(This is Mediacom's October 30, 2002 response to my October 15 "Complaint". Actually this is dated October 29, but Mediacom admitted at the October 30 hearing that they had electronically --by email--filed it "after hours" so the Court didn't actually receive it till the morning of the hearing; I myself was handed a paper copy as I came into the hearing.)


UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVID LEACH, Plaintiff, vs. MEDIACOM, Defendant

DEFENDANT'S INITIAL BRIEF IN SUPPORT OF RESISTANCE TO PLAINTIFF'S APPLICATION FOR EXPEDITED PRELIMINARY INJUNCTION

NO: 4:02-CV-70545

COMES NOW Greater Des Moines, Iowa Cable Television Company, operated by MCC Iowa LLC, d/b/a Mediacom ("Mediacom") and files this initial Brief in Resistance to Plaintiff David Leach's Application for Expedited Preliminary Injunction.

TABLE OF CONTENTS

PLAINTIFF IS NOT ENTITLED TO PRELIMINARY INJUNCTIVE RELIEF .. . .2

1. Plaintiff fails to state a claim upon which injunctive relief can be granted due in part to the mootness of some of his claims and the lack of ripeness of others 3

2. To the extent Plaintiff's programming is commercial in nature, Mediacom

can refuse to cablecast it on a public access channel 4

3. Compelled carriage of programming unacceptable to Mediacom violates its First

Amendment rights 5

CONCLUSION 6

ARGUMENT

PLAINTIFF IS NOT ENTITLED TO PRELIMINARY INJUNCTIVE RELIEF

In the Eighth Circuit, the decision whether preliminary injunctive relief should be granted involves consideration of four factors: (a) the threat of irreparable harm to the moving party; (b) the state of balance between this harm and the injury that granting the injunction will inflict upon other parties litigant; (c) the probability that the moving party will succeed on the merits; and (d) the public interest. Entergy v. Nebraska, 210 F.3d 887 (8th Cir. 2000); Dataphase Systems. Inc. v. CL Systems. Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). No single factor is determinative. Id.

In addition, it is axiomatic that a preliminary injunction "is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carried the burden of persuasion." C. Wright & A. Miller, Federal Practice and Procedure § 2948 at 428-29. "The burden of proving that a preliminary injunction should be issued rests entirely with the movant." Modem Computer Systems. Inc. v. Modem Banking Systems. Inc., 871 F.2d 734, 737 (8th Cir. 1989) (en banc) (footnote omitted).

Examination of the Plaintiffs request against this backdrop compels the conclusion that preliminary injunctive relief cannot be granted. Each of the Dataphase factors weighs against the issuance of a preliminary injunction here. Moreover, Plaintiffs claims fail to present an actual case and controversy, on both ripeness and mootness grounds, and his Complaint accordingly fails to state a claim upon which relief can be granted.

1. Plaintiff fails to state a claim upon which injunctive relief can be granted due in part to the mootness of some of his claims and the lack of ripeness of others.

In his application, Plaintiff requests that Mediacom be enjoined from (a) "censoring

news interviews"; (b) "censoring" certain photographs; (c) "content-based censorship of news photography"; (d) "censoring indirectly" through the implementation of its Public Access Programming Policies and Operating Procedures; (e) requiring an indemnity provision in its Public Access policy; (f) enforcing a penalty provision for persons found to have violated its Public Access policy; and (g) to affirmatively permit Plaintiff "to obey the written rule requiring Plaintiff to name his sponsoring organization." See Application for Expedited Preliminary Injunction, pp. 2-3.

However, in large part, the issues raised by Plaintiff in his Application are moot because Mediacom's public access channel has cablecast each program tape actually delivered to it by Plaintiff Although initially Mediacom declined to cablecast certain program tapes delivered by Plaintiff (~g±, the Tom Coates interview), this decision was revisited and that program was accepted and carried on the public access channel. As of the date of this filing, every program tape actually delivered to Mediacom's access channel by Plaintiff has been cablecast.

