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Zimmerman v. HBO Affiliate Group

United States Court of Appeals for the Third Circuit

September 28, 1987, Argued ; December 9, 1987, Filed

No. 87-1241


 [*1164]  MANSMANN, Circuit Judge.

The principal question presented in this case is whether the defendant cable television companies, in demanding monetary compensation in settlement of asserted legal claims against persons whom [**2]  the defendants accused of having illegally received microwave television signals, were seeking to collect a "debt" within the meaning of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq. (Supp. II 1978) ("FDCPA"). We also consider whether the allegation, that a letter which threatened legal action in the event of nonpayment was extortionate in nature, states a claim of injury to the plaintiff's "business or property" under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.A. §§ 1961-1968 ("RICO"). Finally, we must determine whether the plaintiffs are entitled to a declaration that The Federal Communications Act is not violated by mere possession of an antenna capable of unauthorized reception of HBO's programming.

The district court dismissed the complaint for lack of a substantial federal claim, and we will affirm.

] In reviewing a motion to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, we accept the facts of the complaint as true and characterize  [*1165]  the facts [**3]  most favorably to the plaintiff as follows. Defendants Home Theatre, Inc., ACS Enterprises and Video Consultants, Inc. (the "Affiliates") have franchise agreements with defendant Home Box Office, Inc. ("HBO") authorizing them to distribute HBO's video programming service to individual subscribers in the Philadelphia area. The video programming is transmitted by means of microwave signal which is received through specially tuned antennae and converter equipment. Subscribers pay a monthly fee for the service. However, anyone having a proper antenna and converter can receive the programming without paying for it.

In early 1985, the Affiliates undertook a campaign to prevent signal "piracy" in their service area. During February and March of 1985, the Affiliates published in Philadelphia area newspapers various advertisements which showed a picture of a police van and stated: "If you are illegally receiving HBO, soon this will be the only free ride for HBO thieves." The publications also stated that illegal reception of HBO signals carries a penalty of up to a $ 50,000 fine and two years in prison, and stated in bold face type: "To Avoid Prosecution, Call Before March 15, 1985."

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834 F.2d 1163 *; 1987 U.S. App. LEXIS 16116 **; 10 Fed. R. Serv. 3d (Callaghan) 97

Zimmerman, John G., on behalf of himself and all others similarly situated v. HBO Affiliate Group, ACS Enterprises, Inc., Hometheatre, Inc., Video Consultants, Inc., Home Box Office, Inc., Conley and Wanning, Inc., Conley, Raymond W., and Wanning, Matthew; John G. Zimmerman, Appellant

Prior History:  [**1]   Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-0454.


district court, antenna, signal, consumer, collection, certification, unauthorized, programming, debt collection practice, declaratory judgment, declaration, defendants', settlement, practices, reception, putative class, Racketeer, campaign, argues, legislative history, named plaintiff, legal action, parties

Civil Procedure, Appeals, Standards of Review, General Overview, Responses, Defenses, Demurrers & Objections, Motions to Dismiss, Judgments, Pretrial Judgments, Judgment on Pleadings, De Novo Review, Motions to Dismiss, Failure to State Claim, Appellate Jurisdiction, Final Judgment Rule, Antitrust & Trade Law, Private Actions, Costs & Attorney Fees, Clayton Act, Banking Law, Consumer Protection, Fair Debt Collection, Liability for Violations, Real Property Law, Landlord & Tenant, Tenant's Remedies & Rights, Fair Debt Collection Practices Act, Unfair Practices, Equal Credit Opportunity, Truth in Lending, Insurance Law, Claim, Contract & Practice Issues, Estoppel & Waiver, Late Premiums & Nonpayment, Affirmative Defenses, Racketeer Influenced & Corrupt Organizations, Criminal Law & Procedure, Racketeering, Racketeer Influenced & Corrupt Organizations Act, Clayton Act, Jurisdiction, Class Actions, Prerequisites for Class Action, Special Proceedings, Certification of Classes, Judicial Discretion, Abuse of Discretion, Declaratory Judgments, Federal Declaratory Judgments, Discretionary Jurisdiction, Justiciability, Case & Controversy Requirements, Adverse Legal Interests, Immediacy, State Declaratory Judgments, Jurisdiction, Jurisdictional Sources, Subject Matter Jurisdiction, Federal Questions, Substantial Questions, Supplemental Jurisdiction, Pendent Claims