UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF IOWA
David F. Leach , Plaintiff, v. Mediacom, Defendant
Application for Expedited Preliminary Injunction
Civil Action No. 4:02-CV-70545
MOTION ASKING THE COURT FOR AN INJUNCTION TO STOP PRIOR RESTRAINT OF NEWS PROGRAM IN VIOLATION OF 47 U.S.C. 531(e)
Contents:
I. Introduction: overview of the conflict and most urgent grievance
II. Relief Requested: Numbered and Summarized
III. Jurisdiction
IV. Why the Injunction Should be Granted
(Facts and argument, especially focusing on grievance #1)
V. The remaining numbered grievances in order: facts and argument
VI. Facts and Evidence (a Timeline of communications, showing which were
oral and which written, and including the text of written evidence)
[Editor's note: in the paper copy, black text is double spaced. Blue
text is indented and single spaced.]
I. Introduction: overview of the conflict and most urgent grievance
Defendant Mediacom operates a Public Access television channel which has
for over seven years aired "The Uncle Ed. Show" produced by Plaintiff
Dave Leach, a journalist listed in Marquis' "Who's Who in Media and
Communications" as well as "Who's Who in America". Mediacom's editorial
control is limited by 47 U.S.C. 531(e) to "obscenity, indecency, and
nudity", and it may at its option refuse "commercial advertising" such
as 47 U.S.C. 532(b) requires Mediacom to permit for its "Leased Access"
channel(s). Beginning August 22, 2002 AD, Mediacom dramatically changed
several policies, whose interpretations amounted to content-based
restrictions of Defendants First Amendment rights, which are not applied
to other Public Access users.
The most urgent grievance is the decision of Mediacom spokesperson
Deborah Blume, supported by vice president Steve Purcell, to ban a news
interview with Tom Coates, owner of Des Moines' largest credit
counseling service, speaking in his area of expertise, about gambling
debt, and relating to the nonpartisan ballot issue in the November 5
election whether to reauthorize Prairie Meadows Racetrack and Casino for
another eight years. Mediacom justifies this Prior Restraint by calling
the proposed interview a "political advertisement", contrary to all
industry practice and court precedent regarding what constitutes
"political" and what constitutes an "advertisement". Not only did Blume
vow to not air the Coates interview in the future, but she has already
canceled a previous show because of a political sign visible for 2
seconds during a pan of the front of a building. In fact, it was that
cancellation, attended by a letter threatening to cancel my show for 3
months if I violate their rules again, that prompted me to ask more
about the reach of her concept of "political advertisement", which is
when I learned she would not air the Coates interview.
This dramatic reversal of policy was announced orally to Leach by Blume
only on October 1, just one month before the November 5 election, after
seven years of freedom to interview a variety of elected officials and
candidates for office. In fact, previously my rolling credits had said
on every show, "Any political candidate of any party is a welcome guest
on our show". One reason for saying this was because I am a political
candidate myself, so I wanted to go the extra mile in satisfying the
FCC's spirit of "fair use", or "equal time", even though the FCC exempts
Public Access shows from these requirements since any opposing candidate
has but to get his own show any time he likes. But now I have been
forced to remove this offer from my credits.
II. Relief requested: Numbered and Summarized
1. That Defendant be enjoined from censoring (on its Public Access
channel) news interviews, whether with candidates or noncandidates,
about political events prior to an election.
2. That Defendant be enjoined from censoring the same news photos,
during times when children may be watching, which had previously aired
on the 6 o'clock news of network affiliates.
3. That Defendant be enjoined from content-based censorship of news
photography following the same modus operandi as the best traditions of
American photojournalism, and distinguishable from mainstream journalism
only by its viewpoint.
4. That Defendant be enjoined from censoring indirectly, through
policies too vague and contradictory to escape violation.
5. That Plaintiff be allowed to obey the Mediacom written rule requiring
Plaintiff to name his sponsoring organization.
6. That Defendant be enjoined from requiring Public Access producers to
sign a contract, as a condition of airing their shows, that obligates
producers to pay attorney fees of Mediacom even when a producer sues
Mediacom for violating U.S.C. 47 531(e) and wins!
7. That Mediacom be enjoined to strike, from its contract and policy,
the threatened penalty of a 3 months' suspension for violation of its
rules.
III. JURISDICTION
Plaintiff, the producer of a television program on a public access
channel, has a "private federal cause of action" against the cable
company which is censoring his show in violation of 47 U.S.C. 531(e).
This right was accepted with little fanfare in the only Eighth Circuit
case involving censorship of a Public Access program, Coplin v.
Fairfield Public Access Television, 111 F.3d 1395 (8th Cir. 1997). The
court said "...after closely reviewing the structure of FPATV, we hold
that the FPATV Committee and the Council have sufficiently opened FPATV
to the citizens of Fairfield and the surrounding broadcast area that
control over access cannot be based on subject matter or speaker
identity...." (Id at 1402, footnote 4.)
Coplin points out that U.S.C. 555a(a), the law that denies monetary
damages or even attorney's fees for violation of 47 U.S.C. 531(e),
provides in the same sentence "injunctive relief and declaratory
relief." (Id at 1407)
Glendora v. Cablevision Systems Corporation, 45 F.3d 36; 1995 US. App.
LEXIS 570, Second Circuit, affirmed the right (of a private cause of
action) after it was denied at the District level because of the failure
of the pro-se plaintiff to correctly describe the nature of the cable
company, (her description was a "partially factual assertion"), and to
cite the laws that bind the cable company: "None of the above-mentioned
laws is mentioned in the district court's decision. The reason for this,
of course, is that none of them was referred to in Glendora's
complaint." The Court said "A cable corporation with a channel capacity
designated for public, educational, or governmental use may be described
with respect to such use as a 'public, educational, or governmental
access facility.' 47 U.S.C. 522(13). If, in fact, Cablevision Systems
operates a public, educational, or governmental access facility, it is
not permitted to exercise any editorial control over this operation,
except with regard to obscenity matters. See U.S.C. 47 531(e)."
The Second Circuit revisited the issue 3-1/2 years later with occasion
to thoroughly test the concept, since the lower court had just rejected
it with the encouragement of several creative theories inspired by
ambiguity in Denver, 518 U.S. at 761.
The decision was McClellan v. Cablevision, Docket No. 97-7156, decided
July 17, 1998. The Court wrote, with facts similar to the instant case:
"The sole question before us in this appeal is whether 531(e) provides
an implied private cause of action for cable programmers. We agree with
the district court that we determine whether 531(e) contains an
implied private remedy by analyzing the statute under the four-prong
analysis provided by Cort. See Cort, 422 U.S. at 78. Under Cort, we
first determine whether the plaintiff is one for whose "especial"
benefit Congress enacted the statute. Id. (citation omitted). Second, we
examine whether there is any indication of an explicit or implicit
legislative intent to create or deny a private remedy. See id. (citation
omitted). Third, we consider whether implying a private remedy is
consistent with the "underlying purposes of the legislative scheme." Id.
(citations omitted). Fourth, we determine whether the cause of action
is one "traditionally relegated to state law, in an area basically the
concern of the States, so that it would be inappropriate to infer a
cause of action based solely on federal law." Id. (citations omitted).
"Recent Supreme Court decisions have refocused the Cort analysis to
"emphasize the centrality of the second factor-- congressional intent,"
treating the other factors as "proxies for legislative intent." DiLaura
v. Power Auth. of N.Y., 982 F.2d 73, 77-78 (2d Cir. 1992) (quoting
Health Care Plan, Inc. v. Aetna Life Ins. Co., 966 F.2d 738, 740 (2d
Cir. 1992) and citing Karahalios v. National Fed'n of Fed. Employees,
Local 263, 489 U.S. 527, 532-33 (1989); Thompson v. Thompson, 484 U.S.
174, 179 (1988); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76
(1979)). We conclude that the legislative record demonstrates Congress's
intent to provide a private cause of action under 531(e), and that the
remaining Cort factors support our conclusion."
The Court reached its First determination with quotes from the
Legislative History such as: "Public access channels are often 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."
