Kingvision Pay-Per-View, Corp., Ltd. v. 898 BELMONT, INC., d/b/a EL TORO BAR

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No: 02-1770
____
KINGVISION PAY-PER-VIEW,
CORP., LTD.,
Appellant
v.
898 BELMONT, INC.,
d/b/a EL TORO BAR;
BERHANU DEGIFE
___________________
Appeal from the United States District
Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 01-cv-02970)
District Judge: Honorable Berle M.
Schiller
_______________
Argued on March 4, 2003
Before: ROTH, BARRYand FUENTES
CIRCUIT JUDGES
(Filed: April 27, 2004)
Francine R. Strauss, Esquire (Argued)
11917 Gainsborough Road
Potomac, MD 20854
Bradley H. Trushin, Esquire
Marcus W. Corwin, P.A.
7777 Glades Road, Suite 208
Boca Raton, FL 33424
Counsel for Appellants
Donald M. Moser, Esquire (Argued)
Washington West Building
235 South 8th Street
Philadelphia, PA 19106-3519
Counsel for Appellees
OPINION
ROTH, Circuit Judge:
Once again, we must determine
what statute of limitations to apply when a
federal statute does not specify a
limitations period. In this case, involving
the Federal Communications Act (FCA),
KingVision claims that defendants
exhibited a closed circuit telecast through
the use of an illegal decoding device. The
District Court applied the two year
limitations period of the Pennsylvania
cable piracy statute instead of the three
year limitations period of the Copyright
Act. We hold that the two year state
limitations period does apply to
KingVision’s FCA claims because the
Pennsylvania piracy statute is directly
analogous to § 553 of the FCA and neither

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the “practicalities of litigation” nor federal
policy or law are frustrated by such
application. See North Star Steel Co. v.
Thomas, 515 U.S. 29, 34-35 (1995); Reed
v. Transp. Union, 488 U.S. 319, 327
(1989). Accordingly, we will affirm the
decision of the District Court granting
defendants’ Motion for Judgment on the
Pleadings and dismissing all claims against
defendants.
I. Facts and Procedural History
Plaintiff KingVision, a licensee of
sports programming, sued defendants 898
Belmont, Inc., d/b/a the El Toro Bar, and
Berhanu Degife, its owner and operator, in
the District Court for the Eastern District
of Pennsylvania under 47 U.S.C. §§ 553
(unauthorized reception of cable service)
and 605 (unauthorized publication or use
of communications), the “piracy statutes”
of the FCA, as amended by the Cable
Communications Policy Act of 1984. It is
uncontested that on March 13, 1999,
without KingVision’s authorization, the El
Toro Bar intercepted and broadcast the
Evander H o l y f ie l d / L e n no x Le w is
cham pion ship boxing match and
“associated undercard bouts” to its
patrons. It is also uncontested that
KingVision did not provide defendants
with the decoding equipment or the
satellite coordinates necessary to receive
the signal, nor did KingVision receive a
sublicense fee or revenue from El Toro
Bar for patron admissions to the broadcast.
KingVision wrote to the El Toro Bar about
the unauthorized broadcast in April 1999
but failed to bring suit until June 2001.
Defendants filed an Answer and a Motion
for Judgment on the Pleadings on the
ground that the Complaint was filed after
the expiration of the two year state
limitations period applicable to the
Pennsylvania cable piracy statute, 18 Pa.
Con. Stat. § 910, as specified in 42 Pa.
Cons. Stat. § 5524(7) for actions not
otherwise subject to a specific limitations
period.
The District Court applied the two
year statute of limitations of § 5524(7) and
dismissed KingVision’s claims as time-
barred. KingVision Pay-Per-View, Ltd. v.
898 Belmont, Inc., No. 01-2970, 2002 U.S.
Dist. LEXIS 2275, at *8 (E.D. Pa. Feb. 13,
2002). On February 24, 2002, KingVision
filed a timely Motion for Reconsideration,
arguing that the Copyright Act more
closely parallels the piracy sections of the
FCA, so that the limitations period of the
Copyright Act should be applied instead of
the state limitations period. KingVision’s
motion was denied on March 8, 2002, and
this appeal followed.
III. Jurisdiction and Standard of
Review
The District Court had jurisdiction
to hear this case pursuant to 28 U.S.C. §§
1331, as it is a civil action arising under
the laws of the United States. We have
jurisdiction pursuant to 28 U.S.C. § 1291,
because the District Court’s February 14,
2002, order is final and appealable.
We review de novo the District
Court’s dismissal of the case on statute of
limitations grounds. See Lake v. Arnold,
233 F.3d 360, 365 (3d Cir. 2000)

