COVER PAGE - Petition to Deny by dfgh4bnmu

VIEWS: 26 PAGES: 82

									                                   Before the
                    FEDERAL COMMUNICATIONS COMMISSION
                             Washington, D.C. 20554




                                            )
In re Application of                        )
                                            )
University of San Francisco,                )    File No. BALED-20110125ACE
                                            )
                    Assignor,               )    Facility ID Nos. 69143
                                            )
And                                         )
                                            )
Classical Public Radio Network LLC          )
                                            )
                       Assignee,            )
                                            )
For consent to Assignment of License        )
for Station KUSF                            )
                                            )
                                            )

To: The Media Bureau

                                   PETITION TO DENY OF
                                     FRIENDS OF KUSF


                                                 By:     Alan Korn, Esq.
                                                         Law Office of Alan Korn
                                                         1840 Woolsey Avenue
                                                         Berkeley, CA 94703
                                                         Ofc 510/548-7300/Fax 510/540-4821

                                                         Peter Franck, Esq.
                                                         Lee, Lawless & Blyth
                                                         11 Embarcadero West, Ste. 140
                                                         Oakland, CA 94607
                                                         Ofc 510/272-0200 x305
                                                         Fax 510/205-4750
                                                         peter@culturelaw.com

                                                         Its Attorneys
February 27, 2011
                                              TABLE OF CONTENTS

I.     INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.    FRIENDS OF KUSF HAS STANDING UNDER SECTION 309(D) OF THE
       COMMUNICATIONS ACT TO SUBMIT THIS PETITION TO DEN. . . . . . . . . . . . . . . 2

III.   STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV.    LEGAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

       A.        LEGAL STANDARD FOR REVIEWING A PETITION TO DENY. . . . . . . . . . . 5

       B.        THE PROPOSED ASSIGNEE HAS MADE NO SHOWING THAT IT
                 IS QUALIFIED TO BECOME A NONCOMMERCIAL LICENSEE,
                 OR THAT IT WILL PROVIDE A NONCOMMERCIAL EDUCATIONAL
                 BROADCAST SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

       C.        TRANSFER OF USF’S NON-COMMERCIAL EDUCATIONAL FM
                 LICENSE TO CPRN IS NOT IN THE PUBLIC INTEREST . . . . . . . . . . . . . . . . 11

                 1.        CPRN SEEKS TO ACQUIRE USF’S LICENSE TO FURTHER
                           ITS UNDERLYING COMMERCIAL OBJECTIVE IN
                           PROMOTING A WEB-BASED CLASSIFICAL MUSIC
                           DISTRIBUTION PLATFORM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                 2.        ASSIGNMENT OF THE LICENSE TO CPRN WILL NOT
                           SERVE ANY EDUCATIONAL PURPOSE AND WILL
                           DEPRIVE STUDENTS, FACULTY AND THE BAY AREA
                           COMMUNITY OF A VALUABLE PUBLIC BROADCASTING
                           RESIOURCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

                 3.        ASSIGNMENT OF THE LICENSE TO CPRN WILL NOT
                           SERVE THE INTERESTS OF BROADCAST LOCALISM
                           OR DIVERSITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

       D.        THE FACTS UNDERLYING THIS TRANSACTION RAISE
                 SUBSTANTIAL CHARACTER ISSUES BASED ON THE PARTIES’
                 VIOLATIONS OF COMMISSION RULES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

                 1.        THE PARTIES’ BEHAVIOR UNDER THE PURPORTED
                           LOCAL MANAGEMENT AGREEMENT WITH CPRN
                           CONSTITUTES AN IMPERMISSIBLE LOSS OF CONTROL
                           BY THE LICENSEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17



PETITION TO DENY (Friends of KUSF) - Page i
                 2.         IN THEIR ATTEMPT TO AVOID PUBLIC INQUIRY INTO
                            THE TRANSACTION, USF AND CPRN HAVE VIOLATED
                            THE COMMISSION’S PUBLIC FILE RULES . . . . . . . . . . . . . . . . . . . . 20

