1-Time Warner Complaint

Complaint in Huston v. Time Warner Entertainment, et. al.

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF NEW YORK

William Huston, pro se

Plaintiff,

v.

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

))))))))))))))))))))))

COMPLAINT

Civil No: 3:03-CV-0633 (TJM)/(DEP)

Jury Trial Demanded

COMPLAINT

Plaintiff, by way of Complaint against the Defendants named herein, states and alleges, upon information and belief, as follows:

INTRODUCTION

1. This Complaint comprises a civil action for declaratory and injunctive relief, as well as a petition for actual and exemplary damages. The action arises under rights derived from 9 NYCRR § 595.4, NY State Public Service Law, Art 11 § 229, 47 USC § 531 (as these laws existed when the torts occured), the First Amendment of the United States Constitution, and under Art I, Sec 1 (equal rights), Art I, Sec 8 (free speech, press), Art I Sec 11 (equal protection, prohibition of denial of rights by a person, firm, corporation, or institution) of the NY State Constitution.  

2. Plaintiff alleges that Defendants violated his civil rights under these statutes, as well as having caused Plaintiff to suffer related torts. 

PARTIES

3. Plaintiff William Huston, pro se, a natural person, whose residence is 342 Park Ave, Binghamton, county of Broome, NY, 13903 is a computer programmer, a citizen activist involved in Peace and Social Justice movements, and a subject matter expert in community media issues.  

4. He is an engineer at WHRW, a community radio station at SUNY Binghamton, an applicant for the Binghamton area NPR/PBS affiliate WSKG's Community Advisory Board, and has been involved in Public Access Television productions since 1994.  

5. He has worked at five Public Access television studio facilities in two states, and runs two websites devoted to Public Access Television education and advocacy.  

6. He has been involved in approximately 75 Public Access television productions total, approximately 30 live productions, and 15 remote productions. He is a critic of the biases found in for-profit commercial media, and an advocate of many forms of Locally Originated Community Media as having a vital role in well-functioning democracies.    

7. Plaintiff has attempted to gain access to Plaintiffs' Local Origination studio facilities for the production of Public Access Television productions, since on or about July 2000, and has been consistently denied access to such.  

8. In addition, Plaintiff has suffered other injuries while a subscriber of Time Warner Cable cable television service, detailed below.  

9. Defendant TIME WARNER ENTERTAINMENT-ADVANCE/NEWHOUSE PARTNERSHIP d/b/a TIME WARNER CABLE (hereafter, "Time Warner Cable"), upon information and belief, is a fictitious person, and a New York General Partnership, and has provided Community Antenna Television (CATV) or Cable Television service to several New York cities and towns, including Binghamton, Candor, Chenango, Conklin, Dickinson, Endicott, Fenton, Johnson City, Maine, Nanticoke, Newark Valley, Owego, Port Dickinson, Tioga, Union, and Vestal, through its Vestal-based operations, and whose principle business address is 75 Rockefeller Plaza, New York, NY 10019, (service to Glenn Britt, CEO), 

10. Defendant Richard Parsons is CEO of AOL/Time Warner (a fictitious person and a general partner in Time Warner Entertainment - Advance/Newhouse Partnership), whose principle business address is 75 Rockefeller Plaza, New York, NY 10019,  

11. Defendant Robert J. Miron is CEO of Advance Communications Corp and/or Newhouse Broadcasting Corporation and/or Advance/Newhouse Partnership (a fictitious person, a general partner in Time Warner Entertainment -

Advance/Newhouse Partnership, and whose subsidary, unit, or division "Newchannels Corporation" owned the exclusive CATV franchise in the City of Binghamton and vicinity since July 1978), whose primary place of business is 5015 Campuswood Drive, East Syracuse, NY 13057,  

12. Defendant Jon Scott, a natural person, is President, Time Warner Cable, Vestal NY Division, whose principle business address is 483 Plaza Dr., Vestal NY 13850.

