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Time Warner Entertainment - Advance/Newhouse Partnership d/b/a Time Warner Cable, (service to Glenn Britt, CEO) Richard Parsons, CEO, AOL/Time Warner (a general partner in Time Warner Entertainment Advance/Newhouse Partnership) Robert J. Miron, CEO, Advance Communications Corp (a general partner in Time Warner Entertainment Advance/Newhouse Partnership) Jon Scott, President, Time Warner Cable, Vestal NY Division, David Whalen, Vice President, Time Warner Cable, Vestal NY Division, Andrew Fleming, General Manager, Time Warner Cable, Vestal NY Division, Defendants ) ) ) ) ) ) ) MEMORANDUM OF LAW ) ) ) ) ) Civil No: 3:03-CV-0633 ) (TJM)/(DEP) ) ) ) ) Jury Trial Demanded ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT Introduction Plaintiff submits this memorandum in response to defendants' motion for summary judgment. This document will outline the various challenges cited by defendants in support of a motion for dismissal, and will show that each one is either without merit, or
present counter arguments sufficient to demonstrate that a controversy exists, and justify plaintiff's standing and the necessity of trial. Response to Preliminary Statement Defendants assert that "In his petition for relief, the plaintiff seeks an injunction requiring Time Warner Cable to provide free ... classes" Memorandum, Preliminary Statement. At no point in the complaint was there a demand that training classes must be "free", only that classes must exist, and be either free or low cost. Complaint §§ 64, 99(b)(2). Presently, Time Warner Cable does not have any training classes to train public access producers. Complaint, attached Exhibit A.
Response to POINT I: "PLAINTIFF CANNOT ASSERT CLAIMS AGAINST A CABLE OPERATOR UNDER THE UNITED STATES OR NEW YORK STATE CONSTITUTIONS". Defendants assert "the free speech protections in both the United States and New York State constitutions only apply to state actors, not private entities." In opposition, we assert the following. I-A: Corporations Are Quasi-State Actors Defendants are corporations, partnerships and/or agents of corporations, which are chartered and regulated by the act of the state to serve a public function, and therefore must be considered quasi-state actors. The Court is asked to take notice of the obvious and axiomatic necessity of state involvement in the creation, regulation, and granting of rights to corporations as prima facie evidence of state action. While the state generally does not assert a right to appoint board members, and manage their daily affairs, it is undeniable that corporations are legal fictions which could not exist if not for state action. I-B: Corporations Can Not Be Considered Persons w/r/t Free Speech Claims Defendants implicitly assert through citations of case law that there are only two classes of entities to be considered as either actionable or not vis-à-vis free speech claims under the United States and New York State constitutions,
"state actors", and "private entities" (and variations "private actors", "private individuals", or "private persons". These forms all occur in citations in the Memorandum)
This class ("private entities", et. al.) subsumes both natural persons (human beings) and corporations. However, both defendants and certain prior courts have failed to recognize important distinctions between natural persons and corporations. Corporations are legal
fictions very unlike natural persons. "[A] corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence". Dartmouth College v. Woodward. Here is a table of certain characteristics, obvious and axiomatic, which suggest that these two classes must be treated as being unique and distinct under the law: Natural Persons (human beings) Sui Juris adult, of sound mind, autonomous, moral agent Legal Fictions (Corporations, Artificial Persons, Monopolies of Commerce) Not alive, no mind, sound or otherwise, cannot be considered a moral agent in any real sense
Mortal, is born of a mother and Most modern charters are indefinite, father, and will certainly die revocation of charter (corporate death penalty) is rare, therefore corporations are practically immortal Humans can suffer real bodily injury, feel pleasure and pain, can be jailed, directly act, exist in a particular time and place Humans act with honor, and with moral responsibility due to obligations of faith, family and community, and an inherent sense of right and wrong Corporations are fictitious, have no body, cannot suffer real bodily injury or feel pleasure / pain or be jailed, do not exist except on paper Corporations behave in an amoral fashion and without honor, and function only to maximize profit to stockholders (concentrate wealth).
