REVISED MAY 2, 2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10485

J&J SPORTS PRODUCTIONS, INCORPORATED, as Broadcast Licensee of 

the December 8, 2007 “Undefeated”: Mayweather/Hatton Event,

Plaintiff - Appellee

v.

MANDELL FAMILY VENTURES, L.L.C., Individually and doing business as 

Greenville Avenue Pizza Company; SAMUEL J. MANDELL, III, Individually 

and doing business as Greenville Avenue Pizza Company,

Defendants - Appellants

Appeal from the United States District Court 

for the Northern District of Texas

Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.

HAYNES, Circuit Judge:

Defendants Mandell Family Ventures, L.L.C. and Samuel J. Mandell, III

(collectively, the “Defendants”) appeal the district court’s grant of summary 

judgment in favor of Plaintiff J&J Sports Productions, Inc. (“J&J”) on J&J’s 

Federal Communication Act (“FCA”) claims pursuant to 47 U.S.C. §§ 553 & 

605. We REVERSE and REMAND.

I. Background

This case concerns the live broadcast of the Floyd “Money” Mayweather, 

Jr. v. Ricky Hatton WBC Welterweight Championship Fight (the “fight”) on 

United States Court of Appeals

Fifth Circuit

FILED

May 2, 2014

Lyle W. Cayce

Clerk

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December 8, 2007. The rights to broadcast the fight were held by various 

entities, including Time Warner Cable (“TWC”) and J&J. TWC was granted 

the rights to broadcast the fight by means of pay-per-view to only those venues 

“not accessible to the public in general.” The agreement granting TWC these 

rights contemplated that TWC might inadvertently broadcast the event to 

“commercial subscribers” and provided for a liquidated-damages fee to be paid

by TWC under such circumstances. Conversely, J&J was granted the rights to 

broadcast the fight to only “commercial closed-circuit television exhibition 

outlets.”

Greenville Avenue Pizza Company (“GAPC”) is a restaurant in Dallas, 

Texas, which is owned by the Defendants. At all times relevant to this case, 

GAPC received commercial cable television services from TWC pursuant to a 

“Commercial Services Agreement.” On December 8, 2007, GAPC purchased 

the pay-per-view broadcast of the fight from TWC for $54.95 and displayed the 

fight in its restaurant during business hours. GAPC did not advertise the fight 

or charge an entry fee or any other fee to view the fight. Representatives of 

both GAPC and TWC attest that TWC authorized GAPC’s receipt of the

broadcast. A representative of TWC described the authorization as an 

inadvertent error on its part.1

On December 7, 2010, J&J initiated this action against the Defendants, 

alleging that they violated §§ 553 and 605 by receiving and displaying the fight 

without first paying a licensing fee to J&J. At the conclusion of discovery, J&J 

filed a motion for summary judgment, which the district court granted,

awarding J&J statutory damages of $350 and costs and attorney’s fees of 

$26,780.30. Defendants timely appealed.

1 For this error, TWC offered to pay J&J $2,000 in liquidated damages pursuant to 

TWC’s pay-per-view broadcast agreement.

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II. Standard of Review

Summary judgment is appropriate when “there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” 

FED. R. CIV. P. 56(a). We review a district court’s grant of summary judgment 

de novo, construing all facts and evidence in the light most favorable to the 

non-moving party. See EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 

615 (5th Cir. 2009). 

III. Discussion

J&J alleged below that the Defendants violated both §§ 553 and 605. 

While granting judgment in J&J’s favor, the district court refrained from 

deciding which of the two sections applied to the Defendants’ conduct, 

implicitly finding that J&J was entitled to judgment as a matter of law under 

at least one of the two sections. As explained more fully below, because we find 

a dispute of material fact exists as to J&J’s § 553 claim, we must determine 

whether § 605 applies to the facts of this case. We hold that it does not.

A. Whether § 553’s Safe Harbor Applies

Section 553(a)(1) imposes civil and criminal liability for “intercepting or 

receiving any communications service offered over a cable system.” 47 U.S.C. 

