Directv, Inc. v. Webb

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIRECTV, INC.,  Nos. 04-56847
Plaintiff-Appellee/Cross-Appellant,
04-56913
v.
 D.C. No.
SCOTT WEBB, CV-03-03399-SVW
Defendant-Appellant/Cross-
OPINION
Appellee.

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
October 16, 2006—Pasadena, California
Filed September 25, 2008
Before: Procter Hug, Jr., Harry Pregerson, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
13713
DIRECTV, INC. v. WEBB 13717
COUNSEL
Albert A. Zakarian (argued); Robert S. Apgood (argued),
CARPELAW, PLLC; for the appellant/cross-appellee Scott
Webb.
Howard Rubin (argued); Joshua G. Berman, Marc J. Zwil-
linger, Jacqueline Sadker, Sonnenschein Nath & Rosenthal
LLP; for the appellee/cross-appellant DirecTV, Inc.
OPINION
CLIFTON, Circuit Judge:
Scott Webb appeals the district court’s civil bench trial
judgment against him for piracy of satellite television signals
and modification of equipment used for unauthorized inter-
ception and decryption of satellite television signals. Based on
evidence of Webb’s purchase of satellite television hardware
and so-called “pirate access devices” used to enable the unau-
thorized reception of television programming, the district
court held that Webb intercepted the broadcast signal of
DirecTV, Inc. (“DTV”) in violation of 18 U.S.C. § 2511(1)(a)
and 47 U.S.C. § 605(a). In addition, the district court held that
Webb’s use of a pirate access device called an “emulator” to
modify legitimate DTV access cards for the purpose of unau-
thorized decryption constituted a violation of 47 U.S.C.
§ 605(e)(4).
Regarding the violation of 47 U.S.C. § 605(e)(4), our
court’s recent decision in DirecTV, Inc. v. Huynh, 503 F.3d
847 (9th Cir. 2007), resolved some of the issues raised in this
case. Huynh held that § 605(e)(4) does not apply to personal
use. Since Webb was held liable under that statute for modifi-
cation of equipment which he used himself, the portion of the
judgment holding him responsible for one violation of
13718 DIRECTV, INC. v. WEBB
§ 605(e)(4) must be reversed. Other violations of that statute
alleged by DTV were held by the district court to be barred
by the application of a one-year limitations period borrowed
from California law. DTV challenges the district court’s
selection and application of that one-year limitations period,
but we agree with the district court that the limitations period
is appropriately drawn from California law, such that other
potential claims against Webb for violation of § 605(e)(4) are
barred as untimely.
That leaves the violations of 18 U.S.C. § 2511(1)(a) and 47
U.S.C. § 605(a), which Webb challenges with several argu-
ments. We hold, among other things, that circumstantial evi-
dence of signal interception can be sufficient, and was
sufficient in this case, to sustain the claims, but that posses-
sion of multiple pirate devices does not in itself constitute
multiple violations of these statutes.
Applying those conclusions to this judgment, we affirm in
part and reverse in part, and we remand the action to the dis-
trict court.
I. Background
DTV is a provider of direct-to-home satellite broadcast pro-
gramming. Unlike cable television providers, which transmit
signals through fixed optical fibers or coaxial cables, DTV
delivers its signals via satellite directly into its customers’
homes. Customers pay for this service on a subscription or
pay-per-view basis. Like conventional radio and television
broadcasting, DTV’s signals are broadcast through the air and
can be received—or intercepted—by anyone with the proper
hardware. Thus, DTV encrypts its signals to protect against
signal theft.
To receive DTV’s signals in unscrambled form, an individ-
ual must have a hardware system consisting of a satellite dish,
a signal processor known as an “integrated receiver/decoder,”
DIRECTV, INC. v. WEBB 13719
and an “access card.” The access card is a “smart card” that
contains an embedded computer chip and memory, which,
when authorized, allows the integrated receiver/decoder to
process DTV’s signals for television viewing. The access card
is therefore critical to receiving usable signals from DTV. In
theory, the other hardware is of little use without an autho-
rized access card because that hardware cannot unscramble
DTV’s encrypted signals. In reality, so-called “pirate access
devices” exist that will simulate authorization. By using such
a device, a signal pirate can circumvent DTV’s encryption
technology and obtain unpaid access to DTV programming.
In December 1999, Scott Webb purchased a DTV televi-
sion hardware system. Webb received a “pending” account at
that time, which was legally incapable of decrypting DTV’s
transmissions because its access card was unauthorized pend-
ing account activation. Webb never activated this account and
did not pay DTV for its service. Instead, he bought fifty-seven
pirate access devices between August 31, 2000, and Decem-
ber 31, 2001.
DTV first learned of Webb in May 2001 as part of an
investigation into Internet purveyors of pirate access devices.1
The company filed suit against him on May 15, 2003, alleging
numerous acts of signal piracy and pirate access device modi-
fication and distribution in violation of 47 U.S.C. § 605(a), 47
U.S.C. § 605 (e)(4), and 18 U.S.C. §§ 2511-2512.2 Following
1
Webb claims for the first time on appeal that DTV learned of his signal
interception as early as January 25, 2001. That is the date Webb’s girl-
friend called DTV customer service to report a system malfunction linked
directly to signal piracy. We do not address the merits of this claim, how-
ever, because Webb failed to raise it before the district court. See United
States v. Si, 343 F.3d 1116, 1128 (9th Cir. 2003).
2
Although these statutes provide criminal penalties, this is a civil suit.
Both the Communications Act of 1934, 47 U.S.C. § 605 (2000), and the
Wiretap Act, 18 U.S.C. §§ 2511-2521 (2003), authorize civil remedies for
parties harmed by statutory violations. 18 U.S.C. § 2529(a); 47 U.S.C.
