IN THE THE UNITED STATES COURT OF APPEALS
                                                    FOR THE NINTH CIRCUIT
 
 

PLAINTIFF/APPELLANT, v. CABLE NEWS NETWORK, INC./HEADLINE NEWS C/O Turner Broadcasting Inc.; AMERICAN BROADCASTING COMPANY, Plaintiff INC.); KVOA COMMUNICATIONS, INC.; KGUN INC.; KOLD INC.; KNST INC.; “JOHN DOE Defendants,”          Appellees/Defendants.	BRIEF FOR APPELLANT

 DC JURISDICTION AND RELEVANT FACTS
 The U.S. District Court had original jurisdiction to the subject matter in this case due to allegations of violations and claims derived from  the following federal statutes: 18 U.S.C. §§ 2510 et. seq., 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. § 225(a), C.F.R. §15.9, and C.F.R. §2.701.  In addition, federal jurisdiction prevails for the Plaintiff’s pendant State claims of violations of Article II § 8 of the Arizona Constitution, Arizona Revised Statutes Title 13 § 504(A)(2), A.R.S. Title 13 §3005 and § 3008; common law claims of Invasion of Privacy-intrusion upon seclusion, trespass, Unfair Competition, and Intentional Infliction of Emotional Distress as most of the corporate Defendants are incorporated outside the state of Arizona.

  BASIS FOR USCA JURISDICTION

 This U.S. Court of Appeals for the Ninth Circuit has jurisdiction to this case under 28 U.S.C. § 1291.  The Plaintiff’s/Appellant’s (“Plaintiff”) Appeal is from the District Court’s Order of September 25, 1998, which: 1) adopted the Report and Recommendation (R & R) of the Magistrate Judge entered on July 17, 1998; 2) Granted KOLD’s Motion to Dismiss and Motion for Summary Judgment, KVOA’s Motion to Dismiss and Motion for Summary Judgment, KGUN’s Motion to Dismiss and Motion for Summary Judgment, CNN’s and TBS’s Motion to Dismiss, ABC’s Motion to Dismiss, KNST’s Motion to Dismiss and Motion for Summary Judgment and CNN and TBS’s Motion to Unseal; and 3) Denied Plaintiff’s Motion to Compel, Motion to Stay and Plaintiff’s Request for Special Instructions.  This is an appeal against all Defendants in this action.  The final Order denying Plaintiff’s Motion to Reconsider the September 25, 1998 Order was entered in this action on  October 27, 1998.  The Plaintiff then filed his Notice of Appeal on November 24, 1998.

   STATEMENT OF ISSUES FOR REVIEW

 1)  The Plaintiff’s allegations of “satellite surveillance,” are unique and unprecedented, thus the standard for Summary Judgment by the District Court was  inappropriate as it failed to recognize technological advances in surreptitious surveillance. Consequently, the District Court erred by  prematurely ruling on Defendants’ Summary Judgment Motions and Motions to Dismiss, denying Plaintiff’s Motion to Stay, denying Plaintiff’s Request for Special Instructions and to Join additional defendants, and by denying Discovery to  the Plaintiff. The District Court made these rulings in part, by ignoring critical material facts of the Plaintiff, misinterpreting facts and relying on faulty, vague and inadequate Defendant affidavits, and in the case of two Defendants (CNN and ABC) no affidavits at all.  Thus,  the primary issue for the Appeals Court is to determine what, if any, a person must witness, or what facts can be alleged in order to maintain a suit alleging such conduct in order to defeat summary judgment motions filed by defendants and thus allow a plaintiff to proceed with discovery in order to substantiate such claims.  Put another way, this Court of Appeals must determine what circumstantial events and direct evidence  can a Plaintiff witness and assert in order to allege activity, that for the most part is invisible and unseen, such as satellite surveillance.
 2) The District Court erred in dismissing Plaintiff’s claims based on violations of the Federal Wiretap Statutes due to an unjust standard for summary judgment as stated in item number one above.  (See 18 U.S.C. §§ 2510-2520).
 3) Does 42 U.S.C. § 1985(1) provide legal protection for state employees, particularly 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 titled persons such as a Precinct Committeman?
 4)  Does the intent of the language of 42 U.S.C. § 1985(2) provide that the act of “attending” Court include filing a lawsuit?  (The details of this argument are being filed under seal as provided by Circuit Rule  27-13.)
 5)  The Plaintiff has stated sufficient facts satisfying a claim for a conspiracy  due to membership in  a protected class under 42 U.S.C. § 1985(3) and thus the District Court’s dismissal of this claim is in error.
 6)  Because the District Court erred in dismissing  Plaintiff’s 42 U.S.C. § 1985 claims, the dismissal of Plaintiff’s 42 U.S.C. § 1986 claims are also in error.
 7)  Are television broadcasters and/or cable operators “common carriers” as defined by 47 U.S.C. § 225(a), and are such “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)  The Plaintiff has stated sufficient facts to maintain a claim under 42 U.S.C.      § 1983 and thus the District Court’s dismissal of this claim is in error.
  9) The District Court erred in granting the Defendants Summary Judgment on Plaintiffs federal claims, and as such it was error for the District Court to dismiss the Plaintiff’s pendant state claims.
 10) It was error for the District Court to deny discovery to the Plaintiff.