§ 553(a)(1) (2006). But it includes an essential exclusion, often referred to as 

a “safe harbor,” that precludes the imposition of liability on the majority of 

cable recipients—customers of cable providers. This exclusion constrains the 

reach of the statute by exempting from liability those individuals who receive 

authorization from a cable operator:

No person shall intercept or receive or assist in intercepting or 

receiving any communications service offered over a cable system, 

unless specifically authorized to do so by a cable operator or as may 

otherwise be specifically authorized by law.

Id. (emphasis added). 

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The Defendants maintain that they fall within this safe harbor. To 

support their argument, they provided evidence that GAPC (1) was a paying 

commercial customer of TWC; (2) paid a separate fee for the pay-per-view 

broadcast of the fight; and (3) was authorized by TWC, a cable operator,2 to 

receive the broadcast of the fight. J&J, however, contends that the Defendants’ 

conduct falls outside the safe harbor because, as the license holder for the 

closed-circuit broadcast of the fight, it did not authorize the Defendants’ receipt 

of the broadcast. The district court appeared to accept J&J’s contention, 

holding that J&J only had to prove “(1) that the Event was Shown in Greenville 

Avenue Pizza and (2) that J&J Sports did not authorize such exhibition of the 

Event.” 

We conclude that this ruling misconstrues § 553(a)(1). The text of the 

statute unambiguously states that liability extends only to the receipt of cable 

services not authorized by a cable operator. Therefore, in order for a cable 

customer to ensure that it is not criminally or civilly liable under § 553(a)(1),

it need only receive authorization from a cable operator for the cable services 

it receives. J&J’s argument, in essence, is that a cable customer who receives 

such authorization may still face liability under § 553 unless it takes the

additional step of ensuring that the cable operator itself is licensed to 

distribute the various broadcasts that the customer views.3 Interpreting the 

2 The parties do not dispute that TWC is a cable operator and that J&J is not. See 47 

U.S.C. § 522(5) (2006) (defining cable operator).

3 J&J frames the argument as follows: “Time Warner cannot give Appellants authority 

that Time Warner does not have.” See, e.g., J & J Sports Prods. v. Phelan, No. 08-CV-00486-

OWW-DLB, 2009 U.S. Dist. LEXIS 103626, at *24–25 (E.D. Cal. Nov. 5, 2009) (employing 

the same reasoning); Nat’l Satellite Sports, Inc. v. Time Warner Entm’t, 217 F. Supp. 2d 466, 

468 (S.D.N.Y. 2002) (same). While this concept has facial appeal, it is hard to imagine why 

a “safe harbor” would be needed in the situation J&J posits. Further, J&J is not left without 

a remedy as the unauthorized cable operator may itself be liable for its actions (as TWC

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safe harbor in this highly restrictive manner finds no support in the text of the 

statute. The statute does not hinge liability on the cable customer taking 

additional steps or the cable operator being licensed to distribute a broadcast: 

The exclusion from liability simply applies to those who receive authorization 

from a cable operator. See J&J Prods. v. Schmalz, 745 F. Supp. 2d 844, 851 

(S.D. Ohio 2010); see also Hartford Underwriters Ins. Co. v. Union Planters 

Bank, N.A., 530 U.S. 1, 6 (2000) (“Congress says in a statute what it means 

and means in a statute what it says there.” (citation and internal quotation 

marks omitted)). Moreover, applying the safe-harbor provision in the manner 

J&J advocates would expand liability under the statute to ends not 

encompassed by the text, holding liable cable customers who unknowingly 

receive broadcasts that the cable company was not licensed to distribute, even 

though they were authorized by the cable operator to receive the broadcast.

We interpret the statute in accordance with its plain language: liability 

under § 553(a)(1) does not extend to those who are “specifically authorized . . . 

by a cable operator” to receive a broadcast. 47 U.S.C. § 553(a)(1) (emphasis 

added); see Hartford Underwriters, 530 U.S. at 6 (“[W]hen the statute’s 

language is plain, the sole function of the courts—at least where the disposition 

required by the text is not absurd—is to enforce it according to its terms.” 