13. Defendant David Whalen, a natural person,  is Vice President, Time Warner Cable, Vestal NY Division, whose principle business address is 483 Plaza Dr., Vestal NY 13850.  

14. Defendant Andrew Fleming, a natural person, is General Manager, Time Warner Cable, Vestal NY Division, whose principle business address is 483 Plaza Dr., Vestal NY 13850.  

VENUE AND JURISDICTION

15. Plaintiff is a resident of Broome County, NY.  

16. Defendants are providing CATV or Cable Television service within Broome County, NY. Since the tort and denial of civil rights has occurred and continues to occur in New York State, County of Broome, venue is properly laid in the Supreme Court of New York, Broome County, which holds personal and subject matter jurisdiction under NY CONST Art. 6, § 7, and NY JUD § 140-b.  

EXHAUSTION OF REMEDY

17. Whereas Plaintiff first suffered injury and denial of civil rights by Defendants while a resident of the City of Binghamton, with domicile at 19 Beethoven Street, Plaintiff has continuously sought remedy from the City of Binghamton, as well as from the New York State Public Service Commission.

18. Because Defendants' Vestal-based operations provide nearly

identical service in all communities served, generally, for most counts and causes, remedy occurring in any community would provide substantial remedy throughout the network. Thus, Plaintiff asserts an interest in and the enforcement of any and all existing franchise agreements, and in the negotiations of new franchise agreements throughout the Time Warner Cable Vestal-based network.

19. On 16 July 2002, Plaintiff informed by letter of complaint to Time Warner Cable, Binghamton City Council, Binghamton Mayor Richard Bucci, Binghamton Corporation Counsel Gregory Poland, Binghamton Comptroller Beverly Palmer, New York State Attorney General Elliott Spitzer, and the New York State Public Service Commission of several areas of Time Warner Cable, Vestal Division's non-compliance with the existing Franchise Agreements and New York State Law in all municipalities in which they provide CATV services.  

20. On this date, and on several other dates speaking before Binghamton City Council, has asked the City of Binghamton Corporation Counsel to issue an injunction against Defendants to enjoin them to come into compliance.  

21. To date, Plaintiff has not received any formal response to any of the allegations of non-compliance from either Time Warner Cable, or from any government body, and no injunction was ever made, although the New York State Attorney General has responded with a claim of lack of jurisdiction of the matter, and several meetings have occurred with various City officials concerning the renewal of the franchise between Time Warner Cable and the City of Binghamton.

22. As proof of exhaustion of remedies, plaintiff sent formal written request for studio use and request to take equipment certification classes on 12 September 2002 by certified mail, and received the expected response from Defendant Whalen on 20 September 2002, denying access to Time Warner Cable Vestal Division's Local Origination facilities, and denying right to

attend such classes, or that such classes exist or need to exist. 

DEFINITIONS

23. In this complaint, the term "Local Origination" programming is meant in the denotative sense, that is, programming which is created in the local community, and not beamed in from afar. In this sense, "Local Origination" programming could be Public Access, Government or Educational Access, Leased Access, or programming which the cable provider creates. However, it is noteworthy to state that in common parlance, only the last sense has come to be accepted as connotative, that is, "Local Origination", or often simply "Origination" programming is said to refer exclusively to that programming created by the cable provider. Plaintiff asserts that this is an illegitimate usage fostered by the cable industry to cause confusion about the term and to distract away from the truest sense. Plaintiff asserts that Public Access is the purest and most vital form of community self-expression, and thus is at the essence of what early writers meant by "Local Origination".

24. Public Access:   A forum for community self-expression, where Cable Television operators provide first-come, first-served, non-discriminatory access, without cost, to facilities and equipment and cable television channel capacity for the production of locally originated non-commercial television shows. This began in the late 1960s, and was made compulsory by the FCC in 1976 in systems of more 3500 subscribers. Public Access has a long history as a  limited public forum, and hosts shows of every kind, from children's shows, shows about arts and crafts, sports,  theater and drama, computers, auto racing, news and public affairs programs, and talk shows on every possible topic.  