Creator Rights Limits
Created by mother and father, Created by State Action and by nature's God "Endowed by their Creator Bestowed with rights only by fiat of with certain inalienable rights" State Action or by contract Humans limited to a single body. Practical limits on personal wealth. Corporations can combine with other corporations to become bigger. Perpetual life and low tax rates allows amassing great fortunes. There are little legal or practical limits on their growth or wealth.
Self Autonomous, free agent, self- Cannot act but by actions of Directors Determining aware, self directed and Officers
Table 1 Prior case law has also failed to make this important distinction. In Shad Alliance v. Smith Haven Mall, 66 N.Y.2d 496,498 N.Y.S.2d 99(1985), the Court of Appeals refers to "Smith Haven Mall" as being in the class of "private persons". In Lugar v. Edmonson Oil Co., 457 U.S. 922 102 Sup. Ct. 2744, 2754 , the court refers to Edmonson Oil Co. as "a private individual". In Engstrom v. Kinney System, Inc., 241 A.D. 2d 420,242,661 N.Y.S. 2d 610,614 (1st Dept. 1997), the court refers to Kinney System, Inc. as in the class of "private entities". Island Online, Inc. v. Network Solutions, Inc., 119 F. Supp.2d 289,307 (E.D.N.Y. 2000) refers to litigants as "private individuals". 1C: Defendants Are State Actors According to Standard Measures The Supreme Court of the United States has developed various tests in the determination of state action. Defendants can be shown to be state actors according to all of them. 1. Public Function test: The government delegates a government function to a private party. Marsh v. Alabama, 326 U.S. 501 (1946). Since all corporations are chartered by the state to perform a public purpose, defendants should be held to be state actors. In some communities the cable plant is owned by the municipality. Even when the cable plant is owned by a statechartered "private corporation", often the public access facilities are owned and/or administered by the municipality or a collective of municipalities served by a common cable plant. Huston Affidavit. According the N.Y regulations, the franchising authority has the right to delegate administration of the public access channel to a municipality designated entity. 9 N.Y.C.R.R. 595.4(c)(1). In sum, the administration of public access television is a public function. 2. Symbiotic relationship test: The government and the private actor are so closely related and interdependent that it is difficult to ascertain where the government stops and the private conduct begins. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). It should be noted that defendants and their various partners, parent companies, and/or divisions are both content providers and content distributors. (AOL/Time Warner, a partner in TWEAN, owns several news "properties", including Time Magazine, and CNN). The symbiotic relationship is clear during elections, where corporate money funds candidates, and the majority of this money is used to purchase advertising in corporate media outlets. Thus, candidates which have been shown to be most favorable to corporate interests, then receive the most corporate financial backing, which is then used to purchase advertising in the corporate-owned media. Thus, candidates which are most antagonistic to corporate interests (e.g., Ralph Nader, Dennis Kucinich) receive disfavorable coverage by corporate news, and those candidates most compatible to corporate interests receive the most favorable coverage. This cycle of money and influence
is so sinister and dangerous to the health of our democracy as to warrant "state actor" status to corporate media outlets alone. Huston Affidavit. Additionally, there is a hidden method of symbiosis, i.e., when stock in public corporations is held by government officials regulating these corporations. It was widely reported that Secretary of State Colin Powell's stock holdings increased in value by $4M, when the merger of AOL and Time Warner was approved by the F.C.C, chaired by his son. Report, Center for Responsive Politics, opensecrets.org. 3. Joint Action test: The private actor acts jointly, conspiratorially or otherwise, with a government official. Adickes v. Kress, 398 U.S. 144 (1970). The statutes grant regulatory authority of cable providers in New York State to the franchising authority, which is collectively the municipalities served and the New York State Public Service Commission. Plaintiff