The court concluded: "Because Congress prohibited cable operators" [ie.
Mediacom] "from exercising editorial control over public access
programming and because Congress clearly concerned itself with the
interests of producers of programs broadcast on public access channels,
we conclude that the appellant falls within the class of intended
beneficiaries of 531(e)."
The Court reached its Second determination by reasoning "...there is an
implicit legislative intent to create a private cause of action to
enforce the rights established under 531(e). "[I]n situations in which
it is clear that federal law has granted a class of persons certain
rights [as Congress has under 531(e)], it is not necessary to show an
intention to create a private remedy, although an explicit purpose to
deny such cause of action would be controlling." Cort, 422 U.S. at 82
(emphasis in original) (footnote omitted)." The District Court had
theorized that "had Congress intended to extend the tradition of local
franchising authority regulation of cable operators to include
enforcement of 531(e), Congress knew how to do so and could have done
so by making an explicit reservation." The District Court backed up its
theory with a case where the Supreme Court denied a right to sue,
because the person being sued hadn't done anything defined by any law as
wrong. The Appeals Court pointed out the difference between that
situation and this: the law relied upon in that case "neither prohibited
conduct nor created private federal rights. In contrast with the statute
at issue in Touche Ross, 531(e) clearly prohibits cable operators from
exercising editorial control over public access programming."
Furthermore the Appeals Court found an implication in the history of
amendments to 531(e) supporting Congress' intent that public access
producers should be able to sue for relief. It noted that an Amendment
was enacted right after three District Courts had assumed there should
be a Private Cause of Action, and yet Congress did not address that
issue as it considered other changes to the law, as if to express its
satisfaction with the courts' interpretation. "When Congress amended
531, we presume that it was aware that federal courts had found an
implied private remedy in 531(e), and that Congress chose to leave the
remedy in place."
The Court reached its Third determination by dealing with the theory
that since cable operators (like Mediacom) "have not traditionally
exercised editorial control over public access channels. See Denver, 518
U.S. at 761", but rather it was exercised by "locally accountable
bodies", such as the state and local governments which originally
created public access channels, THEREFORE Congress probably did not mean
531(e) to even cover public access channels but "Congress intended to
provide for the federal regulation of leased channels and for continued
local control of public access channels." ("Public access" channels are
free to users/producers and may be prohibited from carrying advertising;
"leased access" channels charge for air time and must allow
advertising.) The Appeals Court refuted this theory of the District
Court by pointing out that the observation of Denver only "reinforces
the finding that, by enacting 531(e), Congress specifically intended
to withhold from cable operators the authority to exercise editorial
control" beyond the limits imposed by 531(e).
Congress' very purpose for 531(e), far from only codifying what was
already the practice, was to "establish a national policy that clarifies
the current system of local, state, and Federal regulation of cable
television." H.R. Rep. No. 98-934, at 19, 1984 U.S.C.C.A.N. at 4656."
"...a local franchising authority may avoid liability in its exercise of
editorial control of public access channel content only to the extent
that it exercises such control within First Amendment boundaries. Cf.,
e.g., Denver, 518 U.S. at 743-44 (citations omitted) (referring to the
constitutional permissibility of regulating radio broadcasts of patently
offensive, sex-related material easily accessed by children, and noting
that the same compelling interest may be invoked with respect to cable
channel broadcasts)."
"...the CCPA also "contains provisions to assure that cable systems
provide the widest possible diversity of information services and
sources to the public, consistent with the First Amendment's goal of a
robust marketplace of ideas." H.R. Rep. No. 98-934, at 19, 1984
U.S.C.C.A.N. at 4656. In addition, if a municipality, through its local
franchise authority, improperly restricts a citizen from broadcasting on
a public access channel, the citizen may seek redress of such a
violation in federal court under 42 U.S.C. 1983. See Coplin v.
Fairfield Pub. Access Television, 111 F.3d 1395, 1398 (8th Cir. 1997)
(permitting a 1983 claim for violations of the First Amendment and the
CCPA against a city council and a local cable regulatory board created
by the council by a private party prevented from broadcasting programs
on a public access channel)."
Nor would it make sense, the Court pointed out, to provide a private
cause of action against excessive censorship only when cities exercise
editorial control, and not also when cable franchises exercise it.
The appeals court reached its Fourth determination by observing that
free speech decisions are not traditionally left to states, but are
regulated by federal courts.
IV. Why the Injunction Should be Granted (facts and argument, especially
focusing on grievance #1)
Mediacom, at a time when no civil or criminal charges were pending
against the Plaintiff, and with very little time before the November 5
election, censored Plaintiff's First Amendment right to report
educational information about the election by suddenly adopting an
interpretation of "political advertisement" unprecedented in the
broadcasting industry and in American law: an interpretation that covers
even "one sixty-fifth of a second" (sic; there are 29.97 frames per
second in NTSC video) of a news interview of a non-candidate presenting
expert testimony on a nonpartisan issue!
There is only one precedent in American law regarding censorship of
political information on a Public Access channel through classifying it
as "political advertising", and in that case the facts and law are
nearly identical with this case, and in that case the censorship was
decisively struck down. Therefore that Court's discussion of "Why the
Injunction should be Granted" applies so well to this case that I can do
no better to adopt, as my own, the reasoning of Moss v. Cablevision
Systems Corporation, 22 F. Supp. 2d 1, *; 1998 U.S. Dist. LEXIS 15877.
The controlling law, U.S.C. 47 531(e), is the same in that case as in
this. There was also a New York law in that case which mirrored U.S.C.
47 531(e), but the Moss Court said (quotes below) its decision would
have stood without the New York law.
The facts are almost identical.
Mediacom's written policy, as of the version distributed with a cover
letter dated August 27, 2002, says "F.a. Presentation of the following
programming is prohibited: Any advertising material designed to promote
the sale of commercial products or services, including advertising on
behalf of candidates for public office." Their unwritten interpretation,
presented to me orally on October 1, included a prohibition against
airing candidates for 60 days prior to an election.
The cable television company in the Moss case had almost the same
written policy, and as in this case their 60 day prohibition was not
written but oral:
Cablevision claims that they have denied the plaintiffs the opportunity
to broadcast The Show segment featuring the MRP until after the
election, due to their "general policy" of excluding all qualified
candidates for public office from broadcasting on the public access
channel during the sixty day period preceding the election.
Cablevision's "policy" is derived from their franchise agreement with
the Town of Brookhaven, in which paragraph 15.3 states, "[Cablevision]
shall proffer a reasonable policy which shall . . . prohibit access for
commercial speech." Cablevision also points to their "Access User
Contract" ("the contract") and "Cablevision Systems Corporation Public,
Educational and Governmental Access Rules" ("the rules") in support of
their "policy." The contract states that the "applicant warrants that
its cablecast presentations on the cable television shall not include .
. . any material presented by or on behalf of or against a Legally
Qualified Candidate." The rules state that "any audio or visual material
[that] promotes or is designed to promote the sale of commercial
products or services (including advertising by or on behalf of, or in
opposition to, candidates for public service) is prohibited in
connection with any Access programming." (Id, no page numbers available
because I got it online)
It is as if Mediacom executives, casting about for a policy that could
censor me, heard about the Moss case, was inspired by the policy used to
censor George Moss, and did not notice that George Moss won.
The differences between that case and this only make this case stronger:
the cable company in Moss only tried to censor "legally qualified
candidates"; but Mediacom's spokesperson Deborah Blume goes much
further, censoring also non-candidates who are experts, speaking in
their field of expertise, regarding a nonpartisan ballot issue. Tom
Coates is not a candidate, and the gambling referendum is not a partisan
political issue, even as defined by IRS rules relating to political
action for nonprofits, so that churches may heavily involve themselves
against gambling without fear for their tax exemption. Yet the news
interview with him has specifically been banned as a "political
advertisement"! FCC rules do not even classify this, in their "fair use"
rules, as an event triggering "equal access", but make an exception for
"news interviews". Mediacom's interpretation would prohibit anyone
saying anything about any issue about which politicians have proposed
laws, which doesn't leave much.
