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Motion to Dismiss Filed with FCC Regarding Pending KUSF Sale

Sign Posted at KUSF in Exile During their Rock 'n Swap. Artwork by Thomas Plagemann (Photo: J. Waits)

The contentious pending sale of college radio station KUSF to Classical Public Radio Network continues to keep the lawyers busy, as a Motion to Dismiss the entire application was filed with the FCC just before the July 4th holiday.

At the same time that the FCC was sending out its Letter of Inquiry to University of San Francisco (USF) and Classical Public Radio Network (CPRN) raising questions about the pending sale of KUSF, a Motion to Dismiss the application transferring control of KUSF to CPRN was filed by former KUSF listener Ted Hudacko on June 28.

Hudacko, who had previously filed a “Petition to Deny” the application, argues in his Motion to Dismiss that the application should be dismissed “on the grounds that the Application is incorrect, incomplete and has not been timely nor with candor corrected/amended.”

In support of Hudacko’s claim, he cites the recent demolition of the main studio at KUSF. He points out that the CRPN is currently broadcasting from Entercom’s studios in San Francisco and states that:

“Perhaps, it is permissible to move the Main Studio to the facilities of a third party that also is not an educational organization. Perhaps, not. However, in circumstances when the Main Studio is moved, ‘…notification to the FCC in Washington shall be made promptly.’ Petitioner respectfully asks on what date did USF provide such notification of the Main Studio’s relocation?

It also is required that Applicants be truthful and accurate in written communications with the Commission. USF’s Opposition included a Declaration by Associate Dean Michael Bloch…Bloch’s Declaration states:

‘The transmitter and all broadcast equipment remain in the KUSF studio and are functional. The station is fully capable of originating programming from its on campus location.’

The veracity of Bloch’s statement was dubious when he made it on March 15; it was patently untrue after demolition of the Main Studio was completed on May 22.”

Hudacko’s Motion to Dismiss points out that FCC regulations require that pending applications be complete and accurate. He quotes FCC rules that state, “Whenever the information furnished in the pending application is no longer substantially accurate and complete in all significant respects, the applicant shall as promptly as possible and in any event within 30 days, unless good cause is shown, amend or request the amendment of his application so as to furnish such additional or corrected information as may be appropriate.”

Hudacko further argues that errors and omissions from the application to transfer KUSF to CPRN should be grounds for not only dismissal of the application entirely as well as for potential fines against KUSF for various violations. He argues:

“It is evident that both Applications…contain incorrect information regarding the Main Studio location that (hypothetically) were correctable only by major amendment had USF done so prior to June 21, 2011, 30 days after the final demolition of the Phelan Hall Main Studio. ‘[D]eficiencies, omissions, or inconsistencies in long-form applications may not be cured by major amendment. The filing of major amendments to long-form applications is not permitted.’ Petitioner moves that the application to transfer the KUSF-FM license be dismissed.

Additionally, based on the willful, repeated and ongoing nature of violations identified above and previously, the Commission is respectfully requested to additionally consider forfeiture proceedings and assessments against the Applicant, and as applicable, the proposed Assignee.”

When I asked Hudacko about his Motion to Dismiss, he told me that, “My Motion to Dismiss is raising important new questions in addition to the previous questions raised by Friends of KUSF, the other petitioners, and myself.” Additionally, he expressed satisfaction with the recent Letter of Inquiry sent by the FCC, saying,

“I’m pleased that the FCC, in its letter of inquiry to USF issued the same day as my Motion, is now asking some of the same questions I asked on January 19.  As you may recall, USF President Stephen Privett sidestepped my questions, told me ‘I can’t help you,’ and suggested that I take the matter up with the FCC. That’s what I have done. USF’s demolition of its campus studio while still the license holder, as well as its and CPRN’s ongoing actions continue to show their true motives as commercial intent and neither educational nor local interest.”

