Petition for Writ of Certiorari — Wenc v. Cable News Network, Inc.
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7 Supreme Court, U.$
CY FILED
29 Z5S NVI
OFFICE OF THE CLERK
No.
:
IN THE
Supreme Court of the United States
ANTHONY S. WENC,
Petitioner
¥.
CABLE NEWS NETWORK,
INC./HEADLINE NEWS C/O Turner
Broadcasting Inc.; AMERICAN
BROADCASTING COMPANY, INC.(ABC
INC.); KVOA COMMUNICATIONS, INC.:
KGUN INC.: KOLD INC.: KNST INC::
JOHN DCE Defendants,”
On Petition For Writ of Certiorari
To The United States Court of Appeals for the Ninth Circuit
PETITION POR WRIT GF CERTIORARI
Anthony S. Wene
Pro Se
249 S. Garden Ave. #1
Sierra Vista, AZ 85635
(S20)458-3693
LP a e. Sa a RE I PE nl. es Re oT,
LEGAL QUESTIONS FOR REVIEW
1) Is warrantless satellite surveillance a violation to
the 4th Amendment of the Constitution of the United States,
Federal Wiretap Statutes (18 U.S.C. § 2510 et. seq.) and
Article II § 8 of the Constitution of Arizona for which there
can be civil remedy against either private or state
perpetrators of satellite surveillance and/or other
surreptitious electronic eavesdropping and surveillance?
2) Is peering into the window of a private residence
by a law enforcement agent without a warrant a violation to
the 4th Amendment’s “search and seizure” clause?
3) Satellite surveillance is conducted remotely and
secretly, and in most cases unknown to the subject,
inherently making it difficult to obtain evidence to prove
being victim to such surveillance. Does a civil complainant
have a right to discovery and a right to present evidence to a
court in order to be able to prove an allegation of satellite
surveillance?
4) Does 42 U.S.C. § 1985(1) provide legal protection
for state employed school teachers, who are employed under
the requirements to have taken an “oath of office” to uphold
the Constitution of the United States; or other state
sanctioned persons such as a Precinct Committeeman?
5) Does the intent of the language of 42 U.S.C. §
1985(2) provide that the act of “attending” court include
filing a lawsuit; and does eavesdropping on telephone calls
to legal counsel constitute obstruction of justice under this
statute?
6) Does 42 U.S.C. § 1985(3) provide protection from
a conspiracy against a person due to his/her political and
religious affiliations when such a conspiracy violates 4th
amendment rights due to satellite surveillance and/or other
surreptitious electronic eavesdropping and surveillance? Are
nublic school teachers a protected class within the meaning
of §1985(3)?
7) Are television broadcasters and/or cable operators
“common carriers” subject to private liability under 47
U.S.C. § 206 for derived regulations of the United States
Code of Federal Regulations as authorized by the Federal
Communications Act?
8) Are media broadcasters and its employees “state
actors” in violation of 42 U.S.C. § 1983 and/or a Bivens
claim if assuming true that an act of satellite surveillance has
been perpetrated against a person by a state official (either
state or federal) in conjunction with a media broadcaster?
9) Does satellite surveillance constitute torts of
common law trespass, laws of unfair competition (right of
publicity), and invasion of privacy?
ie W
TABLE OF CONTENTS
CITATION OF OFFICIAL ORDERS. .............
BASIS FOR JURISDICTION ..................... 2
LEGAL PROVISIONS INVOLVED IN THE CASE... 2
SUACmrensss Ge bese CASE... ww. cece eee 3
ARGUMENT FOR RELIANCE ON WRIT... ....... 5
a 5
ei ef De ws bp ba a eae ewe 9
Ie 8 oe De si
Ce OS 5 a re 14
ae 16
Federal Communications Act........ ........ 20
sg og sda vb oo ee bee ckevsws 21
a ee a 24
ee ek oy cay Veal wm 4 Za
Report And Recommendation ................ ZF
TS a a 63
Judgment To Be Reviewed ............. 72
Se SE ieee ca we ee 74
Statutes And Legal Provisions ............... 75
Plaintiff's Statement Of Facts................ 101
gk 115
le Sg ask here kA ase wien oe ws 118
Plaintiff's Motion To Compel................ 122
Defendant Affidavits ...................... 130
Plaintiffs Loyalty of Oath Affidavit .. .
TABLE OF AUTHORITIES
Adickes v. S. H. Kress & Co.,
Fee She, BOO 6k ced deaeenneeyes 22
Balisteri v. Pacifica Police Dept.
Oe Ts Ss eink a ea ke ann 2s dees 12
Berger v. Hanlon,
yaw oT, Ce M.D reer 22
Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics,
ee Ss FO COT LEs kon techs atee ee ecen awe 21
Dow Chemical v. U.S.,
PEG Bet CURE. SCRA ea ened ee ee
First National Bank Of Arizona v. Cities Service Co.
SO Rie Bae CER aa nk ode eee aed ess 10
Haines v. Kerner,
tte te tk | et | ee a weer a Ge 12
Warrantless Satellite Surveillance: Will
Our 4th Amendment Privacy Rights Be
Lost in Space?,
John Marshall Journal
of Computer & Informational Law.
Summer 1995, Vol XIII N. 4
Katz v. United States,
Se Ge ee COE cov as bak ae he mane 26
Keating v. Carey,
row eee ee lO. | Pere men 16
Kimble v. Duffy,
6468 F.2d 340 (2d Cur, 1981)... 2... een cuss 15
Kush v. Rutledge,
GEESE, FADER ob ines eR 15
Poller v. Columbia Broadcasting Company
DRG AS WOR hee hh os eS 10
Restatement of Law, (Third), Unfair Competition
© OB, Oh Day ER is. bib ink Fe haat cet daca
Stanford Journal of International Law
(Fall 1988) Newsgathering by Satellites ......... 5
United Brotherhood of ¢ arpenters & Joiners v. Scott,
TOS SAAR, SO CEPI ea oss eo cd eee 17
CITATION OF OFFICIAL ORDERS IN THE
DISTRICT OF ARIZONA
ORDER by Magistrate Judge Nancy Fiora (9/15/1997)
Denying Plaintiff's (Wenc) Motion to Seal.
MINUTE ORDER: — (11/26/1997) KOLD’s hearing for
Motion to Dismiss vacated pending resolution of Plaintiff's
request for extension of time and request for special
instructions.
ORDER by Magistrate Judge Nancy Fiora (12/01/1997)
Granting Plaintiffs request for extension of time and
granting Plaintiff to file his statement of facts under seal.
ORDER by Magistrate Judge Nancy Fiora (3/09/1998)
Vacating KGUN’s hearing regarding its Motion to Dismiss.
REPORT AND RECOMMENDATION by Magistrate
Judge Nancy Fiora (7/17/1998) District Court should:
dismiss Plaintiff's Complaint for lack of subject matter
jurisdiction; deny Plaintiff's moticn to compel discovery and
to join additional defendants; grant all of defendants
motions to dismiss and/or motions for summary judgment;
and grant defendants’ motion to unseal.
ORDER by Magistrate Nancy Fiora (8/11/1998)
Clarification that Report and Recommendation should
include dismissal of claims against all defendants, including
KVOA.
ORDER: by Judge William D. Browning (9/25/1998)
Granting adoption of Report and Recommendation of
7/17/1998.
JUDGMENT: by William D. Browning (9/25/1998) All
defendants’ motions to dismiss and/or motions for summary
judgment are granted and this case is dismissed with
prejudice.
ORDER: by Judge William D. Browning (10/27/1998)
Denying Plaintiff's Motion to Reconsider and vacate the
9/25/1998 Order.
CITATION OF OFFICIAL ORDERS IN THE NINTH
CIRCUIT COURT OF APPEALS
MEMORANDUM: before Reinhardt, Trott, and Mckeown.
Circuit Judges (5/14/1999) Affirmed District Court’s Order
of 9/25/1998 which adopted the 7/17/1998 Report and
Recommendation.
ORDER: Before Reinhardt, Trott, and Mckeown, Circuit
Judges (8/02/1999) Denying appellant’s(Wenc) Petition for
Rehearing En Banc.
BASIS FOR JURISDICTION
The United States Supreme Court has appellate
jurisdiction from the United States Court of Appeals for the
Ninth Circuit from that court’s Memorandum of May 14,
1999, which affirmed the District Court of Arizona’s Order
of September 25, 1998 adopting in full the Magistrate’s July
17, 1998 Report and Recommendation. In addition, the
Ninth Circuit’s Order of August 2, 1999, denied Petitioner’s
Motion for Rehearing. The statutory provision believed to
confer jurisdiction for writ of certiorari to this Court is 28
U.S.C § 1254.
LEGAL PROVISIONS INVOLVED IN THE CASE
(See appendix for text)
4" Amendment to the Constitution of the United States
Article II § 8 to the Constitution of the State of Arizona
18 U.S.C. §§ 2510-2520
42 U.S.C. § 1983
42 U.S.C. § 1985(1)
42 U.S.C. § 1985(2)
42 U.S.C. § 1985(3)
42 U.S.C. § 1986
47 U.S.C. § 206
47 U.S.C. § 208
47 U.S.C. § 225(a)
47 U.S.C. § 558
47 C.F.R. §15.9
47 C.F.R. §2.701
A.R.S. 13 § 504(A)(2)
A.R.S. 13 § 507
A.R.S. 13 § 3005
A.R.S. 13 § 3008
Restatement (Second) of Torts § 652B, (p.378, 1977)
Restatement _of Law (Third), Unfair Competition § 46 (p.
528, 1995)
STATEMENT OF THE CASE
The basis for federal jurisdiction in the District Court
of Arizona is diversity jurisdiction and federal question. The
nature of this case is centered on the Petitioner Wenc’s
(Plaintiff) allegations of a conspiracy among the Defendant’
broadcasters CNN/TBS, ABC, KOLD, KVOA, KGUN and
KNST consisting of high-tech satellite surveillance and/or
other technologies including lasers and/or microwaves to
surreptutiously surveillance the Petitioner in the privacy of
his home both visually and of his oral and telephonic
communications. Such surveillance is believed to have
begun approximately in April 1995 and ended approximately
in June 1996. The Petitioner has alleged that the surveillance
was conducted by Cable News Network, Inc. (CNN),
‘Cable News Network, Inc. owned by Turner Broadcasting System, Inc of
Georgia (now both owned by Time Warmer, Inc.); American
Broadcasting Co., Inc, of New York; KOLD-TV 13 of Elcom of
Arizona, Inc. and apparently also known as Raycom Media, Inc.; KVOA
-TV 4, of KVOA Communications, Inc., an Arizona Corporation.;
KGUN-9 TV, a division of Lee Enterprises, Inc., a Delaware
corporation.; and KNST-AM 790, owned by SFX Broadcasting, Inc. of
Arizona/Delaware, (now owned by Capstar, Inc.)
3
American Broadcasting Co., Inc. (ABC) and likely at least
one third party government agency working in collaboration
with one another and then disseminating the interceptions to
the smaller local affiliate TV and radio broadcast stations of
KGUN, KOLD, KVOA and KNST who broadcast from
Tucson, Arizona; of which such broadcasts can be viewed or
listened to throughout South East Arizona via normal
antennae or in cable programming from various television
cable companies in the region. Additional direct government
involvment includes the unusual “ploy” visit to Petitioner’s
residence by two law enforcement officers, one a deputy
from the Pima County Sheriff's Department and the other a
Special Agent of the Treasury Department, the latter who
also attempted a search by peering through a window of
Petitioner’s residence upon approaching the residence.
The Petitioner maintains this satellite surveillance
was conducted against him due to his Catholic and
Republican religious and political beliefs and associations as
well as due to his occupation as a public high school teacher.
Petitioner Wenc was employed full time by the Sierra Vista
Public Schools as a World History teacher from September
1994 through May 1995. Concurrently as a teacher, Wenc
was an active member of local Republican political activities
as he was both a member of the Cochise County Young
Republican Club and an elected Precinct Committeeman
beginning in September of 1994 through November of 1996.
Consequently, due to Petitioner’s local public status and
affiliations, the defendant broadcasters took part in a
conspiracy consisting of surreptitious tortious eavesdropping
and surveillance to pry into his private and public life, a
common practice by media agencies in today’s world of
digging and reporting gossip and innuendo as sources for
“news” stories.
ARGUMENT FOR RELIANCE ON WRIT
SATELLITE SURVEILLANCE
The crux of the facts alleged by _ the
Petitioner(Plaintiff) are premised upon satellite surveillance,
a legal issue unprecedented before any courts in the United
States. In fact, one of the few legal authorities on the issue
states “the courts have not yet had the opportunity to
examine this area of surveillance.” Additionally, a highlight
of a few of the most important acknowledgments made in
Warrantless Satellite Surveillance’ are:
1) “. .. there may be a cost; the potential
exists for unknown sources to scrutinize
another’s activities without his knowledge or
consent.” (p. 731)
2) “Now, a silent, invisible intruder from
space possesses the capabilities to peep into
our businesses, backyards, and even through
physical structures into our homes.” (p. 732)
3) “The potential for the misuse of such
increased clandestine viewing capabilities is
staggering.” (p. 732)
In addition, the only previous reference to the issue by this
Court was in 1986 in Dow Chemical v. U.S". 476 U.S. 227.
Finally, the Stanford Journal of International Law (Fall
> Warrantless Satellite Surveillance: Will Our 4th Amendment Privacy Rights Be
Lost in Space?, John Marshall Journal of Computer & Informational Law.
Summer 1995, Vol XIII N. 4, p. 739
‘ The passage is as follows: “[i]t may well be, as the Government concedes, that
surveillance of private property by using highly sophisticated surveillance
equipment not generally available to the public, such has satellite technology,
might be constitutionally proscribed absent a warrant.”
1988) discussess Newsgathering by Satellites, and the
potential legal disputes likely to arise from the increased
usage of such “newsgathering” tactics.
Clearly, the phrase “satellite surveillance” conveys
connotations of hi-tech, eavesdropping, spying, secret,
clandestine, invisible and any other similar adjectives. Due
to this issue being both unprecendented and out of the
ordinary, the Petitioner feels the District Court departed from
a just judicial proceeding and thus the Court of Appeals for
the Ninth Circuit sanctioned such an injustice to an important
Fourth Amendment issue. Notwithstanding any judicial
proceedings, the unprecedented nature of this case alone
makes it ripe for this Court’s judicial discretion so as to not
allow the legal system to fall further behind to rapid
technological advances that will continue to crush
constitutional rights.
Just as the legal issue itself is unprecedented, so too
then will any facts accociated with satellite surveillance. In
this case, some of the Petitioner’s facts alleged may at first
glance appear extreme, impossible or perhaps unbelievable.
However, the very nature of satellite surveillance is extreme,
and at a past time was indeed impossible, though is now
becoming increasingly used by government agencies and
private entities.
For the average citizen, the mere existence, usage and
capabilities of such surveillance are probably never even
contemplated in ordinary life. This is the critical issue in this
case. It would seem reasonable to assume that in many cases
of satellite surveillance a person may never be aware of such
surveillance and suffer no known harm should no negative
external consequences become upon them, with the
exception of his/her privacy being invaded, which too would
perhaps not be realized by the person since he would be
unaware of the monitoring. Thus, it is only when a person
suffers external negative harms, realizes or witnesses other
external negative factors regarding one’s life, that one could
6
reasonably conclude he was under some sort of surveillance.
In this case, the Plaintiff has provided the several negative
external consequences as well as witnessing of the “in
disguise” remarks to logically conclude he was _ being
surveillanced. It is at this point then, that this Court must
determine if such is sufficient for a person to witness no
matter how bizarre a particular fact may appear with regards
to one determining he is under surveillance. Obviously, a
person must witness or experience something in his life in
order to even have the slightest notion that “something is
going on” out of the ordinary. Generally and simply put, if
one is to be in a car accident, then some sort of collision with
at least one automobile must occur, which a person would
obviously notice. To detect surveillance, one traditionally
might find an electronic “bug” on the premises or perhaps
actually view a person down the street aiming a laser
eavesdropping device or a parabolic microphone into his
property. In this case, neither a physical “bug” nor a person’
was found conducting surveillance but rather the Plaintiff
had to detect and deduce, or “put two and two together,” to
conclude a more sophisticated eavesdropping and
surveillance device was being used. Here, the Plaintiff's
observed the “in disguise” remarks on various Defendants’
broadcasts, and unusual occurrences tn his life, including the
questionable visit by law enforcement officers to Plaintiffs
residence. Looking back, would the Plaintiff have been better
off to not list any instances of surveillance? Perhaps the
lower courts may have viewed this issue differently, but the
Defendants, however, would have been sure to claim the
Plaintiff had no facts to support a claim of surveillance. This
indeed occurred in this case as Plaintiff's initial Complaint
did not list the underlying details as later found in his PSOF.
In fact, without waiting to hear all the facts, KOLD hastily
‘ Excluding the federal agent who peered through one of the Plaintiffs
windows
5
/
“move[d] for summary judgment because there are no facts
that support Plaintiffs claim against KOLD.”. (KOLD
Motion to Dismiss p. 1) So, as this Court can see, the
Plaintiff was, in a way, in a no win position as it turned out
in explaining his Complaint. The truth and reality is,
however, completely opposite as the Plaintiff has witnessed
probably more than anyone might ever witness if one were
the subject of surreptitious satellite surveillance. The
Plaintiff was able to easily deduce “something was up” due
to the reckless disseminations and what in several instances
was almost notification to the Plaintiff that the broadcasters
wanted his attention, or at least were comfortable in emitting
subtle, almost beckoning, yet revealing remarks and actions.