                 3.         CPRN HAS VIOLATED STATION IDENTIFICATION
                            RULES WHILE EXERCISING ACTUAL CONTROL
                            OVER THE STATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

V.     CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24




PETITION TO DENY (Friends of KUSF) - Page ii
                                                SUMMARY
              Petitioner Friends of KUSF sets forth reasons that the application for assignment of
       license of KUSF (FM-Ed) to Classical Public Radio Network, LLC (“CPRN”) should not
       be granted. Substantial and significant reasons are presented that the application must be
       designated for hearing on issues of basic and character qualification.
              Noncommercial, educational licensees are required to be qualified educational
       entities offering a noncommercial, educational program service. A limited liability
       company, CPRN has not described its organizational structure. The application does not
       include a program description of any kind. In similar circumstances the Commission has
       held that the applicant is unqualified and the application has been dismissed.
              The proposed transfer became public suddenly when the licensee University of San
       Francisco abruptly shut down its main studio and posted security guards to prevent entry
       by volunteers and staff. Immediately the station was re-programmed to provide a 24-hour
       feed of classical music, using the call sign and regular program ID of a local commercial
       FM. Review of the application would indicate that this new program service was being
       provided and overseen by the proposed transferee, under a Public Service Management
       Agreement attached to the application.
              Assignment of USF’s license to CPRN is also not in the public interest because it
       will not serve any educational purpose or promote broadcast localism or diversity.
              The facts of the interim broadcast, as described here in declarations and exhibits,
       show a complete abdication of licensee responsibility, including unauthorized
       relinquishment of control, EAS, Station Identification, main studio, and public file
       compliance. An issue is needed to determine whether the licensee is liable for a forfeiture,
       possibly including the surrender of the license it seeks to assign. The interim broadcast
       also has placed the assignee in a harsh light, showing that the program service it plans will
       in no way be educational, and in several areas demonstrating that, as a steward of the




PETITION TO DENY (Friends of KUSF) - Page iii
       station for the time being, it is acting in disregard of the same Commission rules and
       policies.
               For the reasons stated, petitioner asks that the applications be designated for
       hearing.




PETITION TO DENY (Friends of KUSF) - Page iv
1.     INTRODUCTION

       KUSF (FM), a noncommercial educational broadcast station operated by the University
of San Francisco (USF), closed its doors at 10:00 a.m. on January 18, 2011, and posted security
guards to prevent entry by staff or volunteers. The licensee issued a press release announcing
that the station had been sold.

       The captioned assignment application indicates that the buyer is Classical Public Radio
Network, LLC (“CPRN”), an entity created under Colorado law in 1998. The buyer, in turn is
currently owned 90 per cent by the University of Southern California, licensee of a
predominant NPR Member and public radio classical outlet in Los Angeles, KUSC (FM)
(collectively, “KUSC”) and 10 per cent by Classical SF LLC, a recently-formed entity
controlled by Public Radio Capital (“PRC”), a Colorado LLC claiming to be non-profit.

       The full details of this transaction may never be known. But USF stands to receive
$3.8 million for the station asset it received in 1973 for free. CPRN and KUSC apparently plan
to use USF’s channel at 90.3 Mhz essentially as a barker channel to attract audience to a for-
profit and advertiser-supported on-line classical music delivery service. Entercom, the large
multi-station for-profit operator, appears to be financing the transaction in part, and will be
able to substitute a profitable classic rock channel (KUFX) on its 102.1 broadcast frequency in
exchange for giving up its struggling for-profit classical station KDFC.

       Petitioner recognizes that the Commission's review of an assignment limits inquiry into
whether or not the proposed assignee is qualified. 47 U.S.C. Section 310(d). Commission
precedents tend to favor free transferability of licenses, and while listeners and other have
every legal right to petition, only substantial and significant matters will impel the Agency to
proceed to a hearing. In this case, we submit that Petitioner’s legal challenge has been met.