    STATEMENT OF CASE

 The nature of this case is centered on the Plaintiff’s allegations of a conspiracy  among the Defendants  consisting of high-tech satellite surveillance  and/or other technologies including lasers and microwaves to surreptitiously  surveillance the Plaintiff in the privacy of his home both visually and of his oral and telephonic communications.  Such surveillance is believed to have begun approximately in May 1995 and ended approximately in June 1996.  The Plaintiff has alleged that the surveillance was conducted by Cable News Network, Inc. (CNN), 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.
 The course of proceedings in the District Court Of Arizona (DC) are as follows.  The Plaintiff filed his Complaint on August 17, 1997, which it that time was intentionally vacant of detailed facts pending resolution of Plaintiff’s need to file certain information under seal.  The Plaintiff also filed an ex parte Motion to Seal on August 17, 1997.  Eventually, after a second Motion to Seal, the Plaintiff was permitted to file the detailed facts to his Complaint under seal which was then filed on January 5, 1998.  In that interim, the Defendants filed various premature Motions to Dismiss and/or Motions  for Summary Judgment without even waiting for the details to the Plaintiff’s Complaint.  After the Plaintiff’s filing of his Statement of Facts (PSOF), one Defendant, CNN/TBS moved to unseal the Plaintiff’s sealed filings.  In addition, the Plaintiff served several discovery requests on the Defendants, including interrogatories, of which all the Defendants objected to responding.  The DC never compelled the Defendants to provide any needed information and thus no discovery occurred.  Ultimately, the DC granted  all the Defendants motions and thus dismissed the Plaintiff’s Complaint.  Also, both scheduled oral hearings set by Defendants KOLD and KGUN were vacated and never rescheduled and thus  no oral hearings were present in this case despite Plaintiff’s request in his Motion to Reconsider that he be given the opportunity to present evidence.
 Because this is an appeal from a summary judgment ruling,  all the alleged facts presented in the PSOF, supporting affidavits, and further detailed facts in his Motion to Reconsider, accompanied by a third affidavit,  are all relevant to the issues on appeal.  Likewise, the provided Statement of Facts from Defendants KOLD, KVOA, KGUN and KNST are also relevant for review.  Defendants CNN/TBS and ABC offered no substantive defense facts but rather only offered a defense via their attorneys’ opinions supported by no affidavits.

    SUMMARY OF ARGUMENT

 The Plaintiff believes the DC’s dismissal was entered highly prematurely as the case, as bizarre as it may sound, can be proven if the Plaintiff were granted appropriate discovery and an opportunity to present evidence before the Court as he was granted neither of these privileges.   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 DC’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.
 The Defendants conspired against the Plaintiff because of his political and religious views and associations and, in part due to his occupation as a public school teacher.  In the process, the Defendants deprived the Plaintiff of many civil rights, most notedly 4th Amendment rights and privacy rights, which under the circumstances threatened and intimidated the Plaintiff in all aspects of his life.
 The Defendants have been uncooperative in coming forth with the truth; and several of the attorneys have even offered cowardly defenses by attacking the credibility of the Plaintiff and his allegations rather than a desire to seek the truth. For instance,  CNN’s counsel has only offered his own personal opinion to distort the facts regarding events the Plaintiff has witnessed and has offered no affidavit to refute facts witnessed by the Plaintiff or circumstantial events witnessed by the Plaintiff. Particularly, CNN relies on citation to Kish v.  Videtti/Hussen  (D.D.C. 1992)   in attempting to distort certain of Plaintiff’s facts to that of Kish. As pointed out to the DC the Plaintiff never alleged he received beamed messages or transmitted radio waves to his brain as apparently alleged in Kish.  (CNN’s Mot. to Dismiss Reply, p. 4)  On the other hand, KGUN, for example, questions  and has legally objected to personal knowledge the Plaintiff has regarding surveillance technologies or basic operations of television or radio broadcasters.  (#59)  Nonetheless, the truth can be revealed by compelled discovery and testimony by expert witnesses, if needed, which can soothe the pains the Defendants have with digesting the truth.

