| IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO EASTERN DIVISION CASE NO.: 5:05 CV 0866 ROSE WILCHER Plaintiff v. CITY OF AKRON and TIME WARNER CABLE Defendants. AMENDED COMPLAINT INTRODUCTION 1. This is an action to redress violations of federally protected rights of free speech and due process by a government entity and by government officials under color of law against a citizen of the United States. This action is also to redress violations of federal law under 47 U.S.C. §531 and under state law. The Plaintiff seeks declaratory judgment and damages. JURISDICTION 2. Jurisdiction is invoked pursuant to 28 U.S.C. §1331 and §1343(a)(2), (3) and (4). To the extent declaratory relief is sought, claims are asserted pursuant to 28 U.S.C. §§ 2201 and 2202. 3. This action is initiated pursuant to the Civil Rights Act of 1871, 42 U.S.C. §1983, to redress the deprivation under color of statute, ordinance, regulation, custom or usage of rights, privileges and immunities secured to Plaintiff under the First and Fourteenth Amendments to the United States Constitution. Defendants acted under color of law and under color of statute, ordinance, regulation, custom or usage of the City of Akron, Ohio. 4. This action is also initiated under the Cable Communications Policy Act, 47 U.S.C. §531(e) to redress Defendant’s implementation of policies and regulations which result in editorial control of Plaintiff’s use of any public, educational or governmental channel. 5. The state law claims are instituted under 28 U.S.C. §1367(a) as those claims are related to the action within such original jurisdiction of the Court and form part of the same case or controversy. THE PARTIES 6. Plaintiff, Rose Wilcher, is a citizen of the United States, a resident of 704 Copley Road, City of Akron, State of Ohio within the Northern District of Ohio and at all relevant times a local program producer of programs shown on the community access channel provided by Time Warner Cable under the terms of the Cable Communications Franchise Agreement, Akron, Ohio. 7. Defendant, City of Akron, is a municipal corporation and public entity within the Northern District of Ohio operating under the constitution, statutes, ordinances, rules and regulation of the United States and the State of Ohio. As such, defendant was responsible for implementation and enforcement of the ordinances, policies, procedures, acts and conduct regarding the administration of matters concerning the Cable Communications Franchise Agreement. 8. Defendant, Donald Plusquellic, was at all relevant times the Mayor of the City of Akron. As such, defendant was responsible for implementation and enforcement of the ordinances, policies, procedures, acts and conduct regarding the administration of matters concerning the Cable Communications Franchise Agreement. 9. Time Warner Cable, Northeast Ohio Division (herein “Time Warner”), is a for- profit corporation registered in the State of Ohio with its principal place of business at 530 South Main Street, Suite 1751, City of Akron, State of Ohio. Defendant was responsible for implementation and enforcement of the Time Warner Cable Community Access Guidelines as approved by the City of Akron and the Cable Communications Franchise Agreement. Time Warner was responsible for providing local broadcast programming and to administer such under the Cable Communications Franchise Agreement. THE FACTS 10. Plaintiff reasserts the foregoing allegations 1 through 8 and incorporates them by reference as if fully set forth herein. 11. Pursuant to the Akron, Ohio Cable Communications Franchise Agreement (herein “Agreement”), Section 13(L), as passed by Akron City Council Ordinance No. 516-1983, Time Warner Cable was obligated to develop and offer locally- originated programming that reflects the interests and concerns of Akron subscribers, to provide alternative programming to that offered by broadcast cable and to conduct community ascertainment studies every five years. 12. The initial Agreement was subsequently amended by Ordinance 639-1989. 13. Pursuant to Section 13(M) of the Agreement, Time Warner was initially obligated to provide at least one Community Service Channel for public use. 14. Time Warner also agreed to provide additional community service channels based on a schedule of channel capacity exclusively for educational programming, Section 13(M), and institutional programming, Section 13(P). These community service channels are commonly known in the industry as public, education and government channels (PEGs). 15. Pursuant to the 639-1989 ordinance, Time Warner would provide the additional PEG channels, as requested by the City of Akron, when the system channel capacity expanded to sixty-two channels. 16. Time Warner did provide one community access channel for use by all private producers, public schools and institutions. 17. The City of Akron never requested and Time Warner did not provide any additional PEG channels. 18. Pursuant to Section 13(N) of the Agreement, Time Warner was required to make available a studio in the City of Akron for the production of local origination and community service programming and to train residents on the use of equipment and production methods. 19. Pursuant to Section 13(N) of the Agreement, Time Warner was also required to provide equipment and a mobile production van as listed in Exhibit [B] attached to the Agreement. Time Warner was required to maintain such equipment of comparable quality and capability. 20. Local program producers could provide tapes to Time Warner for showing over the community access channel subject to local formatting and production rules and restrictions. Time Warner provided the service free to local producers from 1983 until April 1, 2005. 21. Per relevant provisions of Section 13 of the Agreement, charges, fees or deposits, if any, for the use of the community access channel were subject to approval by the City of Akron, pursuant to Section 16. 22. Section 16 provides, in part, that Time Warner reserves the right to promulgate rules and regulations under the Agreement; however, “before such rules shall become effective, they shall be subject to approval of the Akron Public Utilities Commissioner, whose approval shall not be unreasonably withheld.” 23. From approximately 1999 through the present, citizens of Akron raised complaints about sexually explicit material appearing on the community access channel. Pursuant to local programming rules, Time Warner does not pre-screen tapes for explicit material; however, the program producer is required to notify Time Warner, by filing out Form B, that a tape contains such material. 