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COALITION v. NIAGARA FRONTIER TRANSP. AUTH.

January 19, 1984

COALITION FOR ABORTION RIGHTS AND against STERILIZATION ABUSE, Plaintiff,
v.
NIAGARA FRONTIER TRANSPORTATION AUTHORITY, RAYMOND F. GALLAGHER, Chairman, NFTA, JOHN F. DOWNING, Executive Director, NFTA, NIAGARA FRONTIER TRANSIT METRO SYSTEM, INC., J. M. HEINEN, Vice-President for Finance, NFTMS, Defendants.



The opinion of the court was delivered by: CURTIN

The Coalition for Abortion Rights and Against Sterilization Abuse [CARASA] claims tht the Niagara Frontier Transportation Authority [NFTA] has improperly denied them access to advertising space on City buses. CARASA seeks both declaratory and injunctive relief for an alleged violation of first and fourteenth amendment rights.

Defendants moved to dismiss. CARASA, thereafter, filed an amended complaint, which shall be permitted under the liberal guidelines of Fed.R. Civ.P. 15. CARASA expanded the prayer for relief to include a claim for compensatory and punitive damages.

 Following motion by the plaintiff, the request for injunctive relief was consolidated with a trial on the merits pursuant to Fed.R.Civ.P. 65(a) (2).

 I.

 On the scheduled date of trial, this court received a pro se application for intervention from Mr. Carl Frank. Mr. Frank claims an interest in this suit as a bus rider and a member of the Western New York community who is concerned about abortion.

 First, this "application" was not filed in a timely manner, nor was it properly served on the parties. Fed.R.Civ.P. 24 and 6(d). In addition to these defects, Mr. Frank has not met the requisites of Rule 24. He has failed to allege any interference by the defendant bus company with his ability to advertise on metro buses. Certainly, he does not claim that the defendant bus company's refusal to display CARASA advertisements had caused him harm. Finally, Mr. Frank has not shown that the parties cannot adequately represent his interests.

 For all these reasons, Mr. Frank's "application" is in all respects denied. See United States Postal Service v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978).

 II.

 Before deciding whether injunctive relief should issue, the testimony at trial must be summarized.

 NFTA is a public corporation operating the bus company. The bus company is managed by Niagara Frontier Transit Metro System, Inc. [NFTMS]. CARASA describes itself as "an unincorporated group of individuals which advocates a woman's rights to reproductive choice."

 In the fall of 1982, CARASA approached NFTMS to publicize its position through advertising space on public buses. They were referred to NFTMS's advertising agent, Winston Network, Inc. [Winston]. An employoee of Winston, Sandy Vas, expalined that based on the content of the proposed advertisement, CARASA would be charged at the public service rate. It was understood between the CARASA representative, Jo Marie Privitera, and Ms. Vas that because of the public service nature of the ad, it would be placed on the interior of the bus. No discussion or suggestion took place with respect to exterior bus advertising. Ms. Vas told the CARASA representative that she envisioned no problem with the ad copy, n.1 [Footnote omitted] that similar ads had been placed on the interior of public buses.

 In February of 1983, Ms. Privitera called Ms. Vas to confirm that grant monies had become available for the ad campaign. Public service rates were confirmed at that time. Ms. Privitera was instructed to bring the printed bus cards to the office and then sign a contract with Winston.

 However, on April 1, 1983 (the same day the bus card order was to be sent to the printer), Ms. Vas called Ms. Privitera to warn that the content of the CARASA ad may be "offensive," that both Mr. Langdon, Winston's marketing manager, and NFTMS must first approve the content. She further cautioned that space constraints would undoubtably shorten the ad run. On April 14, 1983, Mr. Langdon called Ms. Privitera to say that NFTMS had refused the CARASA ad because of its controversial content.

 While testifying, Mr. Langdon admitted that NFTMS has never provided Winston with any guidelines on ad content and that space in bus interiors had not been a problem in the six months preceding the rejection of the CARASA ad. He further explained that NFTMS had never before contacted him at Winston about any ads. Only twice had he sought guidance from NFTMS on ad content. Both times, NFTMS had approved the ad. It is clear from the testimony of both Mr. Langdon and ...


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