Complaint in Huston v.

Time Warner
Entertainment, et. al.
UNITED STATES DISTRICT COURT )
NORTHERN DISTRICT OF NEW YORK )
William Huston, pro se )
)
Plaintiff, )
)
v. )
)
Time Warner Entertainment - )
Advance/Newhouse Partnership d/b/a Time ) COMPLAINT
Warner Cable, (service to Glenn Britt, CEO) )
)
Richard Parsons, CEO, AOL/Time Warner (a )
general partner in Time Warner )
Entertainment - Advance/Newhouse ) Civil No: 3:03-CV-
Partnership) ) 0633 (TJM)/(DEP)
)
Robert J. Miron, CEO, Advance )
Communications Corp (a general partner in )
Time Warner Entertainment - ) Jury Trial
Advance/Newhouse Partnership) ) Demanded
)
Jon Scott, President, Time Warner Cable,
Vestal NY Division,

David Whalen, Vice President, Time Warner

Cable, Vestal NY Division,

Andrew Fleming, General Manager, Time

Warner Cable, Vestal NY Division,

Defendants

COMPLAINT

Plaintiff, by way of Complaint against the Defendants named herein,

states and alleges, upon information and belief, as follows:

INTRODUCTION

1. This Complaint comprises a civil action for declaratory and

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

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

PARTIES

3. Plaintiff William Huston, pro se, a natural person, whose residence is

342 Park Ave, Binghamton, county of Broome, NY, 13903 is a
computer programmer, a citizen activist involved in Peace and Social
Justice movements, and a subject matter expert in community media
issues.

4. He is an engineer at WHRW, a community radio station at SUNY

Binghamton, an applicant for the Binghamton area NPR/PBS affiliate
WSKG's Community Advisory Board, and has been involved in Public
Access Television productions since 1994.

5. He has worked at five Public Access television studio facilities in

two states, and runs two websites devoted to Public Access Television
education and advocacy.

6. He has been involved in approximately 75 Public Access television

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

7. Plaintiff has attempted to gain access to Plaintiffs' Local Origination

studio facilities for the production of Public Access Television
productions, since on or about July 2000, and has been consistently
denied access to such.

8. In addition, Plaintiff has suffered other injuries while a subscriber of

Time Warner Cable cable television service, detailed below.

9. Defendant TIME WARNER ENTERTAINMENT-

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

10. Defendant Richard Parsons is CEO of AOL/Time Warner (a

fictitious person and a general partner in Time Warner Entertainment -
Advance/Newhouse Partnership), whose principle business address is
75 Rockefeller Plaza, New York, NY 10019,

11. Defendant Robert J. Miron is CEO of Advance Communications

Corp and/or Newhouse Broadcasting Corporation and/or
Advance/Newhouse Partnership (a fictitious person, a general partner
in Time Warner Entertainment - Advance/Newhouse Partnership, and
whose subsidary, unit, or division "Newchannels Corporation" owned
the exclusive CATV franchise in the City of Binghamton and vicinity
since July 1978), whose primary place of business is 5015
Campuswood Drive, East Syracuse, NY 13057,

12. Defendant Jon Scott, a natural person, is President, Time Warner

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

14. Defendant Andrew Fleming, a natural person, is General Manager,

Time Warner Cable, Vestal NY Division, whose principle business
address is 483 Plaza Dr., Vestal NY 13850.

VENUE AND JURISDICTION

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

16. Defendants are providing CATV or Cable Television service within

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

EXHAUSTION OF REMEDY

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

18. Because Defendants' Vestal-based operations provide nearly

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

19. On 16 July 2002, Plaintiff informed by letter of complaint to Time

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

20. On this date, and on several other dates speaking before

Binghamton City Council, has asked the City of Binghamton
Corporation Counsel to issue an injunction against Defendants to enjoin
them to come into compliance.

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

22. As proof of exhaustion of remedies, plaintiff sent formal written

request for studio use and request to take equipment certification
classes on 12 September 2002 by certified mail, and received the
expected response from Defendant Whalen on 20 September 2002,
denying access to Time Warner Cable Vestal Division's Local
Origination facilities, and denying right to attend such classes, or that
such classes exist or need to exist.

DEFINITIONS

23. In this complaint, the term "Local Origination" programming is

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

24. Public Access: A forum for community self-expression, where Cable

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

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

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

Brief History of Binghamton Cable TV Franchise

27. Note: A similar ownership pattern exists in other municipalities in

which Time Warner Cable, Vestal division, does business.