§ 605(3)(A).
13720 DIRECTV, INC. v. WEBB
a bench trial, the district court found that Webb was liable for
committing one act of unlawful signal reception in violation
of 47 U.S.C. § 605(a), fifty-seven acts of signal interception
in violation of 28 U.S.C. § 2511(1)(a), and one act of access
card modification in violation of 47 U.S.C. § 605(e)(4). The
court awarded DTV statutory damages of $1,000 for Webb’s
§ 605(a) violation, $10,000 for his § 605(e)(4) violation, and
$123,700 for 1,237 days (at $100 per day) of signal intercep-
tion in violation of § 2511(1)(a). The court also held that a
one-year statute of limitations barred other § 605 claims by
DTV against Webb. The court ordered equitable relief in the
form of an injunction prohibiting Webb from further viola-
tions, and awarded costs and attorneys’ fees in the amount of
$69,681.20. Webb moved to amend the findings and the
award of damages, or alternatively to receive a new trial, but
the court denied this motion. Both parties appealed.
II. Discussion
We review the district court’s conclusions of law de novo
and its factual findings for clear error. Idaho Potato Comm’n
v. G & T Terminal Packaging, Inc., 425 F.3d 708, 718 (9th
Cir. 2005). Under the clearly erroneous standard, the district
court’s findings must be upheld unless on review of all the
evidence we are “left with the definite and firm conviction
that a mistake has been committed.” Twentieth Century Fox
Film Corp. v. Entm’t Distrib., 429 F.3d 869, 879 (9th Cir.
2005) (internal quotations and citation omitted).
A. The Statutory Framework
Two federal statutes govern television signal piracy: the
Federal Communications Act of 1934 (“Communications
Act”), 47 U.S.C. § 605 (2000), and the Wiretap Act, 18
U.S.C. §§ 2511-2521 (2003). Neither Act originally addressed
television signal piracy, but amendments made to both stat-
utes in the 1980’s extended their reach to the unauthorized
reception or interception of television programming.
DIRECTV, INC. v. WEBB 13721
Concerned with “the theft of cable service,” Congress in
1984 amended and supplemented the Communications Act
with the Cable Communications Policy Act. See H.R. Rep.
No. 98-934, at 83 (1984), reprinted in 1984 U.S.C.C.A.N.
4655, 4720. The 1984 legislation retained § 605’s original
prohibitions without amendment in what became § 605(a).
Congress then added §§ 605(b)-(e) to curb “the growing prac-
tice of individuals taking down satellite delivered program-
ming for private, home viewing by means of privately owned
backyard earth stations.”3 1984 U.S.C.C.A.N. at 4745. In
1988, Congress again amended the Communications Act in
order “to deter piracy practices.” See The Satellite Home
Viewer Act of 1988, Pub. L. No. 100-667, § 205, 102 Stat.
3959-60. These amendments stiffened applicable civil and
criminal penalties, expanded civil standing to sue, and added
the provision now identified as § 605(e)(4), which prohibits
the manufacture, sale, modification, and distribution of pirate
access devices. H.R. Rep. No. 100-887(II) (1998), at 28,
reprinted in 1988 U.S.C.C.A.N. 5638, 5657.
The Wiretap Act underwent a similar evolution. While the
statute originally covered just “wire and oral communica-
tions,” Congress passed the Electronic Communications Pri-
vacy Act (“ECPA”) in 1986 to extend the Wiretap Act’s
protections to “electronic communications.” See Konop v.
Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002)
(citing Pub. L. No. 99-508, 100 Stat. 1848). Unlike the Com-
munications Act, it appears that Congress did not amend the
3
In § 605(a), Congress retained “the types of unauthorized publication
or use of electronic communications that ha[d] been prohibited since the
Communications Act first became law.” Nat’l Satellite Sports, Inc. v.
Eliadis, Inc., 253 F.3d 900, 911 (6th Cir. 2001). Section 605(b) provides
for limited exceptions to § 605(a). Section 605(c) prohibits the encryption
of “satellite delivered programs included in the National Program Service
of the Public Broadcasting Service and intended for public viewing by
retransmission by television broadcast stations.” Section 605(d) contains
definitions for the purposes of § 605, and finally, § 605(e) authorizes pen-
alties and remedies for statutory violations.
13722 DIRECTV, INC. v. WEBB
Wiretap Act with signal piracy specifically in mind. See
United States v. Lande, 968 F.2d 907, 913 (9th Cir. 1992)
(noting that “nothing in the legislative history of the ECPA
indicates particular concern about satellite pay television pira-
cy”). Nevertheless, since the passage of the ECPA amend-
ments courts have generally held that satellite television
transmissions are “electronic communications” within the
meaning of the Wiretap Act. See id.; DIRECTV, Inc. v. Pepe,
431 F.3d 162, 166 (3d Cir. 2005); United States v. Herring,
993 F.2d 784, 786-87 (11th Cir. 1993) (en banc); United
States v. One Macom Video Cipher II, 985 F.2d 258, 261 (6th
Cir. 1993); United States v. Splawn, 982 F.2d 414, 414-15
(10th Cir. 1992); United States v. Shriver, 989 F.2d 898, 904
(7th Cir. 1993); United States v. Davis, 978 F.2d 415, 417-20
(8th Cir. 1992).
B. 47 U.S.C. § 605(a) and 18 U.S.C. § 2511(1)(a)
The first two statutory sections under which the district
court found Webb liable were 47 U.S.C. § 605(a) and 18
U.S.C. § 2511(1)(a). These sections of the Communications
Act and Wiretap Act both address satellite television signal
piracy. Such piracy is illegal. We conclude that the district
court did not clearly err in finding that Webb violated these
sections.
