Jersawitz v. People Tv, Civ.A. 197CV290CAM.

• Decision Date: 30 March 1999
• Docket Number: No. Civ.A. 197CV290CAM.,Civ.A. 197CV290CAM.
• Citation: 71 F.Supp.2d 1330
• Parties: Jack JERSAWITZ, Plaintiff, v. PEOPLE TV, et al., Defendant.
• Court: U.S. District Court — Northern District of Georgia

Page 1330

71 F.Supp.2d 1330

Jack JERSAWITZ, Plaintiff, v. PEOPLE TV, et al., Defendant.

No. Civ.A. 197CV290CAM.

United States District Court, N.D. Georgia, Atlanta Division.

March 30, 1999.

Order Denying Reconsideration, October 21, 1999.

Jack Jersawitz, Atlanta, GA, for Public Access Television Producer, plaintiff pro se.

Thomas Arthur Cox, Jr., Maureen Mae McLeod, Johnson Freeman & Perkins-Hooker, Atlanta, GA, Cynthia W. Roseberry, Ewing & Roseberry, Atlanta, GA, for People TV, People TV Board of Directors, Gary Bastian, People TV Board Chairman, defendants.

Ronald Jeff Freeman, Thomas Arthur Cox, Jr., Maureen Mae McLeod, Johnson Freeman & Perkins-Hooker, Atlanta, GA, Cynthia W. Roseberry, Ewing & Roseberry Atlanta, GA, for Valencia Goodman, Program Director, Donna Fowler, defendants.

Ronald Jeff Freeman, Thomas Arthur Cox, Jr., Johnson Freeman & Perkins-Hooker, Atlanta, GA, for Chris Leonard, Ex-People TV Manager, defendant.

William H. McLean, IV, Office of Atlanta City Attorney Law Department, Atlanta, GA, Ronald Jeff Freeman, Thomas Arthur Cox, Jr., Johnson Freeman & Perkins-Hooker, Atlanta, GA, for Bill Campbell, Atlanta Mayor, City of Atlanta, defendants.

ORDER

MOYE, Senior District Judge.

Plaintiff Jack Jersawitz, a public access television producer, filed this section 1983 case against Defendants, People TV, Inc., the People TV Board of Directors and various employees and former employees of People TV (hereinafter collectively People TV), and the City of Atlanta and Bill Campbell, Mayor (hereinafter collectively City of Atlanta or City), alleging People TV and the City of Atlanta violated his First Amendment rights by barring his access to the People TV facilities and equipment. The case is before the Court on People TV's motion to dismiss or, in the alternative, for summary judgment, on Plaintiff's motion for summary judgment, on the City of Atlanta's motions for summary judgment and to accept its motion for summary judgment out of time, on Plaintiff's request for oral argument, and on Plaintiff's request that the Court accept his late response to the City's motion. The Court DENIES Plaintiff's request for oral argument, GRANTS Plaintiff's unopposed request to accept his late response, and GRANTS the City's unopposed motion to accept its motion for summary judgment out of time. For the reasons stated herein, the Court DENIES People TV's motion to dismiss, GRANTS the City of Atlanta's motion for summary judgment, DENIES Plaintiff's motion for summary judgment and GRANTS in part and DENIES in part People TV's motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 1, 1995, the City of Atlanta entered a cable franchise agreement "to construct, reconstruct, operate and maintain a cable communications system to provide cable services within the City." As part of the franchise agreement, the franchisee was required to provide "two (2) access channels for public access use." The franchisee was also required to provide $1,950,000 for initial equipment and for facilities renovation for government and public access and, beginning in the fourth year of the agreement, $1,400,000 for replacement equipment for government and public access.