(citation and internal quotation marks omitted)).4 

acknowledged here by offering the $2,000 liquidated damages); the “safe harbor” protects 

only the innocent recipient, such as a small business like GAPC.

4 Because the language of the statute is plain, it is not necessary to consider the 

legislative history. See United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989). However, 

we note that J&J’s interpretation finds no support there either, as the legislative history 

suggests that Congress was concerned with the “theft of cable service,” including “obtain[ing] 

cable service without paying the installation and hook-up costs” and “gaining access to 

premium movie and sports channels without paying for the receipt of those services.” H.R.

REP. NO. 98-934, at 83 (1984), reprinted in 1984 U.S.C.C.A.N. 4655, 4720 (emphasis added). 

Here, the Defendants paid TWC for both the receipt of commercial cable service and the payper-view broadcast of the fight. There is no contention that the Defendants stole the 

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Even under this interpretation, J&J alternatively argues that TWC did 

not authorize the Defendants’ receipt of the broadcast of the fight because it 

was distributed by HBO, and the “Business Class Service Agreement” (“Service 

Agreement”) between GAPC and TWC included the following language:

Customer understands and agrees that premium program 

services, such as HBO, Cinemax, Showtime, and The Movie 

Channel, may not be received or shown on any television receivers 

located in any public areas, such as lounges, dayrooms, visiting 

areas, or other common areas used by groups or the general public, 

nor shall Customer authorize or approve any copying, taping or

duplicating thereof.5

However, this language does not unambiguously encompass this situation 

because the fight was not shown on a traditional HBO subscription channel, 

but was delivered via a pay-per-view broadcast that the Defendants requested 

and purchased separately from TWC.6 Additionally, other language in the 

broadcast of the fight; instead, TWC admits that it mistakenly distributed the broadcast to 

the Defendants in return for a fee. We find no indication in the legislative history that 

Congress sought to hold cable customers vicariously liable for the actions of cable operators

as J&J would effectively have us do here. Cf. id. at 84 (in regards to the definition of “assist 

in intercepting or receiving” in § 553(a), the House Committee on Energy and Commerce 

expressed that it “d[id] not intend a person’s clearly legal conduct to become illegal because 

of the actions of others about which such person had no knowledge”).

5 J&J also points to the following language in the Service Agreement: “As between the 

Parties, Customer is solely responsible for (a) all use (whether or not authorized) of the 

Service by Customer . . . .” This language is unhelpful to J&J as it simply acknowledges that 

some uses of the cable service may be authorized while some uses may not be authorized.

6 J&J cites to various district court cases that found lack of authorization based on a 

contract between a defendant and a different cable operator (primarily Comcast). These 

cases are distinguishable because, among other reasons, the contracts in those cases differ 

from the contract here. In particular, the Comcast contract specifically addressed pay-perview broadcasts of sporting events in addition to the premium program services that are 

mentioned in the TWC agreement. See, e.g., Joe Hand Promotions, Inc. v. Phoenix 

Promotions LLC, No. 10-15102, 2012 U.S. Dist. LEXIS 102534, at *3 (E.D. Mich. July 24, 

2012) (citing the language of the contract, which stated, “Comcast does not have the right to 

distribute pay-per-view video programming (including programming such as sporting events) 

and certain premium video services to commercial establishments. Therefore, Customer 

agrees that it shall not exhibit or assist in the exhibition of any such programming unless 

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Service Agreement suggests that TWC obligated itself to ensure that the 

services it distributed to the Defendants were authorized and made pursuant 

to the proper license: “As between the Parties, TWC will obtain and maintain 

at its own expense all licenses, approvals and regulatory authority required by 

law with respect to TWC’s operation and provision of the Services . . . .” 

