostello, 462

U.S. at 172). However, as the Court

explained in DelCostello:

In some circumstances . . .

state statutes of limitations

can be unsatisfactory

vehicles for the enforcement

of federal law. In those

instances, it may be

inappropriate to conclude

that Congress would choose

to adopt state rules at odds

with the purpose or

o p eratio n of fe dera l

substantive law. 

462 U.S. at 161 (emphasis added). 

As we see then, under North Star,

Reed, and DelCostello, if there is an

analogous state limitations period, absent

any impediment of implementation of

national policies if that state period is

applied, courts are not required to examine

federal limitations periods. 

Following the standard established

in DelCostello, the Supreme Court has

applied state limitations periods to a

variety of claims, including claims under

the Worker Adjustment and Retraining

Notification Act (WARN), see North Star,

515 U.S. at 33-37; the Labor-Management

and Reporting and Disclosure Act

(LMRDA), see Reed, 488 U.S. at 323-34;

and § 1983, see Wilson v. Garcia, 471 U.S.

261, 266-80 (1985). DelCostello itself,

however, is an example of the type of

action in which a federal limitations period

is called for. There, the Court applied a

federal limitations period to a hybrid §

301/fair representation claim arising under

the National Labor Relations Act (NLRA),

462 U.S. at 151, 158-72. Again, in a

Racketeer Influenced and Corrupt

Organizations Act (RICO) claim, the

Court applied a federal limitations period

in Agency Holding Corp. v. Malley-Duff &

Assocs., Inc., 483 U.S. 143 (1987). 

Our review of DelCostello and

Malley-Duff demonstrates that the

Supreme Court examines statute of

limitations queries based on the type of

claim presented rather than on a case-bycase basis. NLRA and RICO cases are

two categories of the types of federal

statutes excepted from the general

application of state limitations periods.
5

The justification for applying the

exception in the DelCostello 301/fair

representation hybrid claim is evident.

While the § 301 component of the claim is

a straight contract claim for which there

were close state analogs, the fair

representation claim, which is a challenge

to private settlements under the collective

bargaining agreement, was without close

analog in state law. 462 U.S. at 165. It

was possible to apply the state arbitration

limitations periods to the hybrid claim, but

they are extremely short – only 10 to 90

days – and would allow insufficient time

for plaintiffs to complete necessary tasks

relating to the fair representation claim,

i.e., evaluating the adequacy of union

counsel, obtaining private counsel, and

framing the suit. Id. at 166. In addition,

the state arbitration statutes assume the

vacation of an award, but the arbitration in

DelCostello did not resolve the employee’s

claim against the union because the union

was acting as the employee’s

representative (and union counsel as

employee’s counsel). Id. at 167. In the

alternative, applying the longer six year

state contract limitations period to the

hybrid claim would have interfered with

the “rapid final resolution of labor disputes

favored by federal law.” Id. at 168. The

practicalities of litigating a hybrid claim,

as in DelCostello, distinguish that type of

case from the present one.

The RICO civil enforcement action

in Malley-Duff is a broader exception to

the state limitations rule. The Supreme

Court has articulated three points to

consider in determining whether, for

uniformity purposes, a court should adopt

a federal, rather than a state, limitations

period. First, a general preference for

uniformity, even if to avoid forum

shopping, is an insufficient reason to apply

the limitations period of the closest federal

analog. See, e.g., North Star, 515 U.S. at

36. The Court noted, in North Star, that

“the practice of adopting state statutes of

limitations for federal causes of action can

result in different limitations periods in

different States for the same federal action

. . . . But these are just the costs of the rule

itself . . ..” Id. 

Second, the desire to unify the

limitations periods of federal laws with

similar purposes is not a sufficient reason

to adopt federal limitations periods. For

instance, in Reed, the Court commented:

Respondents argue that the

same federal labor policies

that led us in DelCostello to

borrow the NLRA § 10(b)

statute of limitations for

hybr i d § 301/fai r

representation c laim s

likewise require that we

borrow § 10(b) for LMRDA

§ 101(a)(2) actions. This

argument lacks merit. It

fails to take seriously our

admonition that analogous

state statutes of limitations

are to be used unless they

frustrate or significantly

interfere with federa l

policies.