       In an era of massive broadcast consolidation, KUSF was widely recognized as San
Francisco’s “Cultural Oasis” broadcasting a uniquely local and diverse blend of programming
to one of the most diverse populations in the nation. The sudden fait-accompli assignment


PETITION TO DENY (Friends of KUSF) – Page 1
created an uproar, with the San Francisco Board of Supervisors, USF faculty, students and
alumni, and listeners throughout the Bay Area and across the nation opposing the plan. USF’s
proposed assignment to CPRN does not serve the public interest, because the assignee has not
even attempted to describe a noncommercial, educational use for the station. Grant of the
assignment application would lead to a fundamental decrease in localism and diversity on Bay
Area airwaves. Petition urges that the application for assignment be designated for hearing.

       While the proposal is pending, and a licensee could expect to be under heightened
attention and scrutiny, CPRN and USF instead have been cavalier and sloppy. Among other
things, they have willfully and repeatedly violated Commission rules, including emergency
alert system rules, station ID rules and public file rules, while their deal awaits FCC approval.
CPRN’s premature exercise of de facto control over the station’s basic operating policies also
does not augur well for the proposed assignee’s stewardship of the educational station resource
later. For these reasons also, Petitioners respectfully request that the assignment application be
designated for hearing on the factual issues raised herein.

II.    FRIENDS OF KUSF HAS STANDING UNDER SECTION 309(D) OF THE
       COMMUNICATIONS ACT TO SUBMIT THIS PETITION TO DENY
       Friends of KUSF is a San Francisco-based unincorporated association comprised of
former staff and volunteers of KUSF. Friends of KUSF operates the website www.fokusf.org
and a Facebook page located at http://www.facebook.com/#!/SaveKUSF.

       Attached as Exhibit 1 is the Declaration of Friends of KUSF leader Nathan Baker. In
his Declaration, Mr. Baker attests to the harm incurred by Friends of KUSF and its members
due to the proposed assignment of the NCE FM broadcast license of The University of San
Francisco’s (USF) to Applicant CPRN, as well as the harm resulting from CPRN’s actual
takeover of USF’s license and broadcast operations on January 18, 2011 without the
Commission’s grant of the assignment requested here.




PETITION TO DENY (Friends of KUSF) – Page 2
       For the reasons set forth in the Baker Declaration and because Friends of KUSF and its
members reside within the service area of USF’s license, Petitioner has standing to file this
Petition, 47 U.S.C. Section 309(d); Office of Communication of the United Church of Christ v
FCC, 359 F.2d 994 (D.C. Cir. l966) (“UCC v. FCC”); See also Section 73.3584 of the Rules
and Regulations, 47 C.F.R. Sec. 73.3584.

III.   STATEMENT OF FACTS

       The station currently known as KUSF was donated to the University of San Francisco in
1973. Since 1978 it has provided a hybrid of student teaching and learning, distance learning,
news and information, community service, and diverse musical and ethnic offerings.1

       The proposed purchase of USF’s noncommercial educational FM license by CPRN is
the result of a three-way deal between those two parties on one hand, and Entercom, one of the
largest broadcast owners in the country. In this plan, CPRN agreed to purchase USF’s non-
commercial FM broadcast license for 90.3 FM in San Francisco for $3.8 million dollars, while
also entering into a separate purchase agreement for the religious broadcaster Howell Mountain
Broadcasting Company’s NCE license to operate KNDL at 89.9 FM in Angwin, California
(Napa County) for $2.8 million dollars. Simultaneously, Entercom which owns classical
station KDFC in San Francisco,2 agreed to give its KDFC call letters and classical record
collection to CPRN for use following the latter’s acquisition of KUSF and KNDL.3




1. See generally the declarations submitted by Petitioner at Exhibit 4 concerning KUSF’s
programming, awards and history of community service. See also http://en.wikipedia.org/
wiki/KUSF.