[1] Section 605(a) of the Communications Act prohibits the
unauthorized receipt and use of radio communications for
one’s “own benefit or for the benefit of another not entitled
thereto.” 47 U.S.C. § 605(a). That section does not specifi-
cally reference satellite communications because, as discussed
previously, Congress put the prohibitions originally contained
in § 605 into § 605(a) without changing the substance of the
provision when it amended the Communications Act in 1984.
See Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900,
911 (6th Cir. 2001). When the original provision was written,
DTV and the business of direct-to-home satellite broadcasting
did not exist. Still, it is clear from the case law since the 1984
DIRECTV, INC. v. WEBB 13723
amendments that the “communications” protected by § 605(a)
include satellite television signals. See, e.g., Sosa v.
DIRECTV, Inc., 437 F.3d 923, 926 (9th Cir. 2006) (“By using
specialized smart card programming equipment, an individual
can gain unauthorized access to DIRECTV’s signal, in viola-
tion of . . . 47 U.S.C. § 605.”); Nat’l Satellite Sports, Inc., 253
F.3d at 911-12.
[2] Section 2511(1)(a) of the Wiretap Act also prohibits
signal piracy. That section makes it illegal to intercept “elec-
tronic communications,” including satellite television signals.
18 U.S.C. § 2511(1)(a); Lande, 968 F.2d at 913 (acknowledg-
ing that § 2511(1)(a) prohibits “the unauthorized viewing of
satellite pay television”).
Webb argues that the evidence was insufficient to support
the district court’s finding that he pirated DTV’s signals in
violation of these statutes. He points first to the lack of direct
evidence that he intercepted DTV’s signal and second to his
own testimony denying such a violation. Even under the clear
error standard that applies to findings of fact, he contends, a
finding that he intercepted signals cannot be sustained. We
disagree.
[3] The law does not require direct evidence to support a
factual finding. Circumstantial evidence may be sufficiently
persuasive. Signal piracy is by its nature a surreptitious ven-
ture and direct evidence of actual interception may under-
standably be hard to come by. See Walker v. Darby, 911 F.2d
1573, 1578 (11th Cir. 1990) (“Direct evidence may not have
been available based on the stealthiness of the invasion.”)
(internal quotation and citation omitted). For this reason,
courts have correctly concluded that direct evidence of signal
piracy is not required to prove unlawful interception. See, e.g.,
DIRECTV, Inc. v. Robson, 420 F.3d 532, 537 (5th Cir. 2005)
(“Circumstantial evidence can support a finding that a com-
munication was intercepted, even absent direct evidence.”);
Walker, 911 F.2d at 1578.
13724 DIRECTV, INC. v. WEBB
[4] Evidence that a person possessed a pirate access device,
by itself, may not be enough to infer actual interception of a
signal. See DirecTV, Inc. v. Treworgy, 373 F.3d 1124, 1129
(11th Cir. 2004) (finding no “private right of action against a
person who possesses a device” in violation of the Wiretap
Act); Robson, 420 F.3d at 540-42 & nn.36-37 (collecting
cases). These devices may assist in the unauthorized intercep-
tion of signal, but they are not capable of interception by
themselves.
[5] In this case, however, the evidence demonstrated that
Webb had more than a pirate access device. He possessed
everything else he needed to intercept DTV’s signals. He pur-
chased multiple DTV receivers, but never activated any with
DTV. He admittedly kept a DTV hardware system at his
house. He purchased not just one or two pirate access devices,
but fifty-seven of them. Cf. Robson, 420 F.3d at 542 (in which
the court was unwilling to infer interception from the “mere
purchase and possession of . . . two pirate access devices”
without any evidence of the “other DTV components required
for interception”). He denied unlawful interception of DTV’s
signal, but he failed to explain why else he would buy and
possess pirate access devices and unauthorized DTV hard-
ware for several years. The district court was not persuaded
by his bare denials, and understandably so.
Moreover, there was evidence from DTV customer service
records that Webb’s girlfriend called DTV once from his
home to complain of a system “malfunction.” This “malfunc-
tion” occurred the day after DTV deployed its “Black Sun-
day” electronic countermeasure (“ECM”), an electronic signal
broadcast by DTV to detect and incapacitate unauthorized
pirate access cards. It is difficult to avoid the inference that
Webb’s girlfriend was accustomed to watching DTV signals
on a system enabled for unauthorized reception.
[6] Faced with this evidence, the district court did not
clearly err in finding that Webb engaged in signal piracy. See
DIRECTV, INC. v. WEBB 13725
Twentieth Century Fox Film Corp., 429 F.3d at 879. To the
contrary, the evidence was compelling. We affirm the district
court’s determination that Webb violated 47 U.S.C. § 605(a)
and 18 U.S.C. § 2511(1)(a).
[7] Webb also challenges the number of violations found
by the district court. In particular, the court found Webb liable
for fifty-seven violations of § 2511(1)(a) based on his posses-
sion of fifty-seven pirate access devices. On that subject, we
agree with Webb, though not in a way that significantly
affects the outcome of the case. As we have discussed, the
mere possession of pirate access devices is insufficient to
create an inference of signal interception in violation of
§ 2511(1)(a). In order to intercept a signal, a defendant must
also possess the hardware needed to capture and process satel-
lite broadcast signals. Robson, 420 F.3d at 542.
[8] The district court found that Webb had one DTV hard-
ware system in his possession. This system was capable of
just one signal interception no matter how many devices
Webb attached to it. Section 2511 offers no indication that
statutory violations should be counted by the number of
devices used to engage in signal interception. Cf. 47 U.S.C.