• 1965: Empire State Cable TV Co. Inc signs CATV Franchise

Agreement with City of Binghamton
• 1971: City of Binghamton renews CATV franchise with Empire
Cable for 10 years.
• 1971: Laws passed which makes Public Access TV compulsory
in the State of New York (source: James Horwood, PEG Access
and the Law)
• 1978: Coughlin & Gerhart, Attorneys for Newchannels
Corporation file a petition to the Mayor and City Council which
asserts that Newchannels now holds the franchise agreement
between City of Binghamton and Empire Cable (and seeks rate
and service changes). Ordinace which recognizes this is not in
the public record.
• 1981 Binghamton City ordinance which amends 1971 Empire
 contract to continue 10 years.
• 1990: City Council passes ordinance 90-164 renews and
replaces amended 1971 Franchise Agreement between City of
Binghamton and Empire Cable ("a predecessor in interest of
Newchannels Corp") with new agreement between City of
Binghamton and Newchannels Corp.
• 1994: City ordinance transfers the 1971 Newchannels Franchise
to Time Warner Entertainment - Advance/Newhouse, a new
partnership consisting of a unit, subsidisary, or parent company
of Newchannels (Advance/Newhouse Partnership), and Time
Warner Entertainment, LP.
• 1995: NY State Public Service Commission approves 1990
Newchannels franchise renewal, now owned by Time Warner
Entertainmant - Advance/Newhouse.
• Jan 31, 2003: Franchise between City of Binghamton and Time
Warner Entertainment - Advance/Newhouse expires.

COUNTS

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

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

30. COUNT 1: Insufficient Channel Capacity for Public Access:

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

31. This works financial advantage to Defendants, as they get to replace

the required access channel with programming (like a shopping
channels) which generates revenue to Defendants, but from which the
subscribers and local community derive none of the benefits inherent
with such Public Access programming.

32. Also, this insufficient channel capacity causes Public Access

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

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

channel

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

35. Plaintiff was denied the benefit of potential use of channel capacity,
because of Defendents' 1) supplying only a shared P+EG channel,
causing confusion among potential users as to what they were watching
and their ability to use such channel capacity, 2) Defendants' failure to
promote Public Access, specifically mentioned elsewhere in this
complaint, and 3) Defendants' continued failure to identify Access
programming as such, causing confusion among potential users as to
what they were watching and their ability to use such channel capacity.

36. COUNT 2: Failure to Promote Public Access: Defendants have

an obligation to promote Public Access under 9 NYCRR § 595.4(c)(3),
which states,

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

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

ways.

39. Plaintiff was a Time Warner Cable subscriber approximately from

Oct. 1998 to June 2000, and never received any such written notices.

40. Public Access programming is not identified as such, and because

of this (and due to the shared channel) there is a general ignorance or
confusion in subscribers as to what shows are Public Access and which
are Education or Government Access, which are of an entirely different
character.

41. Failure to provide required facilities and equipment (studios, porta-

paks, editing equipment) for local origination of Public Access
productions causes the Public Access Channel capacity to be under-
utilized, and when utilized, to be exclusively pre-recorded tapes.

42. These pre-recorded tapes tend to be dominated by Educational

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

43. Required character-generated messages under (c)(3) were

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

44. Public Access Television can only thrive in a community of

volunteer producers, which is inhibited by Defendants' failure to
promote public access under existing franchise agreements, and under
these statutes.

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

46. COUNT 3: Prohibition and Limitation of Classes and Types of

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

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

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

49. a) Public Access programs which are cablecast live b) Public

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

50. Plaintiff asserts rights to produce live programming on Defendants

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

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

52. COUNT 4: Equivalence of Leased Access and Public Access:

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

53. This is in effect making an equivalence between Leased Access and

Public Access, working to the financial advantage of the Defendants
and to financial detriment of the Plantiff, and which denies Plaintiff's
speech, under the First Amendment and other rights under NY Public
Service Law, Art 11 § 229(3) and 47 USC § 531(e) .

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

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

56. These facilities are commonly provided for Public Access

producers around the country, and exist in many places in New York
State, such as Manhatten, Bronx, Queens, Syracuse, Ithaca, and other
cities and towns.

57. COUNT 5: Insufficient Facilities and Equipment to Use Public

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

58. Certainly, some facilities and equipment also must be supplied, or

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

59. Defendants claim that a video playback device is sufficient to

satisfy (a)(4) and (c)(7), however, by such a policy, Defendants are in
fact deferring the necessary facilities and equipment to someone else.

60. Television is a medium of sound and images. To generate a

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

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

62. A camera and a microphone plus the ability to produce live

television productions implies a studio.

63. Furthermore, since Public Access studio time needs to be available

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

64. Thus, this implies free or low cost training classes to teach
volunteers on equipment usage, which the Defendants also do not
provide.

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

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

67. COUNT 6: Rights of Free Speech and Free Press Denied to

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

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

69. Plaintiff asserts that the mass media all have certain extreme and
well defined biases: anti-labor, anti-environment, pro-military, pro-war,
pro-corporate, anti-human rights, anti-poor, etc. Plaintiff means to
include in this definition Defendants various partnerships, divisions,
parent companies, operating units, etc. which are involved in
information production and distribution, and also to include other
commercial for-profit newspapers, television and radio stations, cable
and satellite television networks in which Defendants have no interest,
and also to include corporate underwritten programming on NPR and
PBS.
70. Note Bene: Plaintiff presently makes no claim against these
companies in which Defendants have no interest. This is provided as
background information only, to describe present problems with mass
media of which Defendants play a significant role.)

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

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

73. Plaintiff asserts Defendants operate locally solely to extract profits

from the community, rather than to perform to the public service
requirements under these statutes.