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IV. Discussion
Determining the statute of
limitations period for activity governed by
a federal statute is a question of federal
law. Nevertheless, as recognized by the
Supreme Court in North Star Steel Co. v.
Thomas, 515 U.S. 29 (1995), when a
federal statute fails to provide a statute of
limitations, a court should look to
analogous state statutes. The Court stated,
“our practice has left no doubt about the
lender of first resort. Since 1830, ‘state
statutes have repeatedly supplied the
periods of limitations for federal causes of
action’ when the federal legislation made
no provision.” Id. at 34 (citing Automobile
Workers v. Hoosier Cardinal Corp., 383
U.S. 696, 703-704 (1966)). The rule is
that “courts look to the state statute ‘most
closely analogous’ to the federal Act in
need.” Id.; Reed v. Transp. Union, 488
U.S. 319, 323 (1989); DelCostello v.
Teamsters, 462 U.S. 151, 158 (1983).1
The reason for this judicially-created rule
is that Congress has an “appropriate” and
“realistic” expectation that, given long-
standing practice, courts will look to
analogous state statutes of limitations for
federal laws that do not provide them.
North Star, 515 U.S. at 34, 37 (Scalia, J.,
concurring). Thus, while courts are not
required to choose a state statute of
limitations period, they generally choose a
state limitations period “as a matter of
interstitial fashioning of remedial details
under the respective substantive federal
statutes.” DelCostello, 462 U.S. at 160.
In North Star, the Supreme Court
notes two exceptions to this rule. First, 28
U.S.C. § 1658 provides a general, four-
year limitations period for federal statutes
passed after December 1, 1990, that do not
contain their own limitations period. Id. at
34 n.*. Section 1658 is not at issue here,
however, since the FCA was passed in
1934, and the Cable Communications
Policy Act amendments were passed in
1984.
Second, a court may turn to a
limitations period provided within an
analogous federal statute when the state
limitations periods would “‘frustrate or
interfere with the implementation of
national policies’. . . or be ‘at odds with
the purpose or operation of federal
substantive law.’” Northstar, 515 U.S. at
34 (internal citations omitted). This
second exception is very narrow;
“reference to federal law is the exception,
and we decline to follow a state limitations
period only when a rule from elsewhere in
federal law clearly provides a closer
analogy than available state statutes, and
when the federal policies at stake and the
practicalities of litigation make that rule a
significantly more appropriate vehicle for
1Lampf v. Gilbertson, 501 U.S.
350 (1991) articulates a slightly different
version of the rule for choosing
limitations periods when federal statutes
fail to specify them. In Lampf, the Court
considered the need for uniformity, the
“geographic character” of the claim, and
the “closest fit,” provided statutory
purpose and elements. Id. at 357-58.
This expression of the rule is not
followed by the Court in North Star.

