LOS ANGELES PUBLIC ACCESS
David Hernandez, President
P O Box 9158 No. Hollywood
January 3, 2009 VIA FAX & FEDERAL EXPRESS
Hon. Edmund G. Brown, Jr.
Attorney General, State of California
Department of Justice, Public Integrity Unit
P O Box 944255
Sacramento, CA 94244-2550
PIU #255137 Urgent Request for Reconsideration
Dear Attorney General Brown,
We are in receipt of an obvious form letter from the California Department of Justice , Public Inquiry Unit (PIU #255137) in response to our request for your office to pursue Injunctive Relief on behalf of the millions of Time Warner Cable subscribers residing in the City of Los Angeles. When Time Warner closed fourteen public access cable channels and studios in the City of Los Angeles on December 31, 2008 they were fully aware that their actions would deny their subscribers services that had been provided to the public for over 25 years and were considered, “public assets”.
The Mayor of the City of Los Angeles, City Council members and the City Attorney have refused to respond to our letters requesting Injunctive Relief, under the California Business & Professions Code 17200 Section 3, (Unfair Business Practices). And, they have made no effort to replace the public access facilities with the moneys provided by Time Warner Cable Franchise Fees, for that purpose.
The DOJ Public Inquiry Unit response to our request for Injunctive Relief, is unacceptable and dismissive of the serious allegations made in our complaint. The PIU response suggests that we seek our own resolution with Time Warner Cable and is a preposterous suggestion considering the harmful actions of Time Warner Cable. The millions of cable subscribers residing in the City of Los Angeles are unable to seek alternative public channels and studios.
We take exception to the Public Inquiry Unit suggestion that it is our responsibility to resolve this matter without the assistance of the Department of Justice.
Please see government Code Section 12511 and 12550
“The Attorney general shall take charge of any investigation or prosecution of violation of law of which the Superior Court has jurisdiction”
Furthermore, according to the Office of Attorney General website, “about us” page reads:
“Attorney General Edmund G. Brown Jr. was elected statewide to serve as the chief law officer of California. It is the duty of the Attorney General to see that the laws of the state are uniformly and adequately enforced (California Constitution, Article V, Section 13.) The Attorney General carries out responsibilities of the office through the California Department of Justice.
“The Attorney General represents the people of California in civil and criminal matters before trial, appellate and the supreme courts of California and the United States. The Attorney General also serves as legal counsel to state officers and, with few exceptions, to state agencies, boards and commissions. Exceptions to the centralized legal work done on behalf of the state are listed in Section 11041 of the Government Code.”
“In addition, the Attorney General establishes and operates projects and programs to protect Californians from fraudulent, unfair, and illegal activities that victimize consumers or threaten public safety, and enforces laws that safeguard the environment and natural resources.”
It is our opinion the Attorney General has direct supervision over the District Attorneys of the several counties of the State and may require of them, written reports as to the condition of public business entrusted to their charge. When he deems it advisable or necessary, in the public interest, or when directed to do so by the Governor, he shall assist any District Attorney in the discharge of his duties, and take full charge of any investigation or prosecution of violations of law of which the Superior Court has jurisdiction. In this respect he has all the powers of a District Attorney, including the power to issue or cause to be issued subpoenas or other process.
Therefore we are renewing our urgent request for you to take the following action on behalf of the independent public access producers and the millions of cable subscribers in the City of Los Angeles We are seeking a review of the Public Inquiry Unit’s response and request your immediate attention to our request as follows:
FILE FOR INJUNCTIVE RELIEF under California Business & Professions Code 17200 section 3. The basis for this action is as follows:
California’s unfair competition statute, Business and Professions Code sections 17200-17208, like its federal counterpart, section 5 of the Federal Trade Commission Act(15U.S.C Section 45 et seq), serves as a general prohibition on unfair and deceptive business practices and also as an antitrust law.
Section 17200 defines “unfair competition” to include any “unlawful, unfair or fraudulent business act or practice” as well as “unfair, deceptive, untrue or misleading “.There are five potentially distinct theories of liability under section 17200.
1. Unlawful business acts or practice;
2. Unfair business acts or practice;
3. Fraudulent business acts or practice;
4. Unfair, deceptive, untrue or misleading advertising; and
5. False advertising and related practices covered by B&P 17500-17577
The broad purpose of Business and Professions Code section 17200 is “to permit tribunals to enjoin on-going wrongful business conduct in whatever context such activity might occur.”(People v. McKale (1979) 25 Cal.3d 626 In particular the purpose of the “unlawful” practice provision it “to extend the meaning of unfair competition to anything that can properly be called a business practice .
The U.S. Supreme Court in FTC v Sperry & Hutchinson, 405 U.S. 233, 244(1972), in which the Court held that FTC Act Section 5 could reach beyond “the letter and spirit” of existing trade regulation laws to other wrongful business practices. The Sperry & Hutchinson noted the relevant factors for determining unfairness to be: “(1) whether the practice offends public policy, (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers. In brief, the court must weigh the utility of the defendant’s conduct against the gravity of the harm to the alleged victim.
Here, the action of closing fourteen public access studios and channels offends public policy , is immoral, unethical, oppressive, unscrupulous and causes substantial injury to consumers who will be prevented from viewing independent programs on the City public access channel. The gravity of the harm to consumers outweighs any benefit to Time-Warner.
We are hereby requesting that you file for a Temporary Restraining Order against Time Warner to continue the service until such time as the City has provided alternative and equal facilities.
David R. Hernandez
Stanley K. Sheinbaum
Center for Creative Voices in Media
Full Disclosure Network, Leslie Dutton
ABC Nightline, Bonnie McLean Western Bureau
L. A. Weekly, Patrick Range McDonald
Los Angeles Times. Reed Johnson