The other difference is that the news interview I propose would offer
the public expert information about a "mainstream" ballot issue about
which voters have very deep feelings; while the Second Circuit appeals
court even gave vigorous protection to a fringe "political party" whom
few take seriously. (George Moss' "Hippie Talk Show" was censored by
Cablevision Systems Corporation when it tried to air an interview with
Marijuana Party candidates.)
In other words, the only court precedent on the subject protects not
just 10 seconds, not just a minute (the industry standard for an
"advertisement"), but an ENTIRE HOUR of political expression, BY
CANDIDATES, on a public access show, as NOT EVEN BEING CALLED AN
ADVERTISEMENT, in stark contrast to Mediacom's prohibition of 1/65th of
a second of political information, which we may refer to as Mediacom's
"subliminal political advertisement" policy.
Here is the Moss reasoning on the subject of whether to grant the
preliminary injunction; I adopt it as my own. Where slight changes are
necessary to adapt to this case, they are set in brackets.
A. The Standard for Granting a Preliminary Injunction. A preliminary
injunction is considered an "extraordinary" remedy that should not be
granted as a routine matter. See JSG Trading Corp. v. Tray-Wrap, Inc.,
917 F.2d 75, 80 (2d Cir. 1990); Hanson Trust PLC v. ML SCM Acquisition,
Inc., 781 F.2d 264, 273 (2d Cir. 1986); Medical Soc'y of the State of
New York v. Toia, 560 F.2d 535, 538 (2d Cir. 1977); Wandyful Stadium,
Inc. v. Town of Hempstead, 959 F. Supp. 585, 591 (E.D.N.Y. 1997).
Ultimately, however, the decision to grant or deny this "drastic"
remedy rests in the district court's sound discretion. See American Exp.
Fin. Advisors Inc. v. Thorley, 147 F.3d 229, 231 (2d Cir. 1998); Molloy
v. Metropolitan Transp. Auth., 94 F.3d 808, 811 (2d Cir. 1996).
In the seminal case of Jackson Dairy, Inc. v. HP Hood & Sons, Inc., 596
F.2d 70, 72 (2d. Cir. 1979) (per curiam), this Circuit set forth the
applicable standard in this Circuit to obtain preliminary injunctive
relief. According to Jackson Dairy, the movant must clearly establish
the following: "(a) irreparable harm; and (b) either (1) likelihood of
success on the merits or (2) sufficiently serious questions going to the
merits to make them a fair ground for litigation and the balance of
hardships tips in favor of the movant." Id.; see also Alliance Bond
Fund, Inc. v. Group Mexicano de Desarrollo, S.A., 143 F.3d 688, 696 (2d
Cir. 1998); Maryland Cas. Co. v. Realty Advisory Bd. On Labor Relations,
107 F.3d 979, 984 (2d Cir. 1997).
A showing of irreparable harm is considered the "single most important
requirement" in satisfying the standard. See Alliance Bond Fund, Inc.,
143 F.3d at 696; Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904,
907 (2d Cir. 1990) (recognizing that "irreparable harm is the single
most important prerequisite for the issue of a preliminary injunction").
"A moving party must show that the injury it will suffer is likely and
imminent, not remote or speculative, and that such injury is not capable
of being fully remedied by money damages." National Ass'n for
Advancement of Colored People, Inc. (NAACP) v. Town of East Haven, 70
F.3d 219, 224 (2d Cir. 1995) (citing Tucker Anthony Realty Corp. v.
Schlesinger, 888 F.2d 969, 975 [2d Cir. 1989]); Weinberger v.
Romero-Barcelo, 456 U.S. 305, 312, 72 L. Ed. 2d 91, 102 S. Ct. 1798
(1982) ("The Court has repeatedly held that the basis for injunctive
relief in the federal courts has always been irreparable injury and the
inadequacy of legal remedies"). The movant must establish more than a
mere "possibility" of irreparable harm. Rather, he must show that
irreparable harm is "likely" to occur. JSG Trading Corp., 917 F.2d at
79.
If the Court finds that the moving party would be irreparably harmed if
injunctive relief were not granted, the second step of the inquiry
requires that the movant demonstrate a likelihood of success on the
merits. This analysis, however, requires a heightened standard where the
preliminary injunction grants the moving party essentially all the
relief he seeks. In such a case, the moving party "must show a
substantial likelihood of success on the merits, rather than merely a
likelihood of success." Johnson v. Kay, 860 F.2d 529, 540 (2d Cir.
1988); See also Hevesi v. Metropolitan Transp. Auth., 827 F. Supp. 1069,
1071 (S.D.N.Y 1993). Finally, Fed. R. Civ. P. 52(a) requires that the
district court sufficiently set forth its findings to permit appellate
review. See Rosen v, Siegel, 106 F.3d 28, 32 (2d Cir. 1997); Society for
Good Will to Retarded Children, Inc. v. Cuomo, 902 F.2d 1085, 1088 (2d
Cir. 1990). The Court will address each of these requirements in turn.
1. Irreparable Harm
[Leach] contends that if he is denied injunctive relief he will be
unable to air [The Uncle Ed. Show] featuring a [news interview with an
expert in gambling debt], thus stifling [information useful to voters
deciding whether to reauthorize Prairie Meadows Racetrack and Casino]
prior to the November [5, 2002] election. In addition, [Leach] contends
that in the absence of injunctive relief, his statutory rights to air
non-obscene programming will be violated. Finally, [Leach] claims that
he has no other adequate remedy at law and that money damages would not
be a complete remedy for the alleged wrongdoing by [Mediacom]. [Mediacom
may allege, as did Cablevision,] that money damages would be an
appropriate remedy if it can be shown that they violated the plaintiffs
statutory rights. [Mediacom has already told Leach] that [Leach] could
air [The Uncle Ed. Show] if he pays for the air time, and [Mediacom may
even suggest, as did Cablevision, that Leach] then could sue Cablevision
for a refund....
In the Court's view, there would be irreparable harm to the plaintiffs
if they are denied a preliminary injunction ordering [Mediacom] to air
the segment of [The Uncle Ed. Show] featuring the [gambling debt
expert]. The loss of opportunity for expression of political ideas,
especially in the context of political speech just prior to the November
election, unquestionably constitutes irreparable injury because of the
value placed on freedom of speech in the market place of ideas.
Moreover, [Mediacom's] decision to prohibit Moss from airing The Show
will cause irreparable harm to the plaintiffs as their ideas and
positions will not be aired on the public access channel prior to the
November, [2002] election. [Mediacom] contends that Moss could air The
[Uncle Ed.] Show if he pays [Mediacom] and shows it on a "regular"
channel. [Mediacom's] argument, however, taken to its logical conclusion
would hold true for every person who appears on their public access
channel -- thus preventing the Court from ever issuing a preliminary
injunction in favor of a litigant who claims that [Mediacom] has denied
their access to the public access channel. [In addition, airing the show
on another channel, at another time, would not be seen by all the
regular viewers of The Uncle Ed. Show who are expecting to see it at
9:30 pm Tuesdays, and 4 pm Saturdays, on channel 15 as it has for over 7
years.] The ultimate question to be asked is not what other remote
options or even less remote options are available to the plaintiffs to
air their views, the issue is whether irreparable harm is likely to
occur to the plaintiffs if [Mediacom] is not ordered to permit airing of
the show on the public access channel. Under these guidelines, the Court
is convinced that the plaintiffs are likely to suffer irreparable harm
if the motion for the preliminary injunction were denied.
It is also clear that should the Court deny the plaintiffs' request for
injunctive relief, the injury would be likely and imminent, not remote
or speculative. Obviously, this is true because the election is only
four weeks away and if the injunction were not granted, the plaintiffs
would not be able to air The [Uncle Ed.] Show on their public access
channel prior to the general election. Finally, the situation would not
be remedied adequately by monetary damages. Money damages at a later
date will not permit [Leach] to go back in time and air the segment of
The [Uncle Ed.] Show on the public access channel featuring the
[gambling debt expert] prior to the November [5, 2002] election.