§ 605(e)(4) (providing expressly that the number of violations
is established by the number of devices). Similarly, the statute
itself suggests that use of a system to intercept a signal multi-
ple times does not constitute a separate violation each time.
Statutory damages for violation are authorized in 18 U.S.C.
§ 2520(b)(2)(B) as “the greater of $100 a day for each day of
violation or $10,000,” contemplating a single violation that
stretched over many days. Whether Webb used one or fifty-
seven devices to steal DTV’s signal, his personal use of
devices in conjunction with his DTV hardware constituted
one violation of § 2511(1)(a). The same logic should apply to
§ 605(a).
[9] Nevertheless, the error here was harmless. The district
court found Webb liable for only one violation of § 605(a)
13726 DIRECTV, INC. v. WEBB
and awarded statutory damages of $1,000. The amount of
statutory damages awarded by the district court under
§ 2511(1)(a) would be the same if it was based on a single
violation, because it was based on counting the number of
days Webb was in violation, not the number of violations.
Specifically, the court awarded statutory damages of
$123,700 under § 2520(b)(2)(B), based on its finding that
Webb engaged in signal interception for 1,237 days. We
affirm those awards.
[10] Webb challenges the computation, arguing that even if
it is assumed he engaged in piracy, the record does not sup-
port the district court’s finding that he engaged in piracy for
each of the 1,237 days. That time period represented the num-
ber of days between August 31, 2000, when Webb first
acquired the equipment necessary for signal piracy, and the
first day of his trial on January 20, 2004. The district court
found that evidence that Webb possessed DTV hardware and
a pirate access device as of August 31, 2000, was enough to
establish unlawful interception as of that date. We agree. See
Robson, 420 F.3d at 537; see Treworgy, 373 F.3d at 1127; see
Walker, 911 F.2d at 1578.
[11] Webb suggests that he could not have intercepted
DTV’s signal after DTV deployed its Black Sunday ECM in
January 2001. Webb offered no evidence, however, to prove
that the ECM irreparably damaged his equipment. He never
discarded or otherwise disposed of his fifty-seven pirate
access devices or his DTV hardware. The district court
inferred continued piracy from his continued possession of the
equipment, and that inference was not clearly erroneous.
C. 47 U.S.C. § 605(e)(4)
Webb was charged by DTV and held liable by the district
court for more than signal piracy in violation of 47 U.S.C.
§ 605(a) and 18 U.S.C. § 2511(1)(a). He was also found by
DIRECTV, INC. v. WEBB 13727
the district court to be liable for one violation of 47 U.S.C.
§ 605(e)(4), which provides that:
Any person who manufactures, assembles, modifies,
imports, exports, sells, or distributes any electronic,
mechanical, or other device or equipment, knowing
or having reason to know that the device or equip-
ment is primarily of assistance in the unauthorized
decryption of satellite cable programming, or direct-
to-home satellite services, or is intended for any
other activity prohibited by subsection (a) of this
section, shall be fined not more than $500,000 for
each violation, or imprisoned for not more than 5
years for each violation, or both.
Other alleged violations of § 605(e)(4) were held by the dis-
trict court to be barred by the statute of limitations applicable
to this section, as will be discussed in more detail below. The
one violation that was sustained by the district court was
based on Webb’s modification of a device for his own per-
sonal use.
[12] In DirecTV, Inc. v. Huynh, 503 F.3d 847, 855 (9th Cir.
2007), our court held that 47 U.S.C. § 605(e)(4) does not
apply to end-users, meaning persons who employ pirate
access devices for their own personal use, rather than for sale
or distribution to others. Since the one violation found by the
district court was for modification of a device Webb used
himself, the portion of the judgment holding him liable for
that one violation of § 605(e)(4) must be reversed.
D. Statute of Limitations
While the district court held Webb liable for violating
§ 605(e)(4), it concluded that he could be held liable for only
one violation under that statute—“for improper modification
of . . . access cards for the purpose of decrypting [DTV]’s
signals”—because other claimed violations of § 605(e)(4) did
13728 DIRECTV, INC. v. WEBB
not survive the applicable statute of limitations. DTV chal-
lenges the district court’s decision regarding the limitations
period. We consider that argument because some or all of the
other alleged violations of § 605(e)(4) arguably involved ulti-
mate use of the devices by other persons, not by Webb him-
self as an end-user. DTV’s claims against Webb involving
ultimate use by other persons would not necessarily be barred
by our interpretation of the statute in Huynh. We conclude
that the district court was correct in its treatment of the statute
of limitations, however, such that the other alleged violations
by Webb are barred.
[13] Section 605 does not contain or reference its own stat-
ute of limitations. Accordingly, the district court borrowed a
limitations period from an analogous state law: the California
Piracy Act (“Piracy Act”), Cal. Penal Code §§ 593d-593e. On
cross-appeal, DTV contends that the district court incorrectly
applied the Piracy Act’s one-year statute of limitations to its
claims under § 605. DTV argues instead that the two-year
limitations period of the Wiretap Act, 18 U.S.C. §§ 2510-
2522, should govern its claims under § 605.
[14] When a federal statute does not have its own statute
of limitations, we are directed to borrow a period from the
forum state’s analogous state law “as a matter of interstitial
fashioning of remedial details under the respective substantive
federal statute[ ].” DelCostello v. Int’l Bhd. of Teamsters, 462
U.S. 151, 160 n.13 (1983); see also Wilson v. Garcia, 471
U.S. 261, 266 (1985) (noting that “when Congress has not
established a time limitation for a federal cause of action, the
settled practice has been to adopt a local time limitation”),
superceded by statute on other grounds, Judicial Improve-
ments Act of 1990, Pub. L. No. 101-650, 104 Stat. 5114, 369,
377-80 (2004), as recognized in Jones v. R.R. Donnelley &
Sons Co., 541 U.S. 369, 377-80 (2004). State-law borrowing
is a “longstanding” and “settled” practice when federal stat-
utes do not provide for their own limitations periods. North
Star Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (quotations
DIRECTV, INC. v. WEBB 13729
and citations omitted). This practice is rooted in the expecta-
tions of Congress and, as such, constitutes a general rule that
“may not be lightly abandoned.” Lampf v. Gilbertson, 501
U.S. 350, 356 (1991).