25. Leased Access: Similar to Public Access, but without the non-commercial requirement. Also, Leased Access customers must pay for production costs and for use of channel capacity.  

26. Government Access and Education Access: The laws on these are not as clearly defined as Public Access, but generally these types of access are programs that are produced by the local municipalities or the cable provider, and do not generally allow use of facilities and equipment or channel capacity by the general public, and thus these channels have an entirely different character than Public Access.  

Brief History of Binghamton Cable TV Franchise

27. Note: A similar ownership pattern exists in other municipalities in which Time Warner Cable, Vestal division, does business.

1965: Empire State Cable TV Co. Inc signs CATV Franchise Agreement with City of Binghamton 

1971: City of Binghamton renews CATV franchise with Empire Cable for 10 years.

1971: Laws passed which makes Public Access TV compulsory in the State of New York (source: James Horwood, PEG Access and the Law)

1978: Coughlin & Gerhart, Attorneys for Newchannels Corporation file a petition to the Mayor and City Council which asserts that Newchannels now holds the franchise agreement between City of Binghamton and Empire Cable (and seeks rate and service changes). Ordinace which recognizes this is not in the public record.

1981 Binghamton City ordinance which amends 1971 Empire contract to continue 10 years.

1990: City Council passes ordinance 90-164 renews and replaces amended 1971 Franchise Agreement between City of Binghamton and Empire Cable ("a predecessor in interest of Newchannels Corp") with new agreement between City of Binghamton and Newchannels Corp.

1994: City ordinance transfers the 1971 Newchannels Franchise to Time Warner Entertainment - Advance/Newhouse, a new partnership consisting of a unit, subsidisary, or parent company of Newchannels (Advance/Newhouse Partnership), and Time Warner Entertainment, LP.

1995: NY State Public Service Commission approves 1990 Newchannels franchise renewal, now owned by Time Warner Entertainmant - Advance/Newhouse.

Jan 31, 2003: Franchise between City of Binghamton and Time Warner Entertainment - Advance/Newhouse expires.

COUNTS

28. These claims apply to each defendant individually and collectively.

29. Plaintiff alleges that Defendants have, with intent and knowledge, failed to perform as obligated, violated and disregarded to state and federal laws, and is in material breach of the individual franchise agreements in the municipalities in which they do business, and has violated the civil rights of the Plaintiff and caused Plaintiff to sustain other injurous torts, to wit,

30. COUNT 1: Insufficient Channel Capacity for Public Access: Time Warner Cable is obligated under 9 NYCRR § 595.4(b)(1) to provide at least one full-time activated channel for public access use, and at least one full-time activated channel for educational and governmental use. Time Warner Cable only provides one combined PEG channel within the Vestal network.

31. This works financial advantage to Defendants, as they get to replace the required access channel with programming (like a shopping channels) which generates revenue to Defendants, but from which the subscribers and local community derive none of the benefits inherent with such Public Access programming.

32. Also, this insufficient channel capacity causes Public Access producers to compete for cablecast time with, and to sometimes be preempted by Government Access and Educational access programming, and is equivalent to a limitation of Public Access prohibited by NY Public Service Law, Art 11 § 229(3). Plaintiff asserts his civil rights under this statute were violated as follows:

33. Plaintiff was denied benefit of actual programming on the denied channel  

34. Plaintiff's rights under the First Amendment (as a listener) and under Art I, Sec 8 of the New York State Constitution were violated due to absence of actual programming. First Amendment responsibilities of diverse speech are applicable due to Defendants being a quasi-state actor, and by Art I Sec 11 of the New York State Constitution.  

35. Plaintiff was denied the benefit of potential use of channel capacity, because of Defendents' 1) supplying only a shared

P+EG channel, causing confusion among potential users as to what they were watching and their ability to use such channel capacity, 2) Defendants' failure to promote Public Access, specifically mentioned elsewhere in this complaint, and 3) Defendants' continued failure to identify Access programming as such, causing confusion among potential users as to what they were watching and their ability to use such channel capacity.

