Lawyers and wordsmiths on both sides of the fight over KUSF 90.3 FM have put pen to paper, filing lengthy documents supporting their positions to either defend the purchase of KUSF by Classical Public Radio Network (CPRN), or to cast doubt on the propriety of a formerly commercial service being broadcast over a non-commercial educational station.
As those following this saga know, back on January 18 University of San Francisco (USF) shut down the transmitter for its college radio station KUSF 90.3FM. Later that day, they began piping in a simulcast of programming from commercial classical station KDFC (which at that time was airing on 102.1FM) over KUSF’s airwaves and announced that the station had been sold to Classical Public Radio Network (which is 90% owned by University of Southern California and 10% owned by Public Radio Capital).
Opposition to the proposed sale has been led largely by the group Save KUSF and has taken a number of forms including rallies, protests, letters to the FCC, and resolutions crafted by numerous politicians and by the USF Faculty Association. The most formal objections were two Petitions to Deny, which were submitted to the FCC opposing the station sale to CPRN. The group Friends of KUSF filed their Petition to Deny (PTD) on February 28 and an individual, Ted Hudacko, submitted his own Petition to Deny around the same time.
Friends of KUSF’s Petition to Deny covered a lot of ground, but several of its main claims were:
1. It’s unclear if CPRN is actually a qualified educational entity
2. Proposed program service of CPRN does not serve an educational purpose
3. University of San Francisco prematurely relinquished control of its station
4. When inspected by the public, KUSF Public File did not include required documents
5. Station Identification was not properly announced following the KUSF takeover
Following the filings of these Petitions to Deny, both USF and CPRN sent letters of opposition, citing their critiques of the PTDs and affirming their confidence in the validity of their application for the station transfer. Replies to these oppositions were submitted to the FCC by both Friends of KUSF (on Friday, March 25) and by Ted Hudacko. Both replies ask the FCC to halt the station sale, calling for a hearing in order to more thoroughly investigate the proposed sale and the parties to that sale.
Attorney Peter Franck, who is representing Friends of KUSF, stated that, “the documents filed originally, as well as the self-serving declarations of a USF administrator and a co-director of CPRN simply reveal a bootstrap attempt cover the essentially commercial nature of this transaction and of CPRN’s plans to continue the broadcast of elite oriented classical music, with no educational purpose or content.” Similarly, Ted Hudacko told me that, “The changes to KUSF-FM fundamentally eliminate all educational aspects for USF and students of all ages and destroy thoughtful and irreplaceable community and informational services for the people of San Francisco, including the under-served and disadvantaged.”
In order to put these replies into context, it’s important to take a look at the oppositions filed by both USF and CPRN. USF’s strongly worded opposition to Friends of KUSF’s Petition to Deny states,
“Petitioner’s objection to the assignment of KUSF to CPRN amounts to ‘much ado about nothing.’ The complaints are, in large part, unsubstantiated, false or entirely misplaced, and conclusively fail to raise a material and substantial question of fact.”
It goes on to argue that Friends of KUSF is not qualified to submit a Petition to Deny, stating that they don’t have standing to file a claim as they have not demonstrated an “injury in fact.” USF also states that “CPRN is fully qualified to be a non-commercial licensee.” Most notably the opposition suggests that Friends of KUSF’s concerns about localism, diversity and public interest are actually a “guise.” In the opposition USF argues,
“Petitioner disingenuously disguised its objection to the format change as matters of localism and diversity. Petitioner’s claim that the assignment of KUSF is contrary to the public interest on diversity and localism grounds is merely another red-herring; it is a ruse for a differing opinion on programming decisions and must be denied.”
USF’s opposition states that USF has maintained control of KUSF since January 18th and admits that there have been a “couple of glitches” related to transmission and on-air station identification. As far as station identification goes, USF’s opposition argues that the usage of the station name KDFC is simply branding and that “KDFC is not currently in use as a call sign by any broadcast licensee, but instead is a brand of classical music known in the San Francisco Bay Area and can be used like any other format brand.”
This point was interesting to me in that in on January 18, the day of the KUSF shut-down (and for nearly a week after), KDFC was still the call sign tied to the broadcast license of the commercial station broadcasting over 102.1 FM.
The conclusion to USF’s opposition asks for the Petition to Deny to be dismissed, stating that, “Petitioner’s allegations amount to little more than a kettle of red herring heaped upon themselves in the hopes than [sic] one of them might stink.”
Similarly, CPRN’s opposition to the Petition to Deny states that, “The Petition is riddled with false, unsupported and misleading factual contentions, straw-man arguments and half-truths, and inapposite legal citations, none of which even if on point would justify denial of the application. This assignment accords with FCC law, rule and policy; the Petition should be summarily rejected.”
While arguing that USF has maintained control of its studio for KUSF, CPRN’s opposition also admits that it still has ties with the commercial radio group, Entercom, that previously controlled KDFC. The opposition states,
“USC reached an agreement with Entercom, which was in the process of changing the classical format of its station KDFC, to acquire the KDFC call letters and its classical record library. USC paid Entercom. CPRN is leasing a studio in Entercom’s San Francisco facility from which, pursuant to its January 12, 2011 Public Service Operating Agreement with USF, CPRN provides classical programming under USF’s supervision and control. CPRN also pays Entercom technical staff for equipment maintenance at the CPRN studio. Entercom has no involvement whatsoever with CPRN’s acquisition strategy or with KUSF’s operations or management, and has never paid anything to USC or CPRN.”
