DirecTV Inc. v. Forman

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 2, 2005
Charles R. Fulbruge III
Clerk
No. 04-20417
Summary Calendar
DIRECTV INC.,
Plaintiff-Appellee,
versus
JAMES RANDALL FORMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-1770
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
James Randall Forman appeals the district court’s order
granting summary judgment to DirecTV, Inc. in a suit filed under
47 U.S.C. § 605, 18 U.S.C. §§ 2511 and 2512, and TEX. CIV. PRAC.
& REM. CODE § 123.002 for the unauthorized interception of
DirecTV’s satellite signal. DirecTV alleged that Forman
purchased more than 40 pirate satellite decoding devices so that
he and his friends and co-workers could receive unauthorized
satellite television programming.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-20417
-2-
Forman argues, inter alia, that 1) the district court
erroneously granted summary judgment and determined the amount of
damages in violation of his right to have a jury determine any
damages, 2) TEX. CIV. PRAC. & REM. CODE § 123.002 does not apply to
the interception of satellite signals and that, even if it does
apply, the statute is preempted by the federal Copyright Act, and
3) 18 U.S.C. § 2511 applies only to electronic communications
transmitted through a wire or cable and does not apply to
satellite signals. Forman did not present these arguments in
opposition to summary judgment, and they are waived. See
Vaughner v. Pulito, 804 F.2d 873, 877 n.2 (5th Cir. 1986).
Forman also argues that there is no private right of action
available under 18 U.S.C. § 2512. Because the district court
agreed with this argument and did not refer to 18 U.S.C. § 2512in calculating damages, the argument is moot and we do not
address it. See DeFunis v. Odegaard, 416 U.S. 312, 316 (1974).
Forman argues that the district court miscalculated damages
based on the purchase of 47 devices when he actually purchased
only 42 devices. The record supports the district court’s
decision, and Forman has failed to show a genuine issue of
material fact. See Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994)(en banc). Although Forman also argues that
DirectTV’s notice of cross-appeal was untimely, we do not address
the issue because the cross-appeal has been dismissed on
DirecTV’s motion.
No. 04-20417
-3-
AFFIRMED.