(#47 PSOF See Appendix). While some of the Plaintiff's
facts may sound unusual, they can be validated by the
Court’s own viewing of the video tapes of the broadcasts the
Plaintiff has cited. At a minimum, Your Honors would view
the videos and likely think something along the lines “that
sure was peculiar for the broadcaster to do or say.”
In summary, this Court must determine what a
person can witness and present as facts in an allegation that
can be perpetrated in virtual, if not entirely, in secrecy. |
offer to this Court, that the only way such a claim can be
validated is if the Court consider other circumstantial
“suspicious” facts that may not be pure examples of
“interception and disclosure of oral communications” or
“electronic surveillance.” For without this latitude, a party
might never be able to defeat a defendant’s summary
judgment motion pertaining to surreptitious _ satellite
surveillance, as there is no way to see a _ satellite,
microwaves, or laser beams. To affirm the lower courts on
this claim would crumple the 4th Amendment to the U.S.
Constitution and negate the Congress’ deliberate intention in
the language of the Federal Wiretap Statutes. Congress
intentionally used broad language such as “. . .any electronic,
mechanical, or other device . . . for the purpose of the
surreptitious interception of wire, oral, or electronic
communications. ” when prohibiting eavesdropping
devices in 18 U.S.C. § 2512 as they recognized the numerous
devices already in existence and the likelihood of new
eavesdropping devices being created in this modern
technological world. To affirm the lower courts would
virtually be saying that there is never an instance in which a
person could successfully bring forth a surreptitious satellite
surveillance case. Furthermore, to affirm the lower courts
would in essence be rubberstamping both the mass media’s
and government’s ability to conduct blanket search warrants
via satellite surveillance without the issuance of a court
approved search warrant (assuming an approved search were
constitutional).
Thus, the primary issue appears to be the factual basis
one can successfully allege a satellite surveillance
conspiracy in order to be granted discovery by the Court.
The Plaintiff believes he has witnessed sufficient events and
has presented those facts.
RIGHT TO DISCOVERY
It should go without saying that unauthorized
eavesdropping on any aural communication whether via a
simple hidden tape recorder or a complex space-orbiting
satellite 1s a violation to the Federal Wiretap Statutes. Thus,
the fundamental issue this Court should delve into
extensively is what is a just standard of summary judgment
in a case alleging unprecedented legal and factual issues. In
the instant case, the District Court of Arizona completely
neglected to surmise the scope of satellite surveillance both
legally and factually as the opinions of that court were absent
of any substantive analysis of this powerful technology.
Instead, the District Court merely relied on simple and basic
denials made in affidavits submitted by defendants KVOA,
KOLD, KGUN and KNST thus making it easy for any
9
defendant to simply deny any violation to surreptitious
eavesdropping and surveillance. Additionally, defendants
CNN/TBS and ABC offered no affidavits in their defense.
The acceptance by the District Court in taking the
defendants’ affidavits as true can best be compared to the
psychological “line experiment” by Solomon Asch which
measured the effects of group pressure and conformity. In
this experiment, one person was convinced by eight others to
accept as true that the length of one line was comparable in
length to one of three other lines presented despite it clearly
being unequal. Similarly, the District Court has denied the
truth in this case and has accepted the distortions and
untruths presented by the defendants and their attorneys.
Furthermore, the Supreme Court recognizes the potential
injustices of affidavits as it has held that:
It is only when the witnesses are present and
subject to cross-examination that _ their
credibility and the weight to be given their
testimony can be appraised. Trial affidavit is
no substitute for trial by jury which so long
has been the hallmark of "even handed
justice."
(quoting Poller v. Columbia Broadcasting Company, bold
added 368 U.S. 464, 82 S. Ct. 486, 7 L. Ed. 2d 458) 1962.
Finally, and most significantly, the Supreme Court has
stated:
[i]t is probably true that in the ordinary conspiracy case a
plaintiff would be entitled to obtain discovery against all
the alleged conspirators instead of being obligated to
proceed against them seriatim. First National Bank Of
‘ Educational Psychology, p. 495, (1990) Sprinthall and Sprinthall.
McGraw Hill citing Asch, S.E. (1952). Social Psychology. Englewood
Cliffs. NJ. Prentice-Hall.
10
Arizona v. Cities Service Co. 391 U.S. 253, 88 S. Ct.
1575, 20 L. Ed. 2d (1968).
This case is rooted in allegation of conspiracy. The
very definition of a conspiracy, and the redress Congress
intended under 42 U.S.C. § 1985 and the surreptitious
electronic surveillance statutes, inherently suggests that
once an allegation of conspiracy is made, discovery is a
fundamental right of the aggrieved to prove his case.
While unjustly accepting the defendant affidavits as
true, the District Court ignored or accepted as “implausible”
factual events witnessed by the Petitioner as evidence of
surveillance. Clearly, this standard of summary judgment
did not allow for all favorable inferences of the facts be taken
as true in favor of the Plaintiff. Moreover, the District Court
never allowed the Plaintiff a right to present evidence to the
court despite repeated pleadings to do so. The clandestine
operations of surveillance in this case are unprecedented, and
thus require a degree of liberal interpretation to events
witnessed by the Plaintiff in order for the Court to advance a
fair standard of review and justice. Thus, the District Court’s
findings of law were based on what really is an undeveloped
record as additional facts, testimony, and_ technological
revelations in surreptitious surveillance need yet to be
entered in this case.
It seems a travesty of justice that the courts in this
case could make rulings without viewing any evidence. For
example, below are listed five instances of primary pieces of
evidence the court has ignored:
1) The Oprah Winfrey Show broadcast
regarding the Petitioner. (PSOF #45, 47
See Appendix.)
2) The rebroadcast by defendant KVOA of
Petitioner’s employment interview. (PSOF #
55 See Appendix)
3) The broadcast in 1990 by defendant
KVOA regarding the Petitioner. (PSOF #
14 See Appendix.)
4) The broadcast of the show Crossfire by
defendant CNN on either May 24, or 25,
1995. (PSOF #52, See Appendix.)
5) The broadcast of the show The Legal
Hotline by defendant KNST in April 1995 or
of the other show aired in February 1996.
( PSOF #51,57 See Appendix.)
Even if there were no allegation of electronic eavesdropping,
the rebroadcast of Plaintiff's employment interview displays
minimally an invasion of privacy that should have been
suffient for the lower court to have doubts regarding
submitted affidavits and ordered production of such video
broadcasts as Petitioner requested in his Motion to Compel.
It was clearly unjust for the District Court to prohibit the
Plaintiff from presenting evidence before the court in a
hearing. Similarly, the Supreme Court has held that
Prisoner's pro se complaint seeking to recover
damages for claimed physical injuries and
deprivation of rights in imposing disciplinary
confinement should not have been dismissed
without affording him the opportunity to
present evidence on his claims. //aines v.
Kerner (1972), 404 U.S. 519, 92 S. Ct. 594,
30 L. Ed. 2d 652 ( bold added)
Though the Plaintiff is obviously not a prisoner, he is pro se,
and pro se or not, he should be afforded a hearing. The Ninth
Circuit itself has held that “pro se pleadings are liberally
construed, particularly where civil mghts claims are
involved.” Balisteri v. Pacifica Police Dept. (901 F.2d 696,
1990). This it the most important aspect in this case, that the
Petitioner’s facts be taken as true as it pertains to allegations
of satellite surveillance; especially since such an issue 1s
unprecedented in the courts. Moreover, 1t would also seem.
that the final judge of such facts should be done by a jury as
jurors should be able to make the final conclusions as to
whether all evidence and expert testimony presented satisfies
the allegations.
In summary, satellite surveillance poses great threats
to 4th Amendment and privacy rights, and is unprecedented
before the courts. Thus, this issue alone makes Petitioner’s
case ripe for granting certiorari.
42 U.S.C. § 1985(1)
The Petitioner’s primary argument to this claim 1s
that this Court expand the reach of § 1985(1) to more than
the traditionally protected “federal officer.” Plaintiff
believes that under the circumstances surrounding the
surveillance conspiracy, that his roles as a secondary public
school teacher and Precinct Committeeman should be
included within the reach of the meaning of “federal
officers” under § 1985(1).
The Plaintiff's position as a teacher is an office of
“trust, or place of confidence under the United States” as he
was sworn to “support the Constitution of the United States
and Laws of the state of Arizona. . .” as stipulated by his
Loyalty Oath of Office required to be signed upon
employment with the school district. (See appendix) School
districts have now historically and increasingly come under
the jurisdiction of federal policy for which teachers have
come to inherently enforce. For example, the federal courts
have come to impose desegregation programs upon public
schools in enforcing the “equal protection clause” of the 14th
amendment to the U.S. Constitution. Additionally, public
schools receive federal funding, and the school district the
Plaintiff was teaching in is no exception. Finally, without
listing a plethora of cases, schools are subject to compliance
of Titke IX. Likewise, duties related to Plaintiff being a
Precinct Committeeman also require the performance of
13
federal duties. Such duties are related to the fundamental
right to vote, registering voters, and confidential meetings
and phone calls related to the obvious political associations
related to being a Precinct Committeeman.
18 U.S.C. §1985(2)
The legal issue to be resolved with Plaintiff's 1985(2)
claim rests on this Court determination if “attending” court
includes the filing of a Complaint in a federal court. The
applicable clause of 1985(2) is as follows:
If two or more persons in any State or
Territory conspire to deter, by force,
intimidation, or threat, any party or witness in
any court of the United States from attending
such Court,
The Plaintiff alleges that the Defendants’ tortious
eavesdropping conspiracy deterred and intimidated the
Plaintiff in filing suit against an additional party, Harpo
Productions, Inc., (or others) as it pertains to Plaintiff
seeking redress (by Joining such defendants to the current
suit) to the broadcast of a show about the Plaintiff as
explained in PSOF number 45 and 47. Those libels against
the Plaintiff are not ordinary as they concern what has
become in society the center of hate, preyudgment and
controversy. The Plaintiff offered to the District Court two
AP reports describing what can happen to a person when
falsely accused of such behavior and then such allegations
are made widespread. Regrettably, the Digstrict Court
neglected and failed to see the severe harm and intimidation
that occurs to a person under such circumstances. Moreover,
in the Plaintiff's case, this issue is derived from a time when
the Plaintiff was a minor child which makes it that much
more complex
The Plaintiff argued for the lower courts to adopt the
premise that “attending” Court includes the act of filing a
lawsuit. Even though the Plaintiff has demonstrated
protected class based motive behind the conspiracy as
explained fully in §1985(3), a claim under §1985(2) does not
require such standing. Kush v. Rutledge, 460 U.S. 719, 103
S.Ct. 1483, 74 L.Ed. 2d 413, (1983). Furthermore, under the
circumstances as already explained, the Defendants’
conspiracy activities obstructed Plaintiff's desire and attempt
to file suit against other parties as already stated; in addition
to other interferences with justice, such as alleged
eavesdropping on legal telephone calls to attorneys and to the
Clerk of the Court for the District of Arizona’s office.
The actual question of whether attending court
includes filing a suit in federal court has not been fully
adjudicated. Although, the United States Supreme Court has
noted that “the Fifth Circuit’s narrow [11-10] en banc
majority in Aimble v. Duffy, [648 F.2d 340, (bold
added)(1981)] did not include a conspiracy to deter a party
from filing a suit in federal court.” The Kimble Court
reasoned as follows:
Congress enacted the first part of Section
1985(2) in order to protect the sanctity of
federal court proceedings and __ prevent
miscarriages of justice. The justice provided
by our judicial system, however, does not
start on the day of trial. The process of
obtaining justice in the court system begins
long before a case is called to trial it is
initiated at the moment a Dy files a
complaint. Congress undoubtedly intended to
ahve the whole course of justice, not just
one segment of the system, the trial apd
Thus, or the purposes of Section 1985(2) an
individual is deemed to have "attended" a
court of the United States from the moment
that the person files a complaint.
_ aii
(quoting /d. n. SO (italics added)) Significantly, that
decision in Kimble was actually a reversal of the panel’s
previously holding that filing a complaint was indeed
“attending.” Congress’ intention to protect “the whole
course of justice” in this case includes all those actions in
which the Defendants conspiratorial activities violated legal
confidentiality actions of Plaintiff. In addition , the High
Court went on to offer guidance to this issue and has
“note[ed] more generally that the scope of
§1985(2) is unsettled and that on remand the
district court, in its discretion, may require the
plaintiff to amend his complaint to state the
grounds of the §1985(2) claims with greater
specificity.” We must leave it to the district
court to decide what sorts of threatening or
coercive acts the plaintiff may prove. .. .”
(quoting Keating v. Carey, 706 F. 2d 377 at footnote 13, bold
added (1983).) Defendants in this case prevented even filing
of the Complaint, or attending court. In the late 20th
century, the mob-like threatening and intimidation caused
through the undue, and further undue and excessive media
exposure, which is common practice by broadcasters, in
addition to the actual intimidation eavesdropping imposes on
a person, are the facts in this case for the Jjury’s
consideration. This excessive publicity, and improper
dissemination in this case, is the modern day equivalent to
the mob violence for which this Federal Civil Rights law was
enacted as supported through the facts and other supporting
documentation. Finally, even if the question of “attending”
Court was not an issue in this case, other actions related to
justice were interrupted-the eavesdropping on legal counsel
calls.
42 U.S.C. § 1985(3)
16
It is well established case law that both religious and
political memberships are protected classes under § 1985(3).
As Republican Senator Edmunds stated in the Senate floor
debate, § 1985(3) would apply to conspiracies aimed against
a person “‘because he was a Democrat, if you please, or
because he was a Catholic, or because he was a Methodist, or
because he was a Vermonter,... then this section could reach
it.” (quoting United Brotherhood of Carpenters & Joiners v.
Scott’, 103 S.Ct. 3352, n. 6, 463 U.S. 825, 77 L. Ed. 1049,
(1983)). The Second Circuit has stated “Congress did not
seek to protect only Republicans, but to prohibit political
discrimination in general.” Keating v. Carey, remanded, 706
F.2d 377 (2d Cir. 1983). The Plaintiff was an above average
active member of the Republican Party during the time
period the Defendants carried out the tortious eavesdropping
conspiracy against him. He was both a Precinct
Committeeman and an original member of the then fledgling
but now dissolved Cochise County Young Republican Club.
A limited number of persons can be a Precinct
Committeeman as stipulated by law and thus it is not as if
the Plaintiff is just saying because he was a registered
Republican he has a claim under § 1985(3). Similarly, a
limited number of people go to the extent to become active
in an organization officially sponsored and affiliated with the
Republican Party. Such political activity and association by
the Plaintiff more than satisfies an allegation that the
Defendants conspired against him because he was a
Republican. One need not be an expert to know that the
media prey upon anything that smells of scandal or could
otherwise make for a story as it pertains to those involved in
the political process. In addition, remarks concerning
Plaintiff's religion were also made which inevitably are
° For fear of creating a broad tort law, the courts have adopted the
membership in protected classes theory, though the language of §1985(3)
distinguishes between “...anyv person or class of persons....” (italics and
bold added).
reasons for the Defendants’ surveillance conspiracy against
the Plaintiff as his religion is a part of him.
While never stated explicitly, it appears the District
Court is holding that any fundamental rights regarding
"unreasonable searches" violating the Fourth Amendment are
not protected fundamental rights under § 1985(3). This
Court should abandon such a premise as it is clear that since
politically based conspiracies are protected, then it is also
clear that rights other than those associated with the
Thirteenth Amendment are protected. For instance, it would
seem reasonable to conclude that a Republican would not be
subject to involuntary servitude, but rather other deprived
rights. Specifically, in Keating, the court held that "Keating
[would] be entitled to a trial on his §1985(3) claim to
determine his tenure rights under New York law and the
terms and conditions of his employment." (Keating, supra.)
As'seen, then, the Second Circuit applied protection to rights
other than those the DC cited as limitations, which in
Keating were state law rights and not even federal.
Moreover, even if it were ultimately held that
absolutely no Fourth Amendment rights are protected from
private infringement under § 1985(3), there still exist factual
allegations of "state action" (42 U.S.C. §1983) which would
then satisfy a § 1985(3) allegation sufficient to survive a
motion to dismiss. It was simply bad judgment for the
District Court to have stated that the "Plaintiff has not
pointed to any evidence supporting his contention that
Defendants and the state or federal government conspired to
deprive him of a fundamental right." (R & R_ p. 21) Quite
frankly, if there was no evidence supporting such
contentions, it was because the District Court never allowed
the Plaintiff any opportunity with discovery and presentation
of evidence. This again underscores the notion that the lower
courts departed “from the accepted and usual course of
judicial proceeding,” especially given the unique
circumstances of the case.
While public teachers have not yet been listed as a
protected class under § 1985(3), this Court should include
them as well. Even though the Plaintiff has alleged
membership in two already protected groups for which they
conspired against him, it is clear that the Plaintiffs
occupation as a teacher was, in part, a motive behind the
Defendants’ actions as evidenced in particular with fact
number 55 concerning the broadcast of the Plaintiff's
interview. In Arizona, the legislature saw the need to
provide statutory protections to teachers in A.R.S. 15-507’.