36. COUNT 2: Failure to Promote Public Access: Defendants have an obligation to promote Public Access under 9 NYCRR § 595.4(c)(3), which states,

37. "The entity responsible for administering and operating the Public Access channel shall provide notice to the general public of the opportunity to use such channel which notice shall include (i) a character-generated message transmitted at least hourly on such channel between the hours of 6 p.m.ad 10 p.m. each day and (ii) written notice to subscribers at least annually. Notices shall include the name, address and telephone number of the entity to be contacted for use of the channel. All access programming shall be identified as such.",

38. However, Defendants are not in compliance with this in several ways.  

39. Plaintiff was a Time Warner Cable subscriber approximately from Oct. 1998 to June 2000, and never received any such written notices.  

40. Public Access programming is not identified as such, and because of this (and due to the shared channel) there is a general ignorance or confusion in subscribers as to what shows are Public Access and which are Education or Government Access, which are of an entirely different character.

41. Failure to provide required facilities and equipment (studios, porta-paks, editing equipment) for local origination of Public Access productions causes the Public Access Channel capacity to be under-utilized, and when utilized, to be exclusively pre-recorded tapes.  

42. These pre-recorded tapes tend to be dominated by Educational Access, Government Access, and non-locally

produced Public Access programming, and tends to deny local producers and potential users their rights a) to be aware of the existence of Public Access, and b) to use the channel capacity to any substantial degree.  

43. Required character-generated messages under (c)(3) were completely absent prior to Aug 20, 2002, which are now present but are still not compliant (CG messages not transmitted hourly, such as between shows during hours when programming is present, and address of Defendants is not present).

44. Public Access Television can only thrive in a community of volunteer producers, which is inhibited by Defendants' failure to promote public access under existing franchise agreements, and under these statutes.  

45. Plaintiff was denied civil rights under this statute, to live in a community with a thriving Public Access channel and communuity of local producers, due to Defendants' failure to perform.

46. COUNT 3: Prohibition and Limitation of Classes and Types of Public Access Programming: NY Public Service Law, Art 11 § 229(3) states, "No cable television company may prohibit or limit any program or class or type of program presented over a leased channel or any channel made available for Public Access or educational purposes."  

47. Also, 47 USC § 531(e) prohibits "editorial control" by the cable provider over Public Access.  

48. However, Time Warner Cable does limit and prohibit certain unique classes of programs, and in effect exerts content-neutral editorial control, but de facto editorial control nevertheless, specifically, by prohibiting and limiting the following unique types and classes of Public Access program :

49. a) Public Access programs which are cablecast live b) Public Access programs recorded with the advantages of a studio, editing equipment, and other facilities and equipment which are typically not owned or otherwise accessable to the general public, c) programs produced by low income or indigent persons or other persons without access to even the most minimal

equipment, such as a consumer camcorder.  

50. Plaintiff asserts rights to produce live programming on Defendants cable network, and to produce shows of the unique and distinct type or class which are produced in a studio and with editting equipment, etc., under NY Public Service Law, Art 11 § 229(3).  

51. Plaintiff was denied Public Access use of Defendants' Vestal studio and editing facilities, and denied the right to make a live production under Public Access rules.  

52. COUNT 4: Equivalence of Leased Access and Public Access: Plaintiff was informed by Defendant that access to the necessary facilities and equipment for production of this type of program (a live, studio program with the ability to take phone calls) would only be available by purchasing studio time and to pay for Defendants' staff to run the equipment and perform the various jobs.  

53. This is in effect making an equivalence between Leased Access and Public Access, working to the financial advantage of the Defendants and to financial detriment of the Plantiff, and which denies Plaintiff's speech, under the First Amendment and other rights under NY Public Service Law, Art 11 § 229(3) and 47 USC § 531(e) .  

