author: ALAIMO, Chief Judge.

text:
    Frank B. HUBBY, M.D., Plaintiff, v. HISTORIC SAVANNAH FOUNDATION, INC.; Georgia Endowment For the Humanities, Inc.; Georgia Semiquincentenary Commission, Defendants.
    Civ. A. No. 483-066.
    United States District Court, S.D. Georgia, Savannah Division.
    Jan. 17, 1985.
    Frank B. Hubby, pro se.
    John Simpson, Savannah, Ga., Gregory Blount, Asst. Atty. Gen., Joseph Jacobs, James T. Langford, Atlanta, Ga., for defendants.
   ORDER

ALAIMO, Chief Judge.

. Presently before this Court are the motions of defendants, the Historic Savannah Foundation, Inc. (“HSF”), the Georgia Endowment for the Humanities, Inc. (“GEH”), and the Georgia Semiquineentenary Commission (“GSC”), for attorney’s fees and costs against plaintiff, Dr. Frank B. Hubby. Although originally brought as a request for a temporary restraining order, this action later was converted by plaintiff into a claim for more permanent equitable relief pursuant to 42 U.S.C. § 1983. These motions mark the postscript to the long, tedious and futile litigation conducted by Hubby in his pursuit for what he claimed to be vindication of his constitutionally protected right to be heard. Having been defeated at every point in his campaign, the time has come for Dr. Hubby to pay the piper.

The Court has read and considered the plethora of pleading materials and briefs which have come before it and has concluded that the motions should be sustained and that attorney’s fees and costs should be assessed against Dr. Hubby. What follows is an overview of the tortuous path followed by this two-year suit from its inception.

BACKGROUND

In February of 1983, HSF, a Georgia corporation formed under the laws of the State of Georgia, planned to hold several events in honor of the state’s semiquincentenary anniversary. Among these events were two “Colonial Town Meetings” to be held during “Georgia Week” in Savannah beginning Sunday, February 6, 1983, and ending Sunday, February 13, 1983. At these meetings, citizens of and visitors to Savannah were encouraged to meet and converse with actors cast as representative characters out of Georgia’s historic past. The invitations to these meetings indicated that such notable historical figures as James Oglethorpe, John Martin Boltzius and Samuel Nunes would be present to lead the meetings. The invitations made it quite clear that these meetings were to be limited to theatrical performances to be followed by a short and informal question- and-answer period.

In anticipation of these events, Dr. Hubby had prepared a statement which he desired to recite at one of the productions. His remarks were aimed largely at many of the contemporary problems confronting Savannah, at times with graphic specificity. Plaintiff offered a draft of his remarks to the producers of the “Town Meeting.” Apparently, plaintiff’s offer initially was accepted by certain unspecified employees of the defendants but then later rejected. The record makes certain, however, that although the organizational staff declined to include Dr. Hubby’s speech in either of the meetings, the defendants in no way barred plaintiff from participating in the open question-and-answer sessions following the presentation by the colonial actors.

After his request to deliver a speech at these Town Meetings had been officially rejected, Dr. Hubby filed a complaint with this Court on Friday, February 11, 1983, seeking a temporary restraining order. Plaintiff alleged that, by prohibiting him from delivering his speech, defendants abridged his First Amendment right to be free to express his views at the meetings. On Saturday, February 12, 1983, this Court held a special hearing in which Dr. Hubby was permitted to air his views in extenso. For forty-five minutes plaintiff conducted “an impassioned, eloquent, cohesive and appealing ... argument in which he set forth the substance of his suppressed speech— essentially, a political polemic on the sad state of the current local government, charged to be not only oblivious to but betraying the spirit of the founders of the Colony.” Order on Application for a Temporary Restraining Order, S.D.Ga. CV 483-066, at 4 (filed February 16, 1983). After hearing all the evidence, the Court entered its oral Order denying plaintiff’s complaint for a temporary restraining order. Id.

The final events of “Georgia Week” in Savannah ended the next day on Sunday, February 13, 1983. Nevertheless, plaintiff prosecuted his appeal during the following week to the United States Court of Appeals for the Eleventh Circuit for an emergency hearing on the denial by this Court of plaintiff’s request for extraordinary relief. On February 23, 1983, the Eleventh Circuit refused to disturb that denial of relief. Thereafter, plaintiff sought an emergency review by the United States Supreme Court, but his request was denied summarily by Justice Powell in a memorandum decision on March 3, 1983.

On March 7, 1983, plaintiff returned to this Court seeking equitable relief of a more permanent nature. More specifically, plaintiff requested a jury trial and oral argument on all motions brought pursuant to his complaint for injunctive relief filed February 11, 1983. In response, defendant GSC moved to dismiss plaintiff’s complaint on the following grounds: (1) the complaint failed to state a claim upon which relief could be granted; (2) the issues presented in this case were already mooted by the conclusion of the Georgia semiquincentenary celebration; and, (3) plaintiff failed to effect proper service of process pursuant to Fed.R.Civ.P. 12(b)(1). Defendants HSF and GEH each filed its own independent motion to dismiss, and the Court held a hearing on these motions on March 24, 1983.

On May 5, 1983, the Court denied defendants’ motions. In rejecting defendants’ mootness argument, the Court construed plaintiff’s pro se complaint liberally, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652, reh’g denied, 404 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972), and concluded that the plaintiff had requested more than the mere equitable relief identified by the defendants in their briefs. In fact, plaintiff had demanded that he receive “such other and further relief as this Court deems equitable and appropriate.” Plaintiffs Complaint at 5 (filed February 11, 1983). The Court interpreted this phrase to mean that plaintiffs prayer encompassed a claim for damages for the alleged infringement of his First Amendment rights and denied the defendants’ motions on this ground.

With regard to defendants’ Rule 12(b)(6) assertion, the Court applied the Conley v. Gibson, test in finding that plaintiff had offered a set of facts to support his claim that the “Colonial Town Meeting” was a public forum affording him a First Amendment right to express his views at the meeting. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80, 84 (1957). Finally, the Court rejected the defendants’ motion to dismiss based on inadequate service of process because plaintiff had corrected any deficiency which may have occurred.

Then, on August 15, 1983, after months of discovery, plaintiff moved this Court for leave to file an amended complaint so as to claim damages for violation of his civil rights under 42 U.S.C. § 1983. The Court granted plaintiff’s motion two days later on August 17. Two weeks later, on August 31, 1983, plaintiff again sought leave from this Court to amend his pleadings so as to name B.H. Levy, the Chairman of the GSC, as a codefendant. Finding that the addition of Levy to these proceedings at that point did not in any material way alter the posture of the case, the Court acceded to plaintiff’s request shortly thereafter. Order of September 6, 1983. On September 16, plaintiff sought leave for the third time to add as defendants all individual members of the above-named commissions and corporations. In this instance, however, the Court refused to permit the addition of the other 24 members of the Commission as defendants. Noting that plaintiff had brought his motion “on the very eve of scheduled pretrial conferences,” the Court stated that granting plaintiff’s motion “would.. .burden the defense with more than substantial preparation for trial.” Order of September 30, 1983, at 2. Furthermore, because discovery had been closed for some time by operation of Local Rule 7, the Court refused to “tolerate the haphazard disruption of its calendar to accommodate the unduly delayed pleading efforts of the plaintiff.” Id.