Perhaps they recognized the historical discriminations
teachers have encountered. For example, teachers in the
United States were held to discriminatory standards of
“accepted moral conduct” and in Ancient Greece teachers
were actually part of the slave class. Even if this Court does
not hold teachers are a specific class under the statute, the
rights the Plaintiff possessed due to that occupation were
deprived. As pointed out in PSOF, the Plainuff was
performing duties to being a teacher at home while under
surveillance, and more generally in the classroom where he
was interrupted due to the extreme and unusual discussion of
the Plaintiff by colleagues and students caused by the
obvious dissemination leaks of the — surveillance.
Furthermore, rights of freedom of political association in
private were impaired.
In simple terms, it is clear that all a person can do is
state Why a conspiracy was directed against him and then
claim protection under § 1985(3). Even should this Court
not include teachers as a protected class, the Plaintiff meets
criteria already held protected under the statute. The
Plaintiff has done this and thus the factual basis meets the
protected classes intent of the section. Just as the Second
" A.R.S.15-507: Abuse of teacher or school employee in school;
classifcation- A person who knowingly abuses a teacher or other schoo!
employee on school grounds or while the teacher is engaged in the
performance of his duties ts guilty of a class 3 misdemeanor
19
es eae
———— St
ee
Circuit . .fheld] that Keating’s allegations that the
defendants conspired against him because he was a
Republican satisfies the Griffin requirement under § 1985(3)
of class-based discriminatory animus|,]” so too has the
Plaintiff in this case. (Keating, supra.)
FEDERAL COMMUNICATIONS ACT CLAIMS
As television broadcasting became mainstream, the
question as to whether television broadcasters are “common
carriers” has never been answered by the Congress in simple
or forthright terminology, thus leaving for the Judiciary to
incorporate expanded definitions to the FCA of 1934.
Interpreting 47 U.S.C. § 153(h) to include television
broadcasters on an equal footing with the specified exclusion
of radio stations in the section is a reach of judicial
interpretation that should be reversed. Congress intended to
only to exempt radio stations from the definition of
“common carriers” in §153(h), for if the Congress meant to
include television broadcasters it would have made that
exemption explicitly in §153(h) as well. Congress could
have amended the section to exempt television broadcasters
as well, but it did not. In fact, Congress alluded more to the
idea that television broadcasters were indeed “common
carriers” as explained below.
The definition of § 153(a) notes that wire
communication “means the transmission of . . . signals,
pictures, and sounds... .” Section 225(a) defines “common
carriers” under Title 47 as those who engage in § 153(a)’s
definition of “wire communication.” This would appear to
make it clear that an entity who transmits pictures is indeed a
“common carrier,” as_ clearly only television broadcasters
could be engaged in the transmission of pictures at the time
of passage of § 153(a) and thus were intended to he
20
———
“common carriers” under the FCA. Additionally, the
determination to whether or not Defendants CNN/TBS,
ABC, KGUN, KOLD and KVOA are “common carriers”
under § 206 may rest on distinct differences or similarities
in the nature of broadcasting the particular television
broadcaster is engaged in. In other words, does the broadcast
programming of a television station fall into the meaning of
“cable programming?” Title 47 U.S.C. § 558 offers
guidance to this issue as it discusses criminal and civil
liability of cable communications:
Nothing in this subchapter shall be deemed to
affect the criminal or civil liability of cable
programmers or cable operators pursuant to
Federal, State, or local law of libel, slander,
obscenity, incitement, invasions of privacy,
false or misleading advertising, or other
similar laws. . . .[italics added]
Defendant Cable News Network, Inc. by virtue of its own
names reveals it is a cable programmer.
Clearly, current definitions as to who is a “common
carrier” within the scope of § 206 is an area for this Court’s
discretion.
42 U.S.C. § 1983
The primary assertion for a “state action” claim in
this case 1s based on the suspicious law enforcement visit to
the Plaintiff's home that ts linked directly to a completely out
of the ordinary “in disguise” remark on CNN’s Crossfire on
either May 22 or 23, 1995, including the peering into one of
the Plaintiff's windows by a federal law enforcement officer
upon approaching the door. Furthermore, as pointed out to
the District Court, Defendants CNN and KNST routinely
have state officials on their programs as guests which
proposes the possibility of their knowledge of surveillance
and partaking in the conspiracy and/or their neglect to
prevent it. Lastly, the potential for the satellite surveillance
equipment to have been conducted by a government agency
such as the Central Intelligence Agency or the National
Reconnaissance Office can not be ignored. Thus, the
Plaintiff's “state action” claim would be based on both §
1983 and a Bivens claim due to the presence of both a state
and federal law enforcement officer.
The Petitioner maintains it was premature for the
District Court to rule on any of his claims until after
discovery and an amended complaint. It was particularly
premature to rule on this “state action” by applying a
standard of review to a normally complex issue, much less
doing so in this case without additional fact finding. The
standard of review applied by the District Court was as
follows:
lo determine whether the conduct of private
parties amounts to governmental action, the
Ninth Circuit applies the following four tests,
(1) the governmental nexus test, (2) the public
function test, (3) the state compulsion test,
and (4) the joint action test. Berger v.
Hanlon, 129 F.3d 505, 513 (9th Cir. 1997), [R
Nonetheless, in addition to the absence of additional fact
finding. it was error to dismiss the § 1983 claim as the
allegation of law enforcement officers alone on Plaintiff's
property is sufficient to survive a motion to dismiss as the
Supreme Court has held in Adickes the
[rjespondent did not carry out its burden, as
the party moving for summary judgment, of
showing the absence of a genuine issue as to
any materia! fact, as it did not foreclose the
possibility that there was a policeman in the
store while the petitioner was awaiting service
(from which the jury could infer an
understanding between the officer and an
employee of respondent that petitioner not be
7?
served), and its failure to meet that burden
requires reversal. Pp. 153-159.
Because respondent failed to meet its initial
burden as the party moving for summary
judgment, petitioner was not required to come
forward with suitable opposing affidavits
under Fed. Rule Civ. Proc. 56 (e). Pp. 159-
161.
‘The involvement of a state official in such a
conspiracy plainly provides the state action
essential to show a direct violation of
petitioner's Fourteenth Amendment equal
protection rights, whether or not the actions of
the police were officially authorized, or
lawful; Monroe v. Pape, 365 U.S. 167 (1961);
see United States v. Classic, 31 U.S. 299, 326
(1941); Screws v. United States, 325 U.S. 91,
107-111 (1945); Williams v. United States,
341 U.S. 97, 99-100 (1951). Moreover, a
private party involved in such a conspiracy,
even though not an official of the State, can
be liable under §1983. ‘Private persons,
a engaged with state officials in the
hay ited action, are acting ‘under color’ of
aw for purposes of the statute. To act ‘under
color’ of law does not require that the accused
be an officer of the State. It is enough that he
is a willful participant in joint activity with
the State or its agents,”” United States v.
Price, 383 U.S. 787, 794 (1966)
(quoting Adickes v. S. H. Kress & Co, 398 U.S. 144 (at N.
14, 15, 34), 90 S. Ct. 1598, 26 L. Ed. 2d 142, 1970). Now
just as the High Court held in Adickes that a jury could infer
an understanding by the police officer, so too should this
Court hold that the presence and questionable visit by law
enforcement on the Plaintiff's property be sufficient to defeat
a motion to dismiss and a motion for summary judgment.
More recently, this Court held that the media agents (CNN)
Were “state actors” when accompanying law enforcement to
execute a search warrant. In Berger, the media went so far as
23
ee
to make a business contract with the government agents,
though did not make that known to the Magistrate when the
warrant was sought and issued, which culminated in civil
right violations. (Berger, supra.)
This Court should allow for greater latitude in
applying any of the four “state action” tests as enumerated in
Berger, if applying any of them at all at this point due to the
unprecedented nature of satellite surveillance and the
incomplete record due to denying Petitioner discovery.
COMMON LAW TORTS
In determing whether satellite suveillance supports
tort claims of common law trespass, laws of unfair
competition: night to publicity, and invasion of privacy, the
Court may need to examine the following.
In the present case, it is alleged Defendants utilized a
laser or some other device to enter and produce visual and
aural surveillance inside Plaintiffs residential structure.
While no physical entrance by other persons occurred, the
laser beam or whatever means that entered into Plaintiff's
residential structure, produced visual images, as well as aural
interceptions, thus trespass has occurred as this ts equivalent
to a traditional physical search. “The ‘trespass doctrine’ of
Olmstead v. United States, 277 U.S. 438, and Goldman v.
United States, 316 U.S. 129, is no longer controlling. Pp.
351, 353.” (quoting trom Aatz v. United States 389 U.S. 347
(1967). It appears to be common ground that a private home
is [a constitutionally protected] area Weeks v. United States,
232 U.S. 383” [/d. Footnote 8]. Finally, as the Supreme
Court alluded, “[iJt may well be, as the Government
concedes, that surveillance of private property by using
highly sophisticated surveillance equipment not generally
available to the public, such as satellite technology, might be
constitutionally proscribed absent a warrant.” (quoting Dow
supra. from Warrantless Satellite Surveillance, supra.)
24
The tort of “right of publicity” 1s relatively recent
(1995) and perhaps such a claim should only be adjudged by
a jury evaluating all the facts and circumstances.
Nonetheless, the Petitioner offers the following for
consideration.
Eavesdropping in the vast manner Defendants
engaged in obviously encompasses many aspects of a
person’s life: 1) current as it happens; 2) past as it might be
discussed in conversation; and 3) future aspects as that might
occur. In effect, then, eavesdropping amounts to the
procuring of a person’s biographical data without consent or
compensation, even if it ts not printed in a book or other
traditional biography. Defendants, and any others have
become privy to Plaintiff's life while under surveillance from
dissemination by Defendants’ employees or others present at
Defendants’ premises. In other words, Defendants ears have
no right to entertain themselves for free of Plaintiff's persona
and private life. In theory, if Plaintiff had written an
autobiography, or any similar works, Defendants’ employees
would not be entitled to a free copy because they were
employed by media broadcasters. Compare this to the fact
that these Defendants’ business comes precisely in this
manner, viewers watching or listening to their broadcast
programming: news and entertainment shows; assuming
there ts a distinction between the former and the latter. With
regards to KNST particularly, non-employees utilize the
broadcast premises and equipment and thus an aspect of the
public at large became privy to Plaintiff's private life.
Further, Plaintiff's ideas are his own and is entitled to
compensation from others for listening to his ideas or
persona, just as persons are entitled to compensation for
speaker fees or other consultation or counsel or intellectual
property. Inevitably, Plaintiff's ideas were incorporated into
use, Whatever that use may have been. Apparently
Defendants were so interested in Plaintiff that they utilized
sophisticated technological resources to monitor Plaintiff.
5
oct cio satecraneainallll
Mie Gok
Finally, “proof of deception or consumer confusion is not
required for the imposition of liability under [§ 46]”
(Restatement (Third) § 46, p. 530, 1995). In addition, a
plaintiff is not required to prove that the defendants intended
to identify the plaintiff. [Id. 532]. Defendants possess no
right to Plaintiff's private life nor do they possess the right to
exposes a person to “media judgment” for their commercial
enterprises.
Clearly, it goes without saying that satellite
surveillance is an invasion of one’s privacy, thus there is no
need for a detailed argument.
CONCLUSION
In summary, Petitioner’s core issue of satellite
surveillance is unprecedented. The secretness and ease to
conduct such surveillance clearly exhibits the need for basic
discovery in order to uncover tangible evidence. Granting
Petitioner certiorari or quick remand will bring the legal
system one step closer in keeping in step with technologies
that threaten precious Fourth Amendment rights.
SUBMITTED this day of October 1999.
Anthony S. Wenc, Petitioner
26
APPENDIX
ORDERS & OPINIONS
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
ANTHONY S. WENC,
Plaintiff,
VS.
CABLE NEWS NETWORK, INC., et al.,
Defendants.
No. CIV 97-528-TUC-NF (WDB)
REPORT & RECOMMENDATION
27
APPENDIX
Pending before the Court are the following motions
filed by Defendants:' (1) KOLD's Motion to Dismiss and
Motion for Summary Judgment, (2) KGUN's Motion to
Dismiss and Motion for Summary Judgment, (3) Cable News
Network's ("CNN") and Turner Broadcasting's ("TBS")
Motion to Dismiss and Motion for a More Definite
Statement, (4) American Broadcast Corporation's ("ABC")
Motion to Dismiss, (5) SFX Broadcasting'’s ("KNST")
Motion to Dismiss and Motion for Summary Judgment. Also
pending are: Plaintiff's Motion to Compel, Plaintiff's Motion
to Stay, KOLD's Motion to Unseal and Plaintiff's Request for
Special Instructions. Additionally, all Defendants have
joined one another's motions and responses. For the
following reasons, the Magistrate Judge recommends that the
District Court, after its independent review, grant
Defendants’ motions to dismiss and for summary judgment,
deny Plaintiffs motions to compel and to stay, grant
Defendants’ motion to lift the seal and deny Plainutt’s
Request for Special Instructions.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed the instant pro se action alleging that
Defendants, who are media agencies, “have been
eavesdropping on the Plaintiff, and his family, and any
acquaintances... .in- the privacy of my residence...this
surveillance has also been carried out in such a manner that
the media’s actions have also produced ‘visual surveillance
eavesdropping” by the means of aural satellite, microwave
technology, a laser device, or other prohibited radio
! , . ‘ sia
Defendants are Cable News Network, Turner Broadcasting, Inc.,
American Broadcasting Co., KVOA Communications, Inc., Lee Enteronses, Inc
of which KGUN is a division, Elcom of Arizona, Inc., dba KOLD, Inc., ROLD
and SEX Broadcasting, Inc., dba KNST, Ine
APPENDIX
eavesdropping devices. (Complaint, p.2) According to
Plaintiff Defendants violated his constitutional rights and
also criminally conspired against him in violation of federal
and state statutes and regulations. (Id. at p.3) Specifically,
Plaintiff alleges that:
defendants engaged in conduct in violation of
the following sections of the United States
Code: 18 U.S.C. 241, 18 U.S.C. 25/1], 18
U.S.C, 2512,42 U.S.C. 1983,42 U.S.C. 1985,
42 U.S.C. 1986; the following sections of the
Code of Federal Regulations: 47 CFR /5.9
and 47 CFR 2.701; and the following Arizona
Revised Statutes: 13-107, 13-1003, 13-3004,
13-3005 and Article II, section 8 of the
Constitution of the State of Arizona thus
resulting in a criminal conspiracy against the
Plaintiff, consisting primarily of tortious
surreptitious eavesdropping and_ electronic
surveillance, using this information for their
own commercial gain. . .As a result of the
aforementioned conspiracy, Plaintiff has
suffered severe emotional distress: anxiety,
stress, depression; unwanted invasion of
privacy, trespass, violation of Plaintiff's civil
rights, loss of teacher contract being offered
and inability to find suitable employment and
undeterminable future earnings loss as a
consequence.
(Id. at p.3) Read liberally, Plaintiff's Complaint may also
advance allegations of state law, including _ trespass,
interference with economic damage, common law invasion
of privacy, and intentional infliction of emotional distress.
WY
pa ek —
APPENDIX
Plaintiff's claims are based upon the allegation that
“fu]known persons, who may or may not be employees of
the defendants or may be employees of a government entity,
operated a highly technological eavesdropping and visual
surveillance device, likely a satellite, to servile [sic] Plaintiff
Anthony Wenc.’(Plaintiff's Statement of Facts (“PSOF”) {
15) Plaintiff has
deduced that. . . Interceptions occur from the
source, me, via the eavesdropping device,
then are relayed back to the broadcaster’s
studio into broadcasting equipment operated
by employees who likely are divulged the
interceptions, and then they in turn culminate
the process by disseminating it to the ‘anchor’
broadcaster into the ‘talking ear’ device worn
in a ‘live’ program, who can then report
instantly the original eavesdropped
interceptions.
(Plaintiffs Affidavit #2, §26) Plaintiff states that he
"believe [s] the surveillance activities were conducted by
CNN and/or ABC. or an unknown party, who then
knowingly disseminated the information to knowing and
willing recipient affiliates KVOA, KGUN, KOLD, KNST
and perhaps other unknown affiliates." (Id. at 44) According
to Plaintiff, national and local anchorpersons appearing on
Defendants' broadcasts "were recipients [of such
transmissions] or have knowledge of eavesdropping
interceptions and visual surveillance of [Plaintiff]." (Id. at
“4 27-34) In his affidavit and statement of facts in support of
his opposition to Defendants' motions, Plaintiff identifies
A sampling of the anchorpersons whom Plaintiff lists includes
Kathleen Kennedy. Barbara Walters, Sam Donaldson, Cokie Roberts, David
Brinkley, Patth Weiss. Guv Atchlev and Alan Kath. (Plainuff's Affidavit #2, 027
30
APPENDIX
several instances that he argues support his contentions. For
example, Plaintiff states that on May 22, or 23, 1995, while
he was watching the show Crossfire that is aired live on
CNN a sheriff's deputy and a federal special agent, both
undercover, visited his home and after identifying
themselves, stayed for approximately 5-/0 minutes to ask
Plaintiff questions.’ (Id. at $5, 9b) Soon after the officers
left, "Michael Kinsley, said the following out of the ordinary
‘in disguise’ remark: 'he is cooperating with federal agents."
(Id. at 9b) Soon thereafter, Plaintiff was watching
Newsnight, a live broadcast on CNN, when between stories,
host Kathleen Kennedy said "we're going to clear you.'