has petitioned the franchising authority for review and enforcement action for several years, however no such review or enforcement action has occurred. Thus, it appears that of Plaintiff's claim of tort under federal and state laws is held to be valid, that the defendants actions, coupled jointly with the State's lack of enforcement action are together responsible for the injury. This argument also hold true under the Close Nexus test (e.g., Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). I-D: Public Access Television channels are state-created public fora, thus administrators are subject to First Amendment Claims. Public access television is clearly a state-created a limited public forum, since it arises from the municipal franchise agreement, or state regulation or statute. Public access is "the video equivalent of the speaker's soap box or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas." H. R. Rep. No. 98-934, at 30. This is regardless of whether cable spectrum dedicated to public access is private or public property. If the spectrum on Defendants' cables is considered "private property", then state action is present when an easement is created for a public purpose, which is what public access clearly does. But perhaps a more apt analogy is the conversion of private property to public property for public streets, parks, and commons, upon which a public forum clearly exists. The administrator of such a public forum (whether a municipality, private corporation, a public corporation, a public trust, etc.) is placed into power by state action and must either be considered a state actor, or it should be seen to be within the scope of furthering statutory objectives for this court to expand the notion of free speech claims to include non-state actors under these circumstances. In several cases, the administrator of the public access channel was held to be a state
actor with regards to first amendment claims, the closest being Demarest v. Athol/Orange Community Television, Inc., 188 F. Supp. 2d 82, 90 (D. Mass. 2002). Athol/Orange Community Television (AOTV) is a municipally authorized and operated PEG access channel and was held to be a state actor for purposes of evaluating First Amendment claims. This is a quite similar situation, as TWEAN are municipally authorized to be the operator of the PEG channel capacity and necessary facilities and equipment to use channel capacity. While TWEAN was not created by special legislation (as was found in Demarest, Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 378, 130 L. Ed. 2d 902, 115 S. Ct. 961 (1995)), we argue state action is still to be found in this case for totality of reasons cited here. Clearly applying First Amendment scrutiny to public access is not unexplored territory for the Courts. Defendants also recognize that in Denver Area Educational Telecommunications v. FCC, 518 U.S. 727,116 S. Ct. 2374 (1996), the Court held the administrator of the public access channel to First Amendment scrutiny, even though the basis for determining state action was different than the four reasons (1A-1D) we cite here.
RESPONSE TO POINT II: PRIVATE CAUSES OF ACTION AGAINST CABLE OPERATORS WITH RESPECT TO PUBLIC ACCESS ARE LIMITED TO ALLEGATIONS OF EDITORIAL CONTROL. Here despite the caption, Defendants present various arguments that Plaintiff lacks a private right of action. In fact, Defendants are exercising editorial control. Complaint, @ 46-51. II-A: Private rights require private causes of action. An ancient maxim states, "Ubi jus, ibi remedum", or "where there is a right, there is a remedy". It is obvious that 47 U.S.C. § 531 and New York State Public Service Law § 229 are substantive law, as they confers rights upon cable viewers, and public access producers, and obligations upon cable providers. This is not disputed by defendants. "The New York PSC Regulations do create obligations on cable operators". Memorandum of Law, Point II. However, where the rights creating statute specifies an administrative enforcement action as the sole remedy, and seemingly not a private right of action, a private right of action must still ultimately exist, if perhaps only after exhausting administrative remedies. In this case, Plaintiff has repeatedly petitioned the franchising authority for relief. Complaint, p19-21, to which Plaintiff was ignored utterly. Note, this is not the same as receiving an enforcement action undesirable to the Plaintiff.