In the meantime, all the defendants moved this Court , for summary judgment and on October 4, 1983, the Court heard oral argument of these outstanding motions. In ruling on these motions, the Court addressed three issues: (1) whether the GSC or any of its members were involved in the “Colonial Town Meetings” in their official capacities sufficiently to characterize the meetings as being state action; (2) whether the GEH and the HSF, or their respective members, may be held liable under § 1983 for their actions during the Savannah meetings; and, (3) whether the presentation of the “Colonial Town Meetings” created a public forum supporting legal recognition of plaintiff’s First Amendment rights. Upon consideration of the various roles each defendant played in the presentation of the Town Meetings, the Court concluded that defendants were not acting pursuant to state direction, as an agent of the state or otherwise “under color of state law” when plaintiff’s request to give a speech at those meetings was denied. The Court further held that plaintiff suffered no denial of his civil rights under § 1983 because the Town Meetings did not present a constitutionally protected forum in which the plaintiff was guaranteed the right to exercise his First Amendment privilege to freedom of speech. More specifically, the Court found that the HSF had imposed permissible restrictions on the conduct of speech at the historical reenactment of a colonial town gathering by excluding those prepared remarks by the audience which were inconsistent with the theatrical nature of the presentation. Order of November 23, 1983, at 9-10; see also Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (a state may limit a private individual’s otherwise permissible First Amendment right to freedom of speech with reasonable restrictions as to the time, place and manner of presentation). Accordingly, on November 23, 1983, the Court sustained defendants’ motions for summary judgment.

On November 29, 1983, plaintiff filed a notice of appeal requesting a hearing en banc before the Eleventh Circuit Court of Appeals. On May 2, 1984, a panel of the Eleventh Circuit summarily denied plaintiff’s appeal and costs were taxed against him. On July 13, 1983, this Court made the judgment of the Court of Appeals the judgment of the Southern District of Georgia. Thereafter, Hubby’s petition for certiorari was denied by the United States Supreme Court.

In the interim, all defendants in this action moved the Court for an award of attorney’s fees and costs. Since that time, the parties have engaged in a seemingly endless colloquy producing more than thirty-five pleading materials on these and related issues. Having reviewed the entire record again, the Court now finds the matter ripe for disposition.

DISCUSSION

All three defendants have moved for a fee award pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. GEH has also prayed for an award of attorney’s fees against plaintiff acting as counsel. To reach this result, GEH invokes the Court’s inherent power to assess fee awards against counsel, see Roadway Express Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), and the statutory authority granted this Court under 28 U.S.C. § 1927. Finally, GEH has also requested enhancement of 50% in the calculation of any attorney’s fee it is owed.

The Court, having concluded that Dr. Hubby is liable for a fee award under § 1988, finds it unnecessary to determine plaintiff’s potential liability under alternative theories.

A. Dr. Hubby’s § 1988 Liability

The Civil Rights Attorney’s Fees Awards Act of 1976 provides federal courts with authority to grant prevailing parties in civil rights actions a reasonable attorney fee as part of the cost of litigation:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

42 U.S.C. § 1988. It has become well established that a prevailing defendant in a civil rights action may be awarded attorney’s fees only when the plaintiff's claim is “frivolous, unreasonable or without foundation, even though not brought in subjective bad faith.” Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421-22, 98 S.Ct. 694, 701, 54 L.Ed.2d 648 (1978); see also Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163, 173 (1980); Roadway Express, Inc. v. Piper, supra; Beard v. Annis, 730 F.2d 741 (11th Cir. 1984); B & J Music Inc. v. McAuliffe, 719 F.2d 1536 (11th Cir.1983); E.E.O.C. v. Pet Inc., Funsten Nut Division, 719 F.2d 383 (11th Cir.1983); Doe v. Bushbee, 634 F.2d 1375 (11th Cir.1982); Greyhound Lines, Inc. v. Cobb County, Georgia, 681 F.2d 1327 (11th Cir.1982); Church of Scientology of California v. Lazares, 638 F.2d 1272 (5th Cir.1981); Jones v. Dealers Tractor and Equipment Co., 634 F.2d 180 (5th Cir.1981); Harris v. Plastic Manufacturing Co., 617 F.2d 438 (5th Cir.1980); Crawford v. Western Electric Co., Inc., 614 F.2d 1300 (5th Cir.1980); EEOC v. First Alabama Bank of Montgomery N.S., 595 F.2d 541 (5th Cir.1979); Lopez v. Aransas County Independent School District, 570 F.2d 541 (5th Cir.1978).

The Christiansburg standard has been held applicable to claims arising under § 1988 for attorney’s fees. Jones v. Dealers Tractors and Equipment Co., supra; Crawford v. Western Electric Co., Inc., supra; Lopez v. Aransas County Independent School District, supra. See also S.Rep. No. 1011, 94th Cong., 2d Sess. 2, 2-4, reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5910-12. Defendants in this action are, therefore, entitled to an award of attorney’s fees if, without regard to the existence of subjective bad faith on the part of the plaintiff, the action initiated was “frivolous, unreasonable, or without foundation.”

In applying this standard, the Christiansburg Court admonished district courts to:

resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not prevail ultimately, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one’s belief that he has been the victim of discrimination, no matter how meritorious one’s claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.

434 U.S. at 422, 98 S.Ct. at 701, 54 L.Ed.2d at 657. Although acknowledging the need to deter meritless litigation, the Supreme Court nevertheless was concerned that assessing counsel fees against plaintiffs would “substantially add to the risks inherent in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII.” 434 U.S. at 422, 98 S.Ct. at 701, 54 L.Ed.2d at 657. Cf. Roadway Express, 447 U.S. at 752, 762, 100 S.Ct. at 2462, 65 L.Ed.2d at 488, 498 (prevailing plaintiff-defendant distinction “advances the Congressional purpose to encourage suits by victims of discrimination while deterring frivolous litigation.”)

Consistent with the Supreme Court’s admonitions, this Court in the past has been reluctant to exercise its authority under § 1988 to grant prevailing defendants counsel fees in civil rights actions. See, e.g., Daniels v. Motel Properties, Inc., et al, No. CV 283-195 (S.D.Ga., August 27, 1984) (Order denying attorney’s fees to prevailing defendants in a Title VII suit); Pasley v. The City of Jesup, Georgia, et al., No. CV 283-176 (S.D.Ga., August 7, 1984) (Order denying attorney’s fees to defendants in § 1983 action); Jones v. Gilman Paper Company, et al., No. CV 283-006 (S.D.Ga., July 12, 1984) (Order denying defendants a fee award in a Title VII suit). Unlike these cases, the record in the case sub judice provides overwhelming factual support for an award of fees against the plaintiff.

Dr. Hubby has struggled tooth and nail in his quest to be heard. He has endeavored to invoke nearly every channel of relief available to him, including a request for an emergency review by the United States Supreme Court and a rehearing en banc by the Eleventh Circuit Court of Appeals. His persistence has been undying and his determination as strong and as confident as when he issued his first diatribe before this Court on a Saturday morning nearly two long years ago.

Dr. Hubby, an undergraduate of Princeton and a graduate in medicine of the University of Virginia, is a highly intelligent professional man. His ingenuity is amply demonstrated by his ability to protract this lawsuit for as long as he did without any formal legal training or counsel. As an intelligent learned man, however, Dr. Hubby must have known that his quest to be heard could be pursued only at substantial cost. In fact, Dr. Hubby, as a practicing physician, is aware that professional services generally are rendered only for a considerable fee. While he proceeded pro se, and thus incurred no legal fees, his unwilling victims have expended a great deal of time, energy and money in the defense of this action.

Dr. Hubby blatantly has disregarded the cost of his litigious exercise to both the defendants and to society. Long after the time had passed when Dr. Hubby could have obtained the relief he sought—viz., injunctive relief requiring defendants to allow him to be heard at the Colonial Town Meetings—he nevertheless pressed on with his lawsuit. Construing plaintiffs complaint liberally, as the Court must in a pro se case, the Court permitted Dr. Hubby a reasonable period of time in which to initiate this action and conduct any necessary discovery. But, at every juncture along the way, plaintiff found ways to prolong the case, thereby creating even greater litigation costs.

