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Applications for Review Filed with FCC Regarding KUSF License Transfer

KUSF Studio in January 2009 (Photo: J. Waits)

KUSF Studio in January 2009 (Photo: J. Waits)

Friends of KUSF and KUSF listener Ted Hudacko have both filed Applications for Review with the FCC, asking for further scrutiny of the transfer of the license for KUSF 90.3 FM from University of San Francisco (USF) to Classical Public Radio Network (CPRN).

After the shut-down of college radio station KUSF 90.3 FM in January, 2011, both Friends of KUSF and Ted Hudacko filed separate Petitions to Deny the license transfer in February, 2011.

Prompted by these Petitions to Deny (and possibly by numerous informal objections filed by KUSF supporters and listeners), the FCC issued a Letter of Inquiry to USF and CPRN in June 2011, seeking further details about the pending station sale. Among other things, the Letter of Inquiry requested that USF and CPRN provide a year’s worth of documents and emails related to the station sale and public service operating agreement (PSOA) that was set up to allow CPRN to broadcast KDFC’s classical music programming over KUSF 90.3 FM.

Although USF and CPRN submitted hundreds of pages of material in response to the FCC’s Letter of Inquiry, certain items were left out, including email correspondence from University of San Francisco President Stephen Privett.

The FCC concluded its investigation in 2012 and granted the KUSF license transfer in June, 2012, denying all Petitions to Deny, informal objections, and Motions to Dismiss in the process. At the same time, the FCC issued a Consent Decree asking USF and CPRN to pay a collective $50,000 as penalty for violations uncovered during the investigation, primarily related to improper payment of fees for programming time.

In its Application for Review, the attorneys for Friends of KUSF point out that issues raised in their Petition to Deny were not completely addressed by the Consent Decree. In their filing, they ask the FCC to “set aside the Consent Decree, set aside the Denial Letter, and designate the assignment application for hearing on the matters raised, but not fully resolved, in the Inquiry Letter.”

Both Hudacko and Friends of KUSF also find fault with the FCC for entering into discussions with USF and CPRN without consulting the parties who filed Petitions to Deny the license transfer. In its Application for Review, the lawyers for Friends of KUSF argue that their were “procedural issues” in the handling of this case by the FCC. In outlining these “unlawful” actions, the Friends of KUSF attorneys state that,

“Once Petitioner offered probative evidence and raised a substantial and material question regarding the basic qualifications of the Parties, the Commission was required by law to conduct a hearing on the matters raised. The failure to designate was prejudicial procedural error. The bifurcated proceeding violated due process  by denying Petitioner important rights of participation and by enabling the staff to rule on a record that was materially incomplete in many respects.”

Lawyers for Friends of KUSF argue that “…the Media Bureau staff met with the Applicants in secret and hashed out a generous compromise.” The Application for Review states,

“The monetary sanction of $50,000 to be paid jointly by the Parties is inadequate. By the time the cash payments under the PSOA were suspended in approximately June 2011, USF had received $34,000 in improper cash payments, over and above the terms of the asset sale…A ‘joint’ responsibility for the fine, jointly with a wealthy and motivated buyer, all but assured that the University would walk and pay nothing.”

Within the Application for Review, Friends of KUSF’s attorneys also raise issues related to USF’s concealment of a privilege log and state that it was a “key document that was improperly withheld by USF.”  They argue that by allowing USF to keep secret the list of items that it wanted to keep secret,

“It enabled Applicants to pick and choose the documents they would present, without ever having to state the scope of matters not produced to Petitioners or the reasons for not producing them. This single action did more than anything to reduce Petitioner’s nominal participation in the proceeding to a sham.”

KUSF listener Ted Hudacko, who also submitted a Petition to Deny and a Motion to Dismiss the KUSF license transfer last year, also raised issues regarding the privilege log in his July 2 Application for Review. Hudacko states that he filed a Freedom of Information Act (FOIA) request in order to obtain the privilege log and explains that this request was in the process of being granted, but was then opposed by USF. According to Hudacko’s Application for Review:

“The staff in the Office of Communications and Industry Information (within the Media Bureau) made concession that Petitioner should see the Privilege Log. Subsequently, USF appealed for review of the FOIA Request grant in order to continue to prevent production of the Privilege Log. Petitioner replied, demonstrating that USF’s and CPRN’s failure to produce the Privilege Log had violated multiple Federal Rules of Civil Procedure, that the Appeal’s case law citations were inapplicable, and that the Privilege Log should have been produced previously by USF and CPRN without requiring Petitioner to seek it via FOIA Request.”

Hudacko continues:

“While waiting for this smoking gun, which was under review by the General Counsel, the Media Bureau made a back room deal with USF and CPRN to negotiate the so-called Consent Decree and Order and effectively to moot the Review of Petitioner’s FOIA Request. There was no adversarial process on the Privilege Log. Instead, a bogus process was substituted which violated Petitioner’s right for due process.”

Hudacko’s Application for Review asks the FCC to reject the KUSF license transfer and Consent Decree, to grant a hearing, to grant his FOIA request to see the USF privilege log, and to “consider the full scope of violations raised by Petitioners.” When I spoke with Hudacko this week, he expressed his dismay over the FCC’s handling of this case, stating, that the Petitioners “raised substantive issues,” which should have been addressed.

University of San Francisco and Classical Public Radio Network will both have an opportunity to provide responses to the FCC regarding these Applications for Review. CPRN’s Managing Director Brenda Barnes told me today, “we will be submitting a response by the deadline, which is in a little more than a week.” I didn’t hear back from USF regarding their reaction to the Applications for Review.



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