Clearly, the only satisfactory remedy to the plaintiffs, if they are so
entitled, is that they be permitted to air the show on a first come,
first serve basis in accordance with the provisions of 47 U.S.C. 531
(e)... on the public access channel.
Therefore, in the Court's view, the plaintiffs clearly have demonstrated
irreparable harm would likely occur if the Court denied their motion for
injunctive relief ordering [Mediacom] to permit the airing of the
segment of The [Uncle Ed.] Show featuring the [gambling debt expert]
prior to the November 5, 2002 election on the public access channel.
2. Likelihood of Success
The second step of the inquiry requires that the movant demonstrate a
likelihood of success on the merits. This analysis, however, requires a
heightened standard where the preliminary injunction grants the moving
party essentially all the relief he seeks. As stated above, in such a
case the moving party "must show a substantial likelihood of success."
Johnson v. Kay, 860 F.2d at 540; see also Hevesi v. Metropolitan Transp.
Auth., 827 F. Supp. at 1071 (emphasis added). The most complete remedy
available for the plaintiffs is if the Court grants their motion for a
preliminary injunction and orders [Mediacom] to air the segment of The
[Uncle Ed.] Show featuring the [gambling debt expert]. Since this outco
me would give the plaintiffs essentially all the relief they ultimately
request, the Court is mindful that it must apply the heightened standard
of "a substantial likelihood of success."
The plaintiffs contend that there exists a private cause of action,
pursuant to 47 U.S.C. 531(e)..., against [Mediacom] for exercising
editorial control over the use of its public access channel.
Specifically, the plaintiffs submit that [Mediacom] was in violation of
sections 531(e) and 229(3) when they refused to air, on its public
access channel, The [Uncle Ed.] Show segment featuring [the gambling
debt expert]. On its part, [Mediacom indeed] contends that The [Uncle
Ed.] Show amounts to a political commercial that is beyond the scope of
a public, educational or governmental channel. [Mediacom] argues,
therefore, that they can refuse to air the segment of The [Uncle Ed.]
Show featuring qualified [expertise regarding gambling debt] because it
is commercial speech. In addition, [Mediacom may, as did Cablevision,
submit] that this Court lacks jurisdiction as the plaintiffs have failed
to exhaust their administrative remedies.
We start by examining the statutory language. Section 531(e) states, in
pertinent part, that "a cable operator shall not exercise any editorial
control over any public, educational, or governmental use of channel
capacity . . . except a cable operator may refuse to transmit any public
access program or portion of a public access program which contains
obscenity, indecency, or nudity." 47 U.S.C. 531(e)....
The Second Circuit has made it clear that an implied private cause of
action in the Federal Court exists against a cable company provider that
exercises editorial control over use of its public access channel in
violation of section 531(e). See McClellan v. Cablevision of Conn. Inc.,
149 F.3d 161, 164-165 (2nd Cir. 1998); see also Glendora v. Cablevision
Sys. Corp., 893 F. Supp. 264 (S.D.N.Y. 1995). In McClellan, the Second
Circuit recently set forth a detailed analysis supporting their position
that an implied private cause of action exists for violating section
531(e) of the Cable Act. In their analysis of Cort v. Ash, 422 U.S. 66,
45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975), the Second Circuit found that
"Because Congress prohibited cable operators from exercising editorial
control over public access programming and because Congress clearly
concerned itself with the interests of producers of programs broadcast
on public access channels, we conclude that the appellant falls within
the class of intended beneficiaries of 531(e)." McClellan, 149 F.3d at
165. In reaching this conclusion, the Second Circuit "disagreed with the
district court's assertion that Congress purposefully withheld a private
federal remedy in favor of exclusive enforcement of 531(e) by local
authorities . . . . It is clear from these provisions that had Congress
intended to extend the tradition of local franchising authority
regulation of cable operators to include enforcement of 531(e),
Congress knew how to do so and could have done so by making an explicit
reservation." Id. at 165-66. The Court emphasized that, "the language in
Denver reinforces the finding that, by enacting 531(e), Congress
specifically intended to withhold from cable operators the authority to
exercise editorial control consistent with the history of public access
channels [and that this] cause of action is not one traditionally left
to state control in an area that is basically the concern of the
states." Id. at 167-68.
Given the considerations clearly expressed in McClellan, the Court is
not persuaded by [Mediacom's] argument that the plaintiffs must exhaust
their state administrative remedies before seeking a preliminary
injunction in this Court. Initially, the Court is concerned that such a
finding would, with reasonable certainty, prevent the plaintiffs from
airing The [Uncle Ed.] Show prior to the November [5, 2002] election. In
addition, it was brought out by plaintiffs counsel during oral argument
that the exhaustion issue would be relevant only to the state law
provision. However, adhering to McClellan, Congress specifically
empowered the federal courts to prevent such editorial control.
Since it is clear that section 531(e) contains an implied private cause
of action, the only remaining question is whether there is a substantial
likelihood that the plaintiffs would succeed on the merits of their
claim. It is the most basic rule of statutory interpretation that when
the words of a statute are clear, they should be followed. See Landreth
Timber Co. v. Landreth, 471 U.S. 681, 85 L. Ed. 2d 692, 105 S. Ct. 2297
(1985); Chevron U.S.A. Inc v. Natural Resources Defense Council, 467
U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984); Aslanidis v. U.S.
Lines, Inc., 7 F.3d 1067 (2d Cir. 1993). The language of section 531(e)
is clear and unambiguous: "A cable operator shall not exercise any
editorial control over any public, educational, or governmental use of
channel capacity . . . except a cable operator may refuse to transmit
any public access program or portion of a public access program which
contains obscenity, indecency, or nudity." 47 U.S.C. 531(e). While the
Court has not had the opportunity to view The [Uncle Ed.] Show segment
that features [the gambling debt expert], no argument has been made by
[Mediacom] that it contains obscenity, indecency, or nudity. Therefore,
the plain meaning of the Congressional statute prohibits [Mediacom] from
exercising editorial control over programming on the public access
channel that is not obscene, indecent, or that contains nudity. While
[Mediacom's] "sixty day policy," may be non-discriminatory since it
treats all qualified candidates equally, it nonetheless conflicts with
the plain meaning of the statute.
In addition, the Court disagrees with [Mediacom's] argument that The
[Uncle Ed.] Show amounts to commercial speech which is lawfully
prohibited by [Mediacom] on the public access channel. Contrary to
[Mediacom's] position, the Court finds that there is a substantial
likelihood that the prohibition against televising The [Uncle Ed.] Show
would amount to exercising editorial control over public, educational,
or governmental use of the public access channel. In the Court's view,
The [Uncle Ed.] Show is noncommercial speech. The Second Circuit has
held that "as to programming within the PEG categories, section 531(e)
prohibits the cable operator from exercising any 'editorial control,'
and courts enforcing the outer limits of PEG categories must be alert
not to permit a cable operator to bar disfavored programming under the
guise of enforcing such limits." Time Warner Cable of N.Y. City v.
Bloomberg L.P., 118 F.3d 917, 928 (2d Cir. 1997).
Furthermore, the Supreme Court has differentiated between political
speech and commercial speech. See, e.g., Virginia State Board of
Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 48 L. Ed.
2d 346, 96 S. Ct. 1817 (1976). The First Amendment reflects a "profound
national commitment" to the principle that "debate on public issues
should be uninhibited, robust, and wide-open." New York Times Co. v.
Sullivan, 376 U.S. 254, 270, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964).
Protecting political speech on public issues has been a central concern
of the Supreme Court. see e.g., Connick v. Myers, 461 U.S. 138, 145, 75
L. Ed. 2d 708, 103 S. Ct. 1684 (1983). The [gambling debt expert] is not
selling a product or a service. [He is a well known debt counselor]
seeking to express [his experience with gambling debt] prior to the
November [5, 2002] election [which will decide whether a Des Moines area
casino will continue]. Significantly, [Mediacom would have to concede]
that if the plaintiffs' speech were noncommercial, the Court would be
obligated to grant the motion for a preliminary injunction. Moreover,
[it will be interesting to see if counsel for [Mediacom can accomplish
what counsel for Cablevision could not:] cite a case that supported its
theory that political expression was commercial speech. The Court finds
that the content of The [Uncle Ed.] Show is noncommercial speech.