Shortly after his complaint had been filed, it should have become clear to plaintiff that this action was “frivolous, unreasonable, [and] without foundation.” Plaintiffs complaint invited the Court to ignore reasonable restrictions on the conduct of speech at a theatrical reenactment of a colonial town gathering and hold that the defendants intended to create an open forum at those meetings. In granting defendants’ motion for summary judgment, the Court found that plaintiff “[had] not been foreclosed from presenting his views to the public; he merely was not allowed to interject them into a presentation of his own choosing.” Order of November 23, 1983, at 10.

In sum, it must have been apparent to Hubby shortly after the commencement of his claim that his pursuit was plainly an exercise in futility. Doubtless, his claim was “frivolous, unreasonable or without foundation” even though not brought in subjective bad faith.

For these reasons, the Court concludes it prudent in this case to award the defendants a reasonable fee pursuant to the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988. Defendants’ motion for attorney’s fees with regard to this statutory provision will, therefore, be granted.

B. Costs and Attorney’s Fees to be Awarded

1. Lodestar Analysis

The only issue which remains for the Court involves the computation of the costs and fees to be awarded to the defendants. In determining the amount of defendants’ fee award, the Court is guided by recent Supreme Court and appellate decisions construing the reasonable fee provision of § 1988. See, e.g., Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984); Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); see also Murray v. Weinberger, 741 F.2d 1423 (D.C.Cir.1984); Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir.1984); Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc).

In Hensley v. Eckerhart, supra, the Supreme Court held that any fee-setting inquiry must commence with the “lodestar figure,” an amount equal to the number of hours reasonably expended multiplied by a reasonable hourly rate. 76 L.Ed.2d at 50; accord Murray v. Weinberger, supra, at 1427; Copeland v. Marshall, supra, at 890-91. The number of hours reasonably expended on behalf of the prevailing party is the total amount of hours minus any unproductive time spent on unsuccessful claims—hours which are “excessive, redundant, or otherwise unnecessary.” Hensley, 103 S.Ct. at 1040, 76 L.Ed.2d at 51; Murray, supra, at 1427; Copeland, supra, at 891. The reasonable hourly rate may be determined according to the prevailing market rate in the relevant community. Blum, 104 S.Ct. at 1547, 79 L.Ed.2d at 901-03; Murray, supra, at 1427. According to the Supreme Court, this “lodestar figure” should produce “a fully compensatory fee” in any case in which “excellent results” were obtained. Hensley, 103 S.Ct. at 1941, 76 L.Ed.2d at 52. Accord Blum v. Stenson, 104 S.Ct. at 1058, 79 L.Ed.2d at 901 (the “ ‘product of reasonable hours times a reasonable rate’ normally provides a ‘reasonable’ attorney’s fee within the meaning of the statute [42 U.S.C. § 1988]”), citing Hensley v. Eckerhart, supra.

The Hensley Court also noted that the calculation of the lodestar “does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward — ” 103 S.Ct. at 1940, 76 L.Ed.2d at 51. In some cases of “exceptional success an enhanced award may be justified.” 103 S.Ct. at 1940, 76 L.Ed.2d at 52. Recently, however, the Supreme Court retreated somewhat in Blum v. Stenson, supra, stating that it is “the rare case in which an upward adjustment to the presumptively reasonable fee of rate times hours is appropriate....” 104 S.Ct. at 1550 n. 18, 79 L.Ed.2d at 903 n. 18.

The Blum holding exacts “a heavy burden on a fee applicant to justify any increase in the lodestar figure,” Murray, supra, at 1428; see Blum v. Stenson, 104 S.Ct. at 1548-49, 79 L.Ed.2d at 901 (the “burden of proving that such an adjustment is necessary to the determination of a reasonable fee is on the fee applicant”), and this burden is satisfied only if the applicant makes a specific claim for an upward adjustment based on a particular factor. 104 S.Ct. at 1548-49, 79 L.Ed.2d at 901. The United States Court of Appeals for the District of Columbia Circuit has construed the Blum holding to suggest that such claims “must be supported by ‘specific evidence’ of the need for an enhancement of the lodestar.” Murray, supra, at 1428. Thus, in Blum, the Supreme Court reversed a district court’s grant of an enhancement of the lodestar because the fee applicants had introduced “no evidence supporting an upward adjustment to fees calculated under the basic standard of reasonable rates times reasonable hours.” 104 S.Ct. at 1450, 79 S.Ct. at 901. See National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1323, 1328-29 (D.C.Cir.1982) (fee applicant must provide specific support for any upward adjustment of the lodestar rate which the applicant requests).

Should the district court determine that such an increase is warranted, then it may rely on such factors as the results obtained by the prevailing party, Hensley v. Eckerhart, 103 S.Ct. at 1940, 76 L.Ed.2d at 51, or any of the other twelve factors identified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974), in reaching the correct amount of fees to be awarded. Because this Court does not feel that such an enhancement is warranted in this instance, no adjustment to the lodestar will occur. Nonetheless, the Court has outlined the Johnson factors and has followed the procedural requirements mentioned in Matter of First Colonial Corp. of America, 544 F.2d 1291, 1298 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977); accord Fitzpatrick v. Internal Revenue Service, 665 F.2d 327, 331 (11th Cir.1982), in reaching the same conclusion.

2. Calculation of the Fee Award

Defendant HSF has prayed for an award of $14,136.05—$798.05 in costs and expenses and $13,338.00 (156 55/60 hrs. @ $85/hr.) in fees. Defendant GEH has requested an award of $15,756.59—$544.09 in costs and expenses and $15,212.50 (93.7 hrs. @ $75/hr. and 81.85 hrs. @ $100/hr.) in fees. Finally, defendant GSC has asked for a total of $5,962.45—$1,279.95 in costs and expenses and $4,682.50 (122.75 hrs. @ $30/hr. and 25 hrs. @ $40/hr.) in fees. The total amount defendants have requested is equal to $35,855.09.

Each defendant’s counsel has submitted several affidavits indicating the exact number of hours spent in preparation of the defense in the instant case. After reviewing those affidavits, this Court finds the time expended by counsel to be reasonable and appropriate for the preparation of an adequate defense. The Court is aware of no duplication of billable hours by defendants’ attorneys nor the inclusion of any nonchargeable hours in the number of hours requested. In adopting defendants’ hours as a basis for calculation of a fee award, the Court considers plaintiff’s vain efforts at prolonging this lawsuit. See copy of docket sheet attached hereto as Exhibit “A” showing the number of pleadings and Orders spawned by plaintiff. The Court will allow counsel for HSF to be compensated for 156 55/60 hours of service in defense of his client. Similarly, counsel for GEH will be awarded 175.55 hours of compensated time and counsel for GSC will be permitted 147.75 hours.

Defendants’ counsel have requested varying rates to be used in the calculation of the lodestar amount. HSF’s counsel asks for $85/hr., while counsel for GEH and GSC pray for bifurcated hourly rates of $75/hr. and $100/hr. and $30/hr. and $40/hr., respectively. There can be little dispute that attorney’s fees may range anywhere from $20 per hour to $300 per hour, depending on the location of the attorney’s practice, the nature and complexity of the lawsuit and the experience of the attorney. The Court finds that the prevailing market price for legal services in civil rights actions in this community does not exceed $85/hr. The fees will be calculated, therefore, within that limit.

The presumptively reasonable rate-times-hours fee in this case equals $34,627.34. Defendant GEH urges this Court to enhance the amount owed to it by 50%. GEH has not, however, presented to this Court any specific evidence of a justification for a fee adjustment other than the fact GEH did not have a specific budget for dispensing compensation for legal services received. Pursuant to the dictates of the Supreme Court in Blum v. Stenson, supra, and Hensley v. Eckerhart, supra, this Court shall not enhance GEH’s fee award.

