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UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF Russell F. Walker,
: Plaintiff : vs. :
:
Windstream Communications Inc. : JURY TRIAL DEMANDED Defendant : ____________________________________: AMENDED COMPLAINT FOR DAMAGES, INJUNCTIVE AND DECLARATORY RELIEF Parties: 1. Russell
F. Walker, a natural person of full age, lives with his wife at 176 Quewhiffle, Road, 2. Windstream
Communications Corporation is a foreign Delaware Corporation, registered with the North
Carolina Secretary of State, operating in the state of Jurisdiction and Venue: 3. Jurisdiction
is based upon a Federal Question namely the First Amendment to the Constitution of the 4. Venue is based upon 28 U.S.C. 1391c in that the defendant is a corporation and does business and maintains at least one office in the Middle District of North Carolina. The subject telephone number, (910) 281-XXXX, Internet and e-mail accounts are associated with a Pinebluff, N.C. exchange which is located in the Middle District of North Carolina. Facts: 5. 6. Approximately in December 2006 I received an unsolicited and unwanted e-mail from the “security” department of Windstream. I found the message to be threatening and extortionate. I responded with a tart non-polite and rude message. No one likes to be threatened. 7. On or about 16 January 2007, Windstream disabled
Internet and e-mail services to three (3) accounts: horse176@windstream.net,
176horse@windstream.net
and sheridan176@windstream.net. These accounts are associated with the above
telephone number. Windstream claimed
that I was guilty of propagation of “spam” from account horse176@windstream.net.
8. I know that there had been two complaints from a Richard Lambert, (716) 735-6224, a high school associate of mine. I had spoken to Lambert about two months ago or so on telephone and I have not e-mailed him since. At that time I believed that the matter was closed. 9. Windstream without so much as calling me on the phone and discussing the matter, abruptly and ruthlessly discontinued my service. I then made approximately 10 calls to Windstream Customer service in an attempt to find out what the problem was and to get my service reinstated. I finally received a call from a person in the “security” department of Windstream who identified himself as “Shawn”. I have no idea if this was his correct name or not. 10. Shawn told me that I had been warned 4 times and that he had the proof that I had received the messages. Shawn declined to identify any complainant and said that my Internet and e-mail service would not be restored. Shawn knew that he was causing me a great deal of inconvenience. His last comment to me was, “Have a great day”. This was unbridled sarcasm designed to tell me how important he was and how unimportant I was. 11. The Windstream Security department operates in imitation of the Court of the Star Chamber. No evidence is publicly presented, identities of the complainants are not revealed, no damage or harm is ever proffered, secrecy is the rule, no cross examination of any person or evidence is permitted and there is no appeal of its proceedings. The proceedings do not even meet the minimal requirements of equity or Admiralty. This department makes threats and extortion demands in criminal violation of 15 USC 1 and 2. 12. Subsequently
I had a number of conversations with Mike Urkhardt, Windstream Regional manager in 13. I started searching for a replacement for Windstream when I contacted ConnectNC, a local Internet and e-mail service supplier within the jurisdiction of this Court. Account #16636 was set up with ConnectNC. ConnectNC is forced to use lines under the care, custody and control of Windstream. I now pay about $25 per month more to be connected to ConnectNC. This is an anti-trust injury. 14. Despite repeated attempts, ConnectNC was unable to get the “provisioning” for the telephone line so that they could restore my service. Windstream was preventing ConnectNC from connecting my computer to the ConnectNC network because Windstream has physical control of the regulated lines and was monopolizing and carrying on a secondary boycott against ConnectNC. 15. During one of several conversations with Mike Urkhardt (sic), Windstream regional manager in Raleigh, NC, I told Mike that I believed that Windstream was in violation of the Sherman anti-Trust Act, 15 U.S.C. Section 1 et seq., restraint and monopolization of trade and conducting a secondary boycott for not releasing permission to ConnectNC to connect me to access Internet services. 16. Mike later called me back and told me that Windstream no longer would hold up the “provisioning” and that I could deal directly with ConnectNC for Internet and e-mail service as Windstream would be dealing with ConnectNC, Inc. and not with me. 17. After examining my computer and finding it to be “clean”, ConnectNC told me that they would de everything in their power to provide me with Internet and e-mail service. 18. Windstream has a legal monopoly on telephone service and the twisted pair to my house. Windstream is the sole and regulated provider, meaning monopoly, regarding the regulated land lines (twisted pair) that connect me and everyone else on my street to the national communications system. Without Windstream’s permission no Internet provider, such as ConnectNC, can possibly service me or be in the communication business. 19. Although at present Internet and e-mails services are unregulated by the North Carolina Utilities Commission, the same physical lines (twisted pairs) that are used to transmit telephone and facsimile services are regulated and also used for Internet and e-mail services. 20. Based