24. Time Warner can restrict showing adult-oriented material from 12:00 midnight until 5:00 a.m. 25. As a response to citizen complaints, Time Warner proposed community programming rules changes to the City of Akron in December, 2004. Time Warner’s proposals were subsequently revised; however, new rules changes were promulgated on or about January 1, 2005. 26. Time Warner submitted the changes to the City of Akron. 27. At the time the rules changes were submitted to the City of Akron, the City did not have an acting Public Utilities Commissioner. On March 1, 2005, Mayor Don Plusquellic authorized and approved the new regulations. 28. The regulations include: • Only residents of Akron, Barberton, Cuyahoga Falls, Modadore, Munroe Falls, and Wadsworth Township may submit programs for Channel 15 (the local community access channel). • Programming submitted from the above communities will only be shown in Summit County. • Substantially all of a program’s content must be from locally produced sources. • An administration fee of $25.00 per program will be required with the submission of each tape. • Program producers must, upon request, be able to offer proof that they have obtained copyright clearance for the material they present The effective date of the new regulations was April 1, 2005. 29. Time Warner notified local program producers of the new regulations per a letter dated March 7, 2005 from William Jasso, Vice President of Public Affairs for Time Warner. 30. Defendant’s actions and conduct of implementing new rules and regulation regarding local programming on the community access channel without substantial justification will result in the violation of Plaintiff’s First Amendment constitutional right to freedom of speech. 31. Time Warner’s implementation of the rules and regulations resulted in editorial control over the public access channel. 32. Time Warner has failed to meet the requirements of the Franchise Agreement 33. Plaintiff has suffered damage as a direct and proximate result of defendants’ action and conduct as more fully described in this Complaint. COUNT I Violation of Free Speech 34. Plaintiff reasserts the foregoing allegations 1 through 33 and incorporates them by reference as if fully set forth herein. 35. Defendants’ conduct, under color of state action, was intended to limit programming based on its content. 36. Defendants’ actions and conduct, jointly and severally, constitute a violation of Plaintiff’s First Amendment right of free speech without compelling justification. 37. As a result of Defendants’ actions and conduct, Plaintiff will suffer a loss of fundamental constitutional rights and economic damage. 38. Plaintiff seeks a good faith extension of the law to include public access channels as public fora consistent with Justice Kennedy’s dissenting opinion in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 517 U.S. 727 (1996). COUNT II Violation of 47 U.S.C. §531(e) 39. Plaintiff reasserts the foregoing allegations 1 through 38 and incorporates them by reference as if fully set forth herein. 40. Time Warner is a cable operator as defined by 47 U.S.C. §522(5). 41. Plaintiff is a local program producer. 42. Time Warner’s conduct in implementing new rules and regulations resulted in editorial control over local producers’ use of the public access channel. 43. Plaintiff does not submit programming containing obscenity, indecency or nudity. 44. As a result of Defendant’s action and conduct, Plaintiff’s programs have been removed from the public access channel and Plaintiff has suffered economic damage. COUNT III State Law Breach of Contract 45. Plaintiff reasserts the foregoing allegations 1 through 44 and incorporates them by reference as if fully set forth herein. 46. Pursuant to Ohio Revised Code § 733.59 and Ohio Revised Code § 2721, Plaintiff asserts violations of state law. 47. Plaintiff is a resident of the City of Akron and is a local program producer as approved by Time Warner. 48. Defendant, City of Akron, is a chartered municipal corporation situated in the Northern District of Ohio. 49. Pursuant to O.R.C. §2721.12, the parties of interest in this case have been made parties to this action. 50. City of Akron has failed to require and Time Warner has failed to conduct community ascertainment studies as required by the Agreement, Section 13(L). 51. Time Warner failed to make available additional Community Service Channels for educational or institutional programming after the system was expanded per the Agreement, Section 13(M). 52. Time Warner has failed to maintain production facilities as required under the Agreement, Section 13(N). 53. Plaintiff has suffered economic harm as a result of Time Warner’s breach of contract and the City of Akron’s failure to enforce the Agreement and prays for enforcement of the Agreement. WHEREFORE, plaintiff requests that this Court enter judgment and order relief as follows: A. Declare that the acts and conduct of defendants constitute violations of the First and Fourteenth Amendments to the Constitution of the United States and the Civil Rights Act of 1871, 42 U.S.C. §1983; B. Direct defendants, their agents, employees or any other person acting independently or in concert with defendants, take all necessary steps to refrain from interfering with, abridging or restricting plaintiff’s right of free speech through any methods, policies, procedures, and/or regulations; C. Direct defendants to take all necessary steps to modify and/or establish rules and regulations which afford and insure fundamental notions of fairness as they apply to Plaintiff and others with respect to rights under the First Amendment to the Constitution of the United States; D. Direct defendants, their agents, employees or any other person acting independently or in concert with defendants, take all necessary steps to refrain from interfering with, abridging or exerting editorial control over Plaintiff’s rights through any methods, policies, procedures, and/or regulations; E. Direct defendants to take all necessary steps to enforce the contractual obligations under the Franchise Agreement; F. Grant to plaintiff and against defendants, jointly and severally, appropriate compensatory damages and punitive damages, along with costs and attorney’s fees as expressly provided by statute; G. Grant any additional relief this Court deems just and equitable. Respectfully submitted, /s/Warner Mendenhall /s/Daniel Leffler WARNER D. MENDENHALL (0070165) DANIEL J. LEFFLER (0076540) Union Point Union Point 190 North Union St., Suite 201 190 North Union St., Suite 201 Akron, Ohio 44304 Akron, Ohio 44304 330-535-9160 330-253-5996 Fax: 330-762-9743 Fax: 330-762-9743 warnermendenhall@hotmail.com danielleffler@sbcglobal.net ATTORNEYS FOR PLAINTIFF Plaintiff requests a jury trial. |