2. As part of this deal, Entercom also purchased KUFX from the Clear Channel Aloha Trust,
with the intention of simulcasting that station’s rock programming over KDFC’s former San
Francisco frequency at 102.1.

3. See e.g. “San Francisco’s Long-Time Classical KDFC (102.1) is Moving to Non-Com
Signals, Radio-Info.com, Jan. 18, 2011 (http://www.radio-info.com/news/san-franciscos-


PETITION TO DENY (Friends of KUSF) – Page 3
       As discussed below, USC is the purported 90 per cent owner of CPRN. Like Entercom,
which has expanded its presence in the marketplace to become the fifth largest radio
conglomerate in the United States, the University of Southern California (USC) has begun an
aggressive campaign to expand its elite oriented classical music radio network. 4 This is fully
consistent with the USC dissertation of Brenda Barnes, essentially a business plan for internet
classical music service, entitled Moving Classical Public Radio Into the New Media Future
(Dec. 2009) (hereinafter, “the Barnes plan.”).5 Ms. Barnes is President of USC Radio6 and
Managing Director of CPRN.

       Entercom benefits from the deal by securing a stronger and more centrally located
channel for KUFX’s classic rock programming, and ridding itself of a less-profitable
commercial classical service. Although classical programming will perform less well in the
South Bay on KUSF’s frequency, Entercom will avoid the outcry that would ensue if its
economically marginal classical service were terminated altogether. And USC apparently
acquires effective control of a classical outlet in the San Francisco Bay area, while being able
to essentially delegate its classical programming headache to another entity. This aligns
perfectly with the business objectives of the Barnes Plan, which stresses the need for multiple
outlets, while also cautioning about the problems of working with partner organizations,
particularly those spread out geographically. The assignment thus presents a win-win for the


longtime-classical-kdfc-1021-is-moving-to-non-com-signals); See also “Entercom Brings
KFOX into S.F., USC Takes on KDFC,” Radio Ink, Jan. 18, 2011 (http://www.radioink.com/
Article.asp?id=2085770)

4. USC’s network of classical music broadcast licenses currently includes KUSC (Los
Angeles), KDSC, Thousand Oaks, KPSC, Palm Springs, KQSC, Santa Barbara, and KESC,
Morro Bay.

5. A copy of the 216 page Barnes Plan is available online at http://digitallibrary.usc.edu/
assetserver/controller/item/etd-Barnes-3329.pdf%3Bjsessionid=
469D5B8D879249F1336F17E868585537

6. http://www.usc.edu/directories/dept/usc_radio.html



PETITION TO DENY (Friends of KUSF) – Page 4
commercially oriented interests involved. It represents a loss only for KUSF, its listeners and
the public, who will no longer have any of the benefits of localism, diversity and educational
programming that the station provided since 1973.

IV.    LEGAL ARGUMENT

       A.      LEGAL STANDARD FOR REVIEW OF A PETITION TO DENY

       As provided in 47 U.S.C. Section 309(d)(1),7 “[a]ny party in interest may file with the
Commission a petition to deny any application” for a broadcast license containing specific
allegations of fact sufficient to show “that a grant of the application would be prima facia
inconsistent” with the public interest.8 Then, as explained in case law, Astroline
Communications Co. v. FCC, 857 F.2d 1556 (D.C. Cir. 1988) (“Astroline”):

       The Commission must perform section 309(d)'s threshold inquiry on the basis of the
       petitioner's allegations alone. The Commission is limited to consideration of the
       petition and its supporting affidavits. Moreover, in evaluating a request for an
       evidentiary hearing under section 309(d)(1), the Commission must proceed ‘on the
       assumption that the specific facts set forth [in the petition] are true.’ Citizens for Jazz
       on WRVR v. FCC, 249 U.S. App. D.C. 342, 775 F.2d 392, 397 (D.C. Cir. 1985). As we