Review of the remaining Johnson factors leads this Court to a similar result. Although recognizing that many of the factors may be subsumed indirectly in the lodestar calculation, the Court nevertheless has reached the following findings of fact;

Amount Involved and Results Obtained

Plaintiff sought damages in excess of $1,000,000 from defendants. The action was disposed of on summary judgment and the suit was found to be frivolous and without foundation in the law. In prevailing, defense counsel were both diligent and expeditious in securing an early termination of plaintiff’s claim.

Experience, Reputation and Ability of the Attorneys

All defendants’ counsel proved themselves to be very competent attorneys who have a substantial amount of expertise in this area of the law.

Novelty and Difficulty of the Questions

The issues presented involved neither complex factual findings of fact nor difficult or novel conclusions of law. The instant case developed no new legal theories or holdings.

Skill Required to Perform the Legal Service Properly

Defendants’ counsel have performed skillfully in preparing the necessary legal services for their clients. No unusual skill was required here.

Preclusion of Other Employment

Defendants, in their motions for attorney’s fees, presented no special circumstances with regard to this issue which requires an increase in the base amount already calculated.

Whether the Fee is Fixed or Contingent

Defendants’ counsel are compensated on an hourly rate. There was no contingency. Time Limitations

The case presented no special time limitations or pressures outside of the normal deadlines imposed by litigation.

“Undesirability” of the Case

Defendants have presented no evidence indicating that this factor is relevant in the calculation of attorney’s fees or costs.

Nature and Length of the Professional Relationship with the Client

Again, defendants have put forth no evidence warranting an increase in the base calculation.

Awards in Similar Cases

The award here comports with awards in other such cases.

CONCLUSION

After considering the Johnson factors, the Court finds that there shall be no enhancement in the lodestar figure to defendant GEH. Costs included, this Court awards defendant HSF the sum of $14,-136.05; defendant GEH the sum of $14,-528.84; and, defendant GSC the sum of $5,962.45. The sum total of this award is $34,627.34.

Accordingly, defendants’ motion for attorney’s fees is GRANTED and the Clerk of Court is directed to enter an appropriate judgment.

      . In contrast, prevailing plaintiffs in civil rights actions typically are permitted fee awards unless “special circumstances would render such an award unjust." Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1763, 1766 (1968) (class action brought under Title II of the Civil Rights Act of 1964, § 204(a), 42 U.S.C. § 2000a-3(a)). See also Roadway Express, supra, where the Supreme Court suggested that the distinction between plaintiffs and defendants "advances the congressional purpose to encourage suits by victims of discrimination while deterring frivolous litigation." Id. at 762, 100 S.Ct. at 2462, 65 L.Ed.2d at 498.

      . The Christiansburg Court noted that if "a plaintiff is found to have brought or continued ... a claim in bad faith there will be an even stronger basis for charging him with the attorney’s fees incurred by the defense." 434 U.S. at 421, 98 S.Ct. at 700, 54 L.Ed.2d at 657 (emphasis in original).

      . The Supreme Court in Hensley v. Eckerhart noted that many of the Johnson factors usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate. 461 U.S. at 435, 103 S.Ct. at 1940, 76 L.Ed.2d at 51, citing Copeland v. Marshall, 641 F.2d 880, 890 (D.C.Cir.1980) (en banc).

      . Prior to the recent Supreme Court decisions in Blum v. Stenson, supra, and Hensley v. Eckerhart, supra, the old Fifth Circuit Court of Appeals had suggested that district courts should pay special attention to four particular factors in the Johnson analysis when computing a fee award. See Copper Liquor, Inc. v. Adolph Coors Co., 624 F.2d 575, 585 (5th Cir.1978); Mitchell v. Scheepvaart Maatschappij Trans-Ocean, 579 F.2d 1274 n. 10 (5th Cir.1978); Matter of First Colonial Corp. of America, supra, at 1299-1300. Those factors, as listed in Johnson, are: (1) the time and labor required; (5) the customary fee; (8) the amount involved and the results obtained; and (9) the experience, reputation and ability of the attorneys. It may be, however, that these four factors are subsumed within the lodestar analysis developed by the recent Supreme Court decisions. See supra note 5.

      . See supra note 3.


source: Caselaw Access Project

author: STUART, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. David Richard WELLS and Billy Joe Worley, Jr., Defendants.
    Crim. No. 84-88.
    United States District Court, S.D. Iowa, C.D.
    Feb. 7, 1985.
    See also, 773 F.2d 230.
    Richard C. Turner, U.S. Atty., Joseph Beck, Asst. U.S. Atty., Southern District of Iowa, Des Moines, Iowa, for plaintiff.
    Patricia M. Hulting, Des Moines, Iowa, for defendant Wells.

      David C. Shinkle of Des Moines, Iowa, for defendant Worley.
   RULING AND ORDER

STUART, Chief Judge.

Defendants’ Motion to Dismiss came on for hearing before the Court on February 4, 1985. Following oral arguments by all parties, the Court, in a ruling from the bench, granted the motions. The plaintiff has requested that the Court set forth in writing the reasons for its ruling.

On December 19, 1984, a six-count indictment was handed down by the Grand Jury for the Southern District of Iowa against defendants David Richard Wells and Billy Joe Worley, Jr. Count 4 of the indictment charges both defendants with the knowing and intentional distribution of cocaine in violation of 21 U.S.C. Section 841(b)(1)(A). Count 5 of the indictment charges defendant Wells with carrying a firearm during the commission of a felony involving a substantial risk that physical force might be used, in violation of Title 18, U.S.C. Section 924(c), as amended by the Comprehensive Crime Control Act of 1984, then Pub.L. No. 98-473. Count 6 of the indictment charges the same violation against co-defendant Worley. At the time of the arrest, defendant Wells was searched and was found to be carrying a .380 Llama semi-automatic pistol, serial No. A07765. Co-defendant Worley was also searched and found to possess a .380 Llama semi-automatic pistol, serial No. A07872 and a .22 caliber Jennings semi-automatic pistol.

The defendants have moved to dismiss counts 5 and 6 of the indictment against them on the grounds that the offense charged in count 4 does not constitute a crime of violence. Secondly, the defendants contend that Title 18, U.S.C. Section 924(c), as amended, violates the due process clause of the fourteenth amendment and is unconstitutional because it is overly broad in scope and void for vagueness.

Subsection (c) of Section 924 of Title 18, as amended, reads in pertinent part as follows:

(c) Whoever, during and in relation to any crime of violence, ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence, be sentenced to imprisonment for five years ...

Chapter 1 of Title 18 of the U.S.Code was amended by adding the following:

Chapter 1, Section 16. Crime of violence defined.
The term “crime of violence” means:
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. Section 16 (See, Comprehensive Crime Control Act of 1984 amending Section 1001, Pub.L. No. 98-473 (October 12, 1984) as reprinted in 9A U.S.Cong. and Ad.News at 98 STAT. 2136 (Nov.1984).)

None of the parties contend that subsection (a), above, is applicable here. Plaintiff, however, asserts, and defendants dispute, that distribution of cocaine “is by its nature, when firearms are carried, a crime of violence involving substantial risk that physical force may be used.” In support of its position, plaintiff elicited testimony from a narcotics agent tending to show that law enforcement officers have occasionally recovered firearms in making drug arrests and have even been killed while conducting drug investigations.

From the evidence presented by plaintiff, the Court is persuaded that those responsible for the enforcement of our drug laws are exposed to a substantial risk of physical force when apprehending drug offenders. Section 924(c), however, requires a substantial risk of physical force in the course of committing the offense. This Court simply does not believe that the offense of cocaine distribution is, by its nature, a “crime of violence” within the meaning of Section 924(c).

