11/18/02 Stipulations of Both Parties
INTRODUCTION: These are "stipulations" -- the facts of the case
to which both I and Mediacom could agree. The judge ordered us, at the October
30 hearing, to "stipulate" as many facts as possible, in order
to reduce the Court's time in listening to the two sides present long drawn-out
proofs of the facts. Mediacom's two attorneys, with Steve Purcell, Mediacom's
Regional Vice President, met with me Thursday, November 7, for the purpose
of discussing what facts we were willing to agree to stipulate. I took my
list of proposed stipulations, but I was surprised that they declined several
times my request that we discuss stipulations. They were more interested
in bargaining. I had started with seven complaints: they had already caved
on arguably the most dramatic one even before the October 30 hearing (my
right to air politically related news interviews prior to an election).
That left six. On this day, we bargained away four more. (1) They gave me
an assurance they would not use their "idemnification clause"
in their booby-trapped contract, which I must sign with every show I submit,
to get me to pay their attorney fees for this lawsuit. They said they would
get me something in writing. Actually they never got around to it. (2) I
agreed to cave in on my right to obey the letter of their regulations which
require me to list my "sponsoring organization" for 15 seconds,
a right enjoyed by every OTHER public access producer. (They now require
me to say "The Uncle Ed. Show is sponsored by Dave Leach" instead
of its actual financial sponsor, my Family Music Center. They are redefining
"sponsor" to mean, not the financial supporter, but the person
who signs the contracts and turns in the tapes; a definition unprecedented
in the world of broadcasting, and a definition not imposed on any other
Des Moines Public Access producer. Oh well.) (3) Another issue I let go
of was their claim of their right to cancel my show for 3 months, should
I violate just one more of their rules whose interpretation no man can predict.
Other courts say there is no excuse for such a rule. (4) Finally I gave
up my complaint about ambiguous, unfollowable rules for which I can be penalized
without knowing until afterwards what the rule was. We worked out that I
would submit my tapes an extra day early, and if they have a problem with
something in my tape they will let me know in time to submit a corrected
tape. My motive for eliminating these lesser issues was so the remaining
case can be clearly focused on what is really important to me and to America:
the photos showing what abortion does to babies, and the photos showing
who patronizes abortionists.
In addition to bargaining, Mediacom's attorneys really
wanted me to drop the last two issues: the photos. They said all the other
things, we can settle out of court. (That IS what he SAID.) But the photos,
they will definitely fight. And they will not merely take away my pictures,
but my show: they will end all Public Access programming across America.
(If they have a chance at that, it won't be because of
my photos. I don't believe courts would take thousands of Public Access
channels off the air just for one man's photos.)
I explained I could not cave on the photos. They said
OK we will see you in court. Although the Judge's reason for our meeting
was to agree on stipulations, they declined to discuss them. They said Friday
they would get their proposed stipulations to me to consider them. Friday,
November 8. Notice that these Stipulations are dated November 18, 10 days
later and two days before the November 20 hearing. It wasn't until about
the 16th or 17th that they emailed their proposals to me; I agreed to them
all.
Why did they move so much more slowly than they had promised?
God knows, but the proposed stipulations I handed them on the 7th were more
than I can comprehend them dealing with. I proposed not just facts that
we might save the Court's time by stipulating, but characterizations of
the conclusions of certain cases, and even a few arguments. I was impressed
by this "stipulation" system for reducing the issues requiring
a judge to resolve, and I wanted to make the most of the opportunity. Mediacom's
two lawyers weren't that adventurous, it turned out. But perhaps when they
saw a few more of my arguments, they lost some of their heart for speeding
things along, and took as much time as they could to prepare. Their brief,
likewise, was not ready until the 19th, and to maximize their surprise factor,
they didn't bother getting me my copy unitl I walked into the hearing the
20th. .
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
__________________________________________________________________________
DAVID LEACH, Plaintiff, vs. MEDIACOM, Defendant.