Further, Plaintiff neither has been suspended pursuant to Mediacom's Public Access policy, nor has he been called upon to indemnify Mediacom for any lawsuits brought by third parties, as contemplated by Medicom's limited indemnity provision. Likewise, Plaintiff never tendered his videotape isolating on persons on the private property of Planned Parenthood of Greater Iowa -- while Mediacom has indicated it would reject such programming as unprotected speech or speech meeting its definition of obscene ("Offensive to accepted standards of decency or modesty." American Heritage Dictionary, Second College ed.), that issue is not ripe for adjudication until he submits an actual program for cablecast and it is rejected.

Finally, even if Plaintiffs claims were ripe and not moot, he has failed to show he is entitled to injunctive relief at this time because the balance of hardships are not in his favor nor are his constitutional rights in issue due to the conduct of the private cable operator, Mediacom, in implementing non-content related policies and procedures that Plaintiff seeks to enjoin here. See Glendora v. Amos B. Hostetter et al., 916 F. Supp 1339 (S.D. N.Y. 1996).

To the extent Plaintiffs programming is commercial in nature Mediacom can refuse to cablecast it on a public access channel.

One of Plaintiff's assertions is that Mediacom rejected programming for carriage on the access channel because it contained footage portraying a commercial message. Because such a commercial message, no matter how brief, places the programming outside the scope eligible for carriage on a public access channel and requires its programmer to purchase time on a leased channel, Plaintiff cannot secure an injunction requiring Mediacom to cablecast that program. Goldberg v. Cablevision Systems Corporation, 69 F.Supp.2d 398 (E.D.N.Y. 1999).

3. Compelled carriage of pro~rammin2 unacceptable to Mediacom violates its First Amendment rights.

While the facts of this case allow for a decision in favor of Mediacom on non- constitutional grounds, if the Court otherwise is persuaded that Plaintiff has satisfied the Dataphase factors, the requested injunctive relief against Mediacom should be denied on First Amendment grounds. The Supreme Court left open the door for challenges to the pubic access channel requirements of 47 U.S.C. § 53 1(a) and its related non-censorship provisions. See Denver Area Educ. Telecomm. Consortium v. FCC, 518 U.S. 727 (1996); Turner Broadcasting System v. FCC, 512 U.S. 622 (1994); Horton v. Nationalist Television, 179 F.3d 188 (5th Cir. 1999). This case presents the correct setting for such a declaration against the constitutionality of 47 U.S.C. § 531 in its entirety and specifically 47 U.S.C. § 53 1(b) and (e) in light of:

(a) the changes in technology that allow individuals such as Plaintiff to make effective "soapbox" communications via the Internet, including web streaming of video and audio as Plaintiff has done through his web site

www. saltshaker.us;

(b) the fact that Mediacom is not a state actor and its access channel is not a public forum, as contrasted with the stipulated or assumed facts in Coplin v. Fairfield Public Access Television Committee, 111 F.3d 1395 (8th Cir. 1997) and other public access channel cases where the administrator is a government body, not the private cable company; and

(c) the reality that Judge Bremer and the Court of Appeals for the Eighth Circuit in Coplin recognized that the government body administering the access channel there could control content of an access channel where that content is "constitutionally proscribable " Id at 1402-03; see generally 42 U.S.C. § 544(d).

Here, the statutory provisions pursuant to which Plaintiff seeks relief are unconstitutional on their face and as applied to Mediacom under the franchise of the City of Des Moines. Specifically, the statutory and franchise provisions are unconstitutional under the First and Fourteenth Amendments of the United States Constitution, among other provisions. Without limiting the generality of the foregoing, Mediacom asserts that it is neither a state actor nor are its property and facilities a public forum and, therefore, that any statute or franchise that mandates that Mediacom dedicate channel capacity for public access violates its rights under the First and Fourteenth Amendments. Further, any provision of law or franchise that limits Mediacom's ability to exercise editorial discretion constitutes an impermissible infringement of its speech, press and property rights.