To deny Plaintiff standing in this Court would be to deny Plaintiff's right to petition the government for redress of grievance, under the First Amendment. II-B: Implied Cause of Action test unnecessary for substantive law such as 47 U.S.C. § 531 and New York State Public Service Law § 229. Substantive law, as opposed to adjective, procedural, or remedial law, either creates rights, or asserts that certain a priori rights existed which are otherwise not recognized by statutes. A continuum must exist between the private right and the private remedy, even when an intermediate administrative remedy is required by statute. As stated above, it is obvious that 47 U.S.C. § 531 and New York State Public Service Law § 229 are substantive law. Plaintiff's complaints and petition for relief in accordance with N.Y. Public Service Law § 224-a(7)(a) was repeatedly ignored. It is clear that an implied cause of action exists in a case such as this. Otherwise it would be a right without remedy. II-C: Implied Cause of Action exists under the New York test "The New York Test" for implied cause of action (from Sheehy v. Big Flats Community Day, Inc., 73 N.Y.2d 629, 633,543,N.Y.S.2d 18,20 (1989)) clearly applies, as "The New York Test" is a subset of the test from Cort v. Ash, 422 U.S. 66 (1975), which was found to hold under 47 U.S.C. § 531 in the 2nd Circuit for a public access producer. McClellan v. Cablevision of Connecticut, Inc., 149 F.3d 161, 168 (2nd Cir. 1998). Thus, a private cause of action must similarly exist under section 229 of the New York State Public Service Law, since the statutory intent (prohibition of editorial control) is identical. II-D: Judicial tests for implied right of action should not be rigid or final. The tests for the existence for an implied right of action (e.g., Court v. Ash) are a judicial construction of recent origin. Prior to such cases, the legislature was not compelled to denote an explicit private right of action when authoring positive law, as it was up to the discretion of individual Courts to decide (perhaps even to assume that private rights of action should always hold in substantive law). Since New York State Public Service Law § 229 predates Sheehy v. Big Flats and Cort v. Ash, it is possible that a private right of action was intended, but explicit mention deemed unnecessary. This possibility exists even in subsequent statutes. While courts have cautioned themselves in the past that to create private rights of action where none was legislatively created would be an overstep of judicial authority. Similarly, this Court is requested to reflect upon the contrary possibility, that overzealous application of such tests may in fact deny standing to persons rightly entitled.
RESPONSE TO POINT III: PLAINTIFF HAS FAILED TO IDENTIFY ANY ACTIONABLE VIOLATIONS OF THE NEW YORK REGULATIONS
Plaintiff has identified actionable violations under the New York Regulations. III-A: Defendants usage of channel 6 as combined PEG and channel 12 as Leased Access is clearly a violation of regulations. Here is the weakest assertion put forth by the Defendants, and is false on its face. "Designate" means, 1. To indicate or specify; point out. 2. To give a name or title to; characterize, 3. To select and set aside for a duty, an office, or a purpose; allocate, appoint. American Heritage Dictionary of the English Language, Fourth Edition. Defendants do not deny that they put non-designated government and/or educational access programing on the public access channel. "Governmental access programming does occasionally appear on Channel 6...." Whalen Affidavit, ¶ 7. How this combined P+EG channel can be consistent with being a "full-time activated channel for public access use" is beyond comprehension. Additionally, defendants have asserted that government access programming "occasionally" appears on channel 12, Whalen Affidavit, ¶ 7, but this has never been observed by plaintiff in the last several years. Discovery must proceed to provide conclusive evidence of this. Channel 6 is listed as a "PEG" channel in multiple channel guides indicating a combined function. "PEG Programming" listings on channel 6 do not ever list some programs as being on channel 6 and others on channel 12. This indicates that no PEG programming of any sort ever occurs on channel 12. Channel 12 is listed in on-line guides as "ACN", a shopping channel, clearly a non-designated use. Huston Affidavit ¶ ¶ 9-11. Thus, how channel 12 can be "designated" as a "full time activated channel for educational and government use" yet used for another purpose and be in compliance with the regulations is similarly incomprehensible. Defendants clearly act with contempt towards the regulations. Perhaps Defendants have a pet duck and "designate" it as a pet dog, or own a Honda and "designate" it as a BMW. However, the true nature and character is apparent upon casual inspection. III-B: Required promotion of public access is not present or complaint. Defendants do not deny that that on-screen notice as required by 9. N.Y.C.R.R. § 595.4(c)(3) is non-compliant (it presently lacks an address, and does not occur during required hours). In fact, Defendants seem to recognize that improvements need to be made. "I have directed that any actions necessary to fully comply with this provision be undertaken". Whalen Affidavit, ¶ 11. To date, these improvements have not been made. Defendants do not assert that required mailings have ever taken place, nor deny that they have not. While the channel is identified as "PEG" or "Public Access", the programming is not as required by the regulations.