"Thus, the plaintiffs have established a substantial likelihood of
success on the merits of its lawsuit, namely that [Mediacom] violated
section 531(e) of the The Cable Act and section 229(3) of the New York
Public Service Law when they refused to allow [Leach] to air The [Uncle
Ed.] Show segment featuring [the gambling debt expert] on the public
access channel."
V. The remaining numbered grievances in order: facts and argument
Grievance #2: That Defendant be enjoined from censoring the same news
photos, during times when children may be watching, which had previously
aired on the 6 o'clock news of network affiliates.
In the seven plus years the Uncle Ed. Show has aired on channel 15 of
the cable company now called Mediacom, the pictures showing what
abortion does to babies have seldom been shown, and when they were, no
issue was ever made of them. But when one particular photo became
background footage of news reports about Dave Leach's proposed filming
of abortionist's customers, and Leach wanted to respond to the
allegations of the news reports by replaying them with his comments
added, and blending in his own footage of the same events, Mediacom
spokesperson Deborah Blume told him, and the world, that she would bump
his show away from its time slot which it has enjoyed for over 7 years,
to the middle of the night, unless he blurred each of the images;
including the film of the picture that was part of a 6 o'clock news
broadcast. (The blurring required 20 hours of work.)
No one has ever alleged that photographs showing what abortion does to
babies are "commercial advertising". No one has ever alleged they are
wrong because they contain "obscenity, indecency, or nudity", the three
grounds of censorship permitted Mediacom by 47 USC 531(e).
Were Mediacom to now allege such photographs are sufficiently infused
with either of these three elements to permit their censorship, they
would have to prove they exceed the limits of "prevailing community
standards", which would be quite a challenge, considering they are the
very same pictures which news departments of NBC and CBS affiliates had
already deemed newsworthy and appropriate for children for their 6
o'clock news, and which CNN International had broadcast to a variety of
nations in a variety of time zones.
By what standard can anyone say such pictures should not be seen by
children, when industry leaders not only SAID they should be seen by
children, but SHOWED them to children? Not allowing me to show pictures
to children, which they have already seen on the 6 o'clock news, is
surely not lawful.
How can anyone allege the photos "contain obscenity, indecency, or
nudity", by "prevailing community standards", when not one citizen of
the community, including Mediacom itself, has yet suggested the photos
contain either of these elements? Shall Mediacom now be allowed to
create new grounds of censorship in violation of the law? A very modest
effort to expand the U.S. Code list beyond the three grounds was struck
down by Denver. Denver Area Educ. Telecomm. Consortium, Inc. v. Federal
Communications Comm'n., 518 U.S. 727, 734, 135 L. Ed. 2d 888, 116 S. Ct.
2374 (1996) The Eighth Circuit Appeals Court called the decision
"somewhat enigmatic", (Coplin v. Fairfield Public Access Television, 111
F.3d 1395, 1402 (8th Cir. 1997) Footnote 4), but the effort to expand
the list was struck down. And even in that case, the cable company did
not have the presumption to enact law on its own, but waited for
legitimate lawmaking authorities to enact the new grounds of censorship.
To violate the law, even if it is with the hope that some future Court
will eventually back it up, is simply lawbreaking.
Mediacom must stop censoring, from children's viewing hours, photography
considered newsworthy and appropriate for 6 pm viewing by major
networks, just because the photography happens to show what abortion
does to children. And just because the showing of the evidence, by a
Christian, is more likely to reach hearts than the showing of the same
photos by reporters trying to put them in an unfavorable context.
That this is a "content-based" restriction is proved by public reaction
to the photos, including the reaction by Mediacom and by mainstream
journalists, who are hostile towards me when I air the photos, but who
recognize no issue when they air the same photos. (Mediacom airs
newscasts of TV 8 and TV 13, and did not insist that TV 8 and TV 13 blur
the pictures.) Obviously it is not the pictures per se that offend, but
my message which accompanies the pictures. I call abortion "murder". But
the pictures showing what abortion does to babies are even more powerful
than the words "abortion is murder". Even children can plainly see it is
not just murder, but a bloody, gruesome murder not outdone by the worst
images from our pagan, barbaric, uncivilized history.
Grievance #3: That Defendant be enjoined from content-based censorship
of news photography that follows the same modus operandi as the best
traditions of American photojournalism, and that is distinguishable from
mainstream journalism only by its viewpoint.
When Mediacom's Deborah Blume learned Leach planned to add photos of
abortionists' customers to his show, she told reporters August 21 that
Leach had the right to do so, and there was nothing they could do. But
the next day, on August 22, she told the world Mediacom would not air
any show with unblurred faces of abortionists' customers, because that
would be a "third party invasion of privacy".
When I asked Blume at the time where I might find that phrase in some
law or case, she refused to answer, saying she paid lawyers a lot of
money to tell her, so now I would have to pay my lawyers to tell me.
(Since I have been unable to uncover that law in all this time, except
in an administrative action in Canada, I look forward to finally finding
out where that is, through Mediacom's response to this action.)
Every reporter I have talked to has agreed with me that what I proposed,
reporters do all the time. There seems no ability in any of them to
think of anything in what I proposed, pertaining to a journalistic
procedure, that is distinct from what they do and need to continue
doing. It is incomprehensible to me that Congress could have intended to
give Mediacom any legal right to keep me from airing film exactly like
that you see every day on any news program, the only difference being
the side I take, compared with the side most of them take, on the issue
of where the greatest wrongs are perpetrated at Houses of Abortion:
inside on the operating table, or outside behind the cameras.
The only Eighth Circuit decision involving censorship of a public access
program analyzes the Right to Privacy of people identified on a public
access program. It offers a four-part test.
The Coplin case, Coplin v. Fairfield Public Access Television, 111 F.3d
1395, 1404 (8th Cir. 1997), has a four part test to examine whether
information may be censored on a PEG show. All four of these conditions
must be met before censorship is permissible.
1. The regulation must be viewpoint-neutral. In view of the fact that my
proposed photography can be distinguished from conventional news
photography ONLY by viewpoint, this condition is not met. Censorship of
my proposed show is not permissible.
2. The facts revealed are not already in the public domain. Since this
ruling defines facts in the public domain as facts apparent to people in
public, this condition is not met. Censorship of my proposed show is not
permissible.
(Coplin encouraged callers to identify addresses at which they observed
indications of steamy sex. The court said "we strongly suspect that the
report on Coplin's show that a green truck regularly parks on a
Fairfield city street at midday is not private information. Moreover, it
is an open question whether the sexual practices of the Trailer Park
residence occupants were in the public domain.")
3. The facts revealed about the otherwise private individual are not a
legitimate subject of public interest. Abortionists' customers are
people walking into the MOST controversial building in the state. More
controversial than soliciting a prostitute on a shadowy street corner.
More controversial than Prairie Meadows. More controversial than the
Blue Nude "Adult" "Book" store. More controversial than a political
gathering. Christians are supposed to act as if abortion business is not
of any public interest? This condition is not met. Censorship of my
proposed show is not permissible.
There is a question always asked by reporters, which further proves
abortionists' customers are "a legitimate subject of public interest".
They ask me, "But you are taking pictures of people who aren't even
going in for abortion." It is ironic that in this effort to distinguish
between abortion customers, and customers of other services besides
abortion whom the reporters are portraying as LESS deserving of public
scrutiny, they are tacitly acknowledging that abortion customers are
MORE deserving of public scrutiny.
But my public position is that ALL the customers of abortionists are "a
legitimate subject of public interest". In my campaign literature (I am
a candidate for State Representative) I explains, "It would not matter
of 98% of abortionist business was selling Bibles: as long as 2% of it
is dismembering babies, all who go there ought to be ashamed of
associating with such a business! But I do not stand here as one who
judges others for worse sins than I have committed, but as one crying
out for all of us, together, to return to God who offers to heal us!"