 
6

488 U.S. at 327 

Third, there is a difference between

uniformity in construing the substantive

elements of a statute in order to

characterize a claim for statute of

limitations purposes and the next step of

determining what limitations periods to

adopt for a particular type of claim. For

example, in Wilson, the Supreme Court

held that § 1983 claims should be

characterized uniformly as state tort

actions. The Court then determined,

however, that the length of the limitations

period is to be governed by state tort law.

471 U.S. at 268-271, 275-280. The Court

stressed that uniformity was an issue only

in the characterization of the claim, stating

“the statute [§ 1983] is fairly construed [as

a tort claim] as a directive to select, in

each State, the one most appropriate

statute of limitations for all § 1983 claims.

The federal interests in uniformity,

certainty, and the minimization of

unnecessary litigation all support the

conclusion that Congress favored this

simple approach.” Id. at 275. Thus, while

the Court embraced uniformity in

recognizing § 1983 claims as tort claims

for statute of limitations purposes, it did

not find that the limitations periods

themselves needed to be uniform. It is

only after this characterization of the type

of claim has been completed that the

DelCostello/North Star/Reed examination

is to be done to determine if there are no

analogous state statutes or if the state

limitations periods frustra te the

practicalities of litigation or are at odds

with federal purpose or law. 

We see then this process taking

place in Malley-Duff, the RICO case in

which the Court held that a four year

limitations period for Clayton Act civil

enforcement actions applies to RICO

actions and rejected the state “catch-all”

statute of limitations choice. 483 U.S. at

155-56. The Court is very careful in

Malley-Duff to distinguish its narrow

holding with regard to these RICO actions

from other limitations period cases. The

Court explained that uniformity is a greater

concern for RICO civil actions, since by

statute such actions require both a nexus to

interstate or foreign commerce and a

pattern of racketeering. Id. at 153; 18

U.S.C. § 1962(b), (c). Racketeering itself

often involves interstate transactions, since

it may include any of nine state law

felonies and over 25 federal statutes. Id. at

149 (citing A.J. Cunningham Packing

Corp. v. Congress Fin. Corp., 792 F.2d

330, 337 (3d Cir. 1986) (Sloviter, J.,

concurring)); 18 U.S.C. § 1961. 

The Court’s desire to limit its

holding in Malley-Duff is made clear in

North Star. The North Star court

distinguished Malley-Duff on the ground

that the event in North Star was a single

incident, “a plant closing,” a “mass layoff

at a single site of employment,” and it was

“relatively simple and narrow in its

scope,” 515 U.S. at 37 (internal quotations

omitted). The RICO claim in Malley-Duff,

on the other hand, is acknowledged as

requiring a nexus to interstate or foreign

commerce as a jurisdictional element as

well as an allegation of a pattern of

racketeering, which is likely to include
7

interstate transactions. Malley-Duff, 483

U.S. at 153-54. KingVision is correct that

cable piracy, like RICO claims, may

involve wide-spread and multiple

wrongful actions such as theft, tortious

interference with prospective advantage,

misrepresentation, civil conspiracy, and

unjust enrichment, but multiple, interstate

claims are not required as an element of

the cause of action under §§ 553 or 605 of

the Cable Act, nor are they at stake in this

case. 

Although the Supreme Court has

not yet been faced with the issue of the

limitations period to apply in FCA/Cable

Act piracy cases, the issue has arisen in

federal district courts and has been

addressed by the Fifth Circuit Court of

Appeals. As the District Court noted in

this case, federal district courts have

applied the federal limitations period under

the Copyright Act to FCA claims when the

only state law from which to borrow a

limitations period was a general

conversion law. We agree with the

District Court that “these cases do not

predict the proper outcome of the case at

bar involving a state statute narrowly

crafted to deter cable piracy.” 2002 U.S.