54. Historically and customarily Public Access and Leased Access have been unique and distinct. Forcing users to pay is not in the spirit of Public Access, and a violation of the letter of the law.  

55. Public Access producers should have access to the same facilities and equipment, to include cameras, studios, lights, porta-paks, mobile equipment, microphones, audio mixing boards, audio playback devices, character generators, a control room to floor communications system, editing devices, etc., as Leased Access users, but without usage costs, for non-commercial purposes.

56. These facilities are commonly provided for Public Access producers around the country, and exist in many places in New York State, such as Manhatten, Bronx, Queens, Syracuse, Ithaca,

and other cities and towns.  

57. COUNT 5: Insufficient Facilities and Equipment to Use Public Access Channel Capacity: Defendant is obligated by their franchise agreements with all municipalities in which they do business, and under 9 NYCRR 595.4(b)(1) to provide channel capacity for Public Access use.  

58. Certainly, some facilities and equipment also must be supplied, or else the public would never be able to use such channel capacity. In fact, these facilities and equipment are codified by 9 NYCRR § 595.4(a)(4), and 9 NYCRR § 595.4(c)(7).  

59. Defendants claim that a video playback device is sufficient to satisfy (a)(4) and (c)(7), however, by such a policy, Defendants are in fact deferring the necessary facilities and equipment to someone else.

60. Television is a medium of sound and images. To generate a television signal, a device is required to capture sound and light and convert this into electrical impulses, which can then be transmitted, cablecast, or recorded on a video tape recorder.    

61. A video playback deck cannot capture sound and light and convert it into electrical impulses, and thus fails to meet the requirement for minimum necessary facilities and equipment to use channel capacity. This requirement implies certain equipment such as a video camera and a microphone.

62. A camera and a microphone plus the ability to produce live television productions implies a studio.

63. Furthermore, since Public Access studio time needs to be available free and without cost (to distinguish it from Leased Access), this implies that there is a crew of volunteers running the cameras, lights, teleprompter, switcher, audio mixing board, character generator, and performing all roles involved in television productions, and that these positions are not the Defendants' paid staff.  

64. Thus, this implies free or low cost training classes to teach

volunteers on equipment usage, which the Defendants also do not provide.  

65. Plaintiff asserts his civil rights under 9 NYCRR § 595.4(a)(4), and 9 NYCRR § 595.4(c)(7) were violated when Defendants denied requests 1) to use editing equipment, 2) to use studio facilities, and 3) to take equipment certification classes.  

66. Plaintiff asserts rights under above statutes to have access to same facilities and equipment which Defendant provides to Leased Access, Government Access, or Educational Access customers, or which Defendants use for their own productions, but without cost.  

67. COUNT 6: Rights of Free Speech and Free Press Denied to Both Information Producers and Consumers:First Amendment of the United States Constitution and Art I, Sec 8 New York State Constitution asserts both primary free speech and free press rights of speakers and writers, but also secondary and equally important rights of listeners and readers, and rights of all citizens to live in a society providing exposure to a diversity of opinions on important subjects of the day, for a properly informed citizenry is vital to a properly functioning democratic state.

68. Incredible power has been vested in Defendents by the State and individual municipalities for the priviledge to own and control the de facto monopoly cable television operations within service area, and great responsibilites and obligations are placed upon Defendents along with this priviledge under these statutes.  

69. Plaintiff asserts that the mass media all have certain extreme and well defined biases: anti-labor, anti-environment, pro-military, pro-war, pro-corporate, anti-human rights, anti-poor, etc. Plaintiff means to include in this definition Defendants various partnerships, divisions, parent companies, operating units, etc. which are involved in information production and distribution, and also to include other commercial for-profit newspapers, television and radio stations, cable and satellite television networks in which Defendants have no interest, and also to include corporate underwritten programming on NPR and PBS.