The Defendants submitted uncontroverted affidavits by representatives 

of the two parties to the Service Agreement (TWC and GAPC) stating that

TWC authorized the receipt of the broadcast despite the language in the 

Service Agreement. The affidavits show that the Defendants did not steal, 

intercept, or obtain the broadcast under false pretenses. They further show 

that TWC: (1) was aware that GAPC was a commercial establishment holding 

a commercial cable account; (2) sold the broadcast of the fight to GAPC for 

$54.95; and (3) affirmatively delivered the broadcast of the fight to GAPC via 

pay-per-view broadcast.7 Most significantly, a Vice President of TWC averred

that “Greenville Avenue Pizza Company was authorized by Time Warner 

Cable to receive the broadcast on cable television of the [fight] on December 8, 

2007.”

In light of this evidence, there is at least a dispute of material fact as to 

whether the Defendants violated § 553. Accordingly, J&J failed to meet its 

summary judgment burden under § 553. See FED. R. CIV. P. 56(a). 

explicitly authorized to do so, in advance and in writing, by Comcast and the applicable 

program or event distributor.”).

7 In this regard, the facts of this case are almost identical to those in Schmalz, where 

the court found that J&J could not maintain a § 553 claim against a TWC commercial 

customer who received a pay-per-view broadcast of a boxing match that TWC was not 

authorized to distribute to commercial customers. See 745 F. Supp. 2d at 851 (“Defendants 

were listed as a commercial customer, ordered the program as a commercial customer, were 

billed and paid for such service, as commercial customers. At no time did Defendants 

misrepresent their status as a commercial customer.”).

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B. Whether § 605 Applies to the Defendants’ Receipt of Cable Services

J&J also sought summary judgment pursuant to § 605(a). The 

Defendants argued below, citing cases from our sister circuits, that § 605 was 

inapplicable because it prohibited only the unauthorized receipt of radio or 

satellite communications and the summary judgment evidence established 

that they received the fight via cable wire pursuant to TWC’s cable service.8 

See Charter Commc’ns Entm’t I v. Burdulis, 460 F.3d 168, 172–78 (1st Cir. 

2006); TKR Cable Co. v. Cable City Corp., 267 F.3d 196, 199–207 (3d Cir. 2001); 

United States v. Norris, 88 F.3d 462, 464–69 (7th Cir. 1996). The district court 

implicitly found that the Defendants were liable under either §§ 553 or 605, 

maintaining that it was unnecessary to decide whether § 605 applied. In light 

of this ambiguity, J&J argues on appeal that the district court’s grant of 

summary judgment may be upheld under § 605 because the broadcast of the 

fight originated via satellite transmission. See Int’l Cablevision v. Sykes, 75 

F.3d 123, 129–33 (2d Cir. 1996). 

Because of our ruling on § 553, we must determine whether the 

Defendants may be held liable under § 605, which does not contain the same

safe harbor exception. This is an issue of first impression for our circuit, and 

our sister circuits are not uniform in their approach. See Prostar v. Massachi, 

239 F.3d 669, 673 (5th Cir. 2001). We now join the majority of circuits in 

holding that § 605 does not encompass the conduct presented here: the receipt

or interception of communications by wire from a cable system.9 We conclude 

the plain language of the statute compels this interpretation. See Hartford 

8 It is undisputed that GAPC received the broadcast by wire from TWC’s cable system.

9 We specifically do not address how § 605 might apply to factual circumstances not 

present here, such as the receipt or interception of satellite or radio signals intended for 

receipt by a cable system.

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Underwriters, 530 U.S. at 6 (“[W]hen the statute’s language is plain, the sole 

function of the courts—at least where the disposition required by the text is 

not absurd—is to enforce it according to its terms.” (citation and internal 

quotation marks omitted)). 