Though borrowing from the forum state’s law is the general
rule, the Supreme Court has recognized that state limitations
periods do not always provide the best “vehicles for the
enforcement of federal law,” and that it “may be inappropriate
to conclude that Congress would choose to adopt state rules
at odds with the purpose or operation of federal substantive
law.” DelCostello, 462 U.S. at 161. As such, a court may
instead apply a limitations period from analogous federal law
when borrowing a state statute of limitations would “frustrate
or interfere with the implementation” of federal law. North
Star, 515 U.S. at 34 (citation omitted). Federal law nonethe-
less is limited to serving as a “secondary lender” of limita-
tions periods to be used only as a “closely circumscribed”
exception to the general preference for state law. Id. (quota-
tions omitted). Courts must adopt a limitations period from
analogous state law unless federal law “clearly provides a
closer analogy than available state statutes, and . . . the federal
policies at stake and the practicalities of litigation make that
rule a significantly more appropriate vehicle for interstitial
lawmaking.” Lampf, 501 U.S. at 356 (quotations and citation
omitted).
As § 605 does not have its own limitations period, the dis-
trict court properly looked first to analogous state law. The
district court determined that the California Piracy Act was
“most closely analogous” to § 605 and that policy factors did
not support adopting something else. Consequently, the dis-
trict court applied the one-year statute of limitations applica-
ble to violations of the Piracy Act to DTV’s claims under
§ 605.
[15] We agree with the district court that the Piracy Act
offers the proper source for a limitations period here. To start,
13730 DIRECTV, INC. v. WEBB
the California statute is remarkably similar to § 605 in pur-
pose and structure. See Lampf, 501 U.S. at 358 (instructing
that “commonality of purpose and similarity of elements” are
relevant when choosing the proper source for a limitations
period).
Congress originally enacted § 605 in 1933, but it substan-
tially expanded the statute in 1984 in order to address “the
theft of cable service.” See H.R. Rep. No. 98-934 at 83
(1984). As we previously noted, the original prohibitions of
§ 605 are now contained in § 605(a), which makes it unlawful
to “receiv[e], assist[ ] in receiving, transmit[ ], or assist[ ] in
transmitting, any interstate or foreign communication by wire
or radio” without authorization. 47 U.S.C. § 605(a). Section
605 also prohibits “divulg[ing] or publish[ing]” information
gleaned from unauthorized signal reception, or otherwise
using that information for one’s “own benefit or for the bene-
fit of another not entitled thereto.” Id. The statute provides for
criminal penalties and a civil cause of action in § 605(e), and,
as discussed above, prohibits “the manufacture[ ], assembl[y],
modifi[cation], import[ ], export[ ], s[ale], or distribut[ion]” of
pirate access devices in § 605(e)(4).
[16] Like § 605, the Piracy Act prohibits the unauthorized
reception of cable services. See People v. Prevost, 60 Cal.
App. 4th 1382, 1396 (1998) (holding that “the clear purpose
of [the Piracy Act] is to deter the theft of cable”). Section
593d of the Piracy Act prohibits the unauthorized receipt of
“any program or other service carried by a multichannel video
or information services provider” by means of specifically
forbidden conduct.4 Cal. Penal Code § 593d(a)(1)-(a)(4). The
4
Conduct specifically prohibited by § 593d(a) includes: making or
maintaining “an unauthorized connection . . . to any cable, wire, or other
component of a multichannel video or information services provider’s sys-
tem,” Cal. Penal Code § 593d(a)(1); purchasing, possessing, or attaching
“any unauthorized device or devices” to such a system, id. § 593d(a)(2);
modifying or altering “any device installed with the authorization of a
multichannel video or information services provider,” id. § 593d(a)(3);
and modifying or altering “an access device that authorizes services” or
obtaining a modified access device and using it “to obtain services from
a multichannel video or information services provider,” id. § 593d(a)(4).
DIRECTV, INC. v. WEBB 13731
statute also forbids a litany of conduct related to pirate access
devices in § 593d(b), providing that “any person who know-
ingly and willfully manufactures, assembles, modifies,
imports into this state, distributes, sells, offers to sell, adver-
tises for sale, or possesses” the devices “is guilty of a public
offense.” And, in § 593e, the Act extends to “subscription
television” providers essentially the same protections given
by § 593d to providers of “multichannel video or information
services.”
In sum, the Piracy Act runs entirely parallel to § 605. Both
the federal and state statutes recognize the property interest
inherent in satellite broadcast transmissions and treat the
unauthorized receipt of television signals as theft. See 47
U.S.C. § 605(a); Cal. Penal Code § 593d(a). Both statutes
prohibit the manufacture, modification, and distribution of
decryption devices. See 47 U.S.C. § 605(e)(4); Cal. Penal
Code § 593d(b). Both prohibit unauthorized signal transmis-
sion as well as reception.5 See 47 U.S.C. § 605(a); Cal. Penal
Code § 593d(c). Finally, the two statutes have “similar reme-
dial structures.”6 Prostar v. Massachi, 239 F.3d 669, 677 (5th
5
Section 605(a) provides that no one “transmitting, or assisting in trans-
mitting” a communication covered by the statute “shall divulge or publish
the existence, contents, substance, purport, effect, or meaning thereof,
except through authorized channels of transmission or reception.” Simi-
larly, the Piracy Act prohibits the transmission or broadcasting of “any
program or other service not intended to be transmitted or broadcast.” Cal.
