KUSF Listener Asks FCC for Formal Hearing over Pending Station Sale

Posted on August 16, 2011 by Jennifer Waits
http://www.radiosurvivor.com/2011/08/16/kusf-listener-asks-fcc-for-formal-hearing-over-pending-station-sale/#more-11236

The legal back and forth with the FCC over the proposed sale of University of San Francisco (USF)’s college radio station KUSF to Classical Public Radio Network (CPRN) has featured arguments from several people and entities who have filed Petitions to Deny the station transfer.

KUSF listener Ted Hudacko, who previously filed a Petition to Deny and a Motion to Dismiss the station sale, submitted commentary to the FCC on August 11 in reply to the USF/CPRN joint reply to the recent FCC letter of inquiry into the KUSF deal.

In his comments, Hudacko argues that, “…the Response is replete with omissions, half-truths and outright lies” and he asks that the entire application to transfer KUSF to CPRN “be dismissed.” In the absence of that, he asks that the FCC request “…a Response that actually is compliant with the Commission’s Letter of Inquiry” and also calls for a “considered review” and “a formal Hearing.”

Hudacko states that USF has not maintained proper control over KUSF or its programming and says that the claim by USF that it showed evidence of station oversight by preempting CPRN programming to air the Metropolitan Opera is untrue. He states:

“The Response cites broadcasts of the Met as the sole example in which the Licensee allegedly preempted CPRN programming. However, unless ‘preempt’ means to plan something from day one, this cannot be a valid example of preemption. USF President Stephen Privett wrote at the time of the sale’s announcement that, ‘KDFC will continue to broadcast the Metropolitan Opera programming previously hosted by KUSF.’”

He further points out that CPRN’s affiliated stations already air the Metropolitan Opera and argues that it seems likely that they would want to carry that program over KUSF’s frequency as well. Digging into more details of the Public Service Operating Agreement (PSOA), which allows CPRN to broadcast over KUSF while the station sale is pending, Hudacko uncovers some language which would appear to indicate that CPRN maintains more control over the programming of 90.3 FM than it should. The PSOA states:

“During the Broadcasting Period, CPRN will continue to air the Station’s regular broadcasts of the Metropolitan Opera pursuant to the existing contract between the Station and the Metropolitan Opera, and will fulfill any underwriting agreements relating to the Station in existence on the Effective Date until the commitments under such agreements have been satisfied. Continuation of existing programming agreements for the Station during Broadcasting Period will be subject to CPRN’s prior approval and acceptance.”

Hudacko suggests that this is another example of USF prematurely ceding control of KUSF since this section of the PSOA, “…appears to subjugate Licensee USF as the inferior party by granting programming decision-making to CPRN, indicating that it is CPRN rather than USF who holds ultimate control of the frequency, although the FCC has yet to approve the license transfer.”

Hudacko’s comments also point to questions about the KUSF main studio. He states that CPRN has claimed that all of its programming originates from a San Francisco studio, when in fact several syndicated programs are produced elsewhere. In addition to that, he argues that the current CPRN studio location (Entercom’s offices at 201 Third Street in San Francisco) “…is neither reflected in the license application nor the associated construction permit application” and that “CPRN and USF have failed to provide timely update to the FCC regarding the use of this location as the Main Studio, although the USF Main Studio was fully dismantled between May 19—22, 2011.”

Related to this point about the KUSF/CPRN main studio, Hudacko also investigates KNDL 89.9 FM. The formerly religious station located in Angwin, California was purchased several months ago by CPRN (the sale was completed in April 2011) and its call letters were changed to KDFC on April 5, 2011. Hudacko reveals that there is not a fully staffed, functional main studio at the old headquarters for KNDL and that there appears to be no public file on site.

Hudacko finds it problematic that the new KDFC at 89.9 FM (licensed north of San Francisco in Angwin, California) “…is beyond the given 25 mile limit from the community of license” and also points out that “there fails to be a measurable staff presence at the KDFC Angwin ‘Main Studio’ during business hours.” He acknowledges that “CPRN may be allowed a studio waiver for the Angwin facility,” but states that this would have to be contingent upon KUSF and KDFC being “under common licensees,” which they are not.

In recent months, the FCC’s enforcement division has fined a number of radio stations for the types of potential violations raised by Hudacko, including the lack of a main studio and an improperly maintained public file. Elizabeth Robinson, staff advisor for college radio station KCSB at UC Santa Barbara (and the moderator of a recent “Saving College Stations” panel), told me that this inquiry from the FCC raises some serious issues. She said that it seems likely that the FCC’s main studio rule has been broken at KUSF. She added, “If you violate that rule, you are violating the terms of your license. Stations get fined for that.” In fact, on June 30, 2011, the FCC issued a notice (PDF) to Vision Latina Broadcasting, the license holder for KBPO-AM in Port Neches, Texas, fining them $25,000 for “…failing to maintain: (1) a main studio with a meaningful staff and management presence; and (2) a complete public inspection file and make that file available.”

Hudacko reiterates his argument that the entire application to transfer KUSF to CPRN should be dismissed. His initial Motion to Dismiss dated June 28, 2011 was criticized by USF lawyers on July 12, 2011. In their opposition, they wrote that Hudacko’s motion was “seriously procedurally defective,” was “a frivolous pleading” and asked for it to be “dismissed and denied.” Following that letter, Hudacko revised and resubmitted his Motion to Dismiss on July 20, 2011, addressing a few procedural issues raised by USF, but asserting his right to file a Motion to Dismiss. The FCC has yet to respond to either of Hudacko’s Motions to Dismiss, but their letter of inquiry, asking for more details from USF and CPRN, did delve into areas of concern raised by Hudacko’s initial Motion to Dismiss.