Dist. LEXIS 2275 at *8. It is not,

moreover, a requirement that a district

court, in picking an analogous state

limitations period, determine that every

state has such an analogous statutory

scheme – but only that the state whose law

is being applied has such a one.2

KingVision, however, relies on the

Fifth Circuit Court of Appeals’ decision in

Prostar v. Massachi, 239 F.3d 669 (5th

Cir. 2001) to argue for the application of

the federal limitations period of the

Copyright Act. We decline, however, to

follow the holding in Prostar. Although

the facts parallel those of the present case,

Prostar is distinguishable on the ground

that the applicable state law at issue, one

of general conversion, is not as close an

analog to the FCA as the Pennsylvania

piracy statutes.3 Further, the Prostar court

appears to conflate, or at least fails to

distinguish between, the need for

uniformity in construing the type of statute

for limitations purposes and uniformity in

the length of the limitations periods

adopted. See Wilson, 471 U.S. at 268-271,

275-280. The Prostar court states that the

FCA requires uniform enforcement via the

application of a federal limitations period

because “issues facing the cable industry

[are] national in scope.” 239 F.3d at 676

(citing H.R. Rep. No. 98-934, at 22 (1984),

reprinted in 1984 U.S.C.C.A.N. 4659,

2

In his concurrence in North Star,

Justice Scalia notes that the “closer

analogy” rule first announced in

DelCostello is “not only erroneous but

unworkable” because it can result in state

limitations applying in some states and

the federal statute in others. 515 U.S. at

37. We, however, will leave the

resolution of this dilemma to the

Supreme Court.

3We take judicial notice that

KingVision identifies New York and

Mississippi as other states without state

piracy analogs. 
8

4720-22). This conclusion, however,

simply does not follow. The national

concerns of the cable industry are relevant

only insofar as they are embodied in the

FCA. As a threshold matter, they are used

to characterize the claim for which a

statute of limitations period is then to be

applied. The violations of the Cable Act,

however, are particular acts which are

pursued in the locations where they occur

– as was done in the present case. The

localized violations – even if multiple –

are very different from the interstate

activity involved in RICO claims. 

Following North Star, we turn our

attention then to the Pennsylvania piracy

statutes. Their provisions mirror those of

the FCA. Section 3926 of the

Pennsylvania statute, like 47 U.S.C. § 605,

makes punishable by fine or imprisonment

the theft of certain wire services.

4

 It

allows an aggrieved service provider

“equitable or declaratory relief,

compensatory and punitive damages . . .

costs . . . and attorney fees.” 18 Pa. Cons.

Stat. § 3926(g). Section 910 is the state

companion statute to § 3926 and is the

state statute addressed by the District

Court. It focuses upon the use of devices

for theft of telecommunications services,

mirroring 47 U.S.C. § 553.5 KingVision

disputes the applicability of § 910, as it

deals with theft via a “device,” and it is not

clear that a “device” was used in the

present case to intercept the telecast.

Nevertheless, even though we do not know

the method of interception used at the El

Toro Bar, we can assume reception of the

Holyfield-Lewis fight was not the product

of mere serendipity. Further, while

KingVision is correct that § 910 speaks

about manuf acture of illega l

telecommunications devices and § 553

about improper interception of a

communication, § 910(e) defines

“manufac t u r e of an unlawfu l

telecommunication device” as using a

device to receive, transmit, or decrypt a

telecommunications service. 

The District Court is correct that §

910 provides “a remarkably close analog

to the Cable Act [§ 553].” 2002 U.S.

LEXIS 2275 at *6. As the court described,

§ 910, like 47 U.S.C. § 553:

(1)specifically prohibits use

o f an unlawfu l

telecommunications device

to decode “transmissions,

signals or services over any

cable television . . . .” 18 Pa.