Plaintiff argues that cocaine distribution, or any felony, involves a substantial risk of force when firearms are carried. This is clearly bootstrapping. To prove a violation of Section 924(c), three elements must be established: (1) the commission of a felony (2) that, by its nature, involves a substantial risk that physical force will be used, and (3) the use or carrying of a firearm during the commission of the felony. Under plaintiffs approach, the second element disappears. If this were the intention of Congress, the statute could easily have been so written.

Accordingly, the Court concludes that the offense of cocaine distribution is not a “crime of violence”, and defendants’ motions to dismiss will be granted.

IT IS SO ORDERED.


author: VELA, District Judge.

text:
    ENTERTAINMENT AND SPORTS PROGRAMMING NETWORK, INC., Heritage Cablevision of Texas, Inc., Home Box Office, Inc., and Southern Satellite Systems, Inc., Plaintiffs, v. EDINBURG COMMUNITY HOTEL, INC., d/b/a Echo Motor Hotel, Defendant.
    Civ. A. No. B-84-448.
    United States District Court, S.D. Texas, Brownsville Division.
    Feb. 15, 1985.

      Koppell Ezell Jackson, James S. Bates, P.C. & Powers by Michael R. Ezell, Harlingen, Tex., Frates Bienstock & Sheehe by Terry S. Bienstock, H. Mark Vieth, Miami, Fla., for plaintiffs.
    Glaser Griggs & Schwartz by Richard L. Schwartz, Dallas, Tex., and James S. Bates, P.C., by James S. Bates, Edinburg, Tex., for defendant.

       Publishers note: an amendment to this opinion will be subsequently published.

   FINAL JUDGMENT FOR PERMANENT INJUNCTION AND DAMAGES

VELA, District Judge.

This matter came before this Court on January 25, 1985 on Plaintiffs’ Motion for Preliminary Injunction. The Court has consolidated this hearing with the trial of the action on the merits pursuant to Rule 65(a)(2), Federal Rules of Civil Procedure.

Plaintiffs seek to enjoin the Defendant from unauthorized and willful interception, reception, exhibition and public performance of copyrighted and otherwise protected satellite-delivered audiovisual programming through the use of a satellite reception dish antenna at Defendant’s motor hotel, and a judgment for damages, attorneys’ fees and costs. The bases for relief are the Federal Communications Act of 1934, 47 U.S.C. § 605 [as amended 705(a)]; the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq.; the Lanham Act, 15 U.S.C. §§ 1051-1125; federal common law, and Texas statutory and common law.

This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1338 over the federal claims, and pendent jurisdiction of the state law claims.

The issues raised have been briefed and this Court has reviewed evidence and heard argument of counsel. The parties have stipulated to the operative facts in this action and have agreed to entry of this order and judgment. Upon this, the Court concludes that plaintiffs are entitled to permanent injunctive relief, damages and attorneys’ fees and costs, and hereby makes and enters the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Plaintiff, HERITAGE CABLEVISION OF TEXAS, INC., (“HERITAGE”), owns and operates cable television systems and is engaged in the business of acquiring exhibition and performance rights to programming, some of which is copyrighted, for distribution to its cable television systems, subscribers and authorized satellite antenna users. HERITAGE pays the originators of the programming for such exhibition and performance rights. HERITAGE is an authorized distributor of such television programming to customers through its local cable television systems in its franchised service areas, including Cameron, Willacy and Hidalgo Counties, Texas, and incorporated municipalities therein.

2. Plaintiff, ENTERTAINMENT AND SPORTS PROGRAMMING NETWORK, INC., (“ESPN”), produces a private, pay television entertainment service consisting primarily of sports programming, featuring amateur and professional events. Plaintiff, HOME BOX OFFICE, INC., (“HBO”), produces private, commercial-free pay television entertainment services called “Home Box Office” and “Cinemax”, consisting of movies, special events and sports programming, some of which, as with ESPN, it copyrights under the Copyright Law of the United States, 17 U.S.C. § 101 et seq.

3. ESPN and HBO acquire distribution and public display rights for motion pictures, sports events, and other audiovisual works from authors, producers, event organizers, or distributors, and distribute such assembled works in entertainment programming services. Each programming service distributes its programming to operators by transmitting its signals to a satellite. HBO and ESPN contract with subscription television operators to distribute their programming by means of either cable television, direct satellite reception, or microwave distribution service. Subscription television operators, including HERITAGE, pay a per customer subscription fee for the right to include the services in their cable transmissions. The operators receive the signal by means of satellite antennas or “earth stations”.

4. HBO has registered its trademarks and trade names in order to identify and distinguish its products from those of its competitors. ESPN is in the process of registering its trademark and trade name.

5. Plaintiff, SOUTHERN SATELLITE SYSTEMS, INC., (“SSS”), is an FCC-licensed resale common carrier which sells the signal of WTBS, a television broadcast station in Atlanta, Georgia, consisting of full-time sports, movies, variety and news. SSS contracts with local cable operators, including HERITAGE, which pay a fee for the right to receive the signal of WTBS via a satellite channel of communication.

6. Defendant, EDINBURG COMMUNITY HOTEL, INC., d/b/a ECHO MOTOR HOTEL, owns and operates the Echo Motor Hotel in Edinburg, Texas, which is within the franchised service area of HERITAGE. Defendant, in fact, had been a subscriber of HERITAGE, but discontinued the cable service and replaced it with reception by use of a satellite earth station.

7. HERITAGE transmits programming services acquired through coaxial cable to subscribers. HERITAGE is also an authorized distributor of services received directly by satellite antennas. As a cable system operator, HERITAGE provides a basic cable service to subscribers for a monthly fee. This basic cable service includes local broadcast channels, imported signals (distantly broadcasted television channels), and other satellite-delivered programming services, including ESPN and WTBS. Additionally, HERITAGE provides certain premium programming, including HBO and Cinemax, for which subscribers pay a fee in addition to their basic cable fee. HERITAGE pays copyright fees to the Copyright Royalty Tribunal and licensing fees to the program suppliers.

8. Through various contractual agreements, HERITAGE has acquired the right to exhibit, perform and retransmit programming services to its customers. HERITAGE has master contracts with program suppliers authorizing the distribution of programming throughout HERITAGE’S cable systems, although not all are currently being distributed by HERITAGE in south Texas. HERITAGE’S master contracts authorize it to distribute HBO, Cinemax, Galavision, ESPN, WTBS, Showtime, The Movie Channel, WGN, Playboy Channel, Cable News Network-Headline News, Reuters Ltd., Disney Channel, The Music Channel, CNN, Arts and Entertainment, Nickelodeon, U.S.A. Network, Nashville Network, The Weather Channel, MTV, Lifetime, CBN, and SIN. ’

9. The monthly charge paid by HERITAGE’S customers for the basic and premium programming is the primary source of revenue for HERITAGE’S cable systems. The fees paid by subscription television service operators, including HERITAGE, are the primary source of revenue for the entertainment programming service companies.

10. The programming service companies and HERITAGE, through its cable systems, provide their customers with services different from those provided by “free” standard broadcast television. The signals transmitted via satellite to HERITAGE, other cable system operators, and other fee-paying distributors are intended for use only by such companies’ paying customers, and are not transmitted for the benefit of or use by the general public.

11. Defendant has been and is engaged in the distribution of Plaintiffs’ programming, and has intercepted, received, exhibited, publicly performed and retransmitted for profit the audiovisual works of Plaintiffs through the use of a satellite dish antenna and related equipment installed on its premises.

12. Defendant’s interception, reception, exhibition, public performance and retransmission of the audiovisual works are made without the consent or license of the programming service companies, copyright owners, common carriers, or HERITAGE, an authorized distributor of such programming in the franchise area. No part of the proceeds received from Defendant’s patrons for viewing of the audiovisual works has been paid to any of the Plaintiffs.