CONCLUSION

Because Plaintiff cannot meet his burden of demonstrating facts necessary for the issuance of the extraordinary relief sought and because the issues raised by Plaintiff in his Application are moot and/or not ripe, his request for entry of a preliminary injunction must be denied. Moreover, entry of the relief requested would violate Mediacom's constitutionally protected speech, press, and property rights.

 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVID LEACH, Plaintiff, vs. Medjacom, (sic) Defendant

DEFENDANT'S NOTICE OF CONSTITUTIONAL CHALLENGE PURSUANT TO LOCAL RULE 24.1

NO: 4:02-CV-70545

COMES NOW Greater Des Moines, Iowa Cable Television Company, operated by MCC Iowa LLC, dlb/a Mediacom ("Mediacom") and pursuant to Local Rule 24.1 gives notice that: (a) it reserves the right to challenge the constitutionality of federal law in this action and (b) the interests of the United States of America are not being represented in the litigation. Pursuant to Local Rule 24.1, Mediacom states:

1. A constitutional challenge to a federal law is being or may be asserted in this litigation.

2. Specifically, Mediacom asserts that 47 U.S.C. § 531 in its entirety and specifically 47 U.S.C. § 531(b) and (e) are unconstitutional on their face and as applied to Mediacom under the franchise of the City of Des Moines in question and the facts of this case.

3. The basis of Mediacom's constitutional challenges center on the statutory requirement that cable channels for public, educational or governmental use may be required by a municipality and if so required, that the cable operator may not exercise editorial

 

1

control. Mediacom asserts the statutory and franchise provisions are unconstitutional under the First and Fourteenth Amendments of the United States Constitution, among other provisions. Without limiting the generality of the foregoing, Mediacom asserts that it is neither a state actor nor are its property and facilities a public forum and, therefore, that any statute or franchise that mandates that Mediacom dedicate channel capacity for public access violates its rights under the First and Fourteenth Amendments and any provision of law or franchise that limits its ability to exercise editorial discretion constitutes an impermissible infringement of its speech, press and property rights.

4. Mediacom reserves the right to supplement and expand this Notice of Constitutional Challenge at such time as the facts and procedural posture of this case are more fully developed. At this point, Mediacom has been served with a request for a preliminary injunction and has not received a complaint that is capable of answer or a motion to dismiss and has not had the opportunity to make any initial responsive pleading.

WHEREFORE, Defendant requests that the Court receives this Notice of Constitutional Challenge pursuant to the applicable rules and that the Court certify the matter to the appropriate attorney generals as required by 28 U.S.C. § 2403 and Fed. R. Civ. P. 24(c).

October 29, 2002 FAEGRE & BENSON LLP

 

 

By: Is! Michael A. Giudicessi' Michael A. Giudicessi, Lead Counsel rngiudicessi(~9faegre. corn

By: /s/ William J. Hunnicutt

William J. Hunnicutt

whunnicutt@faegre. corn

400 Capital Square

400 Locust Street

Des Moines, IA 50309

Telephone: (515) 248-9000

Facsimile: (515) 248-9010

ATTORNEYS FOR DEFENDANT

MCC IOWA LLC, D/B/A MEDIACOM

'Filed electronically pursuant to Court Order Misc. No. MI-38 (S.D. Iowa April 30, 2001)

 

 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF IOWA

DAVID LEACH, Plaintiff, vs. Mediacom, Defendant

DEFENDANT'S RESISTANCE TO PLAINTIFF'S APPLICATION FOR EXPEDITED PRELIMINARY INJUNCTION

NO: 4:02-CV-70545

COMES NOW Greater Des Moines, Iowa Cable Television Company, operated by MCC Iowa LLC, dlbla Mediacom ("Mediacom") and hereby resists Plaintiff David Leach's Application for Expedited Preliminary Injunction. In support thereof, Mediacom states:

1. In his application, Plaintiff requests that Mediacom be enjoined from (a) "censoring news interviews"; (b) "censoring" certain photographs; (c) "content-based censorship of news photography"; (d) "censoring indirectly" through the implementation of its Public Access Programming Policies and Operating Procedures;(e) requiring an indemnity provision in its Public Access policy; (f) enforcing a penalty provision for persons found to have violated its Public Access policy; (g) and to affirmatively permit Plaintiff "to obey the written rule requiring Plaintiff to name his sponsoring organization." See Application for Expedited Preliminary Injunction, pp. 2-3.