     ARGUMENT

 INTRODUCTION
     First, a brief background to each of the defendant broadcasters in this case seems appropriate as this Court may not be familiar with their general operations  as this Court resides out of state.  Defendants KOLD, KGUN, and KVOA are local television broadcast affiliates of the three major networks of CBS, ABC and NBC respectively, primarily serving Southern Arizona.    KNST is an AM radio station operating as what is commonly referred to as a “talk radio” broadcaster, who has direct affiliations with the ABC News and Radio Network and other nationally syndicated programming.  KNST also broadcasts throughout Southern Arizona.  In its business, it is routine for KNST to have “live” programs discussing various local and national issues and ideas as might be promoted by the host of a given show for which its listeners can call in and become part of the “live” broadcast.  In addition, KNST commonly has local politicians or other state officials as guests on it programming.
 Secondly, to put the entire Complaint into context, this Court should be informed of the following.  The Plaintiff resides in  a small city of approximately 35,000 residents including those who live in the adjacent military base  (which specializes as a Communications Command Center for the U.S. Army).  There is only one public high school that has approximately 2,000 students who come from the city and outlying areas.
 Finally, for brevity, the terms rights or rights deprived shall be in reference to the following specific rights or privileges or immunities with regards to Plaintiff’s claims under 42 U.S.C. §§ 1985(3) and 1983:

 1)  privacy (common law; 1st, 4th, 5th, 9th & 14th amendments of the
      U.S. Constitution; and the Arizona Constitution);
 2)  freedom from eavesdropping and surveillance;
 3)  right of association (in private)-religious and political;
 4)  freedom from trespass;
 5)  liberty of contract;
 6)  those “rights, privileges and honors thereunto appertaining” to
       Plaintiff’s  college degree;
 7)  emotional happiness and freedom from intentional infliction
      of emotional distress;
 8)  actions related to justice;
 9)  right of publicity.

 I. FEDERAL (AND STATE) WIRETAP STATUTES AND SATELLITE      SURVEILLANCE.

 The Plaintiff’s Complaint is centered on his allegations of illegal electronic eavesdropping and surveillance and the subsequent illegal dissemination of the interceptions. (The issue of “satellite surveillance” shall be discussed together with the wiretap claims, although listed above as separate issues, since the two are dependent on one another.) Specifically, these are claims of violations of 18 U.S.C. §§ 2511, 2512 and Arizona Revised Statutes (A.R.S.) 13-3005 with civil relief provided under 18 U.S.C. 2520 and A.R.S.12 § 731.  These claims were originally made in the Plaintiff’s Complaint and elaborated further in PSOF and Memorandum filed on January 5, 1998.  The issue was ruled on in the adopted R & R of July 17, 1998.  It would also seem appropriate to refute the Defendants’ claims that the Plaintiff did not bring his claim under § 2520, the section providing for the civil damages relief.  This argument is meaningless as § 2511(5)(a)(ii) refers to § 2520 for relief.  Moreover, it is well established Ninth Circuit precedent that a plaintiff
 

“is not required to state the statutory or constitutional basis for his claim, only the facts underlying it.”See Haddock v. Board of Dental Examiners of California, 777 F.2d 462,464 (9th Cir, 1985.  (complaint “should not be dismissed if it states a claim under any legal theory, even if the plaintiff erroneously relies on a different legal theory”)

 The DC evaluated the Plaintiff’s facts based on the following:

To establish a prima facie case under section 2520, Plaintiff must allege that (1) Defendants 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 (11th Cir. 1995).  [# 71 p.10  ]

 “. . .no mention of Mr. ____ in the Day Break,  5:00 p.m. 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.”  (#56 p. 2).

Interestingly, Mr. Ruby makes no mention of the daily Noon show, and most importantly it does not address the actual time of this “Special Report” broadcast, which occurred at approximately sometime just after 9:00 a.m. on May 25, 1995.  Furthermore, just because something is or is not found in a pre-made script does not preclude the possibility that something other than what was typed in the script was said.
     Legally, there should be no question as to the existence of space satellite technologies capable of monitoring and eavesdropping on a person within the privacy of his/her own home.  It is simply a fact that space surveillance satellites exist and are used by both government and private entities.   Already 13 years ago,  the United States Supreme Court in Dow v. U.S.  had already established that such surveillance technology exists and poses potential threats to individual’s 4th amendment rights and other liberties, when the High Court alluded:

 “[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.”

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 Stanford Journal of International Law (Fall 1988) discussess Newsgathering by Satellites, and the potential legal disputes likely to arise from the increased usage of such “newsgathering” tactics.  CNN, in its defense, desperately attempted to trivialize reference to such treatises several times, although the DC never commented to these authorities. CNN also asserted that the Plaintiff relied on reference to such treatises as “evidence.”  To the extent that, yes, these treatises do recognize the existence and usage of satellite surveillance, then these journal references are indeed evidence.
      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 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 or “delusional” (to use a term the Defendants have offered), 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 in his life, including the questionable visit by law enforcement officers to Plaintiff’s residence. Now, as this Court can see, the Defendants chose to label many of Plaintiff’s facts as “delusions” rather than have the courage to come forward with the truth.  Looking back, would the Plaintiff have been better off to not list any instances of surveillance? Perhaps the Court 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 “move[d] for summary judgment because there are no facts that support Plaintiff’s claim against KOLD.”  (# 9 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 57 under seal, Affidavit #2 9a).  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.  I 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 DC 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 § 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 DC 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 DC 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, such a scenario make for a very scary “free” democracy.
 The primary dispute 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.  Thus, the Plaintiff seeks remand of his state and federal wiretap claims.