The relevant portions of § 605(a) address only the unauthorized 

interception or receipt of radio communications:

No person not being authorized by the sender shall intercept any 

radio communication and divulge or publish the existence, 

contents, substance, purport, effect, or meaning 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 

(or any information therein contained) for his own benefit or for 

the benefit of another not entitled thereto.10

47 U.S.C. § 605(a) (2006). Radio communications are defined as “the 

transmission by radio of [communications] of all kinds, including all 

instrumentalities, facilities, apparatus, and services . . . incidental to such 

transmission.” 47 U.S.C. § 153(40) (emphasis added). Here, it is undisputed 

that the communications were not transferred to the Defendants by radio, but 

by cable, which makes them “communication[s] by wire” as that term was 

separately defined by Congress in the FCA. See § 153(59) (“‘[C]ommunication 

by wire’ means the transmission of [communications] of all kinds by aid of wire, 

cable, or other like connection between the points of origin and reception of 

such transmission, including all instrumentalities, facilities, apparatus, and 

10 The first sentence of § 605 refers to the divulgence or publication of “communication 

by wire or radio.” However, J&J does not argue that this sentence applies. This sentence is 

also not traditionally applied in the piracy context because it does not refer to the 

unauthorized interception or receipt of communications, and it is understood as “regulat[ing]

the conduct of communications personnel.” Edwards v. State Farm Ins. Co., 833 F.2d 535, 

540 (5th Cir. 1987); see also TKR Cable Co., 267 F.3d at 201; Norris, 88 F.3d at 465; Int’l 

Cablevision, 75 F.3d at 131 n.4; S. REP. NO. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 

2112, 2197.

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services (among other things, the receipt, forwarding, and delivery of 

communications) incidental to such transmission.”). Given that Congress 

clearly defined both radio and wire communications, it presumably would have 

included the word “wire” in the applicable sentences of § 605 if it intended for

them to apply to the communications at issue here. See Charter Commc’ns, 

460 F.3d at 172–73 (“[I]t is a general principle of statutory construction that 

when Congress includes particular language in one section of a statute but 

omits it in another section of the same Act, it is generally presumed that 

Congress acts intentionally and purposely in the disparate inclusion or 

exclusion.” (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002))).11

J&J argues, however, that § 605(a) applies to the Defendants’ receipt of 

wire communications because the definition for radio communications extends 

to “all instrumentalities, facilities, apparatus, and services (among other 

things, the receipt, forwarding, and delivery of communications) incidental to 

[radio] transmission[s],” and the broadcast of the fight originated as a radio 

communication prior to TWC retransmitting the broadcast by cable to GAPC.

§ 153(40) (emphasis added). While this interpretation has been adopted by the 

Second Circuit, see Int’l Cablevision, 75 F.3d at 131, we agree with the Third 

and Seventh Circuits that it “‘unacceptably blurs the line between radio and 

wire communications,’” which are separately defined terms that both refer to 

instrumentalities incidental to transmission of the communication. TKR Cable 

11 Moreover, the relevant sentences in § 605 previously referred to the receipt of 

“communication by wire or radio,” Communications Act of 1934, Pub. L. No. 73-416, § 605, 

48 Stat. 1064, 1103–04, but Congress later removed the references to wire communications. 

See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 

223. When making this change, Congress explained that “regulation of the interception of 

wire or oral communications in the future is to be governed by proposed new chapter 119 of 

title 18, United States Code” (which is now codified at 18 U.S.C. §§ 2510 et seq. and is 

inapplicable here because it does not encompass television broadcasts). 1968 U.S.C.C.A.N. 

at 2196. In other words, the legislative history suggests that Congress intentionally removed 

the word “wire” from § 605.

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Co., 267 F.3d at 202 (quoting Norris, 88 F.3d at 467); see also § 153(40), (59). 

Moreover, J&J’s interpretation ignores the plain meaning of the terms by 

“demand[ing] undue contortion of the phrase ‘instrumentalities [or] 

facilities . . . incidental to such transmission.’” TKR Cable Co., 267 F.3d at 202

(quoting § 153(40)). As the Third Circuit has recognized, “the entire cable 

transmission infrastructure of a city or suburban area, a structure that 

provides a foundation for a significant business, . . . cannot be considered a 

mere instrumentality to transmission.” Id.

