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USF Granted Request to Limit Scope of FCC Inquiry into Pending KUSF Sale

Signage at KUSF in Exile (Photo: J. Waits)

University of San Francisco (USF) and Classical Public Radio Network (CPRN) are probably in the midst of scrambling to pull together documents for the FCC regarding the proposed sale of college radio station KUSF and the currently-in-place “Public Service Operating Agreement” (PSOA) which is allowing CPRN to air classical music station KDFC over the KUSF 90.3 FM airwaves.

Back on June 28 the FCC issued a Letter of Inquiry to USF and CPRN, requesting that they provide extensive documentation to the FCC within 30 days. With that 30-day deadline looming, USF sent a “Request for Modification of Letter of Inquiry” to the FCC in a letter dated June 19. In that letter, USF’s lawyer Dawn Sciarrino asked to limit the amount of paperwork being sent to the FCC and requested a 2-day extension on the deadline. She wrote:

“…the University seeks [sic] provide the Commission with full disclosure of the information it requests for its inquiry, while not overburdening Commission resources with reams of irrelevant documents. As the Letter is focused on the terms of the Public Service Operating Agreement…and control of the Station under the PSOA, the University proposes that Item 9 of the Letter be revised as follows:

9(a) Provide a copy of all Documents from June 1, 2010, to present, to or from Rev. Stephen Privett concerning the proposed sale of the Station; and

9(b) Provide a copy of all Documents from June 1, 2010, to present, to or from Rev. Stephen Privett, Mr. Charles Cross, Donna Davis, Esq., and/or Mr. Stephen Runyon concerning the PSOA.”

Item 9 in the FCC’s Letter of Inquiry (PDF) originally asked USF and CPRN to “Provide a copy of all Documents from June 1, 2010, to the present, to or from Rev. Stephen Privett, Mr. Charles Cross, Donna Davis, Esq., and/or Mr. Stephen Runyon concerning the proposed sale of the Station, the PSOA or CPRN.” So, USF’s request to narrow the scope of the inquiry is asking for the right to withhold documents from June 1, 2010, to present, to or from Mr. Charles Cross, Donna Davis, Esq., and/or Mr. Stephen Runyon concerning the proposed sale of the station and is asking to withhold documents from that same time period to or from Rev. Stephen Privett, Mr. Charles Cross, Donna Davis, Esq., and/or Mr. Stephen Runyon concerning CPRN.

Although Friends of KUSF and Ted Hudacko submitted Letters of Opposition regarding this request, in a reply dated July 27 (PDF), the FCC granted USF’s request to limit the scope of the inquiry and agreed to extend the deadline to August 1, 2011. However, they did leave open the possibility that the FCC could come back to USF to ask for more documents if they are not satisfied with what has been supplied. According to the letter from the FCC’s Audio Division Chief Peter Doyle:

“Ms. Sciarrino’s requests are reasonable and are hereby granted. We are unpersuaded by Petitioners’ arguments, as we retain the discretion to seek the originally requested material if we believe that the responses submitted by the Licensee and CPRN are in any way incomplete or insufficient to render a determination on the compliance of the transactions with the Communications Act and the Commission’s Rules.”

Peter Franck, counsel for Friends of KUSF explains,

“The FCC has indicated that it is looking into the background of the shut down of KUSF as a student and community station and its proposed transfer. Now the University wants to withhold some of the requested documentation without giving any serious reason for withholding those documents. This strengthens our belief that this entire transaction has not been open and that a close examination of the documented facts will show that it is not in the public interest and should not be approved by the Commission.”

Franck went on to explain to me that the FCC granted a “substantial narrowing” of the scope of the requested documents and expressed concern about the material that USF is holding back from the FCC’s inquiry, stating, “I wonder if they are hiding something.”

CPRN’s lawyer Lawrence Bernstein also submitted a “Request for Partial Modification of Inquiry Letter” to the FCC on July 26. In that letter Bernstein states that CPRN and USF are “preparing their joint response, which with attachments and as of this writing may exceed 1000 pages in length.” With that in mind, he asks that two individuals be removed from the list of people to receive copies of the full responses to the FCC’s Letter of Inquiry. Those two individuals, M.F. Cavanaugh and Ralf Burgert, had sent the FCC letters objecting the proposed sale of KUSF. But Bernstein argues that USF and CPRN were never served with those letters and that “…there is no reason to believe that they possess information germane to the issue on which the Letter [of Inquiry] is based.”

Bernstein goes on to argue that USF and CPRN are being burdened with paperwork requested in the Letter of Inquiry. He states:

“USF and CPRN have been and are continuing to expend considerable resources in assembling and duplicating the multitude of documents required by the Letter. They should not be compelled to needlessly increase those expenditures…In fairness, the Bureau should rule that CPRN and USF need not serve additional voluminous copies of its response on individuals who filed generalized single-page objection letters but who have nothing material to contribute here.”

By the middle of next week the attorneys for Friends of KUSF will have access to the paperwork submitted to the FCC in response to this Letter of Inquiry. According to Franck, they will have 10 days in which to craft their response.

In other legal news, the FCC also made its formal reply this week to University of San Francisco graduate student and KUSF DJ Daniel Everett’s Petition for Reconsideration regarding the FCC’s approval of the request by USF to move the KUSF transmitter. Everett had claimed that USF was in breach of contract in that he no longer had use of KUSF for his radio show “Folk Law” and that by moving the KUSF transmitter, USF was cutting off a promised-for educational resource for Everett. In its July 26, 2011 letter (PDF), the FCC dismissed the Folk Law host’s petition. The letter from FCC Audio Division Chief Peter Doyle states that not only was Everett’s petition too late for consideration since it was filed beyond the required 30-day filing window, but that even if it had been submitted in a timely matter, it still does not provide grounds to overturn the FCC’s decision regarding the transmitter move. According to the FCC’s letter:

“…were we to consider the merits of the Petition, we would deny it. The Petition alleges that the license breached a contract for airtime with Everett. Reconsideration is warranted only if the Petitioner sets forth an error of fact or law, or presents new facts or changed circumstances which raise substantial and material questions of fact that otherwise warrant reconsideration of the prior action. None of the allegations made therein pertain to the facilities or location proposed in the Application; Everett does not allege that the Commission erred in granting the Application, nor does he show new facts or changed circumstances that otherwise warrant reconsideration. Moreover, the Commission has consistently held that parties should seek redress for private contractual disputes in courts of competent jurisdiction.”

It should be an interesting few weeks as we learn more about the deal between USF and CPRN. By the end of day on Monday, August 1, 2011, USF and CPRN will have delivered their responses to the FCC’s Letter of Inquiry not only to the FCC, but also to Friends of KUSF and others who have submitted formal Petitions to Deny with the FCC.


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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