II.  42 U.S.C. § 1985(1) & § 1986
     The Plaintiff argued a claim for § 1985(1) in his Jan. 5, 1998 Memorandum.  The DC made its ruling on this issue in the September 25, 1998 Order.   The Plaintiff’s primary argument to this claim is 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.(#47)  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 Title IX.  While this argument presented here is brief, it need not be interpreted as less meaningful as there is no need to delve into an extensive list of examples regarding the aforementioned federal duties associated with public schools and public school teachers. Likewise, duties related to Plaintiff being a Precinct Committeeman also require the performance of 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.
     Therefore, in consideration of the above and the facts in this case, this Court should expand the reach of § 1985(1) to include public school teachers and Precint Committeemen and remand this claim.

III. 42 U.S.C. § 1985(2) & § 1986

     The issue concerning the Plaintiff’s 1985(2) claim is whether or not this section includes protection to the act of filing a lawsuit within the statute’s language of “attending” Court.  The Plaintiff made this claim in the Complaint and further defined this in his January 5, 1998 Memorandum.  The DC made its ruling on this issue in the R & R of July 17, 1998.  The details of this argument are being filed under seal as provided by Circuit Rule  27-13.

IV. 42 U.S.C. § 1985(3) & § 1986

 The Plaintiff’s 1985(3) claim was made in the Complaint and further explained in his January 5, 1998 Memorandum. The DC made its ruling on this issue in the R & R of July 17, 1998.   This claim can be viewed as the “why” the Defendants engaged in the tortious electronic surveillance conspiracy against the Plaintiff.  To answer the “why” simply, it was because of the Plaintiff’s political membership and active association in the Republican party, because the Plaintiff was(is) Roman Catholic, and due to his occupation as a teacher in a public school.
     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 local 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 reasons for the Defendants’ conspiracy against the Plaintiff as his religion is a part of him.
    The District Court applied the following standard of review to this
claim:

 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 equal protection of the laws, or of equal privileges or immunitiesunder the laws, and (3) an act or furtherance of the conspiracy, (4) whereby a person is either injured in his property or person is deprived of any right or privilege of the United States.  Griffen v. Breckenridge, 403 U.S. 88, 102-103 (1971).

Further, the District Court held

". . .the Supreme Court has observed that there are few rights protected against private as well as official encroachment. Id. 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 prtected against public and  private encroachment. (Id.)  (#71   p. 20-22)

V.  FEDERAL COMMUNICATIONS ACT CLAIMS (47 U.S.C. §206, 225a, AND             C.F.R. §§15.09 & 2.701.

     The Plaintiff’s claims for violations of C.F.R. §§15.09 & 2.701 were originally made in the Complaint. This District Court made its ruling on this issue in the September 24, 1998 Order.  The primary issue regarding these claims is whether or not there exists a private right of action to violations of derived regulations from the Federal Communications Act (FCA) against “common carriers.”  Thus, a secondary issue has resulted, that being whether or not television stations are included within the definition of “common carriers” under Title 47.  The Plaintiff does not dispute the fact that it is clear that radio stations are not “common carriers” under the chapter, thus Defendant KNST would be exempt from claims under the FCA as it pertains to a person’s private right of action derived from 47 U.S.C. § 206 .  However, these claims against the other Defendants should be reinstated for reasons as follows.
     First, the Plaintiff asserts that  a person does have a private right of action to seek civil redress under C.F.R. §§ 15.9 and 2.701 as  47 U.S.C. 206-Carrier’s liability for damages reads:
 

 In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in  this chapter required to be done, such common carrier shall be liable to the person injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable attorney’s fees, to be fixed by every case of recovery, which attorney’s fee shall be taxed and collected as part of the costs of the case. [Italics and underline added].