2. Plaintiff cannot demonstrate the factors necessary for the issuance of a preliminary injunction, specifically: (a) the probability of success on the merits; (b) the threat of irreparable harm to the movant; (c) the balance between this harm and the injury that granting the injunction will inflict on other interested parties; and (d) whether the issuance of an injunction is in the public interest. See Entergy v. Nebraska, 210 F.3d 887 (8th Cir. 2000); Dataphase Systems v. CL Systems, 640 F.2d 109, 113 (8th Cir. 1981); Uncle B's Bakery. Inc. v. O'Rourke, 920 F.Supp. 1405, 1422 (N.D. Iowa 1997).

3. Further, the issues raised by Plaintiff in his Application are moot and/or are not ripe because Mediacom has cablecast each tape delivered to it by Plaintiff Although initially Mediacom refused to cablecast certain program tapes delivered by Plaintiff, ultimately this decision was revisited and said tapes were accepted. As of the date of this filing, every program tape actually provided to Mediacom by Plaintiff has been cablecast. Further, Plaintiff neither has been suspended pursuant to Mediacom's Public Access policy, nor has he been called upon to indemnify Mediacom for any lawsuits brought by third parties, as contemplated by Mediacom's indemnity provision.

4. Further, 47 U.S.C. § 531 in its entirety and specifically 47 U.S.C. § 53 1(b) and (e), the statutory provisions pursuant to which Plaintiff seeks relief, are unconstitutional on their face and as applied to Mediacom under the franchise of the City of Des Moines in question and the facts of this case. Specifically, the statutory and franchise provisions are unconstitutional under the First and Fourteenth Amendments of the United States Constitution, among other provisions. Without limiting the generality of the foregoing, Mediacom asserts that it is neither a state actor nor are its property and facilities a public forum and, therefore, that any statute or franchise that mandates that Mediacom dedicate channel capacity for public access violates its rights under the First and Fourteenth Amendments. Further, any provision of law or franchise that limits Mediacom's ability to exercise editorial discretion constitutes an impermissible infringement of its speech, press and property rights.

5. Because Plaintiff cannot meet his burden of demonstrating facts necessary for the issuance of the extraordinary relief sought and because the issues raised by Plaintiff in his Application are moot and/or are not ripe, his request for entry of a preliminary injunction should be denied and this matter dismissed with judgment for Defendant.

6. Mediacom reserves the right to file its initial pleading responsive to the Complaint after the Court has heard and decided Plaintiffs Application for Expedited Preliminary Injunction.

7. Mediacom incorporates by this reference its supporting Initial Brief, filed contemporaneously with this Resistance. Mediacom further requests that to the extent Plaintiffs Application is not denied on its face, that the Court establish a briefing schedule for the issues that remain unresolved.

WHEREFORE, Defendant requests that Plaintiffs Application for Expedited Preliminary Injunction be denied, that judgment be entered for defendant, and that the Court award Mediacom such further relief as is just and equitable.

October 29, 2002 FAEGRE & BENSON LLP

By: /s/ Michael A. Giudicessi' Michael A. Giudicessi, Lead Counsel rngiudicessK~)faegre. corn

By: /s/ William J. Hunnicutt

William J. Hunnicutt

whunnicutt(~)faegre. corn

400 Capital Square

400 Locust Street

Des Moines, IA 50309

Telephone: (515) 248-9000

Facsimile: (515) 248-9010

ATTORNEYS FOR DEFENDANT

MCC Iowa LLC d/b/a Mediacom

'Filed electronically pursuant to Court Order Misc. No. MI-38 (S.D. Iowa April 30, 2001)

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