They also assert that there is no evidence to support Friends of KUSF’s claim that the loss of the station “will have a devastating impact on the Bay Area’s local music and arts community,” calling this statement a “gross hyperbole,” suggesting that “CPRN, whose programming will be originated in and for San Francisco and the Bay Area, will have a dynamic and positive impact on the local arts community and complies with all FCC localism policies for NCE-FM licensees.” An included declaration by Classical Public Radio Network’s Brenda Barnes addresses this as well. She states, “…the claim that grant of the application will cause a ‘fundamental decrease in localism and diversity on Bay Area airwaves’ is erroneous —CPRN will provide the only classical-cultural radio format in the area…” The opposition also points out that the FCC recently approved the transfer of KNDL to Classical Public Radio Network, suggesting that this proves that they are a qualified non-commercial educational licensee.
CPRN’s opposition also brings up for the first time a promise of internships for USF students at Classical Public Radio Network beginning with the 2011-2012 academic year. It also mentions plans for a community advisory board and a local on-air arts magazine.
In response to these two oppositions to the Petition to Deny, Friends of KUSF filed a reply with the FCC on Friday, March 25. In the reply, Friends of KUSF argues that the oppositions by USF and CPRN show
“that the initial application was seriously deficient, by supplying (1) a wholly new legal description of the applicant; (2) a wholly new program service proposal; and (3) several wholly new window-dressing palliatives, such as the pledge to create a local advisory board. In effect the Assignee has recognized the essential truth of Petitioner’s core contention—that the applicant failed to demonstrate it was legally qualified to become a noncommercial, educational licensee. A proposal that is so fundamentally revised to attempt compliance, post-petition, requires the specification of issues and a hearing.”
It further argues that the oppositions still do not prove that “CPRN is qualified to become a noncommercial licensee, or that it will provide a noncommercial, educational broadcast service.” It points out that “no attempt is made to explain how the broadcast of classical music, by itself, satisfies any educational objective.” Additionally, it speaks to CPRN’s recent promises regarding localism, stating, “CPRN’s belated promise to address local issues in the future must be viewed alongside its lack of such programming now.”
Ted Hudacko’s reply points out that his Petition to Deny was met with no response by USF or CPRN (largely because their oppositions to Friends of KUSF argue that Hudacko’s filing had no standing). He argues that as both a KUSF listener and musician who has benefited from KUSF airplay he is qualified to formally oppose the station sale. He also cites other injured parties, including students (who lost an educational resource) and the San Francisco arts community. He states,
“This Petitioner, unacknowledged as such by USF, has suffered specific injury and damages by the elimination of the former KUSF-FM Entertainment Calendar in which performances by the Petitioner’s band, the Economen, were announced on-air and promotional tickets were given away. Friends of KUSF includes numerous artists, filmmakers and musicians whose careers have suffered harm as the direct consequence of no longer having KUSF-FM broadcast their musical compositions and recordings or announce their live appearances and screenings at local venues.”
Included in Hudacko’s reply are statements from other musicians, as well as from representatives from numerous music venues, all arguing that the loss of KUSF has impacted their work and business due to the loss of not only airplay of certain artists, but also because of the severing of underwriting announcements, the end of the on-air Entertainment Calendar, and the demise of ticket giveaways to local shows.
In an attached exhibit to the reply, Anthony Bedard, the Talent Buyer for Hemlock Tavern states:
“Just the promotional tickets alone accounted for a minimum of 2,400 people per year (200 per month) in increased attendance at our shows. The loss of clientele due to the lack of local radio play of artists performing at the Hemlock combined with the loss of vital free public concert calendar listings is demonstrably hurting our business. We have experienced a 10-20% drop-off in show attendance in the two months since KUSF-FM 90.3 went off the air.”
Hudacko also suggests that USF has ceded control of the station to CPRN, stating that KUSF General Manager Steve Runyon “has reported that he is currently locked out of the transmitter room” and pointing out that there are questions as to whether or not newly appointed KUSF Chief Operator Michael Bloch “is qualified, knowledgeable or empowered enough to be considered the station’s Chief Operator beyond his holding the title and administering the Public File.”
Hudacko also brings up USF/CPRN’s claims that the Petitions to Deny were concerned with simply a format change, arguing that this is untrue, especially in light of the large amount of classical music programming played on KUSF (15-20 hours a week) prior to the “format change” on January 18. He argues that, “…in fact what has been done has been the termination of an actual noncommercial educational broadcast service and replacement of it with a crypto-commercial station with no direct educational function run by the same individuals who only one day earlier were running commercial classical KDFC 102.1.”
Now it’s up to the FCC to navigate through the various arguments posed by Friends of KUSF, USF, and CPRN. If the proposed sale of KTRU at Rice University is any indication, it could still be a long fight. KTRU’s sale to University of Houston is still pending FCC approval following several Petitions to Deny, oppositions, and replies. Paperwork for that sale was originally submitted to the FCC back in November 2010.
Complete Radio Survivor coverage about the proposed sale of KUSF can be found here. I also wrote about my reaction to the KUSF shut down and to the Save KUSF Multi-Station Live Broadcast on Spinning Indie. My article chronicling my KUSF field trip 2 years ago is housed there too. For more on the bigger picture of college radio station sell-offs, see my December 2009 piece “Cash-strapped Schools Turn Their Backs on College Radio.” And, for a quick overview of the situation at KUSF, see my article, “The Story Behind the KUSF Shutdown” on PopMatters.
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