Title 47 of the Code of Federal Regulations is promulgated under authority of Title 47 of the United States Code § 151 et seq.  Thus, Plaintiff has a private right of action and civil redress to violations of FCC regulations as they are “provisions of this chapter.” (Id.) Further, a “person” is obviously an entity other than the FCC.  Finally, “[in 1966] the [FCC] issued an order prohibiting  private citizens from using radio devices to eavesdrop.”  (Freedom and the Court:  Civil Rights and Liberties in the United States, 5th Ed., Henry J. Abraham, p. 181, 1988).  Private media broadcasters are private citizens and are thus liable for violations to this order.  Defendants are licensed by the government-the people, to operate.  Defendants violations have violated this authorization and violated the trust of the people.
     The DC maintained that the Congress only intended for the FCC to enforce violations of the FCA despite what would appear to be clear language in § 206 that a private citizen may seek damages to violations of the FCA and its authorized regulations.  In fact, the DC recognized “. . .that Congress expressly created a private cause of action when such a right was intended under the FCA.”  (#71  p. 12) However, the DC concluded that 47 C.F.R. §§ 15.9 and 2.701 were not such rights. (The DC incorrectly applied  Boddie v. ABC, Inc. (6 C.A. 1983), as not only is this case out of the Ninth Circuit,  but apparently the plaintiff’s argument was based on 47 U.S.C. 501, which provides  penal provisions for violations. Private redress is  provided under  47 U.S.C. §§ 205-209, which is the root of Plaintiff’s argument in this case. )  This would then lead one to ask : Just what rights are protected under the FCA as private causes of action?  If one were to browse the numerous regulations under the FCA, one sees that the bulk of those regulations could not even be violated against a private person as they concern intricacies of frequency requirements or administrative duties, for example.  Thus, common sense would lead one to conclude that eavesdropping violations would be the most common and appropriate, if not exclusive, regulations that could even be violated against an individual person as defined in § 206.   Therefore, this Court should reverse  and remand the DC’s ruling concerning these claims as this Court should hold that §§ 15.9 and 2.701 are protected under § 206.
 The other issue regarding § 206 pertains to the determination by the DC that “. . .television broadcasters are not common carriers under the FCA” in citing United States v. Radio Corp., 358 U.S. 334, 348-49 (1959). (#78 p. 3)  This case law should be reversed to the extent that “common carriers” include television broadcasters under the FCA. 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 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]

 In addition, 47 U.S.C. 225(a) defines “common carriers” as:
 

The term "common carrier" or "carrier" includes any common carrier engaged in interstate communication by wire or radio as defined in section  153(h) of this title and any common carrier engaged in intrastate communication by wire or radio, notwithstanding sections 152(b) and  221(b) of this title.

Television broadcasters are “engaged in interstate communication by wire or radio .” Therefore  it appears clear television broadcasters, and the remaining television broadcasting Defendants,  are “common carriers”  for applicability in 47 U.S.C. § 206.  Moreover, the FCC Order issued in 1966 neither exempts radio stations nor television broadcasters of private liabilities to the prohibition of eavesdropping, and thus KNST would not even be exempt to damages for violations of that FCC Order.
     Therefore, this Court should find that all the broadcasting Defendants in this case are subject to liability to the FCC regulations (with the specific exception of KNST as noted above), cited in Plaintiff’s Complaint via § 206 and derived regulations and these claims should be remanded.  However, should this Court affirm the DC’s finding, then the Plaintiff requests that this Court, or the DC on remand, issue a Writ of Mandamus ordering the Federal Communications Commission to conduct an investigation as stipulated via § 208 in order to provide redress to the Plaintiff on these claims.

VI.  42 U.S.C. § 1983

     The Plaintiff’s § 1983 claim was listed in the original Complaint and the facts supporting it were explained in his PSOF and further detailed in his Motion to Reconsider filed on October 8, 1998.   The issue was ruled on in the R & R.  The primary assertion for a “state action” claim in this case is based on the suspicious law enforcement visit to the Plaintiff’s home that is 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 one of the enforcement officers upon approaching the door.  (#80   p. 6-8  ).  Furthermore, as  pointed out to the DC, 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.
     The DC noted that “[i]t is unclear from  Plaintiff’s Complaint and Response whether he is asserting that Defendants are governmental actors under state or federal authority.” (#71 p. 12)  Basing a “state action” claim on the facts as currently known, it would now seem clear that the Plaintiff’s “state action” claim would be both state and federal as one of the law enforcement officers on Plaintiff’s property was a state officer and the other was a federal officer.   Thus, the Plaintiff’s “state action” claim would be based on both § 1983 and a Bivens claim.
     While the Plaintiff maintains it was premature for the DC 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 DC was as follows:

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, 513 (9th Cir. 1997), petition for cert. filed, 66 USLW 3783 (U.S. May 1998)(No. 97-1927)  [#71 p. 13]

[r]espondent did not carry out its burden, as the party moving for summary judgment, of showing the absence of a genuine issue as to any material 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 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, jointly engaged with state officials in the prohibited action, are acting 'under color' of law 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)
 