(Clear me of the rumors circulating I presume.) While saying
this, she tilted her head towards her shoulder, to me [sic]
signal she was referring to me, as this was how my head was
positioned while I was relaxing on the couch watching. It is
this action that led me to aghastly realize some sort of
visual/video surveillance was taking place." (Id. at 4c)
Additionally, in late 1995 or early 1996, CNN Capital Gang
host Robert Novak "made the out of the ordinary and ‘in
disguise’ remark: ‘he wants a trial.' | was watching the show."
(Id. at Ye)
According to Plaintiff, various broadcasters have also
made "in disguise" comments directed at him unrelated to the
Officers’ visit to his home. For example, during a live weather
report that aired on KOLD in early 1996, the broadcaster
"made a subtle ‘in disguise’ remark directed at Plainutt
saying ‘you have a lot to live for,' referring to my thoughts of
depression and suicide." (Id. at 991) Also in 1996, Chuck
Roberts of CNN's Headline News "made the following subtle
‘in disguise’ remark apparently to get my attention: 'He got
j a seal ; . = . ,
Plaintiff does not describe the purpose of the officers’ visit or the
subject of their questions.
* Plaintiff lists Kinsley as a CNN employee. (Plamutt's Attidavit, #2, 927)
APPENDIX
up late today.’ This was said in between story segments...
had just gotten up a few minutes earlier and put the TV on."
(Id. at 9m) Further according to Plaintiff KVOA broadcast
portions of his employment evaluation on May 25, 1995. (Id.
at 49d) Plaintiff states that various anchorpersons working
for all Defendants have made "in disguise" comments
directed at him to get his attention. (Id. at 9[9-a-c,e, f, h-m)
Moreover, Plaintiff asserts that Defendants maintain archives
pertaining to their surveillance of him. (Id. at 413)
Between June and September 1995, Plaintiff was shot
at by someone with a BB gun while Plaintiff was in his
apartment. (Id. at 420) The shot came through his window
and came directly to where Plaintiff was sitting. (Id.)
According to Plaintiff, "I believe this shooting was promoted
due to the excessive surveillance conducted by those named
in this Civil Action and dissemination of that information
being conducted on me. Furthermore, | believe that if any
further dissemination ‘leaks’ regarding any of the libels
mentioned in this affidavit, or any excessive publicity could
again lead to potential life threatening physical harm. Due to
this, | feared filing any type of lawsuit related to this Civil
Action until I believed the surveillance being conducted on
me ceased for I feared a public 'media circus,’ as Oprah
Wintrey is a very famous person which is certainly a story
the media would like to 'feed off to enhance ratings, which is
in part, their reasons tor surveillance." (Id.) Plaintiff also
feared that the publicity would result in "possible physical
harm as violent hate crimes often occur against innocent
people. There are a lot of ‘nuts,’ for lack of a better term,
living in this world." (PSOF, 477)
Plainutf states that in July 1990, Oprah Wintrey aired a libelous show
regarding him and some of the guests were Plainutfs childhood
acquaintances. (Plainutfs Affidavit #2, 412)
APPENDIX
Also in the Spring of 1995, Plaintiff heard students in
his classes remark that the government was using Plaintiff
for experiments, that Plaintiff "is the talk of the whole town,"
and that Plaintiff was gay or a child molester. (Plaintiff's
Affidavit #2, 6-8) Plaintiff states that he never committed a
sex crime and has never been charged with same. (Id. at 48)
During this same time, hosts of The Legal Hotline Show
airing live on KNST discussed the statute of limitations in
civil cases regarding minors that included civil actions about
child molestation cases. (Id. at 49a) Near the end of the
discussion, "one of the hosts made the comforting remark
‘OK, Tony.’ Given this comment, ~t would obviously appear
these hosts and thus KNST, knew that I was listening to the
show." (Id.)
According to Plaintiff, broadcasters are not the only people
speaking about him but strangers at the Cochise County
Young Republican Club, the Elks Lodge, the Tucson Mall,
and the University of Arizona Law Library have talked about
him or have repeated phrases from conversations Plaintiff
had earlier in the privacy of his home. (Id. at 22-25; PSOF,
40-43) For example, at the Elks Lodge, Plaintiff overheard
other attendees remark that "He's on unemployment...they
are both on unemployment (The ‘they' referring to me and
my sister who also ate lunch there that day. She was also on
unemployment at that time.) Another remark was ‘satellite’ as
he directed towards my table." (Plaintiff's Affidavit #2, 4/25)
In June 1995, while attending a dinner meeting for the
Cochise County Young Republican Club, Plaintiff overheard
someone remark that "he was on CNN' as she directed
towards Plaintiff's table." (PSOF, 441) Plaintiffs colleagues
have also told him that they know that he isn't gay.
(Plaintiff's Affidavit #2, 921) Plaintiff's colleagues have also
stated that "he's Roman Catholic’ and that "he's a good
Catholic." (Id.) Therefore, Plaintiff contends that "students,
colleagues, and supervisory personnel had knowledge or
ele
APPENDIX
awareness that Plaintiff was under some sort of
eavesdropping and monitoring surveillance." (PSOF, 439)
On April 16, 1996, Plaintiff canceled expanded cable
service to eliminate CNN and Headline News. (Plaintiff's
Affidavit #2 at 410) However, on June 1, 1996, the local
cable company rearranged the channels and placed Headline
News on a channel which would allow Plaintiff to view the
program despite his earlier cancellation. (Id.)
In October 1996, Plaintiff filed a complaint with the
Federal Communications Commission ("FCC") related to
claims in the instant action. (Id. at 918) The FCC informed
him that his complaint did not fall within the FCC's
jurisdiction and was instead a criminal matter within the
FBI's jurisdiction. (Id.) On March 25, 1997, Plaintiff filed a
complaint with the local FBI office in Sierra Vista, Arizona.
(Id. at 419)
Plaintiff states that Defendants conducted — the
eavesdropping and monitoring activities "for newsgathering'
[sic] or other purposes due to his occupation as a teacher,
membership in the Republican Party, membership as a
Roman Catholic, and, in part, due to previous media
attention of him in 1990." (PSOF, 429) In his affidavit,
Plaintiff avows that he is a member of the Republican Party
and that he served as precinct Committeeman for the Sierra
Vista Thunderbird precinct between 1994 and 1996.
(Plainutfs Affidavit #1, 4/1) Plaintiff was also a member of
the now dissolved Cochise County Young Republican Club.
(Id.) Plaintiff also avows that he has been a practicing
Roman Catholic all of his life. (Id. at 42)
In support of their motions, Defendants filed the
following affidavits. Defendant KOLD filed an affidavit by
Jeff Sales, the vice president and general manager of KOLD.
(Sales Affidavit, 41 attached to KOLD's SOF) Therein, Sales
States that he is aware of the activities of KOLD employees
and to the best of his knowledge KOLD and its employees
have not conducted any visual surveillance eavesdropping or
34
APPENDIX
any type of eavesdropping of Plaintiff at any time. (Id. at 42)
Nor to the best of Sales' knowledge has KOLD and its
employees conducted any type of surveillance’ or
eavesdropping involving Plaintiff utilizing “aural satellite
and/or microwave technology and/or a laser device or other
prohibited radio eavesdropping devices." (Id. at 43) Sales
also avows that KOLD does not own or possess any satellite
surveillance equipment, microwave surveillance equipment
or laser surveillance devices, (Id. at 44) Further, to the best of
Sale's knowledge, KOLD has not received transmissions,
images, data, recordings or any other information from any
other media source involving visual or aural surveillance of
or eavesdropping on Plaintiff. (Id. at 495) Additionally,
KOLD archives do not contain any data, information, images
or recordings of Plaintiff that were or could have been
acquired through any sort of visual or aural surveillance or
eavesdropping (Id. at 46)
Debbie Wagner, Vice President and general manager
of KNST-FM and SFX Broadcasting filed an affidavit setting
forth statements similar to those contained in the Sales
affidavit. (Wagner Affidavit attached to KNST's Joinder) Jon
Ruby, who is President and general manager of KVOA filed
an affidavit with similar statements as those made by Sales
(Ruby Affidavit attached to KVOA's Statement of Fact) In a
supplemental affidavit, Ruby states that in light of Plaintiff's
assertion that KVOA aired his employment evaluation on
May25, 1995, Ruby reviewed the scripts for the four news
shows airing on that date and that "[t]here is no mention of
Mr. Wenc, or any broadcast of the interview referenced in his
Affidavit in the Day Break, 5:00 pm. or 10:00 p.m. shows;
there is no script for the 6:00 p.m. show since it was a live
show which dealt exclusively with the CAP Town Hall."
(Ruby Supplemental Affidavit, 43) Karen Rice, the general
manager of KGUN also filed an affidavit with statements
similar to those made by Sales. (Rice Affidavit attached to
KGUN's Statement of Facts) Additionally, Rice avowed that
35
APPENDIX
KGUN is not affiliated or associated with any federal or state
agency or political subdivision. (Rice Affidavit, 43)
DEFENDANTS' MOTIONS TO DISMISS AND FOR
SUMMARY JUDGMENT
Because resolution of Defendants’ motions requires
consideration of matters outside the pleadings, the Court
informed the parties that the motions would be treated as
motions for summary judgment as required by Federal Rule
of Civil Procedure 12(b). (December 1997 Order)
Defendants primarily argue that the Court lacks jurisdiction
over Plaintiff's federal claims and that Plaintiff fails to state a
claim for any of the alleged violations of state law. The
arguments advanced by the parties will be discussed below in
relation to each claim alleged in Plaintiff's Complaint.
Standard for Summarv Judgement
Summary judgment is appropriate only when "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P.56(c).
The initial burden rests on the moving party to point
out the absence of any genuine issue of material fact. Celorea
Corp. V. Catrett, 477 U.S. 317,323 (1986). Although
reference is made to the movant's "burden," Rule 56 places
no evidentiary burden on the moving party beyond that
which is required to prevail at trial. Therefore, while the
adverse party must offer evidence sufficient to raise a
genuine issue of fact on an issue for which that party has the
burden of proof, the moving party need provide nothing
more than a reference to those materials on file in the case
that support the movant's belief that there is an absence of
YZ
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APPENDIX
any genuine issue of material fact. Musick V Burke, 913 F.2d
1390, 1394 (9th Cir. 1990). Once satisfied, the burden shifts
to the opponent to demonstrate through production of
probative evidence that an issue of fact remains to be tried.
Celotex, 477 U.S. at 324. Indeed, a party opposing summary
judgment may not rest on its pleading. Fed. R. Civ. P.56(e).
When judging the evidence at the summary judgment
stage, a district court is not to make _ credibility
determinations or weigh conflicting evidence but the court is
required to view all inferences in the light most favorable to
the non-moving party. Musick 913 F.2d at 1394. The
ultimate question is whether the evidence "presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law." Anderson V. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). The mere existence of a scintilla of
evidence supporting the non-movant's position will be
insufficient; there must be evidence from which the jury
could reasonably find for the non-movant. Anderson, 477
U.S. at 252. If the factual context makes the non-movant's
claim implausible, that party must come forward with more
persuasive evidence to support its claim than would
otherwise be necessary. Matsushita Elec. Jndus. Co. V.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Plaintiff's claim pursuant to 18 U.S.C. § 241
Plaintiff alleges that Defendants violated 18 U.S.C.
§241. Section 241 provides "for criminal liability against
persons who conspire to ‘injure, oppress, threaten, or
intimidate’ any citizen in the free exercise of any right
secured by the Constitution." Larsen V. Larsen, 671 F.Supp.
718, 719 (D.Utah 1987), aff'd 871 F.2d 1095 (jgth Cir.
1989). The federal courts including the Ninth Circuit have
held that 18 U.S.C. §241 which ts a criminal provision does
not provide a private right of action for civil liability. A/dahe
37
Ii acca aruaccaaest
APPENDIX
V. Aldabe, 616 F.2d 1089, 1092 (oth Cir. 1980); Cox v.
Cosentino, 876 F.2d 1, 2 (,st Cir. 1989)("Only the United
States as prosecutor can bring a complaint under 18 U.S.C.
§§241-242"); Del Elmer V. Metzger, 967 F.Supp. 398, 403
(S.D.Cal. 1997); Powers V. Karen, 768 F.Supp. 46, 51
(E.D.N.Y. 1991), aff'd 963 F.2d 1522 (9nd Cir. 1992);
Larsen, 671 F.Supp. at 719; Lundt v. Hodges, 627 F.Supp.
373,375 (N.D.lowa /985);Pawelek v. Paramount Studios
Corp., 571 F.Supp. 1082, 1083 .D.IIIl. 1983). Indeed,
Plaintiff concedes that he cited section 241 in his Complaint
merely for the premise that Defendants’ alleged “tortious
conduct was indeed criminal." (Plaintiff's Response, p.11)
Therefore, Plaintiffs’ claim pursuant to 18 U.S.C. §24]
should be dismissed.
Plaintiff's claims pursuant to 18 U.S.C. §§ 2511-2512
18 U.S.C. §$§2511-2512 are part of the statutory
scheme addressing interception of oral, wire, and electronic
communications. See 18 U.S.C. §§2510-2520 ("the Federal
Wiretap Statutes").. Generally, section 2511 provides for
criminal liability in cases of prohibited interception, use and
disclosure of wire, oral or electronic communications except
in certain circumstances. 18 U.S.C. §2511. Generally, section
2512 provides for criminal liability in cases of prohibited
manufacture, distribution, possession or advertising of wire,
oral and electronic communication devices except in certain
circumstances. 18 U.S.C. §2512. While sections 2511 and
2512 are criminal statutes which do not provide a private
cause of action for civil liability, 1&8 U.S.C. section 2520
authorizes a civil cause of action for any person "Whose wire,
oral, or electronic communication is intercepted, disclosed,
or intentionally used in violation of,’ the Federal Wiretap
Siatutes against any "person or entity which engaged tn that
violation." 18 U.S.C. §2520; Boddie V. American Broad. Co
APPENDIX
731 F.2d 333, 336 (6th Cir. 1984). Because the provisions of
the Federal Wiretap Statutes cited by Plaintiff address only
criminal liability, Defendants argue that Plaintiff does not
have a private cause of action for civil liability pursuant to
the sections cited in the Complaint. Additionally, Defendants
argue that Plaintiff would fare no better under section 2520°
in light of the affidavit testimony from KGUN, KVOA,
KOLD and KNST that they have not intercepted, used or
disclosed any wire or oral or electronic communications
involving Plaintiff and that they do not possess or advertise
wire, oral and electronic communication intercepting
devices. (KGUN/Rice§ Affidavit, 994-7; KOLD/Sales
Affidavit, 92-5; KVOA/Ruby~ Affidavit, 93-6;
KNST/Wagner Affidavit, 942-5)
In response, Plaintiff states that he "is not trying to
prosecute alleged violation of these federal criminal
statutes."’ (Response, p.11, n.16 quoting KOLD's Motion-to
Dismiss, p.2). Instead, Plaintiff asserts that the Federal
Wiretap Statutes are relevant to the Complaint "as they
attribute as a matter of law...that the tortious conduct was
indeed criminal." (Id. at p.11) Regardless of whether Plaintiff
intended to state a claim pursuant to sections 2511 and 25/2,
Defendants are correct that these sections alone do not
provide a private cause of action. See Boddie, 731 F.2d at
336. Therefore, to the extent that Plaintiff's Complaint may
be construed as alleging criminal lability pursuant to 18
U.S.C. §§251 1 and 2512, the claims should be dismissed.
Moreover, it is clear on the record that Plaintiff is
unable to establish a claim pursuant to section 2520 which
provides for civil liability for violation of the Federal
Wiretap Statues. To establish a prima facie case under
section 2520, Plaintiff must allege that (1) Defendants
Plaintitt does not allege a claim pursuant to 18 U.S.C. §2520 in his
Complaint
39
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a a
APPENDIX
intercepted, disclosed or used his oral communication, (2)
that Plaintiff had an expectation that the communications
were not subject to interception, and (3) that Plaintiff's
expectation of privacy was justified under the circumstances.
Cross V. State of Ala., 49 F.3d 1490, 1508-09 (1 jth Cir.
1995). Plaintiff's affidavits fail to point to specific instances
tending to show that Defendant intercepted, disclosed, or
used any of Plaintiff's oral communications. Instead Plaintiff
describes how media commentators made "in disguise"
comments that he inferred were directed at him because of
the position of Plaintiff's head while he was watching the
program, because Plaintiff had "thoughts of depression,"
because Plaintiff connected the remarks to his own desires
such as the fact that he wanted a trial, or because Plaintiff
connected the remarks to events that were transpiring in his
life. (PSOF, 9953,61,56) However, Plaintiff has failed to
establish a question of material fact that these "In disguise"
remarks were linked to any oral communication that he
made. Further, Plaintiff's assertions that people made
comments about him at work, the Elks Club, the opera, the
law library, and other public places does not support his
contentions that the comments he overheard resulted from
any purported violation of the Federal Wiretap Statutes by
the instant Defendants or any other person or entity. If the
factual context makes the non-movant's claim implausible,
that party must come forward with more persuasive evidence
to support his claim than would otherwise be necessary.
"The one instance where Plaintiff alleges that his oral assertions may have been
intercepted concern his employment evaluation which he contends was broadcast
on KVOA. However, KVOA has submitted affidavit testimony that KVOA's
records indicate that evaluation was not shown.