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interstitial lawmaking.” Id. at 35 (internal
quotations omitted).
In other words, if there is a parallel
state statute, there is no reason to explore
federal law, unless the state limitations
period impedes the implementation of
national policies, is at odds with the
purpose or operation of federal substantive
law, or is demanded by the practicalities of
litigation. See, e.g., Reed, 488 U.S. at 327
(“In light of the analogy between §
101(a)(2) and personal injury actions, and
of the lack of any conflict between the
practicalities of § 101(a)(2) litigation and
state personal injury limitations periods,
we are bound to borrow state personal
injury statutes absent some compelling
demonstration that ‘the federal policies at
stake’ in § 101(a)(2) actions make a
federal limitations period ‘a significantly
more appropriate vehicle for interstitial
lawmaking.’”) (quoting DelCostello, 462
U.S. at 172). However, as the Court
explained in DelCostello:
In some circumstances . . .
state statutes of limitations
c a n b e unsatisfacto ry
vehicles for the enforcement
of federal law. In those
instances, it m ay b e
inappropriate to conclude
that Congress would choose
to adopt state rules at odds
w ith the p u r p o s e or
o p e r a t io n o f f e d e r a l
substantive law.
462 U.S. at 161 (emphasis added).
As we see then, under North Star,
Reed, and DelCostello, if there is an
analogous state limitations period, absent
any impediment of implementation of
national policies if that state period is
applied, courts are not required to examine
federal limitations periods.
Following the standard established
in DelCostello, the Supreme Court has
applied state limitations periods to a
variety of claims, including claims under
the Worker Adjustment and Retraining
Notification Act (WARN), see North Star,
515 U.S. at 33-37; the Labor-Management
and Reporting and Disclosure Act
(LM RDA), see Reed, 488 U.S. at 323-34;
and § 1983, see Wilson v. Garcia, 471 U.S.
261, 266-80 (1985). DelCostello itself,
however, is an example of the type of
action in which a federal limitations period
is called for. There, the Court applied a
federal limitations period to a hybrid §
301/fair representation claim arising under
the National Labor Relations Act (NLRA),
462 U.S. at 151, 158-72. Again, in a
Racketeer Influenced and Corrupt
Organizations Act (RICO) claim, the
Court applied a federal limitations period
in Agency Holding Corp. v. Malley-Duff &
Assocs., Inc., 483 U.S. 143 (1987).
Our review of DelCostello and
Malley-Du ff demonstrates that the
Supreme Court examines statute of
limitations queries based on the type of
claim presented rather than on a case-by-
case basis. NLRA and RICO cases are
two categories of the types of federal
statutes excepted from the general
application of state limitations periods.

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The justification for applying the
exception in the DelCostello 301/fair
representation hybrid claim is evident.
While the § 301 component of the claim is
a straight contract claim for which there
were close state analogs, the fair
representation claim, which is a challenge
to private settlements under the collective
bargaining agreement, was without close
analog in state law. 462 U.S. at 165. It
was possible to apply the state arbitration
limitations periods to the hybrid claim, but
they are extremely short – only 10 to 90
days – and would allow insufficient time
for plaintiffs to complete necessary tasks
relating to the fair representation claim,
i.e., evaluating the adequacy of union
counsel, obtaining private counsel, and
framing the suit. Id. at 166. In addition,
the state arbitration statutes assume the
vacation of an award, but the arbitration in
DelCostello did not resolve the employee’s
claim against the union because the union
w a s a c t in g a s t h e e m p l o y e e ’s
representative (and union counsel as
employee’s counsel). Id. at 167. In the
alternative, applying the longer six year
state contract limitations period to the
hybrid claim would have interfered with
the “rapid final resolution of labor disputes
favored by federal law.” Id. at 168. The
practicalities of litigating a hybrid claim,
as in DelCostello, distinguish that type of
case from the present one.
The RICO civil enforcement action
in Malley-Duff is a broader exception to
the state limitations rule. The Supreme
Court has articulated three points to
consider in determining whether, for
uniformity purposes, a court should adopt
a federal, rather than a state, limitations
period. First, a general preference for
uniformity, even if to avoid forum
shopping, is an insufficient reason to apply
the limitations period of the closest federal
analog. See, e.g., North Star, 515 U.S. at
36. The Court noted, in North Star, that
“the practice of adopting state statutes of
limitations for federal causes of action can
result in different limitations periods in
different States for the same federal action
. . . . But these are just the costs of the rule
itself . . ..” Id.
Second, the desire to unify the
limitations periods of federal laws with
similar purposes is not a sufficient reason
to adopt federal limitations periods. For
instance, in Reed, the Court commented:
Respondents argue that the
same federal labor policies
that led us in DelCostello to
borrow the NLRA § 10(b)
statute of limitations for
h y b r i d § 3 0 1 / f a i r
r e p r e se n t a ti o n c l a i m s
likewise require that we
borrow § 10(b) for LMRDA
§ 101(a)(2) actions. This
argument lacks merit. It
fails to take seriously our
admonition that analogous
state statutes of limitations
are to be used unless they
frustrate or significantly
interfere with federa l
policies.