VII. PENDANT STATE CLAIMS:

     The DC erred in dismissing the Plaintiff’s federal claims, and thus it is also error to have dismissed his pendant state claims. (#71 p.22) Even independent of the federal law claims, the DC maintains jurisdiction to the state claims, even if two of the (currently) five defendants are citizens of Arizona.   The Complaint itself involves a “common nucleus of operative fact,” per the Gibbs test. United Mine Workers America v. Gibbs, 383 U.S. 715, 725 (1966).  This  would allow the Federal Courts to “resolve an entire logically entwined lawsuit.” Owen Equipment & Erection Company v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed. 2d 274 (1978).
     Thus, each of Plaintiff’s state claims should be reinstated on remand.
 A.  ARTICLE II §  8 OF THE ARIZONA CONSTITUTION  (PSOF 1-77)
     For the same reasons as briefed in Plaintiff’s 42 U.S.C. § 1983 claim in this pleading, Plaintiff has a valid claim under Article II § 8 of the Arizona Constitution.  In addition,  as pointed out in Godbehere, “Arizona is one of the first states whose founders thought it necessary to adopt explicit protection for the privacy of its citizens. See Ariz. Const. art. 2, § 8.” (quoting from Godbehere v. Phoenix Newspapers, Inc. 783 P.2d 781, 162 Ariz. 335 (1989).  It is also worth noting that in Godbehere, the Arizona Court rationalized a privacy right for false light via Art. II § 8 in which the parties were all private.
 Defendants rely primarily on Hart v. Seven Resorts, Inc., 242 Ariz. Adv. Rep. 16, 1997, but continue to conveniently avoid the facts of state action present.  Morever, the Court in Hart even recognized how it had previously extended false light invasion of privacy in Godbehere v. Phoenix Newspapers,  Inc. 783 P.2d 781, 162 Ariz. 335 (1989).  In addition, the Hart ruling was a determination of whether a private party could be held liable via Art. II § 8 as it pertained to wrongful termination. This makes the Defendants reliance on Hart inapplicable as Plaintiff was not employed by the Defendant parties and thus has no claim for wrongful termination against them.  (supra.)  Moreover,  “[Art. II § 8] has been applied in a limited fashion beyond the search and seizure context.” (quoting Hart, n. 42). However, the “search and seizure” context is the primary significance in this case.
 B.  TRESPASS   (PSOF 1-77)
     Arizona Revised Statutes, Title 13 § 504(A)(2) classifies criminal trespass in the first degree:  “Entering any residential yard and, without lawful authority, looking into the residential structure thereon in reckless disregard of infringing on the inhabitant’s right to privacy.”  In the present case, Defendants utilized a laser or some other device to enter and produce visual and aural surveillance inside Plaintiff’s 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 is 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 from Katz 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” [Id. Footnote 8].  Finally, as the Supreme Court alluded, “[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 as satellite technology, might be constitutionally proscribed absent a warrant.” (quoting Dow supra. from Warrantless Satellite Surveillance, supra.) Certainly, private entities are prohibited from carrying out such surveillance. Thus, Plaintiff has redress to the tort of common law trespass.
 C.  INVASION OF PRIVACY:  INTRUSION UPON SECLUSION   (PSOF 1-77)
     Section 652B of the Restatement (Second) of Torts (p. 378, 1977),  provides that:  “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” As comment b, of §652B states, “the [invasion] may also be by the use of the defendant’s senses, with or without mechanical aids, to oversee or overhear the plaintiff’s private affairs,...” (Id.) Clearly, surveillancing a citizen by the procurement of sophisticated eavesdropping and visual surveillance technologies is “highly offensive to a reasonable person.” (Id. underlined added). Further, the information obtained need not be used. Fowler v. Southern Bell Tel. & Tel. Co., 343 F. 2d 150 (5 Cir. 1965).  Certainly inside one’s home and “...the ‘curtilage’ of a dwelling, which is entitled to protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept[] See California v. Ciraolo, ante, p. 207” are  protected areas from invasions of privacy. (quoting Dow v. U. S. 476 U.S. 227, 106 S. Ct. 1819, 90 L. Ed. 2d (1986)) Thus, the Defendants are liable for damages, as the “intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph [visual monitoring] or information outlined.” (Restatement (Second), p. 379).  Inherently, however, use also occurred in the  instant case as dissemination was involved.  In addition, the viewing or hearing by even a single person is use for that person’s entertaining. Finally, § 652H stipulates provisions for damages:

 One who has established a cause of action for invasion of his privacy is entitled to recover damages for (a)  the harm to his interest in privacy resulting from the invasion; (b) his mental distress proved to have been suffered if it is of a kind that normally results from such an invasion; and (c) special damage of which the invasion is a legal cause.

(1) The existence of a valid contractual relationship or business expectancy;
(2) knowledge of the relationship or expectancy on the part of the interferer;
(3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and
(4) resultant damage to the party whose relationship or expectancy has been  disrupted.

Antwerp Diamond Exchange, 130 Ariz. at 530, 637 P.2d at 730 (quoting
Calbom v. Knudtzon, 65 Wash.2d 157, 162-63, 396 P.2d 148, 153-54  (1964)).  The facts clearly speak for themselves in validating this claim.
/ / / /
/ / / /