70. Note Bene: Plaintiff presently makes no claim against these

companies in which Defendants have no interest. This is provided as background information only, to describe present problems with mass media of which Defendants play a significant role.)  

71. These biases in the mass media, the for-profit media, the commercial media, and corporate underwritten PBS / NPR programs, have been documented by Fairness and Accuracy in Reporting (FAIR), Ben Bagdikian (author, "Media Monopoly"), David Barsamian (author, "The Decline and Fall of Public Broadcasting"), Amy Goodman (host, Pacifica Radio's Democracy Now!), Robert McChesney (author, "Rich Media, Poor Democracy"), Noam Chomsky (author and scholar), Ralph Nader (author and consumer advocate), Jerry Starr (founder, Citizens for Independent Public Broadcasting), and others.  

72. Plaintiff asserts that Defendants, through the guise of various front partnerships, are in fact agents, units, divisions, and/or subsidiaries of the largest media corporations on planet earth, with yearly revenues in the billions of dollars.  

73. Plaintiff asserts Defendants operate locally solely to extract profits from the community, rather than to perform to the public service requirements under these statutes.  

74. Plaintiff claims great injury was and is caused to him by the lack of progressive voices in the commercial, for-profit media, such as the failure of the commercial media, and even local news outlets to treat third party canditates equally, such as Green Party and Libertarian candidates in both recent U.S. Presidential election, and in recent New York State gubernatorial election.

75. Plaintiff asserts this is not because progressive voices don't exist or are not popular, but because of direct actions by media giants such as Defendants' to censor, suppress, subvert, ridicule, and distort progressive voices, to protect their other business interests.

76. Plaintiff asserts that the first-come, first-served, non-discriminatory nature of Public Access television is one example of a non-commercial limited public forum where true free speech can exist, and that Defendants various prohibitions and limitations upon Public Access detailed throughout this complaint have violated his civil rights under the First

Amendment of the United States Constitution and Art I, Sec 8 New York State Constitution.  

77. COUNT 7: Defendent Fails to be a Significant Source of Local Origination Programming: There is a long standing legislative and judicial history upholding the necessity and value of Locally Originated programming. To quote FCC Commissioner Gloria Tristani:  

78. ``The 1967 Carnegie Commission Report, which Congress relied upon to develop and improve noncommercial educational television stations, states, "The heart of the system is to be the community... [T]he overwhelming proportion of programs will be produced in the stations... local skills and crafts will be utilized and tapped ... Like a good metropolitan newspaper, the local station will reflect the entire nation and the world, while maintaining a firm grasp on the nature and needs of the people it serves." Furthermore, Congress and the Supreme Court have repeatedly endorsed the preservation of local-origination programming as a legitimate and substantial governmental interest. In its official findings underlying the 1992 Cable Act, Congress stated: "A primary objective and benefit of our Nation's system of regulation of television broadcasting is the local origination of programming. There is a substantial government interest in ensuring its continuation". In Turner Broadcasting System, Inc. v. FCC,, the Supreme Court expressly cited this finding in rejecting the argument that Congress' "legitimate legislative goals" would be satisfied by the preservation of a truncated broadcasting industry providing a minimum level of service. Similarly, in Midwest Video, the Court upheld an FCC requirement that cable operators make facilities available for local programming production as reasonably furthering the goal of "increasing the number of outlets for community self-expression." ''  

79. The 1992 Cable Act states the necessity of locally originated programming to an "informed electorate":  

80. "There is a substantial governmental and First Amendment interest in promoting a diversity of views provided through multiple technology media." §2(a)(6). "[P]ublic television provides educational and informational programming to the Nation's citizens, thereby advancing the Government's compelling interest in educating its citizens." §2(a)(8)(A). ...

"Broadcast television stations continue to be an important source of local news and public affairs programming and other local broadcast services critical to an informed electorate." §2(a)(11).

81. Despite this statutory and judicial history, and despite Defendants' broadband delivery system and Defendants' other technical abilities to deliver such, Defendants offer very little in the nature of Local Origination programming, which Public Access Television historically plays a significant role.  