A
Indeed, Plaintiff admits as much when he states that "unknown persons who
may or may not be employees of Defendants or may be employees of a
government entity" are conducting the surveillance. (Plainuff's Affidavit #2,.6 33)
40
APPENDIX
Matsushita Elec. Jndus. Co., 475 U.S. at 587. Here, Plaintiff
has provided no factual basis for the assertions in his
Complaint or affidavits to support a claim that Defendants
are subject to civil liability under 18 U.S.C. $2520.
Therefore, even construing Plaintiff's claims pursuant to
section 2520 is of no assistance to Plaintiff in establishing a
question of material fact as to this Court's jurisdiction over
his action and therefore Defendants' motions which the
Magistrate Judge has construed as motions for summary
judgment should be granted as to Plaintiff's claim pursuant to
the Federal Wiretap Statutes and the claim should be
dismissed.
Plaintiff's claims pursuant to 47 CFR $/5.9 and 47
CER §2.701°
Title 47 of the Code of Federal Regulations governs
telecommunication matters. The FCC promulgated these
regulations under authority of the Federal Communications
Act of 1934 ("FAA"). 47 U.S.C. § I51 et. seg. Federal
courts, including the United States Supreme Court, have
recognized that the purpose of the FAA ts regulation in the
” 47 CFR 15.9 provides: "Prohibition against eavesdropping. Except tor the
operations of law enforcement officers conducted under lawful authority, no
person shall use, either directly or indirectly, a device operated pursuant to the
provisions of this part for the purpose of overhearing or recording the private
conversations of others unless such use is authorized by all of the parties engaging
in the conversation." 47 CFR 2.701 provides: "Prohibition against use of a radio
device for eavesdropping. (a) No person shall use, either directly or indirectly, a
device required to be licensed by section 301 of the Communications Act of 1934,
as amended, for the purpose of overhearing or recording the private conversations
of others unless such use is authorized by all of the parties engaging in the
conversation. (b) Paragraph (a) of this section shall not apply to operations of any
law enforcement officers conducted under lawful authority.
Section 15.11 1s the predecessor to section /5.9. See 54 FR. 17714 (April 25,
1989).
4]
4
Pe
a
:
3
4
APPENDIX
public interest and not the creation of private rights. Scripps
vs. Howard Radio Inc., V. Federal Communication Comm.,
316 U.S. 4 (1942); Daly V. Columbia Broad. Sys., Jnc., 309
F.2d 83 (7th Cir. 1962); Central NY Right to Life Federation
V. Radio Station WIBX., 479 F.Supp. 8 (N.D.N.Y. 1979).
Additionally, vindication of the important public interest
served by the FCA is vested with the FCC where an
aggrieved person may, in the proper circumstances, obtain
relief from the FCC. Central N Y,479 F.Supp. at 10. See also
Boddie, 731 F.2d at 339 (district court dismissed plaintiff's
claim under FCC regulations including §§2.701 and 15.11"°
prohibiting eavesdropping because "primary jurisdiction for
the enforcement of the regulations was vested in the [FCC]"
and the appellate court held that plaintiffs allegations of
violation of these regulations was properly excluded from
trial on charges filed pursuant to the Federal Wiretap
Statutes). Therefore, Defendants argue that the regulations
cited by Plaintiff do not create a private right of action.
In response, Plaintiff cites to the provision in the
FCA governing carriers’ liability for damages which provides
that, in certain instances, a "common carrier shall be liable
to the person... injured." 47 U.S.C. §206.
Plaintiffs reference to section 206 does little to
support his position because Plaintiff did not plead a
violation of section 206. Moreover, section 206 is
inapplicable to the instant action because radio and television
broadcasters are not common carriers under the FCA. United
“Common carrier or carrier means any person engaged as a common carrier for
hire, in interstate or foreign communication by wire or radio or in interstate or
foreign radio transmission of energy, except where reference is made to common
carriers not subject to this chapter; but a person engaged in radio broadcasting
shall not, insofar as such person is engaged, be deemed a common carrier.” 47
USC. $i S3(h).
APPENDIX
States V. Radio Corporation, 358 U.S. 334, 348-49 (1959).
Additionally, Plaintiffs citation to section 206 merely
emphasizes that Congress expressly created a private cause
of action when such a right was intended under the FCA.
Because Plaintiff has failed to establish that a private cause
of action is available under 47 C.F.R. $$/5.9 and 2.701, his
claims pursuant to these regulations should be dismissed. See
Boddie, 731] F.2d at 339.
- Plaintiff's claim pursuant to 42 U.S.C. § 1983
The Supreme Court has recognized that "to state a
claim under section 1983, a plaintiff must allege the violation
of a right secured by the Constitution and the laws of the
United States, and must show that the alleged deprivation
was committed by a person acting under color of state law."
West v. Catkins, 487 U.S. 42, 48 (1988). Defendants argue
that the Court lacks jurisdiction over Plaintiff's section 1983
claim because Plaintiff cannot satisfy' the requirement that
Defendants have acted under color of state law in conducting
the alleged surveillance. It is unclear from Plaintiff's
Complaint and Response whether he is asserting that
Defendants are governmental actors under state or federal
authority. Section 1983 only applies to state action. Where
only federal action is alleged, the claim is to be brought
under Bevies V. Six Unknown Named Agents of the Fed. Bur.
of Narcotics, 403 U.S. 388(1971), instead of section 1983.
Morse V. North Coast Opportunities, Inc., 118 F.3d 1338,
1340 (gth Cir. 1997). However, whether Plaintiff's action is
filed pursuant to section 1983 or Bivens need not be resolved
at this time because the standard for determining the
existence of government action is the same in both cases. /D.
at 1340, 1343. Therefore, even though the parties and the
Court refer to state action under section 1983, the references
43
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APPENDIX
are interchangeable with federal action necessary for a
Bivens claim for purposes of this discussion.
The Ninth Circuit has stated that "[a] fundamental
requi-rement of section 1983 is that the challenged action
must have been taken ‘under color of state law" Canlis V.
San Joaquin Sheriff's Posse, 641 F.2d 711, 716 (9TH Cir.
1981)(footnote setting out text of section 1983 omitted).
Indeed, "[s]tate action is an essential jurisdictional predicate
under section 1983, and accordingly, if state action is not
alleged and is found lacking, the complaint must be
dismissed." Sampson V. Village Discount Outlet, Inc., 832
F.Supp. 1163, 1167 D.Ill. 1993), aff'd. 43 F.3d 1474 (7th
Cir. 1994)(citing National Collegiate Athletic Assoc. V.
Tarkanian, 488 U.S. 179 (1988); Gomez V. Toledo, 446 U.S.
635 (1980)).
To determine whether the conduct of private parties
amounts to governmental action, the Ninth Circuit applies
the following four tests, (1) the governmental nexus test, (2)
the public function test, (3) the state compulsion test, and (4)
the joint action test. Berger V. Hanlon, 129 F.3d 505, 514
(gth/Cir. 1997), petition for cert. filed, 66 USLW 3783 (U.S.
May 1998)(No. 97-1927).
Without stating which test applies, Plaintiff argues
that "[m]edia broadcasters, generally are state actors" despite
Defendants’ assertion to the contrary. (Response, p.8)
Plaintiff further argues that Defendants are state actors in
their normal course of business when they work "in direct
concert with law enforcement" to notify the community
regarding the release of sexual offenders, when they
broadcast shows such as Cops, America's Most Wanted,
Judge Judy, and The People's Court, when they provide
public assistance through the Emergency Broadcast System,
and when they broadcast the state lottery results. (Id. and
1997 Letter from Arizona State Lottery attached to PSOF)
APPENDIX
Other examples of Defendants’ purported governmental
action cited by Plaintiff include state Attorney General Grant
Woods’ regular radio broadcast on a Phoenix station that is
not a party to this suit and the recent showing of the CIA's
video reenactment of TWA Flight 800. (1d. at p.9) Plaintiff
further stresses that’ state officials were present on
Defendants’ premises for interviews or other broadcasts. (Id.
at p.10) Additionally, Plaintiff argues that the presence of
law enforcement officers on his property and at his work site
also suggests that Defendants were acting in concert with
state officials. (Id. at pp. 9-10)
Plaintiff also cites to Berger where the Ninth Circuit
held that CNN was a government actor for purposes of a
Bivens action where CNN and federal agents entered into a
written contract for CNN reporters to accompany agents
during the execution of a search warrant. Berger, 129 F.3d
SOS. the Berger plaintitt also alleged that the government
shared confidential information with CNN = and that the
record suggested that the federal officers "planned and
executed the search in a manner designed to enhance its
entertainment, rather than its law enforcement value, by
cnyaying in, for example, conversations with [the plaintiff]
for the purpose of providing interesting sound bites, and to
portray themselves as tough, yet caring investigators, rather
than to further their investigation.” Jd. at 575.
lo defeat summary judgment, Plaintiff must establish
a question of fact as to whether Defendants are government
actors under one of the four tests discussed above. Under the
governmental nexus test, courts must consider 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 government
itself. 7D. at S14. Moreover, "an action taken by a private
corporation ts not necessarily or automatically ‘state action’
merely because the corporation is chartered by the state, o1
because the corporation has a state conterred monopoly, ot
45
APPENDIX
because the activities of the corporation are strictly regulated
by the state, or because the functions performed by the
MAPS M OM STVE the pitti convenience and necessity.”
Briscoe V. Bock 540 F.2d 392, 395 (8th Cir. 1976)(emphasis
added). Indeed, the licensing of an otherwise private entity
under the FCA does not, of itself, require a finding of state
action. Kuczo V. Western Conn. Broad., 566 F.2d 384 (2d
Cir. 1977); Bloum V. Loyola Univ., 506 F.2d 20, 22 (5th Cir.
1975). See also Canlis, 641 F.2d at 716 ("The mere filing of
a Charter... without more, does not constitute a ‘sufficient
nexus."'). In the instant case, there is nothing to indicate that
there is any connection between the alleged surveillance
activities and Defendants’ regulation by government entities,
the presence of government officials on Defendants’ premises
at various times, Defendants’ broadcasts regarding the release
of sexual offenders, broadcasts of shows mentioned by
Plaintutt such as 7he People's Court, or broadcasts of the
state lottery results, Woods' show or the CIA video
reenactment. Therefore, Plaintiff has failed to establish that
Defendants’ alleged surveillance activities constitute state
action under the governmental nexus test.
Under the public function test, state action is present
when a private entity exercises functions traditionally and
exclusively reserved to the state. Berger, 129 F.3d at S14. An
entity may be a state actor for some purposes but not for
others." George Vo Paczfic-CSC) Work Furlough, 91 k.3d
1227, 1230 (gth Cir. 1996). See also Robison Ve Canterbury
Village, Inc., 848 F.2d 424, 429 (3d Cir. 1988)("The logical
determinant must be whether the actions challenged as
unconstitutional are performed in the exercise of the actor's
governmental or public functions, rather than in the actor's
private capacity.") Plaintiff provides no allegations to
support the conclusion that Defendants are government
actors under the public function test. Indeed, radio and
television broadcasts are not "traditionally the exclusive
Te
APPENDIX
prerogative of the government" and Plaintiff has pointed to
no authority to the contrary. Morse, 118 F.3d at 1343.
Accordingly, Plaintiff has failed to demonstrate a genuine
issue Of material fact regarding whether Defendants' alleged
surveillance constitutes state action under the public function
test.
The state compulsion test requires a showing that the
state is responsible for the decision of the private entity
because the state exercised coercive power or provided such
significant encouragement, either overt or covert, that the
decision must in law be deemed to be that of the state.
Berger, 129 F.3d at 514. See also Morse, 118 F.3d at 1342-
43 (collecting Ninth Circuit decisions holding that without
governmental encouragement or coercion, actions taken by
private corporations pursuant to federal law do not transmute
into government action and holding that actions of private
entity were not governmental action where no_ state
regulation or policy compelled the offensive action.) In the
instant case, Plaintiff has neither alleged facts nor pointed to
evidence tending to show that the state or federal government
somehow compelled, forced or coerced Defendants into
conducting the alleged surveillance. Accordingly, Plaintiff
fails to defeat Defendants' motions regarding this issue.
Under the joint action test, private actors can be
considered government actors if they are willful participants
in joint action with the government or its agents. Berger, 129
F.3d at 514. Therefore, the Ninth Circuit has recognized that
the joint action test requires a_ substantial degree of
cooperative action between the government and the private
party. Jd. at 515 (citing Collins V. Womancare, 878 F.2d
1145, 1154 (gth Cir. 1989)). Plaintiff misplaces reliance on
the Berger case to show that Defendants are governmental
actors under the joint action test. In Berger, the plaintiffs
defeated summary judgment by presenting evidence tending
to show that the media not only arrived with the federal
47
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‘
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APPENDIX
agents who executed the search, but that the government
shared confidential information with the media, the
government planned and executed the search in a manner
designed to enhance its entertainment value, and that the
government entered into a written contract with the media
station. JCL at 5/5. The court held that "the inextricable’
involvement of the media with both the planning and
execution of this search, the government's active
involvement with the media's news gathering activities, and
the mutually-derived benefits, is more than enough to make
the media government actors." /d. In so holding, the Berger
court distinguished cases where private parties including the
media were not found to be joint government actors because,
unlike CNN in Berger, those parties did not collaborate with
the government to conduct a search for their own benefit. Jd
See e.g. Parker v. Boyer, 93 F.3d 445, 448 (gth Cir. 1996),
cert. den., 117 S.Ct. 1081 (1997)(media videotaping police
search and seizure did not constitute action under state law
because neither the media station "nor the police assisted the
other in the performance of their separate and respective
tasks.") In the instant case, Plaintiff neither alleges in his
Complaint nor does he point to any probative evidence
Whatsoever establishing a material question of fact as to
Whether Defendants and the state or federal government
cooperated or were inextricably involved in conducting the
alleged surveillance. Indeed, Plaintiff has identified no
specific activities that Defendants conducted in connection
with state or federal authority. Instead, Plaintiff points to on-
air statements that he interprets to be personally directed at
him. Because Plaintiff has failed to establish a genuine issue
of material fact regarding whether Defendants are
governmental actors under any of the four tests applied in the
Ninth Circuit, Plaintiffs section 1983 claim should be
dismissed.
48
APPENDIX
Plaintiff's claim pursuant to 42 U.S.C. §1985
Section 1985 sets forth three subsections under which
an action may be brought. Plaintiff's Complaint does not
indicate which subsection applies. However, in his Response,
Plaintiff argues that he has a claim under each subsection.
Therefore, the viability of Plaintiff's action pursuant to each
subsection of section /985 is discussed below. ;
Section 1985(1)
Section 1985(1) provides:
Preventing officer from performing duties. If
two or more persons in any State or Territory
conspire to prevent, by force, intimidation, or
threat, any person from accepting or holding
any office, trust, or place of confidence under
the United States, or from discharging any
duties thereof, or to induce by like means any
officer of the United States to leave any State,
district, or place, where his duties as an
officer are required to be performed, or to
injure him in his person or property on
account of his lawful discharge of the duties
of his office, or while engaged in the lawful
discharge thereof, or to injure his property so
as to molest, interrupt, hinder, or impede him
in the discharge of his official duties.
42 U.S.C. $1985(1).
Plaintiff argues that he has a claim under section 1985(1) in
light of his "status as an officer of the State of Arizona as
both a secondary teacher in a public school and as a Precinct
Committeeman." (Response, p.2)(See also Plaintiff's
49
APPENDIX
Bachelor of Arts Degree in Education attached to Plaintiff's
Affidavit #2; 1994 certificate of election as Precinct
Committeeman of the Republican Party for the Sierra Vista
Thunderbird Precinct of Cochise County, Arizona attached to
PSOF)
The Ninth Circuit has stated that the "clear import of
[section /985(1)] is that the statute's protections extend
exclusively to the benefit of federal officers." Canlis, 641
F.2d at 717, 718 (emphasis added)(dismissing section
{985(1) claim for lack of jurisdiction where plaintiff was a
county, not federal, official). See also Robison, 848 F.2d at
430, m5 (Section 1985(1) "governs interference with the
duties of federal officers only.") Plaintiff's status as a teacher
and as a precinct committeeman do not establish his status as
a federal officer under section 1985(1). Moreover, Plaintiff
has offered no probative evidence suggesting _ that
Detendants' alleged conduct interfered with Plaintiff's duties
as a teacher or a precinct committeeman. Accordingly,
Plaintuit!'s claim pursuant to section /985(/) must fail.
Section 1985({2)
Section 1985(2) provides:
Obstructing justice; intimidating _ party,
witness, or juror. If two or more persons in
any State or Territory conspire to deter, by
force, intimidation, or threat, any party or
witness in any court of the United States from
attending such court, or from testifying to any
matter pending therein, freely, fully, and
truthfully, or to injure such party or witness in
his person or property on account of his
having so attended or testified, or to influence
the verdict, presentment, or indictment of any
vrand or petit juror in any such court, or to
50
APPENDIX
injure such juror in his person or property on
account of any verdict, presentment, or
indictment lawfully assented to by him, or of
his being or having been such juror; or if two
or more persons conspire for the purpose of
impeding, hindering, obstructing, — or
defeating, in any manner, the due course of
justice in any State or Territory, with intent to
deny to any citizen the equal protection of the
laws, or to injure him or his property for
lawfully enforcing, or attempting to enforce,
the right of any person, or class of persons, to
the equal protection of the laws.