 F.  TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC                   ADVANTAGE   (PSOF 1-77)
    Throughout the duration of the tortious conduct, Defendants interfered with all aspects of Plaintiff’s life, including his contacts with current employer (at that time as discussed in § XIII.) and contacts with potential employers in his seeking new employment.  Through the variety of leaks, as stipulated in the Statement of Material Facts, injury to Plaintiff’s future employment was harmed by the Defendants.  This is clearly a question for the jury to evaluate the law, under the court’s instructions, along the facts.  Thus, this claim should not be dismissed.
 G.  LAWS OF UNFAIR COMPETITION   (PSOF 1-77)
     The eavesdropping conspiracy also brings Plaintiff a cause of action under the law of unfair competition: right of publicity:  One who appropriates the commercial value of another’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability for  the relief appropriate under the rules states in §§ 48 and 49  (Restatement of Law, (Third), Unfair Competition § 46, p. 528, 1995).
 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 is 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 is 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.  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.
VIII.  PLAINTIFF’S MOTION TO COMPEL AND MOTION TO STAY
     The Plaintiff served the Defendants with various  items for Discovery,  which can be viewed in the excerpt #46.  The Defendants opposed supplying substantive responses to those inquiries and the DC then denied Plaintiff’s Motion to Compel and his Motion to Stay a ruling on the Defendants’ dispositive motions.
     The Plaintiff argued that under the circumstances a Stay was appropriate and cited in particular that

[t]he Ninth Circuit has held “[i]t was error for the trial court to have granted defendants' motion for summary judgment without first having determined the merits of plaintiff's pending discovery motion.”  Garret v. City and County, 818 F. 2d 1515 (1987 9th Cir.).
The DC denied Plaintiff’s Motion to Stay by reasoning that the “[p]laintiff seeks broad, voluminous discovery and he has not shown how the evidence sought will raise a genuine issue of material fact.”  (71 p. 24)  Obviously, the Plaintiff disagrees with this finding.  The Plaintiff sought information such as names of employees and the duties they were responsible for at the broadcasting station in order to determine which employees might be direct witnesses to the stations operations as it pertains to receiving the interceptions of the Plaintiff.  This is not a broad request.  This is a standard request as it leads to direct material witnesses, even if they may be hostile witnesses of the Defendants. Thus it was simply unjust to prevent the Plaintiff from being able to ascertain which employees in particular would be needed to subpoena if necessary  for a deposition or otherwise.   The request for a list of various guests is important to leading to material facts as it too will provide a list of those guests who were government officials who may be necessary to depose or subpoena for relevant knowledge to the Plaintiff’s case.  In addition, CNN and TBS were served with a request to produce original copies of video tape broadcasts which depicted the many instances of “in disguise” comments over the air.  The DC ignored  to mention this in the R & R.  In the interest of truth and justice, it would seem clear that the DC would have at least wanted to view such tapes and make an informed evaluation as it pertained to the specific alleged facts.  Furthermore, a request for tapes by specific date and time can not be broad by definition.  That is as specific as one can make such a request.
     The information the Plaintiff sought in the Interrogatories seeks technical data concerning the normal operations of a television or radio broadcasting station. In addition, the interrogatories seek information regarding the spaces satellites used in the Defendants’ broadcasting operations.  This is important as it is relevant to have this entire process explained.  Particularly because the Defendants’ counsels choose to play dumb to the whole issue of satellite surveillance.  Moreover, it is unfortunate the District Court failed to recognize the need for a thorough explanation of what is most likely typically never even contemplated when one watches a “live” broadcast.  It is simply bad judgment for the DC to believe that the explanation of such interrogatories would not lead to evidence of material facts. It is also unclear what the DC means when it says the interrogatories are “broad.” The unprecedented nature of the case obviously requires discovery that on first light may appear as if it were pure speculation.  However, as established in the discussion of the wiretap statutes, it is simply a fact that space satellites are utilized by broadcast media and government agencies.  Simply put, there is no way to know for certain the exact process such surveillance is conducted unless the Defendants are compelled to explain this process.  The determination as to what is plausible as it pertains to the particular facts alleged by the Plaintiff can then be determined by an informed jury after witness testimony and examination of the video evidence.

     Moreover, the accepted rule is that a complaint is not to be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-103, 2 L. Ed. 2d 80 (1957); Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980); DeWitt v. Pail, 366 F.2d 682, 685 (9th Cir. 1966).

(quoting from U.S. v. City of Redwood City, 640 F.2d 963, 9th Cir. 1981).  In this case, the Plaintiff can prove his set of facts if given the opportunity.  For example, Plaintiff’s alleged fact number 45 can easily be proven by commanding production of that video from that party.  (Under Seal Excerpt)  Upon doing this, the Court will be able to view in an almost historical perspective the sequence of events that occurred against the Plaintiff by various broadcasting entities.  Furthermore, careful examination of Plaintiff’s facts will exhibit the ease with which most of these facts can be confirmed  by examining the specified broadcast archives of the Defendants.
 The DC also failed to examine the ramifications of PSOF number 40, the incident concerning the identification and discussion of the Plaintiff by various law school students on June 2, 1995. (#47 p.  6) In its simplest terms, how does one explain how complete strangers were able to identify the Plaintiff and have personal knowledge regarding events material to the Plaintiff’s life and this lawsuit?  As seen in the record, the Plaintiff issued a subpoena in order to seek those law student out in hopes of finding the answer to this question.   Likewise, the Plaintiff served a subpoena on the Arizona Opera Company in hopes of contacting those persons relevant to PSOF number 42.  (#47 p.7)  The text of each of those subpoenas is as follows:
 

University of Arizona:
 

(1) Please provide a list of all College of Law students at the University of Arizona who attended classes in the Spring 1995 session and the First Summer Session 1995.  In addition, please include each students last known permanent address. (2) Please supply student roster lists with time and dates  for all classes offered in the First Summer Session 1995 College of Law classes.