upon information and belief, Windstream has obtained and benefits from easements in Hoke
and 21. Based upon information and belief, Windstream has used court ordered eminent domain in order to obtain easements for both private and public property for their regulated land lines and switches. 22. Windstream
has a local office at Maple and Poplar Streets in 23. Based
upon information and belief, Windstream’s local 24. Based
upon information and belief, Windstream has obtained and currently uses easements in Hoke
and 25. Based
upon information and belief, plaintiff’s residence is hard wire connected (twisted
pairs) to Windstream’s local office in 26. Windstream
as a common carrier is regulated by the North Carolina Utilities Commission. Windstream enjoys a state granted monopoly for
telecommunications services on 27. Windstream maintains its monopoly by filing reports with the North Carolina Utilities Commission and the Federal Communications Commission. 28. The
relevant geographical market is the area of 29. The relevant product market is the supply of telecommunications services which include telephone, Internet and e-mail. 30. Windstream via easements is in concert with Hoke County, Moore County, the City of Aberdeen, NC and in concert with the State of North Carolina via Public Use Agreements and subject to North Carolina State law in order to provide telecommunications, broadband, Internet and e-mail services to the plaintiff and to all other residences, church and businesses on Quewhiffle Road. Windstream is also in concert with the Federal Communications Commission (FCC) in order to provide telecommunications services to the plaintiff. 31. Based
upon information and belief, Windstream provides telecommunication services over a wide
geographical area to rural areas of not just the Middle District of North Carolina but in
several other states ranging at least from 32. Windstream’s website states that it has in May
2007 acquired CT Communications
and will add approximately 158,000
access lines and 29,000 broadband customers to its 33. Windstream
has approximately 3.2 million access lines in 16 states. 34. Windstream has a “Conditions of Use” policy. This policy has been approved by the North Carolina Utilities Commission and is applied to all North Carolina Windstream subscribers. 35. Based upon information and belief, Windstream has hundreds of thousands of customers which are subject to an identical or nearly identical “Condition of Use” as is the plaintiff. 36. Windstream has maintained a boycott, even after the filing of this Civil Action, by refusing to reconnect my Internet and e-mail services. 37. Based upon information and belief, Windstream’s has disconnected other subscribers through out its coverage area and has boycotted these subscribers by refusing to reconnect them using the Orwellian term of “spam” as the excuse. 38. I define “Spam” as an excuse to prohibit unpopular speech whether it be political, religious, and economic or concerning social mores. “Spam” is the modern day term for “heretic”. The word “spam” is frequently parroted by people who cannot define the term. 39. Windstream assigns to each e-mail account a “box” of unknown size. When the box is filled then all further messages are “bounced” and not delivered. It is possible that Shawn did send me a message 4 or 4000 times but that I had never received them. 40. Windstream uses the phrase “spam.” “Spam” has not been judicially defined. In the situations where it has been used it could only apply to commercial speech. I have never used e-mail to send pornographic, commercial nor threatening messages. All e-mails that I had sent were non-commercial, non-pornographic and non-threatening unless one views Freedom of Speech as very threatening. 41. Windstream’s reaction was to disconnect totally Internet and e-mail service. This was excessive, overbroad and vindictive. 42. Windstream claimed that I had spammed using account horse176 yet they discontinued all three accounts even though there had been no complaint on the other two accounts. Windstream could have potentially restricted my ability to “send” yet leave unimpaired my ability to “receive” any e-mails. 