4. The facts revealed are highly offensive. Well, three out of four. But
the court says if only ONE out of four conditions are not met, there can
legally be no censorship. The Coplin court determined that Jay Coplin
was pretty offensive, too.
One reason First Amendment Freedom of Speech should not be held hostage
to whether some people, or even many people, are offended by it, is that
pleasant speech never needed any Constitutional protection; if the First
Amendment no longer protected offensive speech, it would no longer
protect anything.
The reason America's Founding Fathers made protection of offensive
speech their FIRST Amendment is because they realized the offensiveness
of speech does not necessarily indicate its uselessness. They knew some
of the most beneficial speech to mankind is some of the most offensive.
Their hero was Jesus, who was crucified for His speech.
Is my proposed filming the kind of Speech which offends while benefiting
mankind, or the kind which holds no benefit for anybody but just
piggybacks on First Amendment protection, part of America's cost for
protecting worthwhile speech?
It depends on whether you think saving unborn babies from abortion is in
the same category with saving human lives. Abortionists admit a primary
reason many mothers kill (breaking the 6th Commandment) is so their
friends, family, and loved ones won't know they were promiscuous
(breaking the 7th Commandment). So when our cameras threaten to expose
both sins, they take away that reason to kill. Without that way to
conceal their shame, some will be discouraged from both sins. It should
not be surprising that many individuals will take great offense at the
simple message that abortion is murder, it ought to be taken seriously,
God has jurisdiction over our everyday lives, and anyone patronizing a
business best known for the worst imaginable crime against humanity has
no right to privacy from the shame that ought to evoke.
But to make that the ground of censorship will require a serious breach
in the First Amendment.
Unfortunately the absurd, hypocritical lengths to which the media, and
Mediacom, have gone to stifle this simple message have become
newsworthy, to this journalist, because they help the general public
understand the magnitude of the spiritual battle before us. It should
not be surprising if this offends other media, and Mediacom. But again,
the fact that the subject of persecution reports his personal
experiences of persecution to others cannot become a ground of
censorship, without harm to our Republic.
It is true that Coplin deals with a censoring body created by the
Fairfield city council, which is a "governmental entity" with
theoretically less freedom to censor than a private entity. However,
none of the cases cited by Coplin in support of its four-part test are
limited to "governmental entities". They mostly apply to how far a
private news organization may go in "invading" the privacy of private
individuals, without incurring liability. The only possible conclusion
is that, by the four-part standard Coplin articulates, any newspaper
could do what I propose doing without any liability.
It is inconceivable to me that Congress could have intended to give
Mediacom any legal right to keep me from airing film exactly like that
we see every day on any news program, the only difference being the side
I take, compared with the side most of them take, on the issue of where
the greatest wrongs are perpetrated at Houses of Abortion: inside on the
operating table, or outside behind the cameras. It is inconceivable to
me that Congress could have intended the words "obscenity, indecency, or
nudity" to encompass the same methodology that mainstream news reporters
follow every day.
The fact is that news reporters take pictures all the time of people who
don't necessarily want their pictures taken. Mediacom should be ordered
to stop censoring the use of journalistic practices followed by all
American journalists, in the best tradition of American journalism.
Dave Leach is a journalist. He is listed in "Who's Who in Media and
Communications", as well as "Who's Who in America". And every reporter
he as asked has agreed with him that what he wanted to do, other
reporters do all the time.
In fact, here is a portion of the transcript from Leach's interview on
CNN International where this issue was raised:
Q&A HOST ZAIN VERJEE: What about the rights to privacy, though, of these
women?
LEACH: I don't know what right you're talking about. Certainly, there is
no right to privacy as defined by any law, or we would have already been
arrested. There is no right to privacy as defined by any journalistic
ethic, because journalists all the time take pictures of people who
don't necessarily want to have their picture taken. So I don't know what
other right to privacy standard there is.
VERJEE: Vicky Saporta, maybe you can address that issue of rights to
privacy. What do you make of David Leach's argument that, you know,
journalists can go and take pictures of people who don't necessarily
want their picture to be taken, so why can't he?
VICKY SAPORTA, NATIONAL ABORTION FEDERATION: Based on our legal
research, we believe that it is an invasion of privacy, it is illegal,
and we intend to put a stop to it. Women who choose to have an abortion
are making a private medical decision, and that decision should remain
private. [Leach's analysis: in other words, she assumes law should not
only protect the confidentiality of decisions made in consultations with
doctors, lawyers, bankers, etc., but she would now like the law to
protect the privacy of people who are traveling in public towards a
meeting with such a professional.] Pictures of women entering and
leaving clinics do not belong on the Internet. They don't belong on
public TV. And women should be able to access reproductive health care
services without fear of intimidation and harassment.
VERJEE: But there isn't a law anywhere, is there, that states that these
women cannot be filmed, period?
SAPORTA: There are privacy laws, which we believe that these abortion
cams are in violation of... [Leach notes: obviously the police don't
believe it yet, since there have been no arrests] ...Women do have a
right to privacy...
VERJEE: David Leach doesn't think they do.
SAPORTA: Well,...
Even the nationally known cartoonist for the Colorado Gazette, Chuck
Assay, has defended this project as the normal modus operandi of
American journalists:
Mediacom, at a time when no civil or criminal charges were pending
against the Plaintiff, exercised considerable "prior restraint" of a
nationally recognized (listed in "Who's Who in Media and
Communications") anti-abortion writer and communicator, and political
candidate, thereby "chilling," stifling and undermining legitimate
political debate about one of the most prominent public policy matters
in the present generation. An injunction is clearly warranted because if
media personalities and political candidates can be censored when their
messages have not been judged to be in violation of the law, and are
equal in operating procedure if not in viewpoint to mainstream
journalism, then free public debate and freedom of speech is effectively
nonexistent in this nation.
Grievance #4: That Defendant be enjoined from censoring indirectly,
through policies too vague and contradictory to escape violation.
Defendant should either:
(1) Cease previewing tapes for the purpose of finding "violations" on
them, and requiring 3 business days' advance submission for that
purpose: or
(2) Communicate with producers as soon as they preview a tape and find a
problem on it, so that the producer has some opportunity to re-edit the
tape to bring it in compliance in time for the scheduled airing; or
(3) Write clear, non-contradictory rules with detailed explanations
alerting producers to any terms of art which Mediacom is interpreting at
variance from the industry standard.
When neither of these three rules is followed -- when tapes need to be
submitted 3 days in advance so they can be previewed for "violations",
and when Mediacom does not notify producers upon discovering
"violations", and when rules are too vague and contradictory to be
followed -- the inevitable result is unnecessarily canceled shows.
I submitted a tape on Wednesday, for airing Saturday afternoon and
Tuesday evening. I did not learn that anyone had found a problem until
after it was supposed to air Saturday; I could not call anyone to
inquire about the problem until the next Monday; my calls were not
returned until Tuesday, so it was not until Tuesday afternoon that I
learned what I needed to do to avoid a "violation". Along with the
returned phone call, I received the rejected tape in the mail with an
unsigned letter dated Friday but the package was postmarked Monday.
Because of the 3 day wait my show did not air at its scheduled airing
Tuesday, but had to wait until the following Saturday. Fortunately no
new "violation" was discovered in the new tape during those last 3 days
of which I was not notified. Thus two shows were canceled for want of a
phone call.
The "violation", it turned out, was that during a pan of the front of my
music store, which I produced to satisfy their previous (soon to be
orally repealed but kept in writing) rule requiring that the "sponsoring
organization" be displayed for a minimum of 15 seconds, a political sign
was visible for two seconds, which they called a "political
advertisement".
Although censoring a show over two seconds of a political sign is
illegal for reasons given above under "Grievance #1", the additional
problem from their interpretation of their rule was that it was so far
astray from what anyone in the television industry had previously
considered "political advertising", that there was no possible way I or
any other public access producer could have anticipated such an
interpretation just from reading their written rule.
The written rules about listing a "sponsoring organization" have also
been the source of unnecessary tension because they contradict each
other, and the oral interpretations of them likewise contradict each
other.