13. Defendant’s acts are willful because its purpose and intent in receiving and exhibiting such audiovisual works is to profit by misappropriating the Plaintiffs’ rights to the programming and transmissions, while avoiding payment therefor. Furthermore, Defendant had been advised by the programming service companies that its activities are unauthorized and that it should immediately cease and desist. Defendant did not do so until after suit was filed, and then it received other satellite-delivered programming services for which HERITAGE has master contracts.

CONCLUSIONS OF LAW

SECTIONS 605 AND 705(a) OF THE FEDERAL COMMUNICATIONS ACT

1. Section 605 of the Federal Communications Act of 1934, 47 U.S.C. § 605, which has been amended and redesignated as 47 U.S.C. § 605(a) (effective December 29, 1984), prohibits any person from receiving or assisting another in receiving any nonpublic radio communication for his own benefit or for the benefit of another not entitled thereto.

2. The satellite transmissions embodying the audiovisual works of the Plaintiffs are protected communications under 47 U.S.C. §§ 605 and 705(a), because they are intended to be used only by those who use special reception equipment, and who are authorized and pay a subscription fee.

3. By virtue of their respective positions as purchasers and distributors of the audiovisual works, or as senders of private interstate communications, Plaintiffs have important economic interests in the integrity of the communications system by which they distribute the audiovisual works, i.e., the reception of such communications only by those persons who obtain appropriate authorization and pay the requisite fees.

4. First, it must be determined whether the Plaintiffs have standing to assert claims under 47 U.S.C. §§ 605 and 705(a). As senders of the subject satellite communications, HBO, ESPN and SSS are intended beneficiaries of the protections of the statute, and clearly have standing to protect their transmissions. Rainbow Programming Services Co. v. Patel, Case No. PCA 82-6009 (N.D.Fla.1982); Home Box Office, Inc. v. Advanced Consumer Technology, 549 F.Supp. 14 (S.D.N.Y.1981). Because the programming suppliers did not authorize Defendant to receive their transmissions, they have suffered injury in fact under the Communications Act.

5. HERITAGE, as an intended, authorized receiver of the subject programming, likewise has suffered injury in fact from Defendant’s violation of 47 U.S.C. §§ 605 and 705(a). HERITAGE has entered into master contracts with program suppliers for the purpose of distributing such programming through its cable systems. Because of its contractual rights to distribute the programming, HERITAGE has demonstrated important economic interests in protecting the integrity of the communications system which distributes the programming. National Football League & Miami Dolphins, Ltd. v. The Alley, Inc., Case No. 83-0701-CIV-JWK (S.D.Fla.1983); American Television & Communications Corp. v. Western Techtronics, Inc., 529 F.Supp. 617 (D.Colo.1982). The right to distribute programming and the payment for this right is sufficient to confer standing on HERITAGE. American Television & Communications Corp. v. Western Techtronics, Inc., supra. Thus, HERITAGE is a proper party to assert its right to prevent unauthorized reception of programming in which it has a proprietary interest and either currently provides or could distribute in the future. The legislative history of § 705 supports such standing. 1984 U.S. Code Cong. & Ad.News 4750.

6. Defendant’s conduct constitutes at least five different violations of Sections 605 and 705(a). First, the Defendant’s overall scheme of unauthorized interception of satellite transmissions and retransmission of such communications into guest rooms violates the first part of Sections 605 and 705(a) in that Defendant is “receiving ... (and) transmitting ... (a) communication ... (and) divulg(ing) or publish(ing) the ... contents ... through (un)authorized channels of transmission or reception.” Second, because neither HERITAGE, HBO, ESPN, nor SSS has authorized the Defendant to receive any satellite transmissions, Defendant violates the second part of Sections 605 and 705(a) in that it is not “authorized by the sender (to) intercept,” and yet it “divulge[s] or publishes] the ... contents ... of such intercepted communication” to its guests. Third, throughout the installation, testing, and continued use of an earth station to receive satellite transmissions for hotel and motel guests without authorization, Defendant has engaged in a pattern of activity amounting to reception and use of satellite transmissions “for [its] own benefit or for the benefit of another. not entitled thereto.” Fourth, Defendant’s retransmission of the intercepted satellite communications to its guests violates Sections 605 and 705(a) in that it “divulge[s] or publishes] the ... contents ... of such (intercepted) communication.” Finally, Defendant, by permitting its guests to view the programming, “assists (its guests) in receiving” communications to which they are not entitled.

7. Courts which have been presented with claims on behalf of program originators under 47 U.S.C. § 605 have enjoined the unauthorized interception of satellite communications. Pro Am Sports System, Inc. v. Larry Simone, Inc., 738 F.2d 440 (6th Cir.1984); National Football League & St. Louis Cardinals, Inc. v. Cousin Hugo’s, Inc., 600 F.Supp. 84 (E.D.Mo.1984) (Order and Preliminary Injunction); National Football League & Miami Dolphins, Ltd. v. The Alley, Inc., et al., 624 F.Supp. 6 (S.D.Fla.1983) (Memorandum Decision); Rainbow Programming Servs. Co. v. Patel, Case No. PCA 82-6009, (N.D. Fla. Jan. 18, 1982) (Memorandum Decision). In each case, the defendants intercepted satellite transmissions without the authorization or permission of the program originators or licensed distributors. In each case, the court held that the satellite transmissions did not fall within the exception of § 605 which permitted reception of transmissions for the “use of the general public.” The Court is not aware of any cases in the United States to the contrary.

8. The position of the Federal Communications Commission (FCC) is equally clear. In a public notice sent to earth station licensees, the FCC warned that some licensees of earth station facilities were unlawfully receiving and distributing satellite transmissions without authorization from the sender. F.C.C. Public Notice, Unauthorized Interception and Use of Satellite Transmission, October 3, 1978. See Regulation of Domestic Receive— Only Satellite Earth Stations, 74 F.C.C.2d 205 (1979). Finally, Congress has approved and incorporated into § 705(a) the decisional law interpreting § 605. See 130 Cong. Rec. H. 10439 (daily ed. October 1, 1984).

9. Moreover, courts that have examined other methods of unauthorized interception of subscription television transmissions have uniformly held that the sale or use of devices designed to intercept and receive over-the-air subscription television signals violates § 605. Movie Systems, Inc. v. Heller, 710 F.2d 492 (8th Cir.1983); National Subscription Television v. S & H TV, 644 F.2d 820 (9th Cir.1981); Chartwell Communications Group v. Westbrook, 637 F.2d 459 (6th Cir.1980); American Television and Communications Corp. v. Pirate T.V., Case No. 81-969-Civ-EBD (S.D.Fla.1983) (August 21, 1981 Order Granting Preliminary Injunction; May 19, 1983 Order Granting Summary Judgment on Liability and Entry of Permanent Injunction); United States v. Stone, 546 F.Supp. 234 (S.D.Tex.1982); American Television and Communications Corp. v. Western Techtronics, 529 F.Supp. 617 (D.Colo.1982); Home Box Office, Inc. v. Advanced Consumer Technology, 549 F.Supp. 14 (S.D.N.Y.1981); United States v. Westbrook, 502 F.Supp. 588 (E.D.Mich.1980); Home Box Office, Inc. v. Pay TV of Greater New York, Inc., 467 F.Supp. 525 (E.D.N.Y.1979).

10. This action does not fall within the exception to liability provided by 47 U.S.C. § 705(b) for private home viewing by an individual of satellite cable programming. The interception and receipt of satellite cable programming by a hotel and the retransmission of such programming to its hotel guests is not “private viewing” as defined 47 U.S.C. § 705(c)(4). Subsection (c)(4) defines private viewing as “viewing for private use in an individual’s dwelling unit by means of equipment, owned or operated by such individual.” The equipment used by defendant is neither owned nor operated by the individuals receiving the programming, nor is the programming received in the individual’s dwelling. To the contrary, the equipment was operated by the hotel for financial gain and commercial advantage.