42 U.S.C. §1985(2). Section 1985(2) can be divided into two
parts. Sampson, 832 F.Supp. at 1168. "[T]he first. part
pertains to the administration of justice in the federal
judicial system, and the second part relating to conspiracies
to obstruct the course of justice in state courts." /d. (omitting
internal quotations)
To establish a claim for relief under the first clause of
section /985(2), Plaintiff must show (1) a conspiracy
between two or more persons, (2) to deter a party or witness
by force, inumidation or threat from attending federal court
or testifving freely in a matter pending tn federal court,
Which (3) causes injury to Plaintitl. Aferrera v. Scully, 815
b.Supp. 713, 726 (S.D.N.Y. 1993). See also Sampson, 832
F.Supp. at | 168("plaintiff must allege a nexus between an
alleged conspiracy and a federal court proceeding.") The
Ninth Circuit has recognized a split among the circuits
regarding whether "attending" federal court refers to one's
physical presence while attending or testifying, or whether
one is deemed to have attended court from the moment that
the person files a complaint. Portman vo. County of Santa
S|
SIRES chet ale Ea see a a Rn a
APPENDIX
Clara, 995 F.2d 898, 910 (gth Cir. 1993). The Portman court
declined to address the issue. /d.
In his Response, Plaintiff states that Defendants
eavesdropped on his calls to legal counsel and to the Clerk of
the Court. However, Plaintiff makes no statements in either
of his affidavits to this effect, nor does he offer any evidence
tending to show that such eavesdropping occurred. Plaintiff
further asserts that "[d]ue to the circumstances and sensitive
facts...the fear of outright widespread publicity and any
implications associated with that effectively hindered
Plaintiff from filing that action. The matter is complicated..
facts pertain to Plaintiff as a minor, coupled with potential
physical bodily harm to Plaintiff caused from a 'media
circus."' (Response, p.3) In his affidavit, Plaintiff relates that
sometime between June and September 1995, prior to
commencement of the instant action, he was shot at with a
BB gun. (Plainutt's Attidavit #2, 420). According to Plaintitt
the incident placed him in fear of filing suit. (Id.)
Even taking Plaintiffs statements as true and
undisputed, such statements do not establish a cause of
action pursuant to the first clause of section 1985(2) under
either interpretation discussed in Portman. Plaintiff states
that Defendants’ purported conduct kept him from initialls
filing suit, not that they interfered with the action once suit
was filed. Moreover, Plaintiff does not allege or establish
that Defendants conspired to keep him from attending federal
court proceedings. Such asseruions fail to state a claim undet
section 1985(2). See Herrera, 815 F.Supp. at 726. Indeed,
Plaintiff cites no other federal court proceeding than the
instant action, and there have been no proceedings requiring
Plaintitf's physical attendance in this action nor has Plaintiff
alleged or shown that Defendants kept him from pursuing the
instant action once it was filed. Additionally, Plaintiff has
suiled to allege or to provide facts suggesting the meeting of
«
the minds necessary to establish his conspiracy claim. See
APPENDIX
Sampson, 832 F.Supp. at 1168 (plaintiff "is required to show
that there was a single plan, the essential nature and general
scope of which was known to each person who is to be held
responsible for its consequences."(omitting — internal
quotations)); Morast V. Lance, 631 F.Supp. 474 ~.D.Ga.
1987). affd. 807 F.2d 926 (,4th Cir. 1986)(conclusory
assertions that the defendants conspired to deter the plaintiff
as Witness by force, intimidation or threat are insufficient to
support a claim). Accordingly, because Plaintiff has failed to
establish any genuine issue of material fact regarding
whether Defendants conspired to injure Plaintiff or any
Witness for having attended or testified in any federal court,
this Court does not have jurisdiction over Plaintiff's action
pursuant to the first clause of section 1985(2).
The second clause of section /985(2) relates to
conspiracies to obstruct the course of justice in state court
with the intent to deny any citizen the equal protection of the
laws. Sampson, 832 F.Supp. at 1168. Thus, the second clause
of subsection two "prescribes conspiracies to deny or
interfere with equal protection nghts.,' /D.
Plaintiff neither alleges nor provides evidence that
Defendants conspired for the purpose of obstructing justice
in state court with the intent to deny Plainuff or anyone else
equal protection of the laws. Additionally, as with his claim
under the first clause of /985/(2), Plaintiff has failed to
establish any factual basts to support a conspiracy in
violauon oof section = /983(2) among — Defendants.
Accordingly, the Court does not have jurisdiction under the
second clause of section /‘ 5/2) to entertain Plaintiff's
claims
Section 1985(3)
Section 1985(3) provides:
Sh
Ge
APPENDIX
Depriving persons of rights or privileges. If
{wo or more persons in any State or Territory
conspire, or go in disguise on the highway or
on the premises of another, for the purpose of
depriving, either directly or indirectly, any
person or class of persons of the equal
protection of the laws, or of equal privileges
and immunities under the laws; or for the
purpose of preventing or hindering the
constituted authorities of any State or
Territory from giving or securing to all
persons within such State or Territory the
equal protection of the laws; or if two or more
persons conspire to prevent by force,
intimidation, or threat, any citizen who is
lawfully entitled to vote, from giving his
support or advocacy in a legal manner, toward
or in favor of the election of any lawfully
qualified person as an elector for President or
Vice President, or as a Member of Congress
of the United States; or to injure any citizen in
person or property on account of such support
or advocacy; in any case of conspiracy. set
forth in this section, if one or More persons
engaged therein do, or cause to be done, any
act in furtherance of the object of such
conspiracy, Whereby another is injured in his
person or property, or deprived of having and
exercising any right or privilege of a citizen of
the United States, the party so injured or
deprived may have an action for the recovery
of damages, occasioned by such injury or
deprivation, against any one or more of the
conspirators
APPENDIX
42 US.C. $/985(3). To prevail under section 1985(3),
Plaintiff must allege and prove (1) a conspiracy, (2) for the
purpose of depriving, either directly or indirectly, any person
or class of persons of the equal protection of the laws, or of
equal privileges or immunities under the laws, and (3) an act
or furtherance of conspiracy, (4) whereby a person is-either
injured in his property or person or deprived of any right or
privilege of a citizen of the United States. Griffen V.
Breckenridge, 403 U.S. 88, 102-103 (1971). To be actionable
under section 1985(3), the alleged conspiracy must be
motivated by "some racial, or perhaps otherwise class-based,
invidiously discriminatory animus." JD. at 102."
Additionally, the Supreme Court has recognized that "[a]
section 1985(3) private conspiracy ‘for the purpose of
depriving... any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities
under the laws,’ requires an intent to deprive persons of a
right guaranteed against private impairment." Bray,
Alexandria Women's Health Clinic, 506 U.S. 263, 274
(1993)(quoting 42 U.S.C. §1985(3)). The Bray Court further
stated that "[a] conspiracy is not 'for the purpose’ of denying
equal protection simply because it has an effect upon a
protected right. The right must be ‘aimed at,’...1ts impairment
must be a conscious objective of the enterprise.. the
defendant [must] do more than merely be aware of a
deprivation of right that he causes, and more than merely
accept it; he must act at least in part for the very purpose of
producing it." /D. at 275-76 (footnote omitted).
Plaintiff's Complaint contains no allegations that he is
a member of a protected class sufficient to satisfy section
1985(3), nor does he allege facts to support a conspiracy
among Defendants. In his Response, Plaintiff argues that his
The Griffen Court declined to decide whether a conspiracy motivated by
invidiously discriminatory intent other than racial basis would be actionable under
section 198S(3). Griffen, 403 U.S. at 102, n.9
55
ee Sa
APPENDIX
status as a teacher, a Roman Catholic and a Republican
satisfies the requirement that he be the target of some class-
based animus. Plaintiff cites cases suggesting that section
1985(3) may apply to conspiracies aimed against a person
because of his political or religious affiliation. (Response,
p.5) However, even if a claim of politically-motivated
animus or religiously-motivated animus stated a violation
under section 1985(3) it would do so only "when it states an
interference with some fundamental right such as the right to
vote." California Republican Party V. Mercier, 652 F Supp.
928, 937 (C.D.Cal. 1986).
In the instant case, Plaintiff has not to pointed to any
evidence supporting his contention that Defendants and the
State or federal government conspired to deprive him of any
fundamental right. Additionally, Plaintiff has not pointed to
any evidence supporting his contention that Defendants
formed a private conspiracy among themselves to deprive
Plaintiff of a protected right. Indeed, if Plaintiff were
alleging a private conspiracy, he would also need to establish
that the right Defendants conspired against was a right
guaranteed against private impairment. The Supreme Court
has recognized that section 1985(3) does not apply to private
conspiracies that are aimed at a right that is by definition a
right against only state interference. Bray, 506 U.S. at 278. In
fact, the Supreme Court has observed that there are few
rights protected against private as well as official
encroachment. /D.” The Court has thus far only recognized
the Thirteenth Amendment right to be free from involuntary
servitude and the Thirteenth Amendment right of interstate
travel as rights protected against public and_ private
encroachment. /D. See also Tilton V. Richardson, 6 F.3d
683, 686 (10 Cir. | 993)(recognizing that the rights secured
In dicta, the Bray Court recognized that riehts secured under the Fourth
Amendment are not protected against private infringement. 506 U.S. at 278
APPENDIX
under the First) Amendment, Fifth Amendment and
Fourteenth Amendment are not protected against private
encroachment).
Although Plaintiff submitted evidence showing that
he has a degree in education, that he is a Republican, and that
he is a Roman Catholic, this evidence does little to support
his claim that Defendants conspired against him for these
reasons. None of the statements or actions which Plaintiff
attributes to Defendants suggest that Defendants’ alleged
conduct was aimed at Plaintiff because he is a teacher, a
Republican, or a Catholic. Nor does Plaintiff show facts
suggesting a meeting of the minds among Defendants to
single Plaintiff out for these reasons in order to deprive him
of any right protected from private encroachment. Because
Plaintiff has not alleged and cannot show that he was denied
equal protection of the laws because of a class to which he
belongs, Plaintiff's section 1985(3) should be dismissed.
Plaintiff's claim pursuant to 42 U.S.C. $1986
Section 1986 creates a further cause of action for
those persons who have brought claims under section 1985.
Morast, 631 F.Supp. at 479. Therefore, the law 1s well-
settled that "a claim can be stated under section 1986 only if
the complaint contains a valid claim under section 1985."
McCalden NV. California Library Assoc., 955 F.2d 1214,
1223 (gth Cir. 1992). Because Plaintiff's claim under section
1985 fails, so too must Plaintiff's section 1986 claim.
Accordingly, Plaintiffs section 1986 claim should be
dismissed.
Plaintiff's claims pursuant to state law
Because the Court lacks subject matter jurisdiction
over Plaintitf’s claims brought pursuant to federal law, the
a
&
d
2
APPENDIX
only remaining claims are the state law claims. Whether to
retain jurisdiction over the state law claims is a matter within
the Court's discretion. 28 U.S.C. 1367(c)(3); Cook, Perkiss
and Liehe, Jnc. V. Northern Cal. Collection Serv., Inc., 911
F.2d 242, 247 (9th Cir. 1990). When federal claims are
dismissed before trial, the Ninth Circuit has held that "the
proper exercise of discretion is to dismiss the pendent state
claims as well." Cook 911 F.2d at 247. See also Macro V.
King County, 126 F.3d 1125, 1129-30 (gth Cir. 1997), cert
den. 118 S.Ct. 1178 (1988), ("a district court may decline to
exercise supplemental jurisdiction if it has dismissed all
claims over which it had original jurisdiction.")
Because the Court lacks subject matter jurisdiction
over all of the federal causes of action advanced by Plaintiff
the District Court should decline to exercise jurisdiction over
the remaining state claims. See Canlis, 641 F.2d at 721
(affirming district court's dismissal of pendant state claims
where section 1983 and. section 1985 claims were
dismissed); Morse, 118 F.3d at 1340 (same where section
1983 claim was dismissed).
PLAINTIFF'S MOTION TO COMPEL AND
PLAINTIFE'S MOTION TO STAY
Plaintiff moves the Court to compel Defendants to
respond to his outstanding discovery requests. Plaintiff
argues that he cannot properly respond to Defendants’
dispositive motions without the requested discovery.
Additionally, Plaintiff requests the Court to stay ruling on
the dispositive motions until after resolution of his requests.
Defendants respond that Plaintiff's discovery requests
were served prematurely before the conference required by
Fed.R.Civ.P. 26. Additionally, Defendants state that
Plaintiff's discovery requests were over broad, sought
voluminous information unrelated to the allegations, and
S8
APPENDIX
sought the names and addresses of Defendants’ employees.
According to Defendants, none of the requests are relevant or
calculated to lead to admissible evidence. Defendants also
assert that a stay is unwarranted where the evidence sought is
almost certainly nonexistent, or is the object of pure
speculation. Defendants further assert Plaintiff has not
explained how the discovery sought will prevent summary
judgment.
The Magistrate Judge construes Plaintiff's Motion to
Compel and Motion to Stay as a Motion pursuant to
Fed.R.Civ.P. 56(/)."“ Rule 56(f) provides that when a party
opposing summary judgment cannot present facts "essential
to justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be taken or
discovery to be had or may make such other order as is just."
Fed.R.Civ.P. 56(). Whether to grant or deny a Rule 56(/)
motion is within the Court's discretion. Terrell V. Brewer,
935 F.2d 1015, 1017 (oth Cir. 1991); Garrett V. City and
County of San Francisco, 818 F.2d 1515, 1518 (gth Cir.
1987). Plaintiff bears the burden of showing that the facts he
hopes to discover will raise a material issue of fact and that
the evidence sought exists. Terre//, 935 F.2d at 1018. Indeed
the Ninth Circuit has held that "[dJenial of a Rule 56(/)
application is proper where tt is clear that the evidence
sought is almost certainly nonexistent or ts the object of pure
speculation." /d.
In support of his Motion, Plaintiff cites the Ninth
Circuit's decision in Garrett, 818 F.2d at 1518. In Garrett,
the Ninth Circuit held that the trial court should have granted
a Rule 56(f) motion where the movant made clear the
information sought, did not seek broad additional discovery,
i4 = ) ; res
Indeed, Plaintiff cites case law applying Rule 56(/ in support of his Motion to
Stay
59
APPENDIX
and indicated the purpose for which the information was
sought. /d. at 1518-19.
Plaintiff's discovery requests are the antithesis of
those submitted by the Garrett plaintiff. Plaintiff seeks
broad, voluminous discovery and he has not shown how the
evidence sought will raise a genuine issue of material fact.
Even if Defendants disclosed the information sought such as,
for example, the identity of employees working — for
Defendants during April 1, 1995 to April 1, 1996, the
identity of all guests appearing on various programs during
April 1, 1995 to April 1, 1996, and the description of the
technological processes regarding the talking ear device
worn during live broadcasts and the altitudinal range of the
satellites used, this information will not serve to raise a
genuine issue of material fact regarding the existence of
federal jurisdiction. Additionally, in light of the affidavits
submitted by KGUN, KVOA, KOLD and KNST, the record
supports the conclusion that it is speculative that any
evidence exists that would enable Plaintiff to establish a
genuine issue of material fact necessary to defeat Defendants’
motions. Such a conclusion is further supported by Plaintiff's
inability to allege anything but conclusory facts suggesting a
link between Defendants’ alleged surveillance and state
action because the existence of evidence tending to support
such a theory is pure speculation. For these reasons.
Plaintiff's Motion to Compel and Motion to Stay should be
denied.
DEFENDANTS' MOTION TO UNSEAL _ AND
PLAINTIFE'S REQUEST FOR FURTHER
INSTRUCTIONS
With his Complaint, Plaintiff filed a Motion to Seal
Court Record. On September 15, 1997, the Magistrate Judge
denied Plaintiff's motion because the motion was "devoid of
[the] factual support" necessary to justify sealing the record.
60
APPENDIX
(September 15, 1997 Order, p.4)} Subsequently, Plaintiff
requested permission to submit his response to Defendants'
dispositive motions only to the Court. Although the
Magistrate Judge denied Plaintiff's request, the Magistrate
Judge permitted Plaintiff to file his response and supporting
documentation under seal because of Plaintiff's contention
that release of the documents would likely result in his
physical harm. (December 1, 1997 Order, p.4)
Now that the contents of Plaintiffs response are
available for review, Defendants request that the Court lift
the seal. "At the time the Court entered its Order, it
understandably relied on [P]laintiff's assertion that he could
suffer physical harm if the materials were made public. A
review of the materials leaves no doubt that [Plaintiff's
assertion is frivolous." (CNN's & TBS' Motion to Unseal,
p.3) In response, Plaintiff stresses that statements contained
in his statement of facts in opposition to Defendants’
dispositive motions support the sealing of those papers as
well as the sealing of documents filed by Plaintiff in the
future. In fact, in his Request for Special Instructions,
Plaintiff requests the Court to order that all future filings be
made under seal. He contends that his physical safety is a
compelling reason to deny Defendants’ motion to lift the seal.
