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3-Memorandum in Support of Motion for Summary Judgement

3-Memorandum in Support of Motion for Summary Judgement

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Published by Bill Huston
This is document 3 in the "huston time warner lawsuit" series.
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This is document 3 in the "huston time warner lawsuit" series.
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Published by: Bill Huston on Jan 26, 2010
Copyright:Attribution Non-commercial


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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK William Huston, pro sePlaintiff,v.Time Warner Entertainment - Advance/NewhousePartnership d/b/a Time Warner Cable, (service toGlenn Britt, CEO)Richard Parsons, CEO, AOL/Time Warner (a general partner in Time Warner Entertainment -Advance/Newhouse Partnership)Robert J. Miron, CEO, Advance CommunicationsCorp (a general partner in Time Warner Entertainment- Advance/Newhouse Partnership)Jon Scott, President, Time Warner Cable, Vestal NYDivision,David Whalen, Vice President, Time Warner Cable,Vestal NY Division,Andrew Fleming, General Manager, Time Warner Cable, Vestal NY Division,Defendants)))))))))))))))))))))))))))Civil No: 3:03-CV-0633 (TJM)/(DEP)Jury TrialDemanded
 BOND, SCHOENECK &KING, PLLCBy: Jonathan B. Fellows,Esq.Attorneys for DefendantsOne Lincoln Center Syracuse, NY 13202Telephone: (315) 218-8000COUGHLIN & GERHART,LLPAttorneys for Defendants20 Hawley StreetPO BOX 2039Binghamton NY 13902-2039Telephone 607-723-9511
Defendants submit this memorandum and the affidavit of defendant David J.Whalen in support of a motion for summary judgement dismissing the complaintof plaintiff, William Huston ("Huston"). Huston is a producer of "public access" programming. In his complaint, Huston makes various allegations that defendantshave somehow restricted his access to their public access channel. Yet, he doesnot allege that defendants have ever refused to carry, or excercised editorialcontrol over, any of his programming. Rather, Plaintiff's primary grievanceappears to be that defendants will not cover his costs to produce "live" publicaccess programming. His request for relief demands that defendants provide himwith free studio time, production assistance and training. However, as will bedemonstrated below, the relevant regulations simply require that cable operatorsafford producers access to a public access channel -- they do not require cableoperators to actually produce or to pay for the production of such programming.Accordingly, Huston's complant should be dismissed for failure to state a claim.
This action was commenced on April 25, 2003 by the filing of a summons andcomplaint in New York State Supreme Count, Broome County. On May 22, 2003,defendants removed the action to this Court on the grounds that the plaintiff asserted claims arising under the United States Constitution and alleged violationsof federal law.Defendant Time Warner Entertainment-Advance/Newhouse Partnership
("TWEAN") has provided cable television service in thie areas throughout theSouthern Tier of New York State through the Bnghamton Division of TimeWarner Cable ("Time Warner Cable"), Complant ¶ 9; Affidavit of David Whalen, ¶ 1.
The complaint contains eight claims in which plaintiff invokes rights under theUnited States and New York Constitutuions, the Cable Communications PolicyAct, 47 USC §§ 521-573 (the "Cable Act"), section 229 of the New York PublicService Law, and Article 9 of the New York Code of Rules and Regulations (the"New York Regulations"). In his first two claims, plaintiff alleges that TimeWarner Cable is in violation of New York Regulations because it has failed to provide sufficient channel capacity for public access programming. (Complaint, ¶¶ 37-45). Plaintiff's third claim alleges that Time Warner Cable has exercisededitorial control over public access programming in violation of section 229(3) of the Public Service Law, and 47 USC section 531(e) because it does not provide public access producers with a free live studio for a call in program (Complaint, ¶¶ 46-51). Plaintiff's fourth and fifth claims allege that federal law and the NewYork Regulations require Time Warner Cable to provide free studio time and production facilities to the plaintiff (Complaint, ¶¶ 52-66). The sixth, seventh andeight claims generally allege Time Warner Cable does not provide significantlocal origination programming, and that Huston's rights have been denied by thefailure of the mass media to provide programming in the public interest and bythe failure of local municipalties to effectively regulate cable television service.(Complaint, ¶¶ 84-98).In his petition for relief, the plaintff seeks an injunction requring Time Warner Cable to:1.provide free studio access and production personnel for public accesstelevision;- 2 -2.provide free classes to teach community members how to use productionequipment; and3.provide community education regarding public access.Complaint, ¶ 99.In addition to these specific requests, Plaintiff's request for relief asks that theCourt order Time Warner Cable to "commit" to various principles regarding public access.Plaintiff alleges that he lives in Binghamton, New York and has been active for 

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