11. As a direct and proximate result of Defendant’s acts, Plaintiffs have lost the revenue to be derived from the delivery and the exhibition of the programming to Defendant’s numerous hotel patrons, causing substantial and irreparable harm, including but not limited to, a loss of revenue and profits, damage to their goodwill and reputation, and loss of their right and ability to control and receive fees for the reception of their communications. Defendant’s conduct was, and is, willful and for the purpose of direct or indirect commercial advantage and for private and financial gain.

SECTIONS 106 AND 111(b) OF THE COPYRIGHT ACT

12. 17 U.S.C. § 106(4) and (5) provide that the owner of a copyright has the exclusive right to authorize the public performance and display of its copyrighted works. 17 U.S.C. § 101 defines “public performance” as the performance or display of a work to a substantial number of persons outside a normal circle of family or friends. A public performance also occurs when a work is transmitted with any device to the public for reception in separate places. The House Report on the Copyright Act makes explicit that performances to occupants of hotel rooms fall within the definition of a public performance. H.R. Rep. No. 94-1476, 94th Cong. 2d Sess. 64-65 (1976) U.S.Code Cong. & Admin.News 1976, pp. 5659, 5677, 5678.

13. Additionally, 17 U.S.C. § 111(b) provides that the secondary transmission to the public of a primary transmission is actionable as an act of infringement under Section 501 of the Act if the primary transmission is not made for reception by the public at large. The House Report on the Copyright Act of 1976 clearly contemplates that the secondary transmission of private copyrighted programming constitutes an infringement. According to the House Report:

[t]he secondary transmission to the public of the primary transmission embodying a performance or display is actionable as an act of infringement if the primary transmission is not made for reception by the public at large but is controlled and limited to reception by particular members of the public. Examples of transmissions not intended for the general public are background music services such as MUZAK, closed circuit broadcasts to theatres, pay television (STV) or pay cable.

H.R.Rep. No. 94-1476, 94th Cong. 2d Sess. 92 (1976), U.S.Code Cong. & Admin.News 1976, p. 5706.

14. 17 U.S.C. § 501(a) declares that “[a]nyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118 ... is an infringer of the copyright.”

15. Defendant, by means of its earth station, has for over two years intercepted the transmissions of HBO’s and ESPN’s copyrighted programming and has publicly performed and displayed such intercepted copyrighted motion pictures and other programming by showing it to patrons of its hotel. This conduct is without the authority or permission of ESPN or HBO, and violates their exclusive rights. Each performance transmitted at any one time by Defendant of Plaintiffs’ copyrighted programming is a separate infringement under the copyright law.

16. All courts that have addressed the issue agree. In National Football League & St. Louis Football Cardinals, Inc. v. Cousin Hugo’s Inc., 600 F.Supp. 84 (E.D.Mo.1984) (Order and Preliminary Injunction); National Football League & Buffalo Bills v. Big Play Restaurant, Civil Action No. 82-1293E (S.D.N.Y. Nov. 18, 1983) (Order of Preliminary Injunction), and in National Football League & Miami Dolphins v. The Alley, Inc., supra, (Declaratory Judgment and Injunction, entered September 16, 1983), the courts found that unauthorized interception and display of copyrighted satellite transmissions constituted copyright infringement. In each case, the games telecast were copyrighted by the National Football League. The unauthorized receivers of the programming were attempting to circumvent the N.F.L.’s “blackout” rule. The courts found that the defendants’ activities of displaying the programming in their bars and restaurants were public performances and thus were violations of the copyright holders’ exclusive rights under the Copyright Act.

17. Additionally, the Defendant has, as an incident to the public performance of copyrighted motion pictures and other programming, caused the secondary transmission of the primary transmissions of copyrighted programming owned by ESPN and HBO. Since the primary transmissions were controlled and limited to reception by particular members of the public by means of the distribution system described above, and because these acts were done without license or other permission from the copyright owners, each secondary transmission is an additional infringement of the copyright owners’ exclusive rights. 17 U.S.C. § 111(b).

18. Defendant’s willful acts of publicly performing and causing the secondary transmission of copyrighted works have infringed the copyright owners’ rights to the exclusive performance and display of their audiovisual works.

19. Defendant’s conduct does not fall within any exemption to either § 106 or § 111(b). A § 106 public performance of a work is not an infringement under § 110(5) if it is made by “a single receiving apparatus of a kind commonly used in private homes.” Since Plaintiffs’ transmissions can only be received by regular television sets equipped with special equipment not commonly used in a home, the exemption is inapplicable. See Conference Report, H.R. Rep. 94-1733, 94th Cong. 2d Sess. at 75 (1976) U.S.Code Cong. & Admin.News 1976, p. 5688. Furthermore, the exemptions in § 111(b) require an unaltered signal carriage of a broadcast transmission. Since Plaintiffs are not broadcast stations, the defendant is not required to carry the Plaintiff’s signals, and because the signals are altered by Defendant’s receiving equipment, the exemptions in § 111(b) are inapplicable.

20. Plaintiffs HBO and ESPN have sustained and will continue to sustain substantial injuries, losses and damages to their ownership rights, exclusive distribution rights, and copyrights of their programming. Through such willful acts of infringement, Defendant has not only gained unlawful profits, but has also damaged such copyright owners’ reputations and goodwill, and has deprived them of their substantial investment of financial resources, time and effort, and their right and ability to control and receive fees for the performance and display of their audiovisual works.

TRADEMARK INFRINGEMENT

21. The trade name and trademarks “HBO” and “HOME BOX OFFICE” are registered by the U.S. Patent and Trademark Office. Plaintiff HBO, as a trademark registrant, is a holder of the rights and privileges attaching thereto.

22. A trademark is infringed under 15 U.S.C. § 1114 when a person:

use[s] in commerce [a] reproduction, counterfeit, copy or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.

Exxon Corp. v. Texas Motor Exch. of Houston, Inc., 628 F.2d 500, 504 (5th Cir.1980); Armstrong Cork Co. v. World Carpets, Inc., 597 F.2d 496, 500 (5th Cir.), cert. denied, 444 U.S. 932, 100 S.C-t 277, 62 L.Ed.2d 190 (1979); Roto-Rooter Corp. v. O’Neal, 513 F.2d 44, 45 (5th Cir.1975). In assessing the likelihood of confusion, a variety of factors are considered. In Sun Banks of Fla., Inc. v. Sun Fed. Sav. & Loan Ass’n., 651 F.2d 311 (5th Cir.1981), the Court identified such factors as the:

type of service mark, similarity of design, similarity of service, identity of service facilities and customers, similarity of advertising media used, defendant’s intent and actual confusion.

Id. at 314.

23. Defendant infringed HBO’s trademarks and trade names when it displayed, during distribution of HBO’s programming in its place of business, programming within which the registered trademarks and trade names are prominently displayed. Defendant’s acts create a likelihood of confusion since the actual presentation of the programming bearing HBO’s trademarks not only uses similar marks, but uses the exact same marks registered to HBO. “[T]he law is established that falsely suggesting the existence of affiliation with a well-known business by usurping the latter’s goodwill constitutes both trademark infringement and unfair competition.” Volkswagenwerk Aktiengesellschaft v. Tatum, 344 F.Supp. 235, 237 (S.D.Fla.1972).

24. Defendant’s acts of appropriating the trademarks and trade names of Plaintiff HBO, and the display of its trademarks and trade names in connection with the exhibition, distribution, and advertising of HBO’s service in its motel, is likely to, and intended to cause confusion, mistake, and deception, thereby violating § 1114.