The September 15, 1997 Order advised the parties of
the strong presumption in favor of the public's right to access
judicial records. (September 15, 1997 Order, p.2 citing
Hagestad V. Tragesser, 49 F.3d 1430, 1434 (gth Cir. 1995))
The Order also stated that in the Ninth Circuit the
presumption in favor of access may be overcome only "on
the basis of articulable facts known to the court, not on the
basis of unsupported hypothesis or conjecture."' (Id. quoting
Hagestad 49 F.3d at 1434). The Order stressed that the
decision to seal must be based upon a compelling reason as
opposed to hypothesis and conjecture. (Id. at pp.3-4) In light
of Plaintiff's responses to Defendants’ dispositive motions
6]
4
4
*
%
APPENDIX
and motion to unseal, it is now clear on the record that
Plaintiff is unable to articulate factual support for his
assertion that public access to the record will result in his
physical harm. Instead, Plaintiff offers hypothesis and
conjecture. To permit the seal to remain in the instant case
would be contrary to Ninth Circuit precedent cited in the
September 15, 1997 Order. Accordingly, Defendants’ motion
is well taken and the seal should be lifted.
In his Request for Special Instructions, Plaintiff also
requests permission to amend the Complaint to state claims
based on "tolling theories" against unidentified parties who
are not presently named. Although leave to amend under
Fed.R.Civ.P. /5(a) should be freely given, "it may be denied
if the proposed amendment either lacks merit or would not
serve any purpose because to grant it would be futile in
saving the plaintiff's suit." Universal Mort. Co. V. Prudential
Ins. Co., 799 F.2d 458, 459 (9~ Cir. 1986). Because the
viability of Plaintiff's claims eves not rest on whether tolling
applies, allowing Plaintiff to «mend his complaint to state
claims based on "tolling theories" against additional parties
would be futile. Therefore, Plaintiff's Request for Special
Instructions as it pertains to amendment should be denied.
RECOMMENDATION
For the reasons stated above, Defendants are entitled
to summary judgment because Plaintiff has failed to establish
a genuine issue of material fact regarding the Court's
jurisdiction. Because the Court lacks jurisdiction over
Plaintiff's federal claims, Plaintiff's pendant state claims are
also subject to dismissal. Additionally, Plaintiff's motion to
compel and motion to stay fail to satisfy Rule 56(f). Further,
Defendants' motion to lift the seal is well taken. Therefore.
the District Court, after its independent review, should
dismiss Plaintiffs Complaint for lack of subject matter
jurisdiction and thereby grant KOLD's Motion to Dismiss
62
APPENDIX
and Motion for Summary Judgment (#9), KGUN”S Motion
to Dismiss and Motion for Summary Judgment (#22), CNN's
and TBS' Motion to Dismiss (#25), ABC's Motion to
Dismiss (#27) and KNST's Motion to Disrniss and For
Summary Judgment (#29). The District Court should also
deny Plaintiff's Motion to Compel (#46), Plaintiff's Motion
to Stay (#48) and Plaintiff's Request for Special Instructions
(#49). The District Court should grant Defendants’ Motion to
Unseal. (#55)
Pursuant to 28 U.S.C. §636(B), any party may serve
and file written objections within ten days after being served
with a copy of this Report and Recommendation.
The Clerk is directed to mail a copy of this Report
and Recommendation to the parties and/or their counsel.
Dated this 17TH day of July 1998.
“s/Nancy Fiora”
NANCY FIORA
UNITED STATES MAGISTRATE JUDGE
_V~_rnep
RECEIVED
LOOGED
copy
SEP 2 5 698
CLERK U S DISTRICT COURT
COUR DISTRICT OF ARIZONA
BY DEPUTY
IN THE UNITED STATES DISTRICT COURT
63
APPENDIX
FOR THE DISTRICT OF ARIZONA
ANTHONY S. WENC,
Plaintiff,
V.
CABLE NEWS NETWORK, INC., et al..
Defendants.
No. CIV 97-528-TUC-WDB
ORDER
Pending before the Court are the following motions
filed by Defendants:’ (1) KOLD's Motion to Dismiss and
Motion for Summary Judgment,’ (2) KGUN's Motion to
Dismiss and Motion for Summary Judgment,’ (3) Cable
News Neiwork's ("CNN")and Turner Broadcasting's ("TBS")
Motion to Dismiss and Motion for a More Definite
Statement, (4) American Broadcast Corporation's ("ABC")
Motion to Dismiss, (5) SFX Broadcasting's ("KNST")
Motion to Dismiss and Motion for Summary Judgment. Also
Defendants are Cable News Network, Turner Broadcasting Inc.,
American Broadcasting Co., KVOA Communications, Inc., Lee
Enterprises, Inc. of which KGUN is a division, Elcom of Arizona, Inc..
dba KOLD, Inc., KOLD and SFX Broadcasting, Inc,, dba KNST, Inc.
On October 6, 1997, KVOA filed a joinder in this Motion for Summary
sudgment.
~ On November 7, 1997, KVOA filed a joinder in this Motion to Dismiss
64
APPENDIX
pending are: Plaintiffs Motion to Compel, Plaintiffs Motion
to Stay, KOLD's Motion to Unseal and Plaintiffs Request for
Special Instructions. Additionally, all Defendants have
joined one another's motions and responses. On July 17,
1998, the Honorable Nancy Fiora, United States Magistrate
Judge, filed her Report and Recommendation,
recommending that the Court grant Defendants’ motions to
dismiss and for summary judgment, deny Plaintiffs motion to
compel and to stay, grant
Defendants’ motion to lift the seal and deny Plaintiff's
request for special instructions. On July 31,1998, Plaintiff
filed his Objection to the Magistrate's Report and
Recommendation. On August 17, 1998, Defendants ABC,
CNN, and TBS filed oppositions to Plaintiff's objections.
After a thorough and de novo review of the record, the Court
will adopt the recommendation of the Magistrate Judge.
However, it is necessary to briefly address several points
raised by Plaintiffs Objection.
Plaintiff's claim pursuant to 42 U.S.C. §1983
Plaintiff alleges in his Objection that there was a
sufficient nexus between the broadcasters and the law
enforcement officers because shortly after two law
enforcement officers left his home Plaintiff was watching
Crossfire on CNN and the commentator said," he is
cooperating with federal agents." The Court finds that in the
instant case Plaintiff has not presented any probative
evidence establishing a material question of fact as to
whether Defendants and the state or federal government
cooperated or were inextricably involved in conducting the
alleged surveillance. The alleged arrival of law enforcement
officers at Plaintiff's residence and the simultaneous on-air
statements that Plaintiff interpreted to be directed at him are
insufficient to establish a genuine issue of material fact
regarding whether Defendants are government actors under
65
APPENDIX
any of the four tests used to determine whether the conduct
of private parties amounts to governmental action. See
Berger V. Hanlon, 129 F.3d 505, 514 (gth Cir. 1997),
petition for cert. filed, 66 USLW 3783 (U.S. May 1998)(No.
97-1927). Thus, the Court will dismiss Plaintiff's claim
pursuant to 42 U.S.C. §1983.
Plaintiff's claim pursuant to 42 U.S.C. $1985
As clearly explained in the Magistrate Judge's Report
and Recommendation, the Ninth Circuit has stated that
section 1985(1)is designed to exclusively protects federal
officers. Canlis V. San Joaquin Sheriff's Posse, 644 F.2d
711, 716 (oth Cir. 1981). Plaintiff alleges that" his position
as teacher is an office of ‘trust, or place of confidence under
the United States' and thus he should be protected as a
federal officer. The Court will deny Plaintiff requests to
expand the reach of this section. Additionally, Plaintiff has
failed to present any facts to support his allegation of
conspiracy or that he is a member of a protected class as
required by the statute. Thus, the Court will deny Plaintiff's
claims under 42 U.S.C. §1985.
f's claims pursuant to 47 C.F.R. §_ 15.9 and 47
REE A =o! KK: §
Title 47 of the Code of Federal/ Regulations governs
telecommunication matters. jhe FCC promulgated these
regulations under the authority of the Federal
Communications Act of 1934 ("FCA). The purpose of the
FCA is regulation in the public interest, not the creation of
private rights. See. Scripps-Howard Radio Inc., V. Federal/
Communication Comm'n., 316 U.S. 4 (1942). Plaintiff cites
lo the provision of the FCA governing carriers’ liability, 47
U.S.C. § 206, as providing a private right of action. As stated
66
APPENDIX
in the Magistrate Judge's Report and Recommendation 47
U.S.C. § 206 is inapplicabie to the instant action because
radio and television broadcasters are not common carriers
under the FCA. United States V Radio Corp., 358 U.S. 334,
348-49 (1959). In his Objection, Plaintiff alleges that CNN
and TBS are cable programmers and are thus subject to the
FCA's definition of common carrier. Under section 206
Congress created a private right of action when such a right
was intended under the FCA. Plaintiff has failed to establish
that a private right of action is available under 47 C.F.R.
$$15.9 and §2.701, and thus, these claims will be dismissed.
Plaintitf's Motion to Compel and Motion to Stay
Plaintiffs discovery requests are broad and
voluminous, and Plaintiff has not shown how the evidence
sought will raise a genuine issue of material fact regarding
the claims in this action. The Court will not allow Plaintiff
such broad and burdensome discovery. Thus, the Court will
deny Plaintiff's Motion to Compel and Motion to Stay.
The Magistrate Judge's Report and Recommendation is
extremely thorough, addresses in detail the defects in
Plaintiffs claims and provides Plaintiff with — clear
explanation of every ruling. Thus, the Court will adopt the
Report and Recommendation with no further explanation.
Accordingly, IT IS ORDERED that the Report and
Recommendation is adopted as the opinion of the Court.
IT IS FURTHER ORDERED that:
KOLD’s Motion to Dismiss and Motion for Summary
Judgment [Doc. #9);
KGUN's Motion to Dismiss and Motion for Summary
Judgment | Doc. #22]
67
a
APPENDIX
CNN's and TBS's Motion to Dismiss [Doc.#25];
ABC's Motion to Dismiss [Doc.#27];
KNST's Motion to Dismiss and Motion for Summary
Judgment [Doc. #29]; Defendants! Motion to Unseal [Doc.
#55);
are GRANTED.
lt is FURTHER ORDERED that Plaintiff's Motion to
Compel [Doc. #46], Plaintiff's Motion to Stay [Doc. #48],
and Plaintiff's Request for Special Instructions [Doc. 49] are
DENIED. IT IS FURTHER ORDERED tliat this case is
DISMISSED WITH PREJUDICE and all pending motions
are denied as moot.
Dated this 24 day of September, 1998.
“s/ William D. Browning”
WILLIAM D. BROWNING
Senior United States District Judge
“ LOOGED
D —_—_————>
/ FILE ri
COE ARECEIVED and
SEP 2 5 098
CLERK US DISTRICT COURT
IZONA
ey ad . DEPUTY,
BY —
6S
APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
ANTHONY S. WENC,
Plaintiff,
V.
CABLE NEWS NETWORK, INC., et al.
Defendants.
JUDGMENT IN A CIVIL CASE
Case No. CIV-97-858-T-WDB
DECISION BY COURT. This action came under
consideration before the Court. The issues have been
considered and a decision has been rendered.
It IS ORDERED AND ADJUDGED - that Defendant
KOLD's Motion to Dismiss and Motion for Summary
Judgment is GRANTED; Defendant KGUN's Motion to
Dismiss and Motion for Summary Judgment is GRANTED;
Defendant CNN's and TBS's Motion to Dismiss is
GRANTED; Defendant ABC's Motion to Dismiss | is
GRANTED; Defendant KNST’s Motion to Dismiss and
Motion for Summary Judgment is GRANTED.
69
APPENDIX
If IS FURTHER ORDERED that this case is
DISMISSED WITH PREJUDICE.
September 25 1998 RICHARD H. WEARE
Date CLERK
“s/ Cathy Schwader”
By) Cathy Schwader, Deputy Clerk
Copies to: WDB, OB, Wenc, Bodney, Johnsen, Wezelman,
Krauja, Urman
yA
\Z FILED
RECEIVED
LOOGE®D
COPY
OCT 27 998
CLERK U S DISTRICT COURT
JURT ~ pistRict OF ARIZONA
___. DEPUTY
IN THE UNITED STATES DISTRICT
FOR THE DISTRICT OF ARIZONA
ANTHONY S. WENC,
Plaintiff,
70
APPENDIX
V.
CABLE NEWS NETWORK, INC.,et al.,
Defendants.
No. CIV 97-528-TUC-WDB
ORDER
Pending before the Court is Plaintiff's October 8, 1998
Motion to Reconsider. Rule 60(b) "provides for
reconsideration only upon a showing of (1) mistake, surprise,
or excusable neglect; (2) newly discovered evidence; (3)
fraud; (4) a void judgment; (5) a satisfied or discharged
judgment; or (6) ‘extraordinary circumstances. which would
Justify relief." School Dist. No. 1J Multnomah County V.
ACandS. Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (quoting
Fuller V. M.G. jewelry, 950 F.2d 1437, 1441(9th Cir. 1991)).
Applying these standards to the Plaintiff's motion, the Court
discovers no persuasive evidence to reconsider its Order.
IT IS ORDERED that Plaintiffs October 8, 1998
Motion for Reconsideration is DENIED.
Dated this 27 day of October, 1998.
“s/ William D. Browning”
WILLIAM D. BROWNING
Senior United States District Judge
71
“a cial
APPENDIX
FILED
MAY 1 41999
CATHY A. CATTERSON
CLERK, U.S. COURT OF APPEALS
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY S. WENC,
Plaintiff-Appellant,
V.
CABLE NEWS NETWORK. INC., c/o
Turner Broadcasting Inc.; HEADLINE
NEWS, CIO Turner Broadcasting Inc.;
AMERICAN BROADCASTING CO., INC.
ABC Inc.; KVOA COMMUNICATIONS.
INC.; KGUN, INC.: KOLD, INC.; KNST,
INC.; JOHN DOE,
’
Defendants-Appellees.
APPENDIX
No. 98-17327
D.C. No. CV-97-005280-WDB
MEMORANDUM’
Appeal from the United States District Court
for the District of Arizona
William D. Browning, District Judge, Presiding
Submitted May 10, 1999°
Before: REINHARDT, TROTT, and McKEOWN, Circuit
Judges.
Anthony S. Wenc appeals pro se the district court's judgment
against him in his complaint alleging that various members
of the broadcast media have been eavesdropping on him, his
family, and his acquaintances by use of satellite, laser, and
microwave technology, and have improperly used and
disseminated the illegally obtained information.
We affirm the district court's judgment dismissing the
complaint with prejudice for the reasons stated in_ the
magistrate judge's thorough and well-reasoned Report and
Recommendation filed July 17, 1998, and in the district
judge's Order filed September 25, 1998.
This disposition is not appropriate for publication and may not be cited to
or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
73
APPENDIX
Wenc's motions to supplement the Record On Appeal, to join
additional defendants, and to file certain portions of the
opening brief and excerpts of record under seal are denied.
AFFIRMED.
FILED
AUG - 2 1993
CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY S. WENC,
Plaintiff-Appellaii,
V.
CABLE NEWS NETWORK, INC.. c/o
Turner Broadcasting Inc.; HEADLINE
NEWS, c/o Turner Broadcasting Inc.;
AMERICAN BROADCASTING CO.. INC.,
ABC Inc.; KVOA COMMUNICATIONS,
INC.; KGUN, INC.; KOLD, INC.: KNST,
INC.; JOHN DOE,
Defendants-Appellees.
No. 98-17327
74
APPENDIX
DC# CV-97-005280-WDB
Arizona (Phoenix)
ORDER
Before: REINHARDT, TROTT and
MCKEOWN, Circuit Judges
The panel has voted to deny appellant's petition for panel
rehearing and petition for rehearing en banc.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. See Fed. R. App. P.35.
The petition for panel rehearing and the petition for rehearing
en banc are denied.
LEGAL PROVISIONS
4'" AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
18 U.S.C.§ 2510. Definitions
75
APPENDIX
As used in this chapter
(1) “wire communication" means any aural transfer made in
whole or in part through the use of facilities for the
transmission of communications by the aid of wire, cable, or
other like connection between the point of origin and the
point of reception (including the use of such connection in a
switching station) furnished or operated by any person
engaged in providing or Operating such facilities for the
transmission of interstate or foreign communications or
communications affecting interstate or foreign commerce
and such term includes any electronic storage of such
communication, but such term does not include the radio
portion of a cordless telephone communication that is
transmitted between the cordless telephone handset and the
base unit;
(2) “oral communication" means any oral communication
uttered by a person exhibiting an expectation that such
communication is not subject to interception under
circumstances justifying such expectation, but such term
does not include any electronic communication;
(3) "State" means any State of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, and any
territory or possession of the United States;
(4) "intercept" means the aural or other acquisition of the
contents of any wire, electronic, or oral communication
through the use of any electronic, mechanical, or other
device.