Penal Code § 593d(c).
6
Both the California and the federal statutes provide for enhanced fines
and longer periods of jail time after a first offense; both provide a civil
right of action to aggrieved parties; both allow civil plaintiffs to recover
actual or statutory damages and injunctive relief; both enhance damages
when the defendant conducted the illegal activities for commercial or pri-
vate financial gain; and both allow a successful civil plaintiff to recover
attorney’s fees and costs. See 47 U.S.C. § 605(e); Cal. Penal Code
§§ 593d-593e. Additionally, under both 47 U.S.C. § 605(e)(4) and Cal.
Penal Code § 593e, each unauthorized device constitutes a separate viola-
tion for which damages may be imposed.
13732 DIRECTV, INC. v. WEBB
Cir. 2001) (describing this factor as relevant for the borrowing
of a limitations period).
[17] The Piracy Act and 47 U.S.C. § 605 are so similar that
the California courts have expressly characterized the Piracy
Act as a state-law analogue to § 605. In Prevost, for example,
the California Court of Appeal stated:
[T]he clear purpose of [the Piracy Act] is to deter the
theft of cable by requiring the customers who receive
cable transmissions and the entities who distribute
equipment to receive those transmissions to obtain
authorization from the cable operator. The federal
law achieves that aim in [47 U.S.C. § 553a] . . .
while the state achieves it in [the Piracy Act].
60 Cal. App. 4th at 1396-97; see also People v. Patton, 194
Cal. Rptr. 759, 762 (Cal. App. Dep’t Super. Ct. 1983) (“We
find that [Piracy Act § 593e] is a state law which attempts to
regulate the same subject as [47 U.S.C. § 605].”).
DTV also argues that the Piracy Act cannot provide a stat-
ute of limitations for § 605 because it does not contain its own
limitations period but merely incorporates the “catchall” limi-
tations period of Cal. Civ. Proc. Code § 340. While the
Supreme Court has “rejected the [borrowing] of a ‘catchall’
statute of limitations,” this means only that a catchall limita-
tions period is not itself substantively analogous. See, e.g.,
Agency Holding Corp. v. Malley-Duff & Assoc., Inc., 483
U.S. 143, 152-53 (1983) (hereinafter “Malley-Duff”) (reject-
ing the borrowing of a Pennsylvania catchall period because
While the court in Prostar ultimately chose to borrow a federal limita-
tions period, the closest state analogue to the federal act in that case was
much less analogous than the Piracy Act is to § 605. Prostar, 239 F.3d at
669; Cf. KingVision Pay-Per-View v. 898 Belmont, Inc., 366 F.3d 217,
223-24 (3d Cir. 2004) (distinguishing Prostar on that ground).
DIRECTV, INC. v. WEBB 13733
this period was not analogous to the federal RICO claim at
issue). Unlike the catchall Pennsylvania limitations period in
Malley-Duff, the Piracy Act is substantively parallel to § 605.
The fact that the statute derives its one-year limitations period
from Cal. Civ. Proc. Code § 340 is irrelevant.
Despite the clear similarities between the Piracy Act and
§ 605, DTV argues that the Wiretap Act offers a closer ana-
logue to § 605 and should provide the statute of limitations
for its § 605 claims. The Wiretap Act, 18 U.S.C. §§ 2510-
2522, creates “a comprehensive scheme for the regulation of
wiretapping and electronic surveillance.” Gelbard v. United
States, 408 U.S. 41, 46 (1972). It authorizes the electronic
surveillance by law enforcement under “stringent conditions,”
but flatly prohibits “[u]nauthorized interceptions and the dis-
closure or use of information obtained through unauthorized
interceptions.” Id.Most relevant here are §§ 2511 and 2512 of the Wiretap
Act. Section 2511 prohibits the intentional interception of
“electronic communications” and the use of “any electronic,
mechanical, or other device” for that end, 18 U.S.C.
§ 2511(1)(a)-(b), as well as the disclosure or use of inter-
cepted information. Id. § 2511(1)(c)-(e). Section 2512 prohib-
its the manufacture, distribution, possession, and advertising
of pirate access devices through the mail or in interstate com-
merce. Id. § 2512(1)(a)-(c).
The Wiretap Act does plainly overlap to some degree with
47 U.S.C. § 605, as signal piracy creates causes of action
under both statutes. See Lande, 968 F.2d at 912-13 (implying
that the “two criminal statutes apply to the same conduct”).
Even so, these statutes are not truly uniform in purpose or
scope. Whereas § 605 and the Piracy Act both focus on signal
interception as theft—the precise issue at stake here—the
Wiretap Act is aimed largely at privacy protection. Compare
47 U.S.C. § 605(a) (prohibiting the unauthorized receipt of
signal “for [one’s] own benefit or for the benefit of another”)
13734 DIRECTV, INC. v. WEBB
with Konop, 302 F.3d at 874 (holding that Congress added
protection of “electronic communications” to the Wiretap Act
in order “to afford [them] privacy protection”). This emphasis
on privacy is evident in both the legislative history of the
Wiretap Act and in the breadth of its prohibitions. See Lande,
968 F.2d at 913 (noting that “nothing in the legislative history
of the [Wiretap Act] indicates particular concern about satel-
lite pay television piracy”); Doe v. Smith, 429 F.3d 706, 708-
10 (7th Cir. 2005) (holding that videotaping sex without con-
sent and sending the footage over the Internet presents a cause
of action under § 2511).