4

Section 3926 pertains to wire

and radio services, and § 605 to

telecommunication and cable services.

5KingVision alleged violation of

both §§ 605 and 553 of the Cable Act. 

Section 605, however, does not apply in

the present case. See TKR Cable Co. v.

Cable City Corp., 267 F.3d 196 (3d Cir.

2001) (holding that “a cable television

descrambler does not facilitate the

interception of ‘communications by

radio’ and therefore the statutory

damages available under § 605 do not

apply here.”)
9

Cons. Stat. § 910(e)

(compare with 47

U.S.C. § 553(a)).

(2) provides for criminal

sanctions; prior convictions

under the Cable Act are

considered in grading an

offense. 18 Pa. Cons. Stat.

§ 910(b)(5) (compare with

47 U.S.C. § 553(b)).

(3) provides for civil

statutory sanctions of $250

to $10,000 per violation

absent evidence that the acts

were willful and for

purposes of personal

financial gain or commercial

advantage, in which case the

court may increase the

award of statutory damages

by no more than $50,000 per

violation. 18 Pa. Cons. Stat.

§ 910(d.1)(2)-(3) (compare

with 47 U.S.C. § 553(c),

especially part (c)(3)(A)(ii),

(c)(3)(B)). 

(4) provides for injunctive

relief, statutory or actual

damages, attorney’s fees,

and costs in almost identical

language as the FCA. 18

Pa. Cons. Stat. § 910(d.1)(1-

3), (d)(2)(iv) (compare with

47 U.S.C. § 553 (c)(2)-

(c)(3)(B)).

Consequently, we conclude that the

District Court did not err in holding that,

“because Section 910 is parallel in

substance and form to the Cable Act, it is

the ‘closer fit’ the Supreme Court

contemplated as the appropriate source

from which to borrow a statute of

limitations, precluding KingVision’s

proposed adoption of the Copyright Act’s

three-year period.” 2002 U.S. LEXIS

2275 at *8 (internal citations omitted).

Furthermore, this case does not

warrant the exception of applying a federal

limitations period where a state limitations

period “frustrates the practicalities of

litigation” or otherwise interferes with

federal policy or law. KingVision knew of

the alleged violation over two years prior

to commencing suit. In such a

straightforward and relatively simple suit,

it is difficult to imagine why a two year

limitations period would be inadequate.

See, e.g., North Star, 515 U.S. at 36

(holding that a two year limitations period

in a fairly straightforward WARN claim

was insufficient to “frustrate the

practicalities of litigation”). The Supreme

Court has turned to federal law for

limitations periods when a state limitations

period was too short to accommodate the

special circumstances of litigation, such as

investigation. See DelCostello, 462 U.S.

at 166 (holding that a state limitations

period of generally between 10 and 90

days was insufficient to bring a LMRA §

301/fair representation hybrid action).
10

There are no such special considerations

relevant to bringing CFA claims that

would be frustrated by a two-year

limitations period. Cf. Reed, 488 U.S. at

327-328n.4 (finding in the LMRDA

context that there was no indication that it

should take more than two years to identify

an injury and hire an attorney).

Additionally, the two year state

limitations period does not frustrate the

purpose or implementation of the FCA or

its Cable Act amendments. The overall

purpose of the FCA is to “regulat[e]

interstate and foreign commerce in

communication by wire and radio so as to

make available . . . to all the people of the

United States . . . a rapid efficient . . .

communication service with adequate

facilities at reasonable charges . . .. ” 47

U.S.C. § 151. More specifically, Congress

passed §§ 553 and 605 to prevent

unauthorized interception of cable

transmissions, including interception

through unauthorized use of decoding

devices. These policies and laws are not

impeded in the present case where

KingVision has had up to two years to

bring suit in order to deter theft and keep

the costs of services down. There is no

evidence that the practicalities of litigation

require more time. 

Conclusion

For the foregoing reasons, we will

affirm the judgment of the District Court,

dismissing KingVision’s Complaint.