04-2282-cv

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

William Huston

Plaintiff/Appellant

-against-

TIME WARNER ENTERTAINMENT - Advance/Newhouse Partnership d/b/a Time Warner Cable; RICHARD PARSONS, CEO, AOL/TIME WARNER (a general partner in Time Warner Entertainment - Advance/Newhouse Partnership); ROBERT J. MIRON, CEO, Advance Communications Corp (a general partner in Time Warner Entertainment - Advance/Newhouse, Partnership); JON SCOTT, President, Time Warner Cable, Vestal NY Division; DAVID WHALEN, Vice President, Time Warner Cable, Vestal NY Division, ANDREW FLEMING, General Manager, Time Warner Cable, Vestal NY Division,

Defendants/Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

APPELLANT'S BRIEF

William Huston, Pro Se 342 Park Avenue Binghamton, New York 13903 Telephone: (607) 724-1755	BOND, SCHOENECK & KING, PLLC Jonathan B. Fellows, Esq. One Lincoln Center Syracuse, New York 13202 Telephone: (315) 218-8000
Plaintiff-Appellant	Attorneys for Defendants-Appellees

I.	Table of Contents	.........................................
II.	Preliminary Statement	.........................................
III.	Table of Authorities	.........................................
IV.	Jurisdictional Statement	.........................................
V.	Issues Presented for Review	.........................................
VI.	Statement of Case	.........................................
VII.	Statement of Facts	.........................................
VIII.	Argument	.........................................
IX.	Relief Sought	.........................................
X.	Certificate of Rule 32(a)(7) Compliance	.........................................

Preliminary Statement
This is an appeal from the decision by Hon. Thomas J. McAvoy of the Northern District of New York to grant motion made by Defendants Time Warner Entertainment - Advance/Newhouse Partnership (TWEAN), et. al., for summary judgment and dismissal. This case brings forth important questions about the modern nature of free speech, public fora, the nature of the corporate form, and corporate control of media. Just as the underlying argument of "separate but equal" in Plessy v. Ferguson. 163 US 537 (1896) prevailed for 58 years until a grassroots movement caused the courts to reconsider, similarly there is a large public movement now to rescind the bizarre notion that corporations -- legal fictions created by state action, regulated by state action, endowed with rights by state action -- are not in fact state actors but "private persons". No less than five best-selling books now exist on this topic, as well as a major motion picture, a non-profit corporation, and websites dedicated towards public education on the issue. Municipalities around the country are passing "Corporate Personhood Elimination and Democracy Protection" ordinances. Many distinguished scholars have opined that the corporate form and corporate control of the media pose the greatest threat to health of our democracy this country has ever seen. This appeal is a prayer for reverse and remand so that a full evidentiary proceeding and trial can be had to explore the important questions raised by this case.
Table of Authorities
- CASES
- STATUTES, RULES and U.S. CONSTITUTION
- OTHER AUTHORITIES
Jurisdictional Statement:

Trial Court jurisdiction: The Northern District of New York's ("NDNY") subject matter jurisdiction arises under 28 U.S.C. § 1331, due to federal questions raised by complaint under the First Amendment of the United States Constitution, and 47 U.S.C. § 531(e).
Appellate Jurisdiction: The United States Court of Appeals for the Second Circuit's jurisdiction arises under 28 U.S.C. § 1291, due to this being a final decision of a district court, and 28 U.S.C. § 1294(1), as the NDNY exists within the Second Circuit.
The decision was rendered on March 24, 2004. Plaintiff filed a timely notice of appeal on April 23, 2004.
The appeal is from a final order or judgment that disposes of all parties' federal claims.