FEDERAL UNFAIR COMPETITION—LANHAM ACT

25. 15 U.S.C. § 1125(a) prohibits any person from using any false description or representation of any goods or services when such goods or services are caused to enter into commerce, and prohibits persons with knowledge of the falsity of such description or representation from causing or procuring said goods or services to be transported or used in interstate commerce.

26. Defendant has violated- 15 U.S.C. § 1125(a) by falsely inferring and describing that the entertainment programming services of the Plaintiffs HBO and ESPN were paid for and lawfully obtained, that the Defendant was authorized to receive and provide Plaintiffs’ services to their own customers, and that the Defendant was authorized by HBO and ESPN to receive tangible and intangible benefits from its hotel guests. Consequently, Defendant has unfairly competed with Plaintiffs ESPN and HBO. See Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368 (5th Cir.1977); Professional Golfers Assn. v. Bankers Life & Casualty Co., 514 F.2d 665 (5th Cir.1975); B.H. Bunn Co. v. AAA Replacement Parts Co., 451 F.2d 1254 (5th Cir.1971); Teledyne v. Windmere Prods., Inc., 433 F.Supp. 710 (S.D.Fla.1977); Volkswagenwerk Aktiengesellschaft v. Tatum, 344 F.Supp. 235 (S.D.Fla.1972).

27. As a result of Defendant’s misdescription and misrepresentations concerning Plaintiffs’ services, Defendant has caused Plaintiffs to suffer damages, including, but not limited to, a loss of subscription revenue from Defendant, the loss of business goodwill and the cost thereof, a dilution of product identity, exclusivity, and uniqueness, and a usurpation of Plaintiffs’ business opportunities with present and future customers.

STATE LAW CLAIMS

28. Since Plaintiffs have met their burden of demonstrating the Defendant’s violations of these federal laws, it is not necessary to reach the pendent state law claims asserted by Plaintiffs.

INJUNCTIVE RELIEF

29. Under 47 U.S.C. § 705(d)(3)(B)(i), this Court is specifically empowered to “grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain violations of subsection (a).” See 17 U.S.C. § 502(a); 15 U.S.C. § 1116. In order to obtain a preliminary injunction, the movant must generally establish: (1) a substantial likelihood of success on the merits; (2) a showing of irreparable injury unless the injunction issues; (3) proof that threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest. Productos Carnic, S.A. v. Central American Beef & Seafood Trading Co., 621 F.2d 683, 685 (5th Cir.1980); Compact Van Equip. Co. v. Leggett & Platt, Inc., 566 F.2d 952 (5th Cir.1978); Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 179 (5th Cir.1975). Where the other factors are strong, a showing of some likelihood of success on the merits will justify temporary injunctive relief, and even if the claim is compensable by damages, an injunction may issue to protect that remedy. Productos Carnic, 621 F.2d at 686. The requirements for a permanent injunction to issue, however, are not as stringent. Under Section 705, a movant need only prove a violation or a likelihood of a violation of § 705(a) occurring after December 29, 1984, in order to request an injunction under § 705(d)(3)(B)(i).

30. In the instant action, Plaintiffs have succeeded on the merits by virtue of this order, thereby satisfying their initial burden.

31. Defendant’s conduct has in the past and will if unrestrained, continue to cause irreparable injury to Plaintiffs in obtaining new customers and, controlling unauthorized interception and rebroadcast of their signals. Only an injunction will prevent the continued infringement of HBO’s and ESPN’s copyrights, as well as any infringements of HBO’s trademarks and trade names. Each injury will significantly damage the Plaintiffs’ ability to produce, distribute, obtain, and pay for programming suitable for cable television. The business goodwill, reputation, and substantial investment of each of the Plaintiffs in providing the programming services is diminished by Defendant’s activities. Furthermore, Plaintiffs are unable to detect or determine when Defendant’s establishment is receiving the programming services without payment, how long or often such services are received, or how long such unpaid interception will continue. Plaintiffs have no practical way of terminating or preventing Defendant’s interception and retransmission of the satellite programming.

32. Finally, Plaintiffs have no adequate remedy at law for such injuries, consisting of the loss of the value of their business investment, business opportunities, reputation, and goodwill, as well as the exclusive right to market and deliver the copyrighted works by cable transmissions in the service area, resulting in the loss of the value thereof, the benefits and profits to be derived therefrom, and of profits which may not be readily ascertainable by any legal measure of damages.

33. Numerous courts that have considered similar claims in the context of § 605 have consistently found that providers of subscription television services are irreparably injured by activities which encourage, assist, or amount to unauthorized interception of subscription television. The Sixth Circuit has recently declared that the refusal to grant a preliminary injunction in light of unauthorized reception of satellite transmission was error. Pro Am Sports System, Inc., v. Larry Simone, Inc., 738 F.2d 440 (6th Cir.1984).

34. Additionally, as noted in Home Box Office, Inc. v. Pay TV of Greater N.Y., Inc., 467 F.Supp. 525 (E.D.N.Y.1979), absence of justification for violation of clear statutory rights virtually eliminates any necessity for a showing of irreparable harm.

35. The same conclusion follows from the copyright claims. Irreparable harm is presumed when a copyright is infringed. Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1254 (3rd Cir.1983); Rice v. American Program Bureau, 446 F.2d 685 (2nd Cir.1971); American Metropolitan Enterprises v. Warner Brothers Records, 389 F.2d 903 (2nd Cir.1968); Encyclopaedia Britannica Educational Corp. v. Crooks, 447 F.Supp. 243 (W.D.N.Y.1976).

36. Unless Defendant’s actions are permanently enjoined, HERITAGE’S business faces serious economic damage because it depends primarily on the revenues generated by monthly service charges to recover the continuing costs of acquiring copyrighted and other program rights, of transmission facilities for the distribution of its services, of transmission cables and equipment, of employing sufficient personnel to install and maintain receiving equipment in good operating order, and other operating costs associated with the marketing and distribution of satellite-delivered programming. Similarly, the programming service companies face the loss of their investments and a reduction in revenue for the future acquisition, production, and distribution of audiovisual works. None of these costs are incurred by Defendant in its unlawful activities.

37. This Court additionally concludes that Plaintiffs have suffered damages, including attorneys’ fees and costs in the prosecution of this action. Plaintiffs have suffered compensatory damages in the amount of $40,000.00, including attorneys’ fees and costs.

Based upon the foregoing Findings of Fact and Conclusions of Law,

It is hereby ORDERED and ADJUDGED that this Court permanently enjoins Defendant and its partners, subsidiaries, affiliates, officers, agents, representatives, servants, employees, privies, and all persons in active concert and participation with them from:

A. Intercepting, receiving, appropriating, converting to their own use, or retransmitting, divulging or using any satellite-delivered transmissions of Plaintiffs’ programming or signals, or any satellite-delivered ' programming which HERITAGE makes or could make available to the public through its master contracts, without authorization from Plaintiffs;
B. Assisting, aiding, abetting, or conspiring with any person to intercept, receive, appropriate, convert, or retransmit, divulge or use Plaintiffs’ programming or signals, without their authorization;
C. Intercepting, receiving, appropriating, converting to its own use, or retransmitting or using any copyrighted works or programming transmitted in Plaintiffs’ satellite transmissions, without their authorization; and
D. Assisting, aiding, abetting, or conspiring with any person to intercept, receive, appropriate, convert or retransmit, divulge or use Plaintiffs’ copyrighted works, programming, or signals transmitted by satellite, without their authorization.

IT IS FURTHER ADJUDGED that Plaintiffs recover from Defendant the sum of $40,000.00 for compensatory damages, reasonable attorneys’ fees and costs.