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488 U.S. at 327
Third, there is a difference between
uniformity in construing the substantive
elements of a statute in order to
characterize a claim for statute of
limitations purposes and the next step of
determining what limitations periods to
adopt for a particular type of claim. For
example, in Wilson, the Supreme Court
held that § 1983 claims should be
characterized uniformly as state tort
actions. The Court then determined,
however, that the length of the limitations
period is to be governed by state tort law.
471 U.S. at 268-271, 275-280. The Court
stressed that uniformity was an issue only
in the characterization of the claim, stating
“the statute [§ 1983] is fairly construed [as
a tort claim] as a directive to select, in
each State, the one most appropriate
statute of limitations for all § 1983 claims.
The federal interests in uniformity,
certainty, and the minimization of
unnecessary litigation all support the
conclusion that Congress favored this
simple approach.” Id. at 275. Thus, while
the Court embraced uniformity in
recognizing § 1983 claims as tort claims
for statute of limitations purposes, it did
not find that the limitations periods
themselves needed to be uniform. It is
only after this characterization of the type
of claim has been completed that the
DelCostello/North Star/Reed examination
is to be done to determine if there are no
analogous state statutes or if the state
li m i ta t i o n s p eriods frustra te th e
practicalities of litigation or are at odds
with federal purpose or law.
We see then this process taking
place in Malley-Duff, the RICO case in
which the Court held that a four year
limitations period for Clayton Act civil
enforcement actions applies to RICO
actions and rejected the state “catch-all”
statute of limitations choice. 483 U.S. at
155-56. The Court is very careful in
Malley-Duff to distinguish its narrow
holding with regard to these RICO actions
from other limitations period cases. The
Court explained that uniformity is a greater
concern for RICO civil actions, since by
statute such actions require both a nexus to
interstate or foreign commerce and a
pattern of racketeering. Id. at 153; 18
U.S.C. § 1962(b), (c). Racketeering itself
often involves interstate transactions, since
it may include any of nine state law
felonies and over 25 federal statutes. Id. at
149 (citing A.J. Cunningham Packing
Corp. v. Congress Fin. Corp., 792 F.2d
330, 337 (3d Cir. 1986) (Sloviter, J.,
concurring)); 18 U.S.C. § 1961.
The Court’s desire to limit its
holding in Malley-Duff is made clear in
North Star. The North Star court
distinguished Malley-Duff on the ground
that the event in North Star was a single
incident, “a plant closing,” a “mass layoff
at a single site of employment,” and it was
“relatively simple and narrow in its
scope,” 515 U.S. at 37 (internal quotations
omitted). The RICO claim in Malley-Duff,
on the other hand, is acknowledged as
requiring a nexus to interstate or foreign
commerce as a jurisdictional element as
well as an allegation of a pattern of
racketeering, which is likely to include