Issues Presented for Review
1. Whether the lower court erred in dismissing all of plaintiff's federal claims because the standard of review was violated, in that
2. Whether the lower court erred in dismissing plaintiff's First Amendment claim by citing dicta and unpublished decisions, which have no precedential value,
3. Whether the lower court erred in dismissing plaintiff's First Amendment claim by disregarding evidence which suggests the prior caselaw asserting "corporations are private persons" and "corporations are ordinarily not state actors" facially relies upon flawed reasoning and is deserving of review,
4. Whether the lower court erred in dismissing all of plaintiff's federal claims by applying the doctrine of stare decisis to inappropriate cases due to differences of fact or question of law, or the case being non-controlling.
Statement of Case
1. Plaintiff brought this case against Defendants claiming violations of First Amendment rights, and violations of certain federal and New York State laws arising out of Defendants' failure to provide sufficient public access channel capacity, and facilities and equipment necessary to use the channel capacity, and failure to make required notice to subscribers of their ability to use such.
2. Plaintiff brought this action in New York State Supreme Court of Broome County. Defendants removed this to the Northern District of New York due to federal questions.
3. Defendants made a motion to dismiss, because of their assertion that First Amendment claims can only be made against state actors, and that Defendants have not exercised editorial control within the meaning of 47 USC §531(e).
4. Plaintiff, in his answer, argued that Defendants should be considered state actors w/r/t First Amendment claims, and that Defendants prohibition and/or limitation of certain unique types or classes of public access programming denotes "editorial control" within the meaning of 47 USC §531(e), and made a cross motion for preliminary injunction.
5. Judge McAvoy agreed with Defendants, and granted their motion for dismissal, while denying Plaintiff's cross motion for preliminary injunction, for the following reasons:
6. Judge McAvoy dismissed Plaintiff First Amendment claims because "It is well-settled that only state actors can be held accountable for constitutional violations", and "Defendants are not state actors", Decision and Order, IV(a).
7. Judge McAvoy dismissed Plaintiff's claim under 47 U.S.C. § 531(e) because "TWE never edited any of Plaintiff's programming and never refused any of Plaintiff's submissions", and "Plaintiff admits that Defendants do not engage in content-based decisions", and "Nothing in the relevant statutes requires cable operators to make its facilities available for the purposes of producing television broadcasts".
8. Judge McAvoy declined to rule on the pendant state claims.
9. Plaintiff filed a timely notice of appeal with the district court.
Statement of Facts
1. Plaintiff produces public access programs on Defendants' cable network, and at times has been a subscriber of Defendants' cable television services.
2. Defendants are obligated under 9 NYCRR § 595.4 to provide 2 channels for Public, Education, and Government access purposes, one dedicated for public access purposes (P), and one for education and government access (EG).
3. In fact, Defendants only provide only one combined P+EG channel.
4. The Public Access channel, and the facilities and equipment necessary for using the channel capacity, must be allocated without charge on a first-come, first-served, nondiscriminatory basis.
5. In fact, Defendants charge for the use of facilities and equipment necessary for using the channel capacity and discriminate against poor people.
6. The Defendants are forbidden from engaging in editorial control over public access programming by Federal law (47 USC §531(c)), NY State Law (11 PSL §229(3)), NY State Code (9 NYCRR 595.4 §(a)(1),§(c)(8)), by controlling precedent (Denver Area Consortium v. FCC 518 U.S. 727 (1996)), and by each of franchise agreements which the NY State Public Service Commission requires compliance with 9 NYCRR 595.4.
7. Defendants in fact do exercise editorial control within the meaning of these statutes, rules, contracts, and cases, by prohibiting or limiting certain unique types or classes of public access programs, such as live programs, and programs by poor persons.
8. As Public Access is created jointly by the municipalities in which Defendants provide cable service, and the NY State Public Service Commission, and due the prohibition of editorial control by both the cable provider and the franchising authorities, public access television is thus a state-created public forum where information producers have First Amendment rights of free speech, and information consumers have First Amendment rights to diverse and antagonistic sources of information.
9. Administration of Public Access Television facilities, equipment, and channel capacity is a state function.
10. Certain facilities and equipment are necessary for using the channel capacity, and this equipment must be allocated on the same first-come, first-served, nondiscriminatory basis as the channel capacity.
11. Plaintiff has sought to create a live public access program, but was denied use of Defendants' studio facilities under public access rules.