In fact, the unsigned letter dated Friday, September 20 but postmarked
Monday, September 23, threatened to suspend my show for 3 months for
"continued failure to act in accordance with the rules contained within
the public access handbook". The letter alleges Mediacom had "tried to
assist" me "several times on the proper way to display the 15-second
producer/sponsoring organization tile (sic)". But in fact Mediacom's
"assistance" "several times" boiled down to this: a written copy of its
dramatically new policy, dated August 27, handed to me when I delivered
a tape, containing two irreconcilably contradictory instructions; and
the answer of Sarah Downy September 4 at 10:20 am over the telephone
when I called to ask her how to resolve the contradiction, and she
suggested the solution was simple: I should follow a third plan which
still contradicts one of the instructions.
Under 'G. Legal Liabilities', Mediacom's August 27, 2002 AD rules said
"Users must identify, as a part of their programs, the producers or
sponsoring organizations. This must be added to each program for a
minimum length of 15 seconds." But the cover letter says the opposite.
It says "This means that you may not state -- verbally or in text -- who
provides you (sic) clothing, who the show was made possible by, etc."
Sarah Downey told me over the phone, that I should list the Family Music
Center as a sponsor, but I should not say what hours we are open, or
what categories of products we sell. (My rolling credits have said for
seven years, "The Uncle Ed. Show is sponsored by the Family Music
Center, (hours), Band and Orchestra Instruments, rentals, repairs,
music." ALL of this information flew by and was gone in 5 seconds. These
rolling credits were shown at the beginning, middle, and end of my
show.)
I thought Sarah's plan especially ironic, in making a great issue out of
keeping me from telling what type of business we have, because that
comes too near an "advertisement", and then insisting I increase the
exposure of our store name from 5 seconds to "a MINIMUM of 15 seconds"!
Under time pressure to submit a tape before I could get clear,
uncontradictory instructions, I explained my dilemma in the opening of
my next show. One reason I did that was that if I were accused of
violating one of the instructions in my effort to obey its opposite, I
just wanted people to know I was doing my best. Another reason was that
I knew Deborah Blume would preview it, and I hoped this further
explanation of my quandry would inspire her to provide the desired
clarification. But instead, a mysterious tracking problem developed on
the tape, as extreme as if the technician had turned the tracking knob
all the way to one direction or another, the result quite painful to
watch, and my show was cut off after 30 minutes of suffering. I was told
the next day the tracking problem had been noted while they were
previewing the tape, but I was not called so I could correct it. Nor
were their instructions clarified. (It is puzzling why they even aired
it for 30 minutes, since their policy also excuses them from airing a
show of unacceptable technical quality.)
On the following Wednesday, 9/18, I turned in another show for airing
Saturday, 9/21, and Tuesday, 9/24. That is the show which was canceled
over the 2 seconds of "political signage".
When Vice President Steve Purcell returned my calls the following
Tuesday, he began by saying I MUST, for 15 seconds at the very beginning
of my show, say, in a title, "The Uncle Ed. Show is sponsored by the
Family Music Center." Well, that was consistent with the "Legal
Liability" rule that said I must list a sponsoring organization for 15
seconds. It was consistent with Sarah's idea of focusing just on the
name. It wasn't consistent with the cover letter which says I "may not
state...who the show was made possible by".
But then someone said something to him, and he came back with a
different plan; and after that he said he would check on something and
call me back. By the time it was all over, I must ABSOLUTELY NOT mention
the Family Music Center! No, now I must, for a MINIMUM of 15 seconds at
the beginning of the show, say "The Uncle Ed. Show is sponsored by Dave
Leach".
I am NOT an "organization". Just ask my wife. This new rule contradicts
the "legal liability" rule saying I MUST list the "sponsoring
organization" for 15 seconds. It contradicts Sarah's plan of naming the
Family Music Center. It agrees with the August 27 cover letter saying I
may not say who the show was made possible by. It is ironic that by
shifting attention from my store to my own name, it is a boost for my
candidacy, since name recognition is the heart of politics, yet the
unsigned September 20 letter on Mediacom stationary that accompanied my
returned tape threatens to cancel my entire show over a 2 second
incidental clip of a sign with my name on it!
To this day, the written rule, and the cover letter, remain in effect,
along with the latest oral directions. Apparently no other public access
producer has been privy to the oral information I have been privileged
to receive, because to this day, other public access shows still do not
begin with 15 seconds of an unmoving title saying "The XXX show is
sponsored by (name, not of organization, but sponsoring individual)."
Church shows still list the names of their churches, not the name of an
individual. To this day, other shows discuss politics, and interview
candidates.
Some will reason that an oral explanation of an incomprehensible written
rule settles the matter even if it contradicts the written rule; the
oral instruction should be followed and the written rule ignored,
because it is the bureaucrats who gave the oral instruction who are the
interpreters of the written rule. It is true this is how bureaucracy
often operates in practice. The problem with relying upon this in what
has become a hostile atmosphere is that courts side with the written
version, that being the version whose content is easiest to prove. The
legal problem is further complicated when you have two written rules
which absolutely cannot be reconciled with one another. Whichever rule
we follow, Mediacom can nail us for violating the other one, and the ta
sk for us of correcting the record will be formidable.
Grievance #5. That Plaintiff be allowed to obey the Mediacom written
rule requiring Plaintiff to name his sponsoring organization.
The law allows Mediacom to censor only for "obscenity, indecency, and
nudity". Mediacom NOW calls identification of the organization making
possible a show, which its written rule requires, an "advertisement".
This is an interpretation of "advertisement" perhaps unprecedented in
the world of advertising. For seven years, I have taken for my model Des
Moines' premiere model of sponsor identification on a medium that does
not allow advertising: public television. Sponsors are clearly and
generously identified there, and not just their names but a phrase about
what sort of business they are, without ANYBODY perceiving them as
"advertisements". If you ask an advertising agency to define what an
"ad" is, part of their understanding will include the concept of a block
of time, with a minimum of 10 seconds. It is hard to imagine a precedent
supporting Steve Purcell's ruling that I may not even MENTION the Family
Music Center as a sponsor because that is now an "advertisement". For
seven years I have listed our music store as a sponsor, in a rolling
text which puts our store name before the public for a second or two,
which I have always felt was less than the recognition sponsors receive
on PBS.
I was especially surprised by Mediacom's microscopic view of
"advertising", having read about the access producer who was canceled
for offering tapes of his show for sale, until the court said that was
within his rights. Goldberg v. Cablevision Systems, Court of Appeals for
the Second Circuit, Docket No. 99-9411, Decided August 14, 2001.
Certainly Mediacom's interpretation is not one public access producers
could reasonably have been expected to anticipate.
The farther Mediacom's definition of "advertisement" strays from the
industry standard, the greater is the responsibility Mediacom should
accept to unambiguously explain its new definition in sufficient detail
that access producers can comply with it without any uncertainty whether
Mediacom will be satisfied.
Goldberg defines "commercial" in terms one would expect to generate more
income than a fleeting 5-second rolling credit during a closing song
whose message does not reinforce the credit but pulls the viewer's
attention to another subject:
"Commercial" means "[o]f or relating to commerce." The American Heritage
Dictionary of the English Language 371 (4th ed. 2000). Dictionary
definitions of "commerce," in turn, speak in terms of "[t]he buying and
selling of goods . . . ," id.; the "[e]xchange between men of the
products of nature or art; buying and selling together; trading;
exchange of merchandise," The Oxford English Dictionary, 552 (1989); and
"the exchange or buying and selling of commodities on a large scale
involving transportation from place to place," Merriam-Webster's
Collegiate Dictionary, 230 (10th ed. 2000) (second definition). ... See
U.C.C. 2-106(1) ("A 'sale' consists in the passing of title from the
seller to the buyer for a price.")
Grievance #6. That Defendant be enjoined from requiring Public Access
producers to sign a contract, as a condition of airing their shows, that
obligates producers to pay attorney fees of Mediacom even when a
producer sues Mediacom for violating U.S.C. 47 531(e) and wins!
The contract prior to the version established in May, 1996, only removed
Mediacom from liability when a producer is sued for content of his show.