Arizona Opera Company:

1) Please produce a list and/or records that identify the purchasers and/or registered ticket holders and his/her address for the following seats for the Das Rheingold opera held on January 13, 1996, 7:30 p.m.  at the TCC Music Hall:  Rows S-Z, seats 35-55.

These subpoenas were served on  September 17 and 18, 1998, respectively.  Unfortunately, the DC suddenly dismissed Plaintiff’s Complaint on September 25, 1998 and these parties were no longer obligated to provide the needed information, though they were cooperative in fulfilling the request until dismissal occurred.
 As exhibited above, the DC also erroneously concluded that any evidence that exists is  purely speculative.  The DC stated that

“. . .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 t establish a genuine issue of material fact necessary to defeat Defendants’’ motions.” (#71 p. 24  ).

    It would seem apparent the DC made this conclusion in concurrence with its own failure to recognize satellite surveillance technologies.  Such failure by the DC and reliance on affidavits that make only vague general denials does not provide true justice.  None of the affidavits refutes any of Plaintiff’s facts specifically, rather they make general denials which, if taken as the truth, only display the utmost lack of oversight by these station managers. The affidavits of Defendant’s KVOA, KOLD, KNST and KGUN do not meet the standard regarding affidavits in  “. . .that any factual assertion in the movant's affidavits will be taken as true by the district court unless the non-movant contradicts the movant with counter-affidavits or other documentary evidence." Timms v. Frank, 953 F.2d 281, 285 (7th Cir.), cert. denied, 504 U.S. 957, 112 S. Ct. 2307, 119 L. Ed. 2d 228 (1992).   (quoting from Rand v. Rowland Blue Book Citation Form: 1997.C09.1163, 9th Cir. 1997)  The Plaintiff has provided such non-movant affidavits that can easily be confirmed with the archives described and held by the Defendants. Furthermore, the Supreme Court recognizes the potential injustices of affidavits as it has held that:
 

 “Summary judgment should be entered only when the pleadings, depositions, affidavits, and admissions filed in the case "show that [except as to the amount of damages] 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."

 (quoting Poller v. Columbia Broadcasting Company 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 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. The Defendants have filed for summary judgment  prematurely  The Supreme Court holds that:

 “In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” (quoting Celotex Corporation v. Catrett, bold added) 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265, 54 U.S.L.W. 4775.

The Plaintiff has stated sufficient facts to gain discovery, yet the DC denied this and thus made a premature and unjust summary judgment findings. In addition, the Plaintiff requests that he be provided the opportunity to present to this Court at  a hearing the evidence Plaintiff requested to present to the DC in his Motion to Reconsider.  (#80 p. 1)  It was clearly unjust for the DC to prohibit the Plaintiff from presenting evidence before the Court. 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.  Haines v. Kerner (1972), 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652
Though the Plaintiff is obviously not a prisoner, he is pro se, and pro se or not, he should be afforded a hearing. Preferably such hearing would come after discovery as it is unknown if  the minimal evidence Plaintiff has will be satisfactory to the DC at this time.
     This Court is an independent branch of our government held with the responsibility to seek truth and justice, and to protect the rights of the weak from the powerful.  Just as a Court presumes an accused criminal to be innocent so to should this Court presume the Plaintiff’s allegations as true in this civil case, for this Court is the final place  he can seek  relief when other citizens and other branches of the government have violated the law and his civil rights and inflicted other harms upon him.  Therefore, this Court should grant the Plaintiff an opportunity at discovery.

     CONCLUSION

 For all the foregoing, this Court should Remand the Plaintiff’s Complaint as detailed above.

 DATED JANUARY 22, 1999 Appellant

Copies of the foregoing served via U.S. Mail this 23rd day of January, 1999 to :

United States Court of Appeals for the Ninth Circuit
P.O. Box  193939
San Francisco, CA 94119-3939

Gary F. Urman/KOLD & KNST
2525 E Broadway, Ste. 200
Tucson, AZ  85716

George O. Krauja/KGUN
33 N. Stone Ave., Ste. 2100
Tucson, AZ  85701

Janice E. Wezelman/KVOA
1 S. Church Ave., Ste. 900
Tucson, AZ 85701

Diane M. Johnsen/ABC
2929 N. Central Ave. #2100
Phoenix AZ  85012

David J. Bodney/CNN & TBS
2 Renaisance Square
40 N. Central Ave., 24th Floor
Phoenix, AZ  85004

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