STIPULATED FACTS RE: PLAINTIFF'S APPLICATION FOR EXPEDITED TEMPORARY INJUNCTION
NO: 4:02-CV-70545
__________________________________________________________________________
COMES NOW Plaintiff David Leach, pro se, and Defendant Greater Des Moines,
Iowa Cable Television Company, operated by MCC Iowa LLC, d/b/a Mediacom
("Mediacom"), through its undersigned attorneys, and pursuant
to the Court's earlier Order provides the following Stipulated Facts to
be considered at the hearing on Plaintiff's Application for Expedited Temporary
Injunction:
1. Pursuant to its franchise agreement with the City of Des Moines, Mediacom
makes available channel 15 on its Des Moines system for public access programming.
2. David Leach is the sponsor and originator of "The Uncle Ed. Show"
a public access program that Leach regularly has aired twice weekly at 4:00
p.m. Saturday afternoons and at 9:30 p.m. on Tuesday evenings.
3. David Leach is the webmaster of and controls the content contained in
the web sites www.saltshaker.us and www.panews.org.
4. Mediacom has informed Leach that it will not cablecast programming containing
graphic pictures of aborted fetuses or his pictures and/or videotape of
identifiable persons on Planned Parenthood premises.
5. On November 13, 2002 David Leach submitted two videotapes for cablecast
on Mediacom's public access channel.
6. In his accompanying Request for Cablecasting Time, Leach described the
first program as:
These are the prohibited pictures, UNBLURRED, which you have promised not
to air; along with my explanation of their importance. Along with this tape
I am submitting a tape of the same content except with the pictures blurred,
for airing on these dates.
7. In his accompanying Request for Cablecasting Time, Leach described the
second program as:
These are the prohibited pictures, BLURRED, FOR IMMEDIATE AIRING, along
with this tape I am submitting a tape of the same content except with the
pictures unblurred, for use in court.
8. Mediacom reviewed both of the videotapes and determined that neither
was suitable for cablecasting, as each contained graphic photographs and
video and still images of persons at the Planned Parenthood premises.
9. On November 15, 2002, Mediacom notified Leach by letter and by telephone
call that it would not cablecast the two programs. Mediacom permitted Leach
to submit a suitable replacement tape for airing Leach subsequently provided
a third videotape that blurred out the content Mediacom will not air. The
Uncle Ed. show accordingly was cablecast at 4:00 p.m. on Saturday, November
16, 2002 and is scheduled for re-airing at 9:30 p.m. on Tuesday, November
19, 2002.
10. The parties have resolved the issues between them regarding Mediacom's
public access policies and procedures, as those issues were initially set
forth in Plaintiff's Complaint and Application for Expedited Temporary Injunction.
11. The only remaining issues at dispute in this litigation are Mediacom's
refusal to air, carry, distribute and cablecast programming on its public
access channel that (a) shows graphic photos of aborted fetuses or (b) contains
videotape or photographs showing identifiable persons entering and leaving
the private property of Planned Parenthood.
Date: November 18, 2002
David Leach Michael A. Giudicessi, Lead Counsel
4110 S.W. 9th FAEGRE & BENSON LLP
Des Moines, IA 50315 mgiudicessi@faegre.com
Telephone: (515) 244-3711 William J. Hunnicutt
whunnicutt@faegre.com
400 Capital Square/ 400 Locust Street
Des Moines, IA 50309
Telephone: (515) 248-9000
Facsimile: (515) 248-9010
ATTORNEYS FOR DEFENDANT
PROOF OF SERVICE
The undersigned hereby certifies that a true copy of Stipulated Facts re:
Plaintiff's Application for Expedited Temporary Injunction was served upon
one of the attorneys of record for each party to the above entitled cause
by enclosing the same in an envelope addressed to each such attorney at
his/her last known address as shown below, with postage fully paid, and
by depositing said envelope in a United States Post Office on the 18th day
of November, 2002.
David Leach
4110 S.W. 9th
Des Moines, IA 50315
Michael Giudicessi
William Hunnicutt
Faegre & Benson LLP
400 Capital Square
400 Locust Street
Des Moines, Iowa 50309
Steven Colloton
Gary Hayward
U.S. Attorney
Southern District of Iowa
286 U.S. Courthouse Annex
110 E. Court Avenue
Des Moines, IA 50309-2053
DSMS1:40040306.01
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