The language enacted mid-May, 1996, sends producers the bill for any
legal or other investigation connected with our shows, whether or not
the complaint that triggers them has merit, and whether or not Mediacom,
rather than the producer, is at fault! I am afraid of suing Mediacom for
its violation of the U.S.C., because this language could authorize them
to automatically send me the bill for its attorney expenses, even if I
win! Since they added this language, I have been adding "without
prejudice" to my signature (UCC 1-207) to preserve my right to object to
these provisions in court, as I explained to them in a letter at the
time.
Here is the contract language -- striking the language in italics would
correct the problem:
Indemnification Clause (Must be completed before approval of Request
granted) ____________ hereby indemnifies and holds Mediacom, their
owners, directors, officers and employees harmless from and against any
and all losses, claims, damages, liabilities or amounts paid in
settlement of pending or threatened litigation which arises out of or is
based upon the content of programming furnished or produced by
_____________________ including without limitation, and assertion of
defamation, copyright infringement or other rights to privacy, and
material that is obscene or indecent, and shall reimburse Mediacom,
their owners, directors, officers and employees, for any legal and other
expenses incurred by them in connection with investigating any such
claims or defending or settling any such, actions, and in connection
with this indemnity, Mediacom, their owners, directors, officers, and
employees shall have the right to select defense counsel of their choice
. In the event any access user violates the rules of program content,
Mediacom reserves the right to suspend access privileges for a period of
three (3) months.
U.S.C. Par. 555a(a) says in "any court proceeding...involving a claim
against a franchising authority...or agent of such authority...arising
from the regulation of cable service...any relief...shall be limited to
injunctive relief and declaratory relief."
This is of course the law that hinders my access to professional
assistance. The law is good. It protects me as well as Mediacom. But it
would be outrageous if, after being protected from the risk of being
ordered by the court to pay Mediacom's legal expenses should I lose,
Mediacom could turn around and charge me for "legal and other expenses
incurred by them in connection with investigating" my case against them,
even if I win!
Logic might suggest that I could not be charged for legally
investigating a show which is censored, since Mediacom would have signed
contracts only for the shows which were aired. However, even when I turn
in a show which is later censored, I must turn in a signed contract with
it. But even if I didn't, the contract language doesn't limit my
liability to only the one show accompanying each contract.
47 U.S.C. 531(e) limits grounds of editorial control to obscenity,
indecency, and nudity. But Mediacom's unreasonable contract language
creates a fourth ground of censorship: any concern, on the part of any
legally careful producer, for his family assets. It is like saying
"Sure, we will give you your right to air your show, if you will first
put your head in our lion's mouth." Any unreasonable burden placed on
public access producers, which may, or should, discourage some from
submitting shows, is a new, unlawful ground of censorship. The
censorship might at least appear to be nondiscriminatory. However, the
threat from this sort of language is aimed most at those who least
please Mediacom.
It has been my hope that I have preserved my right to object to these
outrages in court by signing "Without Prejudice", and with my explicit
letter to Mediacom's predecessor when I began so signing, detailing the
rights I reserved, pursuant to UCC 1-207 (554.1207 in the Iowa Code). I
now ask the Court to grant relief from this threat.
Grievance #7: that Mediacom be enjoined to strike, from its contract and
policy, the threatened penalty of a 3 months' suspension for violation
of its rules.
Here is the argument of Loce v. Time Warner, 2d Cir June 4 1999, Docket
Nos. 97-9301, 97-9601, 98-7040 for overturning a 6-month suspension
policy for violations, even though in this case the plaintiffs had the
worst kind of sexual filth, reaching from anything visible at a "strip
club" to film of a woman murdered and sexually mutilated. These "men"
were canceled from not one but two cable companies for this kind of
garbage, and yet the Court said free speech was too precious to FOREVER
deny it to these "men", or even for so long a banishment as six months!
The cable company has a right to censor this stuff, but it can identify
tapes meriting censorship by previewing tapes, not by taking the drastic
step of a six month ban:
D. The Suspension Provisions
In its cross appeal, Time Warner contends that the district court erred
in construing the Cable Act as not authorizing cable operators to
suspend persons who have submitted indecent programming. TW argues that
that interpretation of 532 unduly restricts its flexibility in enforcing
the Indecency Policy and that a practice of tape-by-tape review would be
unduly expensive. We reject these contentions substantially for the
reasons stated in the district court's Decision.
As discussed in the preceding sections, the editorial control given to
cable operators under 532(c)(2) and 532(h) is limited. As this Court has
noted with respect to the public access counterpart to 532(c)(2), i.e.,
47 U.S.C. 531(e) (Supp. II 1996), a "refusal to broadcast all of [a
programmer's] future programming," far from exercising limited control,
would constitute "the strongest and broadest possible form of editorial
control." McClellan v. Cablevision of Connecticut, Inc., 149 F.3d 161,
168 n.14 (2d Cir. 1998) (emphasis in original). We see no indication
that Congress, in fashioning 532(h) to give a cable operator limited
authority to prohibit "programming" described by that section, intended
that section or any other to authorize the cable operator to impose a
blanket ban on all programs (irrespective of content) of a given program
supplier. Indeed, in requiring cable operators to provide leased access
channels, Congress sought principally to assure the widest possible
diversity of information sources on cable systems. See 47 U.S.C. 532(a)
(1994). A cable operator's exclusion of a given supplier would, instead,
plainly limit the number of potential program sources. Finally, we see
no indication that Congress meant to imply that a cable operator could
reasonably believe any given program to be patently offensive solely
because of its source. Nor does the present record suggest that Time
Warner could be justified in such a belief with respect to LWS. As noted
in Part I.B. above, LWS for a period of time submitted shows to TW Roc
hester that were not deemed indecent under TW's Indecency Policy.
In sum, we reject Time Warner's contention that the Act authorizes it to
foreclose the submission of programs based solely on source, without
regard to whether they contain material whose prohibition is authorized
by 532(c)(2) and (h). As the district court concluded, [t]he purpose of
the Cable Act of 1992 was to ban programs, not programmers. . . . The
six-month and life-time bans however, punish program providers in a
manner not contemplated by the statute by cutting off access to the
leased access channels. No support for such a sanction is found in
either the statute or the regulations.
Decision at 26.
If this case can be made for two "men" whose brains need a good
scrubbing with Lysol, how much more should it be made of a program of
which no obscenity, indecency, or nudity has ever been alleged by anyone
in the city? The reasoning here against a six-month ban applies equally
to a three-month ban. And what is the alternative to a ban ordered by
this court? Previews of tapes. And not even previews of all tapes, but
just previews of suspected tapes. So how can Mediacom justify the need
for a three-month ban, when it already previews, automatically, ALL
tapes?
A simpler, and more effective solution to Mediacom's concerns would be
clear, unambiguous rules which anyone can follow without fear of
unintentionally violating them. I do not believe any current public
access producer has any desire to deliberately violate Mediacom rules.
IV. Facts and Evidence
Some of Mediacom's restrictions were presented orally, and not in
writing, so that they will be difficult for me to prove if Mediacom
denies them. However, they restrict me as much as if they were in
writing. On the other hand, if Mediacom's response to the Court is "We
never imposed such a restriction, and furthermore that is not our
policy", causing this motion to be dismissed, I will have accomplished
as much, by getting in writing their repudiation of their earlier oral
restrictions, as if my application for a temporary injunction had
succeeded. However, if Mediacom responds "We never imposed such a
restriction, however we will not air that show", then the Court will
have the proof it needs from Mediacom's response.
In view of the length of this brief already, and of the Clerk's comment
that a detailed brief is not even usually included with an initial
filing (I wanted to do it in view of the shortness of the time
remaining, to expedite things) I will not include my timeline at this
time but will wait to see if Mediacom denies any of the facts which my
timeline will prove, and have it ready as need arises.
For these reasons, the Plaintiff prays the motion will be granted and
The Uncle Ed. Show be allowed the requested relief until this lawsuit
reaches its conclusion.
Respectfully submitted,
Dave Leach
137 E. Leach
Des Moines Iowa 50315
515/244-3711w