[18] Given the Wiretap Act’s focus on privacy, we cannot
say that it “clearly provides a closer analogy” to § 605 than
the Piracy Act. North Star, 515 U.S. at 35 (quotations omit-
ted). The Supreme Court directs that where a suitable state
counterpart exists, it is “simply beside the point that even a
perfectly good federal analogue [also] exists.” North Star, 515
U.S. at 37.
Even if the California Piracy Act offers the closest ana-
logue to § 605, DTV argues that the two-year period under the
federal Wiretap Act should be applied because borrowing a
limitations period from state law will, in the words of North
Star, “stymie the policies underlying [its] federal cause of
action.” See id. at 34. Specifically, DTV contends that con-
cerns for “uniformity” and the “geographic character” of its
claims counsel for the application of a federal limitations
period. See, e.g., Lampf, 501 U.S. at 357 (identifying unifor-
mity and geographic character as concerns relevant to the bor-
rowing inquiry). According to DTV, the case law suggests
that we must adopt a uniform federal limitations period
because the geographic character of its business is such that
it needs to pursue signal pirates in multiple jurisdictions
across the nation.
DTV is correct that uniformity and geographic character
are relevant concerns. Yet it misconstrues the meaning and
DIRECTV, INC. v. WEBB 13735
the significance of these terms. “Uniformity,” for example,
does not speak to a litigant’s preference for a single limita-
tions period in multiple lawsuits across multiple jurisdictions.
Rather, it is a threshold question concerning how best to char-
acterize a single federal cause of action for borrowing pur-
poses. Id.; KingVision Pay-Per-View v. 898 Belmont, Inc.,
366 F.3d 217, 224 (3d Cir. 2004) (holding that uniformity is
“used to characterize the claim for which a statute of limita-
tions period is then to be applied”). The need for uniformity
arises when the complexity of a federal action is “such that a
single state limitations period may not be consistently applied
within a [single] jurisdiction.” Lampf, 501 U.S. at 357; Del-
Costello, 462 U.S. at 165-66 (holding that a hybrid § 301/fair
representation claim required uniformity because the § 301
claim essentially was a contract claim while the fair represen-
tation claim had no state analogue). The need for uniformity
does not dictate whether state or federal borrowing is appro-
priate, and it does not counsel against application of the
Piracy Act’s one-year statute of limitations. See Lampf, 501
U.S. at 357 (holding that when “a uniform limitations period
is appropriate, the court must [still] decide whether this period
should be derived from a state or a federal source”).
DTV also misconstrues the nature and relevance of “geo-
graphic character.” This term refers to whether the multistate
nature of a single claim subjects that claim to the limitations
periods of multiple states, creating confusion and encouraging
forum shopping. Malley-Duff, 483 U.S. at 153-54 (noting that
“conceivably the statute of limitations of several States could
govern” RICO claims because the RICO predicate acts can
occur in many states). Accordingly, it is irrelevant that DTV
broadcasts nationally or has, as it claims to have done, filed
“thousands of lawsuits in district courts across the nation.” Cf.
KingVision, 366 F.3d at 224 (finding that the multistate nature
of the cable industry did not raise geographic concerns in a
statute of limitations analysis under 47 U.S.C. § 553). DTV’s
piracy claims against the defendant in this case, Webb, do not
stem from predicate acts spanning multiple jurisdictions but
13736 DIRECTV, INC. v. WEBB
from a localized violation in a single jurisdiction. We are not
faced with the geographic considerations raised by cases such
as Malley-Duff. In any event, geographic considerations do
not counsel for the adoption of a federal limitations period
less analogous than a state counterpart. Lampf, 501 U.S. at
357 (holding that geographic considerations may overcome
the presumption for state borrowing only if the “analogous
federal source truly affords a ‘closer fit’ with the cause of
action at issue than does any available state-law source”)
(emphasis added); North Star, 515 U.S. at 35.
DTV’s contention that one year is too short a time to inves-
tigate signal piracy claims is also unpersuasive. While the
Supreme Court held in DelCostello that a state limitations
period of between ten days and ninety days was insufficient
to bring a LMRA § 301/fair representation hybrid action, 462
U.S. at 166, 167-69, we are not convinced that one year is too
short a limitations period for § 605 actions. Cf. Prostar, 239
F.3d at 675-76, 676 n.47 (refusing to hold that “one year is
too short as a matter of law for investigation and detection of
[cable theft] violations” under 47 U.S.C. § 553).
Finally, DTV argues under McAllister v. Magnolia Petro-
leum Co., 357 U.S. 221 (1958), that applying the Piracy Act’s
one-year limitations period to § 605 impermissibly deprives it
of its rights under the Wiretap Act. McAllister involved an
injured seaman who filed an unseaworthiness action against
his employer joined with a Jones Act action for negligence.
Id. at 222. The unseaworthiness claim had a shorter limita-
tions period than the Jones Act claim, but the Supreme Court
held that the shorter period could not be applied because it
effectively barred the Jones Act claim and prevented the sea-
man from the full benefit of federal law. Id. at 225-26 (“Since
the seaman must sue for both unseaworthiness and Jones Act
negligence in order to make full utilization of his remedies for
personal injury, and since that can be accomplished only in a
single proceeding, a time limitation on the unseaworthiness
DIRECTV, INC. v. WEBB 13737
claim effects in substance a similar limitation on the right of
action under the Jones Act.”).