43. As a further penalty Windstream discontinued my Internet service. I now could not access Yahoo, CNBC, Weather Channel etc. or any other Internet web site. 44. My wife’s and my ability to receive future e-mails and to access any e-mails that we had received was discontinued. My business operations were disrupted. 45. The situation was similar to the U.S. Post office saying that I could not use the post Office to send any physical mail and no deliveries of existing and or future mail would be made. 46. Undelivered e-mails are undelivered “property” in an identical sense as if the U.S. Postal service would hold mail that had been mailed to me. 47. Windstream via Shawn has refused to deliver my approximately 200 undelivered e-mail messages and three address books containing approximately 50 addresses total, whether by hard copy mail or by electronic means and as at present I still have not received them. It is impossible to receive the messages electronically without an active e-mail account. Windstream created this problem and has denied me the technical ability to solve the problem, namely receive my electronic mail. 48. Windstream should have told the complainants to “block” all messages from my e-mail address and end the problem right there. Computers have “trash” folders and recycle bins for a reason. 49. Windstream “security” decided vindictively to turn a mole hill into a mountain. 50. Windstream
Corporation is a State ( 51. While a technical reading of the First Amendment only restricts Congress, essentially the First Amendment guarantees the people the right, not the privilege, of freedom of speech and expression. Non-commercial speech is the highest form of legally protected speech. The U.S. Supreme Court has invalidated what is called “prior restraint” yet what Windstream has done was even more radical and illegal by absolutely prohibiting me from communicating non-commercial speech via e-mail. 52. We
are taught in school about the Values of Western Civilization. In part these values are supposedly the right to
freedom of speech, expression and thought including the right not to be a witness against
ourselves. These values allegedly separate
this society from e.g. 53. Windstream and other Internet Service Providers use the terms “spam” and “spamming” etc. These Orwellian terms came from George Orwell’s annals in post 1984 history. “New speak” and “double speak” live in 2007. Even Kafka would be pressed to understand this term. 54. “Spam” has been defined by some as something being identified with “unwanted” or “unsolicited” speech. The simple fact of the matter is the overwhelming majority of speech and communication in everyday life falls under the umbrella of those words. 55. “Wanted” and “solicited” speech would normally be prefaced with comments such as “Speak to me!” or “What is your answer? etc. 56. A very small percentage of all speech is solicited and wanted versus the overwhelming majority which is unwanted and unsolicited. 57. So that the Court and the defendant ab initio can understand the novel ideas represented in this complaint, I will give a few examples of unwanted and unsolicited speech in paragraphs 58 to 63. 58. Driving
down the street one is exposed to advertisements and signs such as “Speed limit 65
miles per hour”, Welcome to 59. Someone honks his car or truck horn. The message may be sent to one or to many people. However, all who are in the vicinity you hear the unwanted and unsolicited message in any event. 60. A person walks down the street wearing religious garb, medals, jewelry or clothes, tattoos etc. that you find offensive. A parade takes place memorializing a certain person, holiday, concept or anniversary. These activities fall under the “unwanted” or “unsolicited” speech area. 61. A person walks down the street who is ugly, blind, has tattoos, bald, has limp or is crippled in a wheel chair etc. Should these people be banned because their images are “unwanted” or “unsolicited”? 62. While listening to a radio or TV station, the station provides music or commentary that you do not appreciate. This programming is “unwanted” and “unsolicited”. The solution is to change the station or turn the appliance off, not to stop the station from broadcasting. 63. A dog barks. While some may find this satisfying others may find this annoying. Should we kill or cut out the vocal cords or all dogs so as to stop them from barking? Admittedly dog speech is not in the same category as human speech but the underlying principles remain the same. Has anyone ever asked a duck to quack? 64. This complaint by its very nature will be viewed as “unwanted” and “unsolicited” by Windstream. All Civil actions will be viewed much the same way by defendants. Criminal indictments and guilty verdicts are also in this same category. Windstream would abolish complaints, indictments, petitions and requests for payment (bills) etc. because they are “unwanted” or “unsolicited”. 65. A
person yells out “fire” in a crowded theater.