82. In fact, by their denial of Public Access producers use of Defendants' Local Origination facilities, Defendants subvert the greatest value of Local Origination: a forum of community self-expression, since Public Access cannot thrive without these facilities.  

83. Plaintiff claims civil rights under 1992 Cable Act, and under precedents cited which uphold requirement of cable providers to be significant sources of locally produced original programming. Plaintiff's rights were violated by 1) Defendants denying him access to become a producer in their studio facilities, and 2) denying Plaintiff benefits to live in a community where such local public access programming exists.  

84. COUNT 8: Local Control of Cable Service: NY Public Service Law, Art 11 § 225, and 9 NYCRR § 595.1(e), and 9 NYCRR § 595.3 asserts the principle of local control of the franchise, to wit, to include municipal approval of changes in rates, and, since changes in service level is equivalent to a change in the rate, this too should be subject to municipal control.  

85. Plaintiff acknowledges the complexities in providing ad-hoc or "a la carte" services to each unique customer or municipality (since Defendents' provide essentially identical service throughout Defendents' Vestal-based operations), but Plaintiff asserts that some mechanism should exist to allow municipalities to regulate rates charged, as well as for citizens and subscribers to help decide which channels are provided in lifeline, basic, expanded basic, and other non-premium service packages.  

86. Defendents' throughout the term of their existing franchise, have raised rates, and changed the definition of service provided, by deleting and adding channels, and engaged in Negative Option promotion Practices, in violation of their individual

franchise agreements and with New York statutes.

87. Plaintiff's civil rights under these statutes, and under the First Amendment of the United States Constitution, and under Art I, Sec 8 of the New York State Consititution were violated by Defendants raising rates and modifying which channels were delivered, without approval of franchise authority, and by Defendants' engaging in negative promotion practices, and due to there being no democratic mechanism for cable consumers to determine which channels are provided in any pre-packaged service levels.  

88. Plaintiff asserts that Congress has failed to state compelling national interest in preemption of such local control, and Plaintiff argues such preemption would violate his First Amendment rights.  

89. Plaintiff argues that when in conflict, the First Amendment rights of natural persons, as individuals and/or as groups, are always superior to any such rights of corporations, firms, business, or other fictitious persons.  

90. Compelling Government Interest in Regulating Corporate (Ficticious Person) Media Ownership: Plaintiff asserts that under such conditions (mass media dominated by conglomerates who use these tools to promote related business interests, failure of mass media to properly inform and educate, failure of mass media to present a true diversity of opinions and viewpoints, lack of and/or ridicule of certain voices when present in commercial media equivalent to censorship and denial of free speech rights on a massive scale), there is a compelling government interest in regulating such.  

91. Just as the State itself is chartered by the sovereign people to act in the public interest, the State must pass along these public interest requirements to State-chartered fictitious persons (corporations, firms, businesses, partnerships) to act in the public interest (especially cable operators given a priviledge to operate using public rights of way) consider their own self-interest subordinate, especially when a conflict arises betweens such firms self-interest with the public interest.  

92. First Amendment of the United States Constitution, and Art I, Sec 8 (free speech, press), with Art I Sec 11 (denial of rights by

corporate actors) and Art I, Sec 1 (equal rights of all persons, not favorable rights to corporate persons) of the New York State Constitution places great demands and responsibilities upon corporations, partnerships, and other fictitious persons who are media owners, being state chartered (and thus being quasi-state actors) to ensure diversity, and to act at all times in the public interest.