In light of McAllister, DTV argues that application of the
Piracy Act’s one-year statute of limitations deprives it of the
benefit of the longer, two-year statute of limitations applica-
ble to its Wiretap Act claims. McAllister, however, involved
two claims so intertwined that they essentially comprised a
“single cause of action.” Id. at 229; see also DelCostello, 462
U.S. at 165 (in which the plaintiff had to prevail on both his
LMRA § 301 claim against his employer and his fair repre-
sentation claim against his union to prevail against either
defendant). Signal piracy may give rise to liability under both
18 U.S.C. § 2511 and 47 U.S.C. § 605, but these remain sepa-
rate and distinct causes of action. DTV does not need to pre-
vail on both before it can prevail on either. McAllister does
not govern here.
[19] Since we conclude that the district court properly bor-
rowed the Piracy Act’s one-year limitations period for DTV’s
claims under § 605, we must consider whether the district
court properly applied this limitations period. Case law and
the relevant statutes provide little direct guidance on when the
applicable limitations period accrues for DTV’s § 605 claims.
The accrual of federal rights generally remains a matter of
federal law even when a limitations period is borrowed from
a state source. See, e.g., Wallace v. Kato, 127 S. Ct. 1091,
1095 (2007) (holding that “the accrual date of a § 1983 cause
of action is a question of federal law that is not resolved by
reference to state law” even if state law determines the length
of the limitations period) (emphasis in original); Stanley v.
Trustees of Cal. State Univ., 433 F.3d 1129, 1136 (9th Cir.
2006) (“Although Title IX borrows a state statute of limita-
tions period, federal law governs the ‘determination of the
point at which the limitations period begins to run.’ ”) (cita-
tion omitted). Section 605 does not speak directly to that
13738 DIRECTV, INC. v. WEBB
issue, though, and the applicable California statute contains
no accrual provision, either.7
[20] Under federal law, “a cause of action generally accrues
when a plaintiff knows or has reason to know of the injury
which is the basis of his action.” Stanley, 433 F.3d at 1136(internal quotations and citation omitted). The district court
found that DTV “had a reasonable opportunity” to discover its
§ 605 causes of action against Webb in May 2001. Because
DTV filed its action in May 2003, the court held that the one-
year statute of limitations barred all but two of DTV’s § 605
claims. According to the district court, DTV had one timely
claim under § 605(a) relating to Webb’s “personal use of
pirate access devices to intercept DirecTV’s signal,” and one
timely claim under § 605(e)(4) relating to Webb’s use of an
emulator “for improper modification of DirecTV’s access
cards.” Other claims under § 605 were held to have been filed
too late.
[21] We agree with the district court that DTV had one
timely claim under § 605(a). As we have discussed, DTV had
only one cognizable claim under § 605(a) in any event: the
one claim resulting from Webb’s own use of pirate access
devices in conjunction with his DTV hardware for the unau-
thorized reception of DTV’s signal. The district court found
that Webb used his pirate access devices for the unauthorized
receipt of signal from August 31, 2000, until January 20,
2004. This wrongful conduct is no different from the kind of
continuing tort for which the limitations period does not start
7
Cal. Civ. Proc. Code § 340(a) provides only that a one-year statute of
limitations applies to “[a]n action upon a statute for a penalty or forfeiture,
if the action is given to an individual, or to an individual and the state,
except if the statute imposing it prescribes a different limitation.” Cf. Cal.
Civ. Proc. Code § 340(e) (providing that an “action by a good faith
improver for relief under Chapter 10 . . . . begins to run from the date upon
which the good faith improver discovers that the good faith improver is
not the owner of the land upon which the improvements have been
made”).
DIRECTV, INC. v. WEBB 13739
running until the conduct ends. See Flowers v. Carville, 310
F.3d 1118, 1126 (9th Cir. 2002) (“When a tort involves con-
tinuing wrongful conduct, the statute of limitations doesn’t
begin to run until that conduct ends.”). So long as Webb con-
tinued to violate § 605(a), the limitations period for DTV’s
claim under that section did not start. For this reason, DTV’s
one cognizable claim under § 605(a) was timely when filed in
May 2003.8
[22] DTV’s claims under § 605(e)(4) are another matter.
The district court held that DTV had one timely claim under
that section based on Webb’s use of an emulator. Although
the court found that DTV had reason to know of Webb’s con-
duct for more than one year before filing suit, it held that one
claim under § 605(e)(4) remained timely since the emulator’s
continuing “modification” of DTV access cards tolled the
applicable limitations period. Webb challenges this tolling
based on Webb’s continuing personal use of the modified
device, but we do not reach that issue, because under Huynh
the personal use by Webb does not in any event constitute a
violation under § 605(e)(4). Thus, we hold that DTV has no
timely claims against Webb under § 605(e)(4) and reverse the
portion of the judgment which found one violation of that
statute.
III. Conclusion
Ample evidence indicates that Webb unlawfully intercepted
DTV’s broadcast signals in violation of 15 U.S.C.
§ 2511(1)(a) and 47 U.S.C. § 605(a). He can properly be held
liable for only a single violation of each of those statutes, but
8
Because we determine that DTV’s § 605(a) claim was timely, we do
not need to consider the district court’s application to this claim of the
continuing violations doctrine. See Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 115 (2002) (holding that the continuing violations doctrine
may toll a limitations period when the “very nature” of the injury at issue
“involves repeated conduct” rather than “discrete acts”).
13740 DIRECTV, INC. v. WEBB
the reduction in the number of violations of § 2511(1)(a) does
not require revision of the amount calculated for statutory
damages. We reverse with respect to the one violation of
§ 605(e)(4) found by the district court, because our interpreta-
tion of that statute in Huynh bars the claim.
The case is remanded to the district court for entry of an
appropriate judgment. Each party is to bear its own costs on
appeal.
AFFIRMED IN PART; REVERSED IN PART;
REMANDED.