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DON KING PRODUCTIONS/KINGVISION v. LOVATO

December 15, 1995

DON KING PRODUCTIONS/KINGVISION, Plaintiff,
v.
THEODORE O. LOVATO, JR., et al, Defendants.



The opinion of the court was delivered by: HENDERSON

 Plaintiff in the above captioned action filed suit under the Federal Communications Act seeking damages and injunctive relief in relation to defendants' alleged unlawful interception and broadcast of a championship boxing fight for which Plaintiff owned the exclusive California proprietary and distribution rights. Plaintiff has also brought related tort claims for conversion and intentional interference with prospective economic advantage. Pursuant to FRCP 12(b)(6), several named defendants thereafter moved the Court to dismiss three of the four counts alleged in the complaint. For the reasons discussed below, defendants motion is hereby DENIED.

 FACTUAL BACKGROUND

 Plaintiff Don King Productions/Kingvision owned the exclusive California proprietary rights to distribute, promote, and exhibit the Chavez v. Lopez championship boxing match ("Program"), which was broadcast nationwide on December 10, 1994, via closed circuit TV. Only those subscribers paying the subscription fee were entitled to receive and exhibit the fight in their commercial establishments. Plaintiff retained investigators to monitor various restaurants and bars in California to determine whether the establishments were receiving and broadcasting the Program in violation of plaintiff's exclusive licensing agreement.

 Plaintiff filed the instant action against those defendants which were unauthorized recipients of the program, and which broadcast the fight at their respective establishment for commercial gain. In its four-count complaint, plaintiff alleges causes of action based on violations of 47 U.S.C. § 605, 47 U.S.C. § 553, conversion, and interference with prospective economic advantage.

 LEGAL STANDARD

 Dismissal is appropriate under Rule 12(b)(6) when plaintiff's complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The Court must accept as true the factual allegations of the complaint and indulge all reasonable inferences to be drawn from them, construing the complaint in the light most favorable to the plaintiff. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Dodd v. Spokane County, 393 F.2d 330, 334 (9th Cir. 1968). Unless the Court converts the Rule 12(b)(6) motion into a summary judgment motion, the Court may not consider material outside of the complaint. Powe v. Chicago, 664 F.2d 639, 642 (7th Cir. 1981). The Court must construe the complaint liberally, and dismissal should not be granted unless "it appears to a certainty that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Intake Water Co. v. Yellowstone River Compact Comm'n, 769 F.2d 568, 569 (9th Cir. 1985).

 Rule 12(b)(6) dismissals are reviewed de novo by the appellate court, Lindley v. General Electric Co., 780 F.2d 797, 799 n. 4 (9th Cir. 1986), and are appropriate only in "extraordinary" cases. United States v. Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). Denial of a motion to dismiss is not a final judgement and is not generally appealable. Chelsea Neighborhood Ass'n v. United States Postal Service, 516 F.2d 378, 390 (2d Cir. 1976).

 DISCUSSION

 I. Count 2, 47 U.S.C. § 553(c)(1)

 In Count 2 of its complaint, plaintiff alleges that defendants have violated 47 U.S.C. § 553, by engaging in the unauthorized reception, interception and exhibition of the Program at their respective commercial establishments. Defendants move to dismiss on the dual grounds that (1) § 553 does not authorize plaintiff to bring a cause of action because it is not a "cable operator;" and (2) allowing plaintiff to bring an action under both § 553 and 47 U.S.C. § 605 (Count 1), would render § 553 redundant, a result, they assert, that Congress could not have intended.

 Defendants' contention that § 553 applies only to "cable operator[s]" contravenes the plain text of the statute, and they have offered no authority supporting their position. Section 553(a)(1) provides as follows:

 
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.

 (emphasis added). In addition, § 553(c)(1) permits "any person aggrieved by any violation of subsection (a)(1)" to bring a ...


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