In the meantime, USF and CPRN have a few more weeks in which to compile their responses to the FCC’s Letter of Inquiry. When I reached out to Brenda Barnes, Managing Director of CPRN, for comment, she said, “…we are working on collecting the information the FCC has requested and we will respond within the 30-day window. Our operating agreement conforms to many others the FCC  has approved and we have been careful to operate in accordance with the agreement.”

Similarly, USF’s Associate Vice President for Public Affairs and Communications Gary McDonald told me that,

“The University will respond fully to the Commission’s inquiry. The response is due July 28th, and Counsel to the university is preparing its response now. When that response is complete, and submitted, it will be made public, as required by the FCC. The agreements between USF and CPRN were drafted in full compliance with the Commission’s rules, and  both the University and CPRN have conducted themselves in full compliance with those rules since the agreements went into effect. We have no reason to believe that the Commission will not grant the assignment application.”

By the end of the month we should get a glimpse into more details about both the sale agreement between USF and CPRN and about the current arrangement allowing CPRN to broadcast the formerly commercial KDFC over KUSF’s 90.3 FM frequency, as they make public various documents being requested by the FCC. Save KUSF continues to fight the sale while they keep the spirit of KUSF alive off-campus via online-only broadcasts under the moniker of KUSF in Exile. Although University of San Francisco promised that KUSF would continue as an online-only station, there’s still no word yet on plans to rebuild a studio for on campus.


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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5 Responses to Motion to Dismiss Filed with FCC Regarding Pending KUSF Sale

  1. Jim Radio July 11, 2011 at 3:16 pm #

    Excellent! Make em pay their lawyers! Don’t know if it will ultimately save the station, but it is certainly going to give the Borg, um PRC, and the oily ilk pause. Congrats! jim radio

  2. Eric Weaver July 11, 2011 at 3:27 pm #

    A Motion to Deny is just that, a motion. The FCC can grant it or deny it.

    Even if the FCC denies the license transfer, where would KUSF originate programs from? The studios have been torn down and replaced with dorms, have they not?

    USF has the option of foregoing the sale and just sending the license back. The only sanction the FCC has on them is to encumber the license – they can’t force the University to operate a radio station.

  3. Jeff July 11, 2011 at 5:35 pm #

    Eric wrote: “…..Even if the FCC denies the license transfer, where would KUSF originate programs from?…….”

    From the Disaster Recovery Site that is on hot standby at the Light Rail Studios! LOL.

  4. Jennifer Waits July 11, 2011 at 5:55 pm #

    Of course USF could give the license back, but they could also opt to sell it or donate it to another entity focused on bringing back community/student radio.

    Currently the KUSF broadcasts of KDFC are originating from Entercom’s studios in San Francisco. If the sale does not go through, it’s also possible that the operating agreement between USF and CPRN will continue.

  5. kml July 11, 2011 at 6:19 pm #

    Sure, Eric — There’s no single Motion or action to stop this lousy deal. Given the FCC has already launched a serious inquiry into issues which Ted’s Motion clearly substantiates, it will be interesting to see the USF/CPRN/PRC response. As you point out, no matter how powerful, no party can argue a Main Studio exists where one does not — nor that they are in compliance with the FCC without one.

    Although USC has chosen to become a consolidator of the left-of-the-dial, without regard for local public value  — the faculty at USF has made it clear they don’t subscribe to this short-sighted approach. SF’s Board of Supervisors and several mayoral candidates are equally committed to retaining this FM license and KUSF’s invaluable programming.

    With the help of Light Rail Studios, Save KUSF/KUSF-in-Exile has quickly put together an studio. So, on-campus or off, by working together USF, city officials, listeners, and volunteers are perfectly capable of finding a better solution for this FM license — one that can become a benchmark across the country. Yes, it will take continued support, tenacity, and innovation — but as companies like Public Radio Capital equate the left-of-the-dial to beachfront property, what better place than San Francisco to stand up for public good and independent voices? For my part, I’m pretty sure that protecting this one small radio station will do a great deal to shape the quality of music, thought, conversation, and community in SF –and possibly around the country — for decades to come. Step one is stopping the sale. Step two is constructing a good deal for The City and The University, which is USF’s own motto to live up to.

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