12. Defendants will give access to the studio, but charges $300-$500/hr for their paid staff to operate the equipment.
13. Upon information and belief, no public access producer has ever paid this fee for studio access, but at least some (e.g. Plaintiff) desire to make live public access programs, or taped programs in the studio.
14. There are other facilities and equipment typically obtainable from cable providers for public access purposes, necessary for making television programs, such as editing stations and porta-paks (camcorders), which Defendants also do not provide.
15. Defendants only provide a video playback deck, causing all persons desiring to use the public access channel capacity to supply pre-recorded video tapes produced elsewhere.
16. Television is a medium of sound and light. To produce a television program, somewhere in the signal chain must exist a device to convert sound (microphone) and light (videocamera) into electrical impulses suitable for recording to tape, broadcasting, cablecasting, etc.
17. Defendants do not provide any equipment to public access producers which converts sound and light into electrical impulses.
18. This equipment is necessary to use the public access channel capacity on Defendants' cable network.
19. Thus, Defendants do not provide sufficient facilities and equipment necessary for use of channel capacity.
20. By denying public access producers access to necessary facilities and equipment to produce programming on their cable network, Defendants violate Plaintiff's First Amendment rights of speech, and the right to be exposed to the First Amendment speech of others in the community.
21. Thus, while Defendants do provide certain channel capacity for public access purposes, they do not provide facilities and equipment sufficient and necessary to use this channel capacity.
22. Defendants fail to identify public access programming as such, and make required mailings and on-screen notifications as required by 9 NYCRR §595.4, causing the public to be ill-informed about the nature of public access, and their rights to use the channel capacity.
23. Defendants are obligated to follow state and federal laws and regulations, they additionally negotiated franchise agreements in the municipalities which contractually promise compliance with these statutes and regulations.
24. By Defendants' a) failure to promote and educate their subscribers about public access, b) failure to provide adequate channel capacity for public access, c) failure to provide necessary facilities and equipment necessary to utilize the channel capacity, and d) use of the public access channel capacity for non-designated purposes, all in violation of statutes, codes, and their franchise agreements, tends to cause PEG channel capacity to be under-utilized and violates Plaintiff's First Amendment rights of speech, and Plaintiff's right of access to the First Amendment speech of other community members.
25. This under utilized PEG channel capacity caused by Defendants' actions (fallow time) is then sold to leased-access customers, used for promotion of Defendants' commercial cable channels, and otherwise used for non-designated and for-profit purposes.
26. Private rights are created by the First Amendment of the Constitution, 47 USC §531(e), 9 NYCRR §595.4, and 11 PSL §229(3), Art I, §§ 1,8,11 of the NY State Constitution, to ensure that the citizenry have access to diverse and antagonistic sources of information.
27. Plaintiff has suffered violations of such rights by Defendants' actions described herein.
Argument
Standard of Review
- On a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F. 3d 581, 593 (2d Cir. 1999),
- The court may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c).
- An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U. S. 242, 248 (1986).
- A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U. S. 317, 323 (1986).
- If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U. S. 574, 587 (1986).
- Payne v. Tennessee, 501 U. S. 808, 828 (1991): "Stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence to the latest decision' ") (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940)).
- Lawrence et. al. v. Texas (02-102) 41 S. W. 3d 349 , ``Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: ... it has been subject to "substantial and continuing" criticism...''
Argument Summary: a) First Amendment: Plaintiff's First Amendment question has a four part basis, any one of which is sufficient to establish a claim:
1. Public Access Television is a First Amendment Public Forum
2. All Corporate Actors are State Actors
3. The Administrator of Public Access is a State Actor
4. The Administration of Public Access is a State Function
The lower court erred in dismissing Plaintiff's First Amendment claim by relying upon dicta, unpublished decisions, non-controlling precedents from other courts, citing cases which are factually dissimilar, and by being silent on questions raised. b) 47 USC § 531(e): Defendants' prohibition and/or limitation of certain unique types or classes of public access television program is editorial control within the meaning of 47 USC 531(e). The lower court erred by using a definition of "editorial control" which is incorrect according to Goldberg v. Cablevision, 261 F.3d 318; 2001 U.S. App. LEXIS 18329. Argument Detail:

The lower court erred in dismissing plaintiff's federal claims because the standard of review was not followed, specifically, the evidence was not construed in the light most favorable to the Plaintiff. The case was dismissed despite evidence presented which indicates that Plaintiff has stated federal claims, the basis of which are as follows:

PUBLIC ACCESS TELEVISION IS A FIRST AMENDMENT PUBLIC FORUM: The court below was utterly silent on this question. Public Access Television is a state-created public forum, which suggests that the administrators of such are subject to First Amendment claims. Plaintiff's MOL in opposition to motion, ¶I-D, p. 79A-4, ibid. , ¶I-A p. 79A-2, supported by ibid., ¶I-B p. 79A-2. This question was examined in Denver Area Consortium v. FCC 518 U.S. 727 (1996), and in Demarest v. Athol/ Orange Community Television, Inc., 188 F. Supp. 2d 82 (D. Mass. 2002); both cases suggest that public access television may be such, however neither court ruled on the matter.
CORPORATE ACTORS ARE STATE ACTORS: For this rebuttal, the Court relies upon Horvath v. Westport Library Ass'n, — F. 3d —, —, 2004 WL 574993, Decision and Order, p.12 which adopts the reasoning from Lebron v. National RR Passenger Corp., 513 US 374 (1995). Even though the Court found state action in Lebron, the reasoning in this case is unnecessarily narrowly tailored to be unfit for broad application, to such a degree as to merit review. Lebron's requirements for finding State Action requires that the corporation is created by special law, which is not legally distinct from corporations which are created under the general corporate laws of the state. Also, Lebron requires that the state have the right to appoint a majority of members of the board of directors. However, while this might satisify the requirements of the "close nexus" test, see Jackson v. Metropolitan Edison Co., 419 US 345 (1974), it is unnecessarily restrictive, since in no cited cases is a mechanism stated which can convert state action (the act of incorporation) into private action, as the state itself is charted to act in the public interest. All corporations are legal fictions chartered by state action to serve a public purpose, and should thus be regarded as regulated state actors and not "private persons". Defendants being regarded as such would subject them to First Amendment claims. The question "Are corporations state actors" is the other side of the question "Are corporations 14th Amendment persons", which dates back to Santa Clara County v. Southern Pacific Railroad Co. 118 US 394 (1886). This decision has been subject to "substantial and continuing" criticism (see, The Corporation: The Pathological Pursuit of Profit and Power (film and book), Defying Corporations, Defining Democracy, Gangs of America: The Rise of Corporate Power and the Disabling of Democracy, Model Brief to Eliminate Corporate Rights , Program on Corporations, Law, and Democracy, Ending Corporate Governance: Revoking Our Plutocracy, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights , When Corporations Rule the World), which is a criteria for reversal. See, Lawrence et. al. v. Texas (02-102) 41 S. W. 3d 349.
ADMINISTRATOR OF PUBLIC ACCESS TELEVISION IS A STATE ACTOR To dispute this, the Court below relied upon dicta ("is doubtful that [a cable operator] can be considered a 'state actor'"),Decision and Order p10, two unpublished decisions (Glendora v. Malone, 101 F. 3d 1393, 1997 WL 678982, Decision and Order p10, and Glendora v. Sellers, 2003 WL 22890043 Decision and Order p11), and a case which is factually incongruous (Loce v. Time Warner Entertainment Advance/ Newhouse P'ship, 191 F. 3d 256, 266 (2d Cir. 1999) Decision and Order p10 -- which involves leased access and not public access, which certainly has a unique character, and may uniquely be a First Amendment forum), none of which have precedential value. Several cited cases adopt the reasoning in Glendora v. Cablevision Systems Corp., 893 F. Supp. 264, 269-70 (S. D. N. Y. 1995) Decision and Order p10, which is non-controlling due to being from another District. Also, Glendora v. Cablevision is flawed because it treats all of the operations of an "entertainment company" as equal, and does not differentiate the function of administering public access as potentially being state function, as Plaintiff has demonstrated. Pltf. affidavit in oppositon to motion, ¶ 16 p.68 The Problem w/Glendora v. Cablevision: Court below cites Glendora v. Cablevision Systems Corp., 893 F. Supp. 264, 269-70 (S. D. N. Y. 1995), and several cases with adopt this reasoning. In Glendora, the Court no state action, because,
``Our Court of Appeals ... identified "two general approaches that the [Supreme] Court has used to determine whether seemingly private action is in fact state action." First, the "state-function approach" examines whether "the conduct of the private actor is equivalent to the performing of a state function, ...." Under this approach, "it is not enough if the private entity is merely affected with the public interest; it must exercise powers 'traditionally exclusively reserved to the State.'" The second approach is ... "whether the state and the private actor have a 'symbiotic relationship,' . . . making them so significantly involved with one another as to render the private actor subject to the constitutional responsibilities of the state.". A related inquiry asks, "whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself."'' (citations omitted, emph. added)
Plaintiff argues that Defendants are state actors by each of these tests, Pltf. MOL in oppositon to motion, ¶ 1C, pp. 79A-3 to 79A-4.
This Court concludes that Cablevision is not a state actor under either approach. The ownership and operation of an entertainment facility are not powers traditionally exclusively reserved to the State, nor are they functions of sovereignty.
The question is incorrectly framed. The facts clearly indicate that administration of public access television channels and facilities is a state function. The court disregarded and was silent about deposed testimony of cable plants and public access channels which are operated by municipal governments. Pltf. affidavit in oppositon to motion, ¶ 16 p.68. A suitable counter-question might be, "If we presume that administration of public access television channels and facilities is a state function, is then a cable operator which administers public access a state actor?"
ADMINISTRATION OF PUBLIC ACCESS TELEVISION IS A STATE FUNCTION: The Court below was utterly silent on evidence which suggests that in NY State and elsewhere, the administration of public access is performed by municipal governments. Pltf. affidavit in oppositon to motion, ¶ 16 p.68. Also, the court below cites Demarest v. Athol/ Orange Community Television, Inc., 188 F. Supp. 2d 82 (D. Mass. 2002), and seems to argue that state action is not to be found in the instant case due to factual differences. Decision and Order p11. However, the requirements in Demarest are met because in NY State, public access is created by special law, and the franchising authority has the right to designate the administrator of public access. Complaint, ¶¶ 30-35,¶¶ 57-66. See also, 9 NYCRR 595.4(c)(1), "The public access channel shall be operated and administered by the entity designated by the municipality or,until such designation is made, by the cable television franchisee; provided, however, that the municipality may designate such entity at any time throughout the term of a franchise by a resolution duly adopted by the legislative body thereof."
EDITORIAL CONTROL: The Court rejected Plaintiff's claim under 47 USC § 531(e) was dismissed by using a content-based definition of editorial control from Time Warner Cable of New York City v. Bloomberg, L. P., 118 F. 3d 917, 928 (2d Cir. 1997). However, there is no definition of editorial control in Title 47. The NY definition is found in 11 PSL §229(3), which states, "[n]o cable television company may prohibit or limit any program or class or type of program presented over ... any channel made available for public access ... purposes", but Defendant's actions certainly prohibits or limits live programs, programs by poor persons, and others without equipment or training to make television shows. In Goldberg v. Cablevision, 261 F.3d 318; 2001 U.S. App. LEXIS 18329, the Second Circuit agrees that editorial control under the NY definition is editorial control under § 531(e), however this case was not cited by Plaintiff in the original record.