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interstate transactions. Malley-Duff, 483
U.S. at 153-54. KingVision is correct that
cable piracy, like RICO claims, may
involve wide-spread and multiple
wrongful actions such as theft, tortious
interference with prospective advantage,
misrepresentation, civil conspiracy, and
unjust enrichment, but multiple, interstate
claims are not required as an element of
the cause of action under §§ 553 or 605 of
the Cable Act, nor are they at stake in this
case.
Although the Supreme Court has
not yet been faced with the issue of the
limitations period to apply in FCA/Cable
Act piracy cases, the issue has arisen in
federal district courts and has been
addressed by the Fifth Circuit Court of
Appeals. As the District Court noted in
this case, federal district courts have
applied the federal limitations period under
the Copyright Act to FCA claims when the
only state law from which to borrow a
limitations period was a general
conversion law. We agree with the
District Court that “these cases do not
predict the proper outcome of the case at
bar involving a state statute narrowly
crafted to deter cable piracy.” 2002 U.S.
Dist. LEXIS 2275 at *8. It is not,
moreover, a requirement that a district
court, in picking an analogous state
limitations period, determine that every
state has such an analogous statutory
scheme – but only that the state whose law
is being applied has such a one.2
KingVision, however, relies on the
Fifth Circuit Court of Appeals’ decision in
Prostar v. Massachi, 239 F.3d 669 (5th
Cir. 2001) to argue for the application of
the federal limitations period of the
Copyright Act. We decline, however, to
follow the holding in Prostar. Although
the facts parallel those of the present case,
Prostar is distinguishable on the ground
that the applicable state law at issue, one
of general conversion, is not as close an
analog to the FCA as the Pennsylvania
piracy statutes.3 Further, the Prostar court
appears to conflate, or at least fails to
distinguish between, the need for
uniformity in construing the type of statute
for limitations purposes and uniformity in
the length of the limitations periods
adopted. See Wilson, 471 U.S. at 268-271,
275-280. The Prostar court states that the
FCA requires uniform enforcement via the
application of a federal limitations period
because “issues facing the cable industry
[are] national in scope.” 239 F.3d at 676
(citing H.R. Rep. No. 98-934, at 22 (1984),
reprinted in 1984 U.S.C.C.A.N. 4659,
2In his concurrence in North Star,
Justice Scalia notes that the “closer
analogy” rule first announced in
DelCostello is “not only erroneous but
unworkable” because it can result in state
limitations applying in some states and
the federal statute in others. 515 U.S. at
37. We, however, will leave the
resolution of this dilemma to the
Supreme Court.
3We take judicial notice that
KingVision identifies New York and
Mississippi as other states without state
piracy analogs.

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4720-22). This conclusion, however,
simply does not follow. The national
concerns of the cable industry are relevant
only insofar as they are embodied in the
FCA. As a threshold matter, they are used
to characterize the claim for which a
statute of limitations period is then to be
applied. The violations of the Cable Act,
however, are particular acts which are
pursued in the locations where they occur
– as was done in the present case. The
localized violations – even if multiple –
are very different from the interstate
activity involved in RICO claims.
Following North Star, we turn our
attention then to the Pennsylvania piracy
statutes. Their provisions mirror those of
the FCA. Section 3926 of the
Pennsylvania statute, like 47 U.S.C. § 605,
makes punishable by fine or imprisonment
the theft of certain wire services.4 It
allows an aggrieved service provider
“ e q uitable or declaratory re l i ef ,
compensatory and punitive damages . . .
costs . . . and attorney fees.” 18 Pa. Cons.
Stat. § 3926(g). Section 910 is the state
companion statute to § 3926 and is the
state statute addressed by the District
Court. It focuses upon the use of devices
for theft of telecommunications services,
mirroring 47 U.S.C. § 553.5 KingVision
disputes the applicability of § 910, as it
deals with theft via a “device,” and it is not
clear that a “device” was used in the
present case to intercept the telecast.
Nevertheless, even though we do not know
the method of interception used at the El
Toro Bar, we can assume reception of the
Holyfield-Lewis fight was not the product
of mere serendipity. Further, while
KingVision is correct that § 910 speaks
a b o u t m a n u f a c t u r e o f i l l e g a l
telecommunications devices and § 553
about improper interception of a
communication, § 910(e) defines
“ m a n u f a c t u r e o f a n u n l a w f u l
telecommunication device” as using a
device to receive, transmit, or decrypt a
telecommunications service.
The District Court is correct that §
910 provides “a remarkably close analog
to the Cable Act [§ 553].” 2002 U.S.
LEXIS 2275 at *6. As the court described,
§ 910, like 47 U.S.C. § 553:
(1)specifically prohibits use
o f a n u n l a w f u l
telecommunications device
to decode “transmissions,
signals or services over any
cable television . . . .” 18 Pa.
4Section 3926 pertains to wire
and radio services, and § 605 to
telecommunication and cable services.
5KingVision alleged violation of
both §§ 605 and 553 of the Cable Act.
Section 605, however, does not apply in
the present case. See TKR Cable Co. v.
Cable City Corp., 267 F.3d 196 (3d Cir.
2001) (holding that “a cable television
descrambler does not facilitate the
interception of ‘communications by
radio’ and therefore the statutory
damages available under § 605 do not
apply here.”)

