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,”  DEFENDANTS/APPELLEES.	PETITION FOR REHEARING EN BANC SUGGESTED

    The appellant hereby petitions this Court to rehear, en banc suggested, the appellant’s case in response to the Panel’s May 14, 1999 Memorandum.   It is astonishing to see the Court affirm the lower Court without even delving into an area of the law effected by very new, previously unknown cutting edge technology.  Ironically, even the only legal treatise on the subject of satellite surveillance was published in 1995, the same year of the Appellant’s allegations.  (See Satellite Surveillance, John Marshall Journal of Computer & Informational Law. Summer 1995 Vol. XIII N. 4)  This 4th amendment topic should not be overlooked by the Court.  For this, and the following reasons this case should be reheard.

SATELLITE SURVEILLANCE ISSUE IS UNPRECEDENTED, THUS THE COURT HAS OVERLOOKED THE UNDERLYING PRIMARY ISSUE IN THIS CASE.

     The Appeal’s panel reasoned that this case was not suitable for oral argument  as the panel cited Fed. R. App. P. 34(a)(2).  (9th Cir. May 14, 1999 Memorandum FN 2.)  This section of the FRAP states : oral argument will be allowed unless (2) the dispositive issue or set of issues has been recently authoritatively decided.  The unique issue of satellite surveillance has never been before the courts. Thus, it is apparent the panel, as did the district court,  has overlooked or virtually ignored the facts associated with such an unprecedented case.  As stated in Apellant’s opening brief, it seems clear that the courts must address the issue of what facts and circumstances must occur for a plaintiff to be successful in defeating a defendant’s summary judgment motion concerning satellite surveillance or other prohibited surreptitious eavesdropping and electronic surveillance.  Both the district Court and the Appeal’s panel declined any comment concerning this issue.  Quite frankly, it seems incomprehensible that the federal judiciary would decline to address the core issue  of this case as surreptitious satellite surveillance poses severe threats to individual’s 4th amendment and privacy rights.
     Satellite surveillance by its own nature is conducted in secret by those persons involved in the surveillance.  Due to this secrecy, it should be obvious to the Court that any general denials by the Appellees in their affidavits should NOT be taken as true.  For the Court to accept the submitted affidavits denying any involvement to surveillance in this case as true appears to send the message that all one need do is say “nope, we did not conduct and surreptitious eavesdropping,” which would thus seem to make the Federal Wiretap Statutes useless.   To the contrary, history suggests that broadcasters and newspapers have periodically been caught violating eavesdropping statutes.  One recent example is the case of Chaquita Banana Co. v. The Cincinnati Enquirer (1998) in which a reporter of the Enquirer stole voice mails from Chaquita in violations of Federal Wiretap statutes.  Relatedly, in Berger v. Hanlon 129 F. 3d 505, (9th Cir 1997), CNN employees took part in obtaining surreptitious conversations, though this Court held such interceptions were not in violation of the Wiretap Statutes.  Finally, in Wolfson v. Lewis 168 F.R.D. 530 (E.D. PA 1996) reporters from the  TV show Inside Edition  were found liable for surveillance and eavesdropping using “sophisticated video and recording equipment.” While the District Court did not specify what it meant by “implausible” in this case, and I can’t read into the Magistrate’s mind , it would seem bad judgment to believe such a remark was directed to the idea that broadcasters/reporters would not take part in eavesdropping or surveillance activities.

BOTH THE DISTRICT COURT  AND THE APPEAL’S COURT DENIED THE PLAINTIFF/APPELLANT HEARING TO PRESENT EVIDENCE

      The Plaintiff requested an opportunity to present his evidence to the District Court, and again to the Appeal’s Court, but in both instances he was never granted such a hearing.  The very purpose of a Court is to uncover the truth and present evidence.  It seems highly contradictory that the courts in this case could make any rulings without viewing any evidence.  There are three primary pieces of evidence the Court has ignored:

 1)  The Oprah Winfrey Show broadcast regarding the Appellant. (PSOF  #45, 47 #47 p. 20.)

 2)  The rebroadcast by Apellee KVOA of Apellant’s employment interview.  (PSOF # 55 #47 p. 22)

 3)  The broadcast in 1990 by Apellee KVOA regarding the Appellant.  (PSOF # 44  #47 p. 20.)

Even if there were no allegation of electronic eavesdropping, the rebroadcast of Plaintiff’s employment interview displays minimally an invasion of privacy sufficient for further discovery.  No matter how many vague and dishonest affidavits KVOA submits, it can not change the fact to what was broadcast and what the Plaintiff witnessed.   At a minimum, these facts prove the media had an interest in the Appellant.  In addition, there are several other various broadcasts by the various Appellee broadcasters that the Appellant has cited as example of evidence of surreptitious surveillance, most likely satellite surveillance.  (see PSOF #47) As stated previously, it seems obvious, that the only way a just and appropriate evaluation of these facts regarding eavesdropping and surveillance is by the Court viewing  and evaluating such broadcasts in person.
 The Appellant has stated in his brief that it  was clearly unjust for the District Court  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 ( 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.  Furthermore, the Ninth Circuit has  held that “pro se pleadings are liberally construed, particularly where civil rights claims are involved.”  Balisteri v. Pacifica Police Dept. (901 F.2d 696, 1990).  This it the most important aspect in this case, that the Appellant’s facts be taken as true as it pertains to allegations of satellite surveillance; especially since such an issue is unprecedented in the courts. Moreover, it 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 evidence presented satisfies the Apellant’s allegations.

DISCOVERY IS NECESSARY FOR APPELLANT TO PROVE ALLEGATIONS

 Basic discovery is necessary for the Appellant to prove the facts of his case.  Simple production of specific broadcasts will demonstrate to the Court proof to the facts.  Specifically, a subpoena to the Oprah Winfrey Show will demonstrate to the Court the relevance of that video to this case, even if the Appellant had no tolled claims against that show.  Moreover, commanding of the broadcasts by KVOA will prove those allegations.  It is unbelievable that the Court has, thus far, simply accepted a deceitful affidavit by KVOA as it relates to this evidence.  The recent National Tobacco Cases in the U.S. have demonstrated the need for Court ordered production of documents and evidence, which in those cases revealed secret documents which refuted the lies and dirty secrets in the tobacco industry.  Similarly, there are many dirty secrets that need to be revealed in the broadcasting industry.  It is unbelievable that the Court could simply accept the vague deceptive denials offered by the Defendants in their affidavits, particularly to broadcasts the Appellant has witnessed.  Morever, under the unique circumstances, it is just as unbelievable that the Court could dismiss a complaint alleging surreptitious surveillance based on simply the opinions, distortions, and apparent denials by  ABC’s and CNN’s legal counsels as no affidavits were offered by these Defendants.

     CONCLUSION

     Therefore, the Appellant’s case should be reconsidered and remanded as previously detailed in his Opening Brief.  In addition, an evidentiary hearing should be permitted as surely an hour of the court’s time can be allotted in the interests of truth and justice.  The Appellant’s case does not ask the courts to open the doors to a wide influx of surveillance claims, but rather a window into the ability for a person to seek justice in a very disturbing area of law and technology.

DATED  May 26, 1999,  Appellant.

Copies of the foregoing served via U.S. Mail this 26th day of May, 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 Renaissance Square
40 N. Central Ave., 24th Floor
Phoenix, AZ  85004
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