The lower court erred in dismissing plaintiff's First Amendment claim by citing dicta and unpublished decisions, neither of which has precedential value. This has been discussed in Argument Detail, (1)(iii).
The lower court erred in dismissing plaintiff's First Amendment claim by disregarding evidence which suggests the prior caselaw asserting "corporations are private persons" and "corporations are ordinarly not state actors" relies upon reasoning which is facially flawed and is deserving of review, The Court below writes, "[t]he mere fact that a company is formed under the corporate laws of a state and is obligated to comply with certain duties imposed by state does not transform that company into a state actor. " Decision and Order, p11. The Court was silent on evidence presented which suggests this is framed incorrectly. Pltf's answer in opposition to motion, ¶8, p75. Plaintiff's MOL in opposition to motion, ¶I-A p. 79A-2, ibid., ¶I-B p. 79A-2. An alternate question would be, "By what authority can the State create corporations which are private interests without public interest obligations?"
The lower court erred in dismissing plaintiff's federal claims by applying the doctrine of stare decisis, to inappropriate cases due to factual differences and/or a unique question being raised, to wit:

In dismissing Plaintiff's First Amendment claim, the lower court relies substantively upon Loce v. Time Warner Entertainment Advance/ Newhouse P'ship, 191 F. 3d 256, 266 (2d Cir. 1999), which is factually dissimilar. See above in Argument Detail (1)(ii). The Court states "This reasoning equally applies to any requirements that cable operators maintain public access channels." without discussion or argument. However the court remains silent on the question "Is public access television a First Amendment public forum?" which would likely differentiate it from leased access, which is more akin to a field of billboards open to any advertiser who pays, than a public forum. There appears to be no controlling precedent on this question; this was examined by the Denver Area Consortium v. FCC 518 U.S. 727 (1996), and by Demarest v. Athol/ Orange Community Television, Inc., 188 F. Supp. 2d 82 (D. Mass. 2002); both cases suggests that public access television may be such, however neither court ruled on the matter.
Glendora v. Sellers, 2003 WL 22890043, at *1 (D. C. Cir. 2003), in addition to being unpublished and not controlling, this was dismissed for improper venue and does not appear to support the lower courts "state action" argument.
Demarest v. Athol/ Orange Community Television, Inc., 188 F. Supp. 2d 82 (D. Mass. 2002), curiously is cited to argue against finding state action in the instant case, however, the Demarest case supports Plaintiff's claim of state action in every material way. In NY State, Public Access channels are created by state action to further public objectives, and the franchising authority has the authority to appoint the entity that manages and operates the channel. 9 NYCRR 595.4(c)(1).

The lower court erred in dismissing both of plaintiff's federal claims because the following material facts claimed by Plaintiff are in dispute:

Relief Sought
For the foregoing reasons, Appellant respectfully prays that this Court reverse the decision below and remand the cause with instructions to a) grant Appellant's motion for preliminary injunction, and b) proceed with a full evidentiary proceeding and trial.
Certificate of Rule 32(a)(7) Compliance
This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: this brief contains 4986 words (calculated with the Unix wc program), excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. *32*(a)(6) because: this brief has been prepared using HTMLand rendered and printed by the Mozilla browser in a proportionally spaced typeface. _____________________________________________ William A. Huston Dated: Oct 16, 2003