In November 1995, the City of Atlanta entered an agreement with People TV to "provide for the management of day-to-day operations of the public access production facilities in the City." The agreement applied "to all production facilities dedicated to public access." "Public Access" was defined as "the system under which members of the public have access to cable television or other communication technology in order to communicate their noncommercial activities, opinions and ideas subject to applicable law and this Agreement." "Public Access Channel" was defined as "any channel designated or dedicated for use by the general public or noncommercial organizations which is provided to the City by the Franchisee at no charge to the City or the programmers of the channel." "Production Facilities" was defined to mean "any channel, studio, vehicle, equipment, furnishings or other property which [People TV] owns or the [franchisee] is to provide under this Agreement, the Franchise Agreement, or any other federal, state, or local law, for use in connection with the production and cablecasting of public access programming and operations of the public access center(s)." The City and People TV agreed that "public access provided for herein is for non-profit, noncommercial purposes and for the production of programming to be cablecast on the public access channel." People TV agreed to "comply with all applicable federal, state and local laws, rules, regulations, and policies." People TV was directed to "operate public access on a nondiscriminatory and reasonable basis," but, "to the extent that the fulfillment of other purposes of this Agreement allow it," was permitted to "operate based upon the principle of first-come, first-served." The Board of Directors of People TV consist of five directors appointed by the Mayor, six appointed by the City Council, one appointed by the cable franchisee, and up to nine elected by the Board itself. People TV was directed to "promulgate rules and regulations for the administration of its production facilities and its operations which are nondiscriminatory and reasonable and consistent with the policies set forth herein." The agreement specifically provided that People TV "is not, nor shall it be deemed to be, or hold itself out to be, a department or operating agency of the City," and People TV was required to display both on the public access channels and at its facilities a disclaimer stating: "[People TV] is an independent, non-profit community organization which operates public access in Atlanta. The Center is not an agent or affiliate of the City of Atlanta or the Cable Operator." People TV was given the right "to limit, terminate, or suspend the use of production facilities by any person who uses such production facilities to produce programming of a nature prohibited [under the terms of the agreement] or who fails to abide by reasonable rules of [People TV]." People TV was required to "set reasonable standards for the qualifications required of persons using public access production facilities," and the standards had to be nondiscriminatory and to "reflect the interest of all users in protecting production facilities from damage and prolonging its useful life." People TV was prohibited from selling, conveying, or leasing, without the written permission of the Mayor, assets acquired pursuant to the agreement. Funding for operations of People TV was provided by the City from funds paid by the franchisee, and funding for equipment was provided directly to People TV by the franchisee from funds specified in the franchise agreement. Upon the expiration or termination of the agreement, People TV was required to "transfer to the City its ownership or leasehold interests in any production facilities acquired through monies received from the [franchisee]" pursuant to the agreement.

Although rules and regulations were not formally published by People TV, a draft of the People TV Handbook for Producers, containing the rules and regulations, was printed in 1997, and Plaintiff acknowledged he saw a copy of the Handbook. The Introduction to the Handbook states that People TV's mission includes "advocating Public Access and First Amendment Rights" and that "[s]peaking in the most general terms, People TV, Inc. operates on a First Come, First Served basis." (emphasis in original). In an "Overview of Public Access in America," the Handbook states:

As cable systems grew, especially during the 1980's, Public Access provided Freedom of Expression outlet on cable television. On cable, it was developed into the new town square meeting place in an America and a world growing more and more electronic. In the 1990's, rapid changes in technology, and frequent changes in the legal landscape, have forced Public Access to adapt and adopt new strategies.

In an "Overview of Rules and Regulations" the Handbook states:

People TV, Inc. is a community based organization that exists to serve all of the diverse elements that make up the City of Atlanta.... It is required that we protect our equipment and the facilities of People TV. The rules, regulations, and procedures of People TV, Inc. exist to help us accomplish our mission and accommodate the largest number of people possible in the fairest manner to each.

The Handbook establishes certain qualifying requirements for use of the facilities and equipment and specifies that a producer "has the right of controlling the content of a program" but also details certain responsibilities of a producer, which include abiding by various rules and regulations. The Handbook further states: "[E]veryone coming into the facility must respect all the other diverse Producers, crews, guests, talent, and various others who will be in our facilities. In addition to this respectful attitude, you are expected to know and abide by all of the rules and regulations of People TV." In stating sanctions for violations of the rules and regulations, the Handbook specifies that all use of the facilities including production and playback may be terminated, suspended, or limited. An appeals procedure is provided for all sanctions.

For many years, Plaintiff produced a television show on public access television using the facilities of People TV. In December 1995, People TV shut down its facilities for major renovations, against the strong objections of Plaintiff. Plaintiff told the People TV Board of Directors that he believed the construction budget was inflated and that he intended to monitor all meetings and records "to discover any theft, kickbacks or other siphoning of funds."

Despite Plaintiff's request that his weekly television show continue to be assigned the 6:00 PM Wednesday time slot, People TV moved Plaintiff...