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

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

76. Plaintiff asserts that the first-come, first-served, non-discriminatory

nature of Public Access television is one example of a non-commercial
limited public forum where true free speech can exist, and that
Defendants various prohibitions and limitations upon Public Access
detailed throughout this complaint have violated his civil rights under
the First Amendment of the United States Constitution and Art I, Sec 8
New York State Constitution.
77. COUNT 7: Defendent Fails to be a Significant Source of Local
Origination Programming: There is a long standing legislative and
judicial history upholding the necessity and value of Locally Originated
programming. To quote FCC Commissioner Gloria Tristani:

78. ``The 1967 Carnegie Commission Report, which Congress relied

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

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

80. "There is a substantial governmental and First Amendment interest

in promoting a diversity of views provided through multiple technology
media." §2(a)(6). "[P]ublic television provides educational and
informational programming to the Nation's citizens, thereby advancing
the Government's compelling interest in educating its citizens." §2(a)(8)
(A). ... "Broadcast television stations continue to be an important source
of local news and public affairs programming and other local broadcast
services critical to an informed electorate." §2(a)(11).

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

82. In fact, by their denial of Public Access producers use of

Defendants' Local Origination facilities, Defendants subvert the
greatest value of Local Origination: a forum of community self-
expression, since Public Access cannot thrive without these facilities.

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

84. COUNT 8: Local Control of Cable Service: NY Public Service

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

85. Plaintiff acknowledges the complexities in providing ad-hoc or "a la

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

86. Defendents' throughout the term of their existing franchise, have

raised rates, and changed the definition of service provided, by deleting
and adding channels, and engaged in Negative Option promotion
Practices, in violation of their individual franchise agreements and with
New York statutes.

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

88. Plaintiff asserts that Congress has failed to state compelling

national interest in preemption of such local control, and Plaintiff
argues such preemption would violate his First Amendment rights.

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

90. Compelling Government Interest in Regulating Corporate

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

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

92. First Amendment of the United States Constitution, and Art I, Sec 8
(free speech, press), with Art I Sec 11 (denial of rights by corporate
actors) and Art I, Sec 1 (equal rights of all persons, not favorable rights
to corporate persons) of the New York State Constitution places great
demands and responsibilities upon corporations, partnerships, and other
fictitious persons who are media owners, being state chartered (and
thus being quasi-state actors) to ensure diversity, and to act at all times
in the public interest.

93. Plaintiff asserts the mass media landscape is dominated by large

media conglomerates, corporations, and partnerships (to include
Defendants) which censor, ridicule, decieve, falsifiy, fail to inform and
educate, fail to provide a diversity of opinion on important subjects of
the day,
94. That these media conglomorates exploit information consumers as
being captive demographics to be sold out to corporate advertisers,

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

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

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

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

PETITION FOR JUDICIAL RELIEF AND DAMAGES

99. WHEREFORE, Plaintiff requests that this Court:

(A) declare that Time Warner Cable, Vestal Division is not in

compliance with a) its franchise agreements (which are all required by
New York State law to abide by such, and which same laws require
compulsory Public Access at a service level of which Time Warner
Cable is insufficient), in all of the cities and towns in which the Vestal
Division does business with b) New York State Law, and with c) the
New York State Constitution, d) the United States Constitution,

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

1) Immediately open existing Local Origination studios for Public

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

2) Immediately begin holding classes, Main Studio (6/yr), Edit (to

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

3) Make significant effort to educate community members as to

existence of such classes by a minumum of a) hourly notices on the
Public Access channel, b) mailings to all subscribers, c) by public
notices over 4 consecutive weeks, via no less than 1/8 page banner
advertisements in the local newspapers of record of all served
communities, and d) by either providing substantial information about
the nature of public access and the ability for community members to
participate on their web sites, or by placing links on these same
websites to Plaintiff's site binghamtonpublicaccess.org, and e) by
producing a special 30 minute production "How you can participate in
Public Access", to be played on Defendants networks' Public Access
channel at least monthly,

4) Commit to the existince and funding of well-equiped regional studio

facilities, so persons within service area desiring to use such for Public
Access purposes will have such a studio within a reasonable distance
(such as a 30 minute commute), with at least 1/3 having the capability
for live cablecasting,

5) Commit to involving community members, public access television

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

6) Commit, in principle, to the continuance of Public Access to a

substantial degree, due to any change in technology, such as the move
to digital services
(C) award attorneys' fees and costs,

(D) in consideration of the grave violations of civil rights and other

injuries Defendants have caused Plaintiff, and for seriousness of, and
the long-standing and continuous nature of the violations, grant
Plaintiff actual and exemplary damages in the sum of three million
dollars.

EXHIBITS

• a. Response from David Whalen denying access

• b. First complaint to Time Warner, City of Binghamton, and
NY PSC.
• c. Letter from Time Warner with cost estimates for studio used

Dated April 25, 2003

Respectfully submitted,

William A. Huston, pro se

342 Park Ave.,
Binghamton, New York, 13903
(607) 724-1755