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Cons. Stat. § 910(e)
(compare with 47
U.S.C. § 553(a)).
(2) provides for criminal
sanctions; prior convictions
under the Cable Act are
considered in grading an
offense. 18 Pa. Cons. Stat.
§ 910(b)(5) (compare with
47 U.S.C. § 553(b)).
(3) provides for civil
statutory sanctions of $250
to $10,000 per violation
absent evidence that the acts
were willful and for
p u r p o s e s o f p e r s o n al
financial gain or commercial
advantage, in which case the
court may increase the
award of statutory damages
by no more than $50,000 per
violation. 18 Pa. Cons. Stat.
§ 910(d.1)(2)-(3) (compare
with 47 U.S.C. § 553(c),
especially part (c)(3)(A)(ii),
(c)(3)(B)).
(4) provides for injunctive
relief, statutory or actual
damages, attorney’s fees,
and costs in almost identical
language as the FCA. 18
Pa. Cons. Stat. § 910(d.1)(1-
3), (d)(2)(iv) (compare with
47 U.S.C. § 553 (c)(2)-
(c)(3)(B)).
Consequently, we conclude that the
District Court did not err in holding that,
“because Section 910 is parallel in
substance and form to the Cable Act, it is
the ‘closer fit’ the Supreme Court
contemplated as the appropriate source
from which to borrow a statute of
limitations, precluding KingVision’s
proposed adoption of the Copyright Act’s
three-year period.” 2002 U.S. LEXIS
2275 at *8 (internal citations omitted).
Furthermore, this case does not
warrant the exception of applying a federal
limitations period where a state limitations
period “frustrates the practicalities of
litigation” or otherwise interferes with
federal policy or law. KingVision knew of
the alleged violation over two years prior
to commencing suit. In such a
straightforward and relatively simple suit,
it is difficult to imagine why a two year
limitations period would be inadequate.
See, e.g., North Star, 515 U.S. at 36
(holding that a two year limitations period
in a fairly straightforward WARN claim
was insufficient to “frustrate the
practicalities of litigation”). The Supreme
Court has turned to federal law for
limitations periods when a state limitations
period was too short to accommodate the
special circumstances of litigation, such as
investigation. See DelCostello, 462 U.S.
at 166 (holding that a state limitations
period of generally between 10 and 90
days was insufficient to bring a LMRA §
301/fair representation hybrid action).

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There are no such special considerations
relevant to bringing CFA claims that
would be frustrated by a two-year
limitations period. Cf. Reed, 488 U.S. at
327-328n.4 (finding in the LMRDA
context that there was no indication that it
should take more than two years to identify
an injury and hire an attorney).
Additionally, the two year state
limitations period does not frustrate the
purpose or implementation of the FCA or
its Cable Act amendments. The overall
purpose of the FCA is to “regulat[e]
interstate and foreign commerce in
communication by wire and radio so as to
make available . . . to all the people of the
United States . . . a rapid efficient . . .
communication service with adequate
facilities at reasonable charges . . .. ” 47
U.S.C. § 151. More specifically, Congress
passed §§ 553 and 605 to prevent
unauthorized interception of cable
transm issions, including interception
through unauthorized use of decoding
devices. These policies and laws are not
impeded in the present case where
KingVision has had up to two years to
bring suit in order to deter theft and keep
the costs of services down. There is no
evidence that the practicalities of litigation
require more time.
Conclusion
For the foregoing reasons, we will
affirm the judgment of the District Court,
dismissing KingVision’s Complaint.

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