RESPONSE TO POINT IV: CABLE OPERATORS ARE NOT OBLIGATED TO PROVIDE FREE STUDIO TIME AND PRODUCTION ASSISTANCE IV-A: No-charge use of public access studio facilities is nominal and customary. There are several hundred public access television facilities around the country, The Global Village CAT, www.openchannel.se, and "very few systems charge money for use of facilities". PUBLIC ACCESS TELEVISION, www.museum.tv. Defendant has been involved in nearly 100 public access productions, at 6 studios in 3 states, and has never been charged a fee for use of studios or other equipment. IV-B: Studios, video cameras, and use of other facilities and equipment for public access producers is required by N.Y. Public Service Law and New York Regulations. Defendants cannot prohibit or limit live public access television productions, but they in fact do. Complaint ¶ 46-51. Cameras and microphones (not necessarily in a studio) are typical and necessary for use of channel capacity. Complaint ¶ 58-61. Defendants' supplied "facilities and equipment" (video playback decks) are insufficient, as they cannot generate a television signal from sound and light, nor can they be used to generate live programming. Defendants do not deny that free use of certain facilities and equipment is necessary to comply with the "first come, first served, non-discriminatory access" requirements of 9 N.Y.C.R.R. 595.4(a)(1) and (c)(4), but then inconsistently argue that other necessary, typical, necessary, and sufficient facilities and equipment (studio use, portable video camera use) should be paid for by producers. IV-C: Plaintiff does not generally seek "free production assistance" Plaintiff does not seek "free production assistance" generally, only as relief until Defendants can provide low cost equipment certification classes so that public access studio productions can be manned by community volunteers. Complaint, ¶ 99. These training classes are typical and customary. Huston Affidavit. While 9 N.Y.C.R.R § 595.4(c)(7) states that "the designation of PEG access facilities shall include the provision by the cable television franchisee of the technical ability to play back prerecorded programming", this does not exclude other necessary equipment. Certainly other non-specified equipment is necessary. Huston Affidavit ¶ 14.
RESPONSE TO POINT V: PLAINTIFF'S GENERAL ATTACK ON THE MEDIA FAILS TO STATE A CLAIM Plaintiff at Complaint ¶ 67-76 clearly states claims under the First Amendment, and under Art I, Sec 8 of the New York State Constitution, as the guarantees of free speech
extend not just from information producers but to consumers as well. This was recognized by the United States Supreme Court, which held, "[The First] Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society." Associated Press v. United States, 326 U.S. 1, 20 (1945). The Court went on to indicate a recognition of a threat against the First Amendment from corporations: "Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression by private interests." Id. (emphasis added)
RESPONSE TO POINT VI: THE COMPLAINT MUST BE DISMISSED AS AGAINST THE INDIVIDUAL DEFENDANTS Plaintiff asserts that individually named defendants as officers in respective corporate partners of TWEAN, are ultimately responsible for the actions of their corporations. Furthermore, Defendant Whalen was the primary actor (as agent for his corporate employer) denying Plaintiff's requested access. However, Plaintiff, within 30 days of this date, motion the court to allow an enlargement for the joinder deadline, to join the actual corporate partners of TWEAN, which are upon information and belief, "Advance Communications Corporation", "Newhouse Broadcasting, Inc.", and "AOL/Time Warner", and to release the individually named defendants as requested by Defendants. Respectfully submitted, Dated: Feb 10, 204 William Huston, pro se 342 Park Ave, Binghamton NY 13903-6000 607-724-1755
Gordon E. Thompson, Esq COUGHLIN & GERHART, LLP Attorneys for Defendants P.O. Box 2039 Binghamton NY 13902-2039 607-723-9511 Attorneys for the defendants Jonathan B. Fellows, Esq. BOND, SCHOENECK, & KING, PLLC One Lincoln Center Syracuse, NY 13202 315-218-8000
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