The statutory framework of the FCA as a whole also confirms that § 605 

does not apply to Defendants’ receipt of cable communications. Section 553 

covers the interception or receipt of cable communications without mentioning 

radio communications, just as § 605 covers the interception or receipt of radio 

communications without mentioning cable communications. A logical reading 

of the two provisions reveals a clear demarcation whereby “[§] 605 deals with 

communications traveling through the air (via radio), [and] § 553 covers 

communications traveling over cable wire.” Charter Commc’ns, 460 F.3d at 

173. Applying § 605 as J&J requests would remove this demarcation and 

require us to assume Congress’s enactment of § 553 was largely superfluous—

a course that we decline to take. See id. at 176; TKR Cable Co., 267 F.3d at 

204; Norris, 88 F.3d at 468; see also United States v. Caldera-Herrera, 930 F.2d 

409, 411 (5th Cir. 1991) (“Where possible, statutes must be read in harmony 

with one another so as to give meaning to each provision.”).

Accordingly, based on the plain meaning of § 605 and the statutory 

framework of the FCA, we hold that § 605 does not apply to the Defendants’ 

receipt of communications by wire from TWC’s cable system.12 The district 

12 Although we need not examine the legislative history surrounding the FCA, we note 

that it simply confirms what is already evident from the text and statutory framework of the 

FCA. In particular, a prior version of § 605 referred to the receipt of wire communications, 

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court’s grant of summary judgment, therefore, cannot be maintained under 

§ 605 as J&J argues.

IV. Conclusion

Given our ruling, we need not reach the Defendants’ additional 

arguments against summary judgment.13 The grant of summary judgment is 

REVERSED, and the case is REMANDED for further proceedings consistent 

with this opinion.

but Congress removed the word “wire” when reenacting § 605 and enacted 18 U.S.C. §§ 2510 

et seq. to regulate the interception of wire communications. See supra note 11. This left a 

regulatory gap because the definition of wire communications in the newly enacted provisions 

did not encompass cable television broadcasts. See 18 U.S.C. § 2510(1); Norris, 88 F.3d at 

465–66. Section 553 was then passed to fill this void by prohibiting the unauthorized receipt 

or interception of cable services, which Congress observed was becoming a pervasive problem. 

See generally Charter Commc’ns, 460 F.3d at 176 (“Congress, in enacting § 553, was 

attempting to create a comprehensive regulatory regime covering the theft of all 

communications transmitted over a wire or cable—something that had largely been 

unregulated since the enactment of the Crime Control Act in 1968 and the removal of most 

references to ‘communications by wire’ from § 605.”); TKR Cable Co., 267 F.3d at 204 (“[T]he 

legislative history accompanying § 553 demonstrates that Congress drafted the provision to 

deter the newly emergent and previously unaddressed cable piracy . . . .”); Norris, 88 F.3d at 

466. In short, the legislative history suggests that § 553 was enacted specifically because 

§ 605 was inapplicable to wire communications.

13 Defendants’ additional arguments are: (1) that J&J lacked statutory standing 

because its license to broadcast the fight extended only to broadcasts in a “place of public 

assembly” where “consideration is charged or received,” and (2) that a two-year statute of 

limitations applies to J&J’s claims. Even were we to reach these arguments, the outcome of 

this appeal would be the same: the former argument, at most, highlights an additional 

dispute of material fact, and we are foreclosed from accepting the latter argument in light of 

Prostar, in which an earlier panel of this court held that a three-year statute of limitations 

applied to claims under §§ 553 & 605. 239 F.3d at 677–78; see Jacobs v. Nat’l Drug 

Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth Circuit rule of 

orderliness that one panel of our court may not overturn another panel’s decision, absent an 

intervening change in the law, such as by a statutory amendment, or the Supreme Court, or 

our en banc court.”).

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