93. Plaintiff asserts the mass media landscape is dominated by large media conglomerates, corporations, and partnerships (to include Defendants) which censor, ridicule, decieve, falsifiy, fail to inform and educate, fail to provide a diversity of opinion on important subjects of the day,

94. That these media conglomorates exploit information consumers as being captive demographics to be sold out to corporate advertisers,

95. That the commercial media outlets often provide local "news" which is often commercial propaganda produced by publc relations firms distrubuted as "video news releases",

96. That while there there is no lack of local radio and television transmitters or broadband and digital television providers, there is an extreme lack of local owners of such, and a lack of locally produced programs of any sort (educational, arts, entertainment, news, and public affairs programs),

97. Plaintiff asserts that under such a mass media landscape as what exists today, there is compelling government interest to regulate media owners and providers to act in the public interest, and to preserve local origination and public access in a significant  way,  

98. Plaintiff asserts his civil rights exist cited throughout this complaint which have been violated by Defendants, due to a lack of state regulatory control over the actions of these media giants, and seeks judicial review and declaratory judgement on these matters.

PETITION FOR JUDICIAL RELIEF AND DAMAGES

99. WHEREFORE, Plaintiff requests that this Court:

(A) declare that Time Warner Cable, Vestal Division is not in compliance with a) its franchise agreements (which are all required by New York State law to abide by such, and which same laws require compulsory Public Access at a service level of which Time Warner Cable is insufficient), in all of the cities and towns in which the Vestal Division does business with b) New York State Law, and with c) the New York State Constitution, d) the United States Constitution,

(B) enjoin Time Warner Cable, its partners, servants, agents and employees, and those acting in concert with them, from abridging the constitutional rights, and rights arising under New York State Law, of plaintiffs and all other citizens, as outlined in this complaint, to wit,

1) Immediately open existing Local Origination studios for Public Access users, for both live productions (w/possibility of receiving phone calls) and taped productions, and to pay for professional crew at Defendants' expense, and to make studios available to community members no less than 40 hours/week, with no less than 20 hours being evenings and 8 hours on weekends, at a technical service level no less than what is offered to Leased Access or Time Warner Cable productions,

2) Immediately begin holding classes, Main Studio (6/yr), Edit (to include A/B roll and Non-Linear editing) (6/yr), Porta-Pak (4/yr), and Mobile classes (4/yr), at a cost of no more then $30 per student including materials, which will sufficiently train community members on usage of such equipment, for the purposes of primarily staffing Public Access productions with trained community volunteers and not Time Warner Cable paid staff, but which said productions will always have one Time Warner Cable engineer on-hand,

3) Make significant effort to educate community members as to existence of such classes by a minumum of a) hourly notices on the Public Access channel, b) mailings to all subscribers, c) by public notices over 4 consecutive weeks, via no less than 1/8 page banner advertisements in the local newspapers of record of all served communities,  and d) by either providing substantial information about the nature of public access and the ability for

community members to participate on their web sites, or by placing links on these same websites to Plaintiff's site binghamtonpublicaccess.org, and e) by producing a special 30 minute production "How you can participate in Public Access", to be played on Defendants networks' Public Access channel at least monthly,

4) Commit to the existince and funding of well-equiped regional studio facilities, so persons within service area desiring to use such for Public Access purposes will have such a studio within a reasonable distance (such as a 30 minute commute), with at least 1/3 having the capability for live cablecasting,

5) Commit to involving community members, public access television producers, public access advocacy groups, and organizations involved in operating public access facilities in the negotiations of municipal franchise agreements, to ensure Public Access is sustained through adequate funding.

6) Commit, in principle, to the continuance of Public Access to a substantial degree, due to any change in technology, such as the move to digital services

(C) award attorneys' fees and costs,

(D) in consideration of the grave violations of civil rights and other injuries Defendants have caused Plaintiff, and for seriousness of, and the long-standing and continuous nature of the violations, grant Plaintiff actual and exemplary damages in the sum of three million dollars.   

EXHIBITS

a. Response from David Whalen denying access b. First complaint to Time Warner, City of Binghamton,

and NY PSC. c. Letter from Time Warner with cost estimates for studio

used

Dated April 25, 2003

Respectfully submitted,

William A. Huston, pro se342 Park Ave.,Binghamton, New York, 13903(607) 724-1755