(5) "electronic, mechanical, or other device" means any
device or apparatus which can be used to intercept a wire,
oval or electronic communication other than -
(a, any telephone or telegraph instrument, equipment or
facility, or any component thereof, (i) furnished to the
subscriber or user by a provider of wire or electronic
communication service in the ordinary course of its business
and being used by the subscriber or user in the ordinary
76
APPENDIX
course of its business or furnished by such subscriber or user
for connection to the facilities of such service and used in the
ordinary course of its business; or (ii) being used by a
provider of wire or electronic communication service in the
ordinary course of its business, or by an investigative or law
enforcement officer in the ordinary course of his duties;
(b) a hearing aid or similar device being used to correct
subnormal hearing to not better than normal;
(6) "person" means any employee, or agent of the United
States or any State or political subdivision thereof, and any
individual, partnership, association, joint stock company,
trust, or corporation;
(7) “Investigative or law enforcement officer" means any
officer of the United States or of a State or political
subdivision thereof, who is empowered by law to conduct
investigation of or to make arrests for offenses enumerated in
this chapter, and any attomey authorized by law to prosecute
or participate in the prosecution of such offenses;
(8) “contents”, when used with respect to any wire, oral, or
electronic communication, includes any information
concerning the substance, purport, or meaning of that
communication;
(9) "Judge of competent jurisdiction” means -
(a) a judge of a United States district court or a United
States court of appeals; and
(b) a judge of any court of general criminal jurisdiction of
a State who ts authorized by a statute of that State to enter
orders authorizing interceptions of wire, oral, or electronic
communications;
(10) “communication common carrier" shall have the same
meaning which is given the term “common carrier” by
section 153(h) of title 47 of the United States Code;
(11) “aggrieved person" means a person who was a party to
any intercepted wire, oral, or electronic communication or a
person against whom the interception was directed;
APPENDIX
(12) “electronic communication" means any transfer or signs,
signals, writing, images, sounds, data, or intelligence of any
nature transmitted in whole or in part by a wire, radio,
electromagnetic, photoelectronic or photooptical system that
affects interstate or foreign commerce, but does not include
(A) the radio portion of a cordless telephone communication
that is transmitted between the cordless telephone handset
and the base unit:
(B) any wire or oral communication;
(C) any communication made through a tone-only paging
device; or
(D) any communicatien from a tracking device (as defined
in section 3117 of this title);
(13) “user" means any person or entity who -
(A) uses an electronic communication service; and
(B) is duly authorized by the provider of such service to
engave in such use;
(14) “elec.ronic communications system" means any wire,
radio, electromagnetic, photooptical or photoelectronic
facilities for the transmission of electronic communications,
and any computer facilities or related electronic equipment
for the electronic storage of such communications:
(15) “electronic communication service" means any service
which provides to users
thereof the ability to send or receive wire or electronic
communications;
(16) “readily accessible to the general public" means, with
respect to a radio communication, that such communication
IS not -
(A) scrambled or encrypted:
(B) transmitted using modulation techniques whose
essential parameters have been withheld from the public with
the intention of preserving the privacy of such
communication:
(C) carried on a subcarrier or other signal subsidiary to a
rade transmission:
APPENDIX
(D) transmitted over a communication system provided
by a common carrier, unless the communication is a tone
only paging system communication; or
(E) transmitted on frequencies allocated under part 25,
subpart D, E, or F of part 74, or part 94 of the Rules of the
Federal Communications Commission, unless, in the case of
a communication transmitted on a frequency allocated under
part 74 that is not exclusively allocated to broadcast auxiliary
services, the communication is a two-way voice
communication by radio;
(17) "electronic storage" means -
(A) any temporary, intermediate storage of a wire or
electronic communication incidental to the electronic
transmission thereof; and
(B) any storage of such communication by an electronic
communication service for purposes of backup protection of
such communication; and
(18) “aural transfer" means a transfer containing the human
voice at any point between and including the point of origin
and the point of reception.
18 U.S.C. § 2511. Interception and disclosure of wire,
oral, or electronic communications prohibited
(1) Except as otherwise specifically provided in this chapter
any person who -
(a) intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to
intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any
other person to use or endeavor to use any electronic,
mechanical, or other device to intercept any oral
communication when -
(i) such device 1s affixed to, or otherwise transmits a
signal through, a wire,cable, or other like connection used in
wire communication; or
79
APPENDIX
(11) such device transmits communications by radio, or
interferes with the transmission of such communication; or
(111) such person knows, or has reason to know, that such
device or any component thereof has been sent through the
mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on the
premises of any business or other commercial establishment
the operations of which affect interstate or foreign
commerce; or (B) obtains or is for the purpose of obtaining
information relating to the operations of any business or
other commercial establishment the operations of which
affect interstate or foreign commerce: or
(v) such person acts in the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or
possession of the United States;
(c) intentionally discioses, or endeavors to disclose, to any
other person the contents of any wire, oral, or electronic
communication, knowing or having reason to know that the
information was obtained through the interception of a wire.
oral, or electronic communication in violation of this
subsection; or
(d) intentionally uses, or endeavors to use, the contents of
any wire, oral. or electronic communication. knowing or
having reason to know that the information was obtained
through the interception of a wire, oral, or electronic
communication in violation of this subsection; shall be
punished as provided in subsection (4) or shall be subject to
Suit as provided in subsection (5).
(2)
(a)
(1) It shall not be unlawful under this chapter for an
operator of a switchboard, or an officer, employee, or agent
of a provider of wire or electronic communication service,
Whose facilities are used in the transmission of a wire
communication, to intercept, disclose. or use that
COMMUNICATION mn the normal COUTTS? of his emplovment
SO
APPENDIX
while engaged in any activity which is a necessary incident
to the rendition of his service or to the protection of the
rights or property of the provider of that service, except that
a provider of wire communication service to the public shall
not utilize service observing or random monitoring except
for mechanical or service quality control checks.
(ii) Notwithstanding any other law, providers of wire or
electronic communication service, their officers, employees,
and agents, landlords, custodians, or other persons, are
authorized to provide information, facilities, or technical
assistance to persons authorized by law to intercept wire,
oral, or electronic communications or to conduct electronic
surveillance, as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978, if such provider, its
officers, employees, or agents, landlord, custodian, or other
specified person, has been provided with -
(A) a court order directing such assistance signed by the
authorizing judge,
(B) a certification in writing by a person specified in
section 2518(7) of this title or the Attorney General of the
United States that no warrant or Court order is required by
law, that all statutory requirements have been met, and
that the specified assistance is required, setting forth the
period of ime during which the provision of the information,
facilities, or technical assistance is authorized and specifying
the information, facilities, or technical assistance required.
No provider of wire or electronic Communication service,
officer, employee, or agent thereof, or landlord, custodian, or
other specified person shall disclose the existence of any
interception or surveillance or the device used to accomplish
the interception or surveillance with respect to which the
person has been furnished a court order or certification under
this chapter, except as may otherwise be required by legal
process and then only after prior notification to the Attorney
General or to the principal prosecuting attorney of a State or
my political subdivision of a State. as may be appropriate.
S]
APPENDIX
Any such disclosure, shall render such person liable for the
civil damages provided for in section 2520. No cause of
action shall lie in any court against any provider of wire or
electronic communication service, its officers, employees, or
agents, landlord, custodian, or other specified person for
providing information, facilities, or assistance in accordance
with the terms of a court order or certification under this
chapter.
(b) It shall not be unlawful under this chapter for an
officer, employee, or agent of the Federal Communications
Commission, in the normal course of his employment and in
discharge of the monitoring responsibilities exercised by the
Commission in the enforcement of chapter 5 of title 47 of the
United States Code, to intercept a wire or electronic
communication, or oral communication transmitted by radio,
or to disclose or use the information thereby obtained.
(c) It shall not be unlawful under this chapter for a person
acting under color of law to intercept a wire, oral, or
electronic communication, where such person is a party to
the communication or one of the parties to the
communication has given prior consent to such interception.
(d) It shall not be unlawful under this chapter for a person
not acting under color of law to intercept a wire, oral, or
electronic communication where such person Is a party to the
communication or where one of the parties to the
communication has given prior consent to such interception
unless such communication is intercepted for the purpose of
committing any criminal or tortious act in violation of the
Constitution or laws of the United States or of any State.
(e) Notwithstanding any other provision of this title or
section 705 or 706 of the Communications Act of 1934, it
shall not be unlawful for an officer, employee, or agent of the
United States in the normal course of his official duty to
conduct electronic surveillance, as defined in section 10] of
the Foreign Intelligence Surveillance Act. of 1978, as
authorized by that Act.
APPENDIX
(f) Nothing contained in this chapter or chapter 121, or
section 705 of the Communications Act of 1934, shall be
deemed to affect the acquisition by the United
States Government of foreign intelligence information from
international or foreign communications, or foreign
intelligence activities conducted in accordance’ with
otherwise applicable Federal law involving a_ foreign
electronic communications system, utilizing a means other
than electronic surveillance as defined in section 101 of the
Foreign Intelligence Surveillance Act of 1978, and
procedures in this chapter or chapter 121 and the Foreign
Intelligence Surveillance Act of 1978 shall be the exclusive
means by which electronic surveillance, as defined in section
101 of such Act, and the interception of domestic wire and
oral communications may be conducted.
(g) It shall not be unlawful under this chapter or chapter
121 of this title for any person -
(1) to intercept or access an electronic communication
made through an electronic communication system that is
configured so that such electronic communication is
readily accessible to the general public;
(11) to intercept any radio communication which its
transmitted -
(1) by any station for the use of the general public,
or that relates to ships, aircraft, vehicles, or persons in
distress; .
(Il) by any governmental, law enforcement, civil
defense, private land mobile, or public — safety
communications system, including police and fire, readily
accessible to the general public;
(Il) by a station operating on an authorized
frequency within the bands allocated to the amateur, citizens
band, or general mobile radio services; or
(IV) by any marine or aeronautical communications
system;
(i111) to engage in any conduct which -
&3
as. aces
APPENDIX
(I) is prohibited by section 633 of the
Communications Act of 1934; or
(II) is excepted from the application of section
705(a) of the Communications Act of 1934 by section 705(b)
of that Act;
(iv) to intercept any wire or electronic communication
the transmission of which is causing harmful interference to
any lawfully operating station or consumer electronic
equipment, to the extent necessary to identify the source of
such interference: or
(v) for other users of the same frequency to intercept
any radio communication made through a system that utilizes
frequencies monitored by individuals engaged in the
provision or the use of such System, if such communication
is not scrambled or encrypted.
(h) It shall not be unlawful under this chapter -
(1) to use a pen register or a trap and trace device (as
those terms are defined for the purposes of chapter 206
(relating to pen registers and trap and trace devices) of this
title); or
(ii) fora provider of electronic communication service
to record the fact that a wire or electronic communication
Was Initiated or completed in order to protect such provider,
another provider furnishing service toward the completion of
the wire or electronic communication, or a user of. that
service, trom fraudulent, unlawful or abusive use of such
Service.
(3)
(a) Except as provided in paragraph (b) of this subsection,
a person or entity providing an electronic communication
service to the public shall not intentionally divulge the
contents of any communication (other than one to such
Person or entity, or an agent thereof) while in transmission
on that service to any person or entity other
than an addressee or intended recipient of communication or
an agent of such addressee or intended recipient
S4
APPENDIX
(b) A person or entity providing electronic communication
service to the public may divulge the contents of any such
communication -
(i) as otherwise authorized in section 251 1(2)(a) or 2517
of this title;
(ii) with the lawful consent of the originator or any
addressee or intended recipient of such communication;
(iii) to a person employed or authorized, or whose
facilities are used, to forward such communication to its
destination; or
(iv) which were inadvertently obtained by the service
provider and which appear to pertain to the commission of a
crime, if such divulgence is made to a law enforcement
agency.
(4)
(a) Except as provided in paragraph (b) of this subsection
or in subsection (5), whoever violates subsection (1) of this
section shall be fined under this title or imprisoned not more
than five years, or both.
(b) If the offense is a first offense under paragraph (a) of
this subsection and is not for a tortious or illegal purpose or
for purposes of direct or indirect commercial
advantage or private commercial gain, and the wire or
electronic communication with respect to which the offense
under paragraph (a) is a radio communication that is not
scrambled or encrypted, then -
(1) if the communication is not the radio portion of a
cellular telephone communication, a public land mobile radio
service communication or a paging service communication,
and the conduct is not that described in subsection (5), the
offender shall be fined under this title or imprisoned not
more than one year, or both; and
(ii) if the communication is the radio portion of a
cellular telephone communication, a public land mobile radio
service communication or a paging
APPENDIX
service communication, the offender shall be fined not more
than $500.
(c) Conduct otherwise an offense under this subsection
that consists of or relates to the interception of a satellite
transmission that is not encrypted or scrambled and that is
transmitted -
(i) to a broadcasting station for purposes of
retransmission to the general public; or
(i) as an audio subcarrier intended for redistribution
to facilities open to the public, but not including data
transmissions or telephone calls. is not an offense under this
subsection unless the conduct is for the purposes of direct or
indirect commercial advantage or private financial gain.
(5)
(a)
(i) If the communication is -
(A) a private satellite video communication that is
not scrambled or encrypted and the conduct in violation of
this chapter is the private viewing of that communication and
is not for a tortious or illegal purpose or for purposes of
direct or indirect commercial advantage or private
commercial gain; or
(B) a radio communication that is transmitted on
frequencies allocated under subpart D of part 74 of the rules
of the Federal Communications Commission that is not
scrambled or encrypted and the conduct in violation of this
chapter is not for a tortious or illegal purpose or for purposes
of direct or indirect commercial advantage or private
commercial gain, then the person who engages in such
conduct shall be subject to suit by the Federal Government in
a court of competent jurisdiction.
(ii) In an action under this subsection -
(A) if the violation of this chapter is a first offense
for the person under paragraph (a) of subsection (4) and such
Person has not been found liable in a civil action under
S6
APPENDIX
section 2520 of this title, the Federal Government shall be
entitled to appropriate injunctive relief; and
(B) if the violation of this chapter is a second or
subsequent offense under paragraph (a) of subsection (4) or
such person has been found liable in any prior civil action
under section 2520, the person shall be subject to a
mandatory $500 civil fine.
(b) The court may use any means within its authority to
enforce an injunction issued under paragraph (ii)(A), and
shall impose a civil fine of not less than $500 for each
violation of such an injunction.
18 U.S.C. § 2512. Manufacture, distribution, possession,
and advertising of wire, oral, or electronic
communication intercepting devices prohibited
(1) Except as otherwise specifically provided in this chapter,
any person who intentionally-
(a) sends through the mail, or sends or carries in interstate
or foreign commerce, any electronic, mechanical, or other
device, knowing or having reason to know that the design of
such device renders it primarily useful for the purpose of the
surreptitious interception of wire, oral, or electronic
communications;
(b) manufactures, assembles, possesses, or sells any
electronic, mechanical, or other device, knowing or having
reason to know that the design of such device renders it
primarily useful for the purpose of the surreptitious
interception of wire, oral, or electronic communications, and
that such device or any component thereof has been or will
be sent through the mail or transported in interstate or
foreign commerce; or
(c) places in any newspaper, magazine, handbill, or other
publication any advertisement of -
(1) any electronic, mechanical, or other device knowing
or having reason to know that the design of such device
87
APPENDIX
renders it primarily useful for the purpose of the surreptitious
interception of wire, oral, or electronic communications; or
(ii) any other electronic, mechanical, or other device,
where such advertisement promotes the use of such device
for the purpose of the surreptitious interception of wire, oral,
or electronic communications, knowing or having reason to
know that such advertisement will be sent through the mail
or transported in interstate or foreign commerce, shall be
fined not more than $10,000 or imprisoned not more than
five years, or both.
(2) It shall not be unlawful under this section for -
(a) a provider of wire or electronic communication service
or an officer, agent, or employee of, or a person under
contract with, such a provider, in the normal course of the
business of providing that wire or electronic communication
service, or
(b) an officer, agent, or employee of, or a person under
contract with, the United States, a State, or a_ political
subdivision thereof, in the normal course of the activities of
the United States, a State, or a political subdivision thereof,
to send through the mail, send or carry in interstate or foreign
commerce, or manufacture, assemble. possess, or sell any
electronic, mechanical, or other device knowing or having
reason to know that the design of such device renders it
primarily useful for the purpose of the surreptitious
interception of wire, oral, or electronic communications.
18 U.S.C. § 2520. Recovery of civil damages authorized
(a) In General. - Except as provided in section 25] 1(2)(a)(ii),
any person whose wire, oral, or electronic communication is
intercepted, disclosed, or intentionally used in violation of
this chapter may in a civil action recover from the person or
entity which engaged in that violation such relief as may be
appropriate.
88
APPENDIX
(b) Relief. - In an action under this section, appropriate relief
includes -
(1) such preliminary and other equitable or declaratory
relief as may be appropriate;
(2) damages under subsection (c) and punitive damages in
appropriate cases; and
(3) a reasonable attorney's fee and other litigation costs
reasonably incurred.
(c) Computation of Damages. - (1) In an action under this
section, if the conduct in violation of this chapter is the
private viewing of a private satellite video communication
that is not scrambled or encrypted or if the communication is
a radio communication that is transmitted on frequencies
allocated uncer subpart D of part 74 of the rules of the
Federal Communications Commission that is not scrambled
or encrypted and the conduct is not for a tortious or illegal
purpose or for purposes of direct or indirect commercial
advantage or private commercial gain, then the court shall
assess damages as follows:
(A) If the person who engaged in that conduct has not
previously been enjoined under section 2511(5) and has not
been found liable in a prior civil action under this section, the
court shall assess the greater of the sum of actual damages
suffered by the plaintiff, or statutory damages of not less than
$50 and not more than $500.
(B) If, on one prior occasion, the person who engaged in
that conduct has been enjoined under section 2511(5) or has
been found liable in a civil action under this section, the
court shall assess the greater of the sum of actual damages
suffered by the plaintiff, or statutory damages of not less than
$100 and not more than $1000.
(2) In any other action under this section, the court may
assess as damages whichever is the greater of -
(A) the sum of the actual damages suffered by the plaintiff
and any profits made by the violator as a result of the
violation; or
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APPENDIX
(B) statutory damages of whichever is the greater of $100
a day for each day of* i-xtion or $10,000.
(d) Defense. - A gotd iaitti reliance on -
(1) a court warren’ ~© order, a grand jur
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.