While many believe that this speech is unprotected, unwanted or unsolicited, the
U.S. Supreme Court ruled in Schenck vs. U.S., 249 66. While on “hold’ on the telephone with Windstream, one hears a recorded message that says inter alia, “Thanks for choosing Windstream”, “Your satisfaction is my priority”, “We at Windstream realize that your time is valuable” and “Come and grow with us”. 67. Based upon information and belief, Windstream has placed both my and my wife’s names on a “black list” so that we can never again receive Windstream e-mail and Internet services. 68. Plaintiff has suffered an “anti-trust in jury” in that instead of having two providers of DSL Internet and e-mail services to him, he now only has one supplier, namely Connectnc, Inc., a reduction of 50%. Furthermore Windstream can disconnect the “provisioning” any time it likes and deprive the plaintiff of DSL and e-mail service. 69. Plaintiff has suffered an “anti-trust injury” in that he now has to pay approximately $23.00 per month to Windstream for a line connection and approximately $30.00 per month to Connectnc, Inc. for DSL services, an increase of about $23.00 per month over what he used to pay Windstream alone. Relief Requested: 70. Demand that Windstream stop sacrificing the core values of the First Amendment on the altar of expediency and editorial control. 71. Find that the standard Windstream contract contravenes the First Amendment and the amendment’s ensuing public policy. Demand that the standard Windstream contract be modified in accordance with the First Amendment to recognize the difference between commercial and non-commercial speech. 72. Declare that the vague and undefined terms of “spam” and “spamming” are violative of the First Amendment to Freedom of Speech and Expression in that they can be used as a vehicle to prohibit all electronic speech via the Internet and in that they can be used to prohibit unpopular views and expressions whether these views are political, religious or expository. 73. Enjoin Windstream from illegally monopolizing its regulated physical lines to prevent Internet Service Providers (ISP) such as ConnectNC from providing Internet and e-mail services to others and myself and consequently maintaining a secondary boycott. 74. Demand that Windstream publicly publish its new policy to all including their customers. 75. Reinstate my Internet and e-mail privileges. Issue an Order compelling Windstream to deliver my existing e-mail and address books (property) either in electronic or paper form. 76. Compel Windstream to advise all complainers to my alleged activities of the change in policy and that my future e-mails as protected speech will not be stopped by Windstream. 77. Declare that Windstream’s practice of discontinuing e-mail and Internet services under the rubric of “Spam” and “Spamming” for protected speech is a violation of the First Amendment, violation of the Sherman Anti-trust Act, 15 USC 1 and 2, and is a boycott under the meaning of the law. 78. Permanently enjoin Windstream from disconnecting accounts that provide e-mail and Internet services due to “Spam” and “Spamming”. 79. Declare that “Spam” and “Spamming” (whatever those terms mean) are not applicable to non-commercial, non-pornographic and non-threatening speech. 80. Demand $ 200.00 in actual compensatory damages and $1,000,000 in punitive damages exclusive of interest and costs of this action. 81. Enjoin Windstream from maintaining any “black list” of those individuals who have allegedly violated their “spam” policy. 82. Declare that Windstream’s recorded message is false advertising, deceptive and fraudulent in nature. Demand also that the recorded message be changed to reflect the truth that they view themselves as the big bully in the school yard and that their customers are 100 pound weaklings. 83. Provide any and other relief that may be appropriate or requested. Verification: Pursuant to 28 U.S.C. 1741(2), I declare under penalty of perjury that the foregoing facts are true and correct. _____________________ Russell F. Walker CERTIFICATE OF SERVICE
I certify that on November 26, 2007, I
deposited in the Jon Berkelhammer Smith _____________________ Russell Walker |
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Modified Saturday, November 29, 2008 Copyright @ 2007 by Fathers' Manifesto & Christian Party |