7. 47 U.S.C. Section 309(d)(1). (“Any party in interest may file with the Commission a
petition to deny any application (whether as originally filed or as amended) to which
subsection (b) of this section applies at any time prior to the day of Commission grant thereof
without hearing or the day of formal designation thereof for hearing…. The petition shall
contain specific allegations of fact sufficient to show that the petitioner is a party in interest
and that a grant of the application would be prima facie inconsistent with subsection (a) of this
section (or subsection (k) of this section in the case of renewal of any broadcast station
license). Such allegations of fact shall, except for those of which official notice may be taken,
be supported by affidavit of a person or persons with personal knowledge thereof.”)

8. See also 47 C.F.R. Section 1.939(d) (“A petition to deny must contain specific allegations
of fact sufficient to make a prima facie showing that the petitioner is a party in interest and that
a grant of the application would be inconsistent with the public interest, convenience and
necessity. Such allegations of fact, except for those of which official notice may be taken, shall
be supported by affidavit of a person or persons with personal knowledge thereof.”).




PETITION TO DENY (Friends of KUSF) – Page 5
       elaborated in Gencom, Inc. v. FCC, 265 U.S. App. D.C. 403, 832 F.2d 171 (D.C. Cir.
       1987).
If the Commission determines that the petition satisfies the threshold standard, the inquiry
proceeds to a second phase. If the Commission determines that a question of fact has been
raised, or if it cannot, for any reason, find that grant of the application would be consistent with
the public interest, it must conduct a hearing in accordance with 47 U.S.C. Sec. 309(e).
Astroline, Id. See 47 U.S.C. Sec. 309(d)(2).

       Commission action on the current application must be seen and evaluated in light of the
Commission’s responsibility for the creating and promoting a larger and more effective non-
commercial, educational broadcast service. The Commission is under an obligation, as both an
adjudicatory body and a quasi-legislative body to review this transaction as part of a national
attempt by a small number of broadcasters interested only in lowest-cost syndicated musical
programming to absorb and destroy college radio stations that serve unique and diverse
functions. See e.g. http://www.nytimes.com/2010/12/06/business/media/06stations.html.

       B.      THE PROPOSED ASSIGNEE HAS MADE NO SHOWING THAT IT IS
               QUALIFIED TO BECOME A NONCOMMERCIAL LICENSEE, OR
               THAT IT WILL PROVIDE A NONCOMMERCIAL, EDUCATIONAL
               BROADCAST SERVICE.
       Eligibility for a noncommercial license is restricted “only to a non-profit educational
organization.” Section 73.503(a) of the Rules. The proposed assignee has not provided any
description of the nature of the entity at all. In the application, Section III, Question 2, CPRN
checked the box that it is “a limited liability company.” This choice is provided because the
Form No. 314 is used for commercial and noncommercial applicants alike. But rarely, if ever
has an LLC applied for and been granted status as a noncommercial, educational licensee. This
is a fundamental qualification requirement, as to which this proposed assignee has said
nothing. In the comparative context, the failure to properly incorporate as a non-profit prior to
filing has been held a qualifying defect that could not be cured by amendment, Blue Lake
Academy, Inc., 20 FCC Rcd 12066, 12068-10 (MB, 2005).



PETITION TO DENY (Friends of KUSF) – Page 6
         The proposed assignee, CPRN LLC, is described in its Articles, Article VI (D) as
organized and operated as a Section 509(a)(3) organization, i.e., a support organization in
service to other non-profits (See Articles of Organization filed with the Secretary of State of
Colorado attached to Korn Declaration at Exhibit 2).9 This status is problematic for
educational broadcasting qualification purposes, because the educational status of the served
educational non-profit does not automatically transfer to 509(a)(3) Support Organization, any
more than the qualifications of a school would carry over to the non-profit PTA or teachers'
union.

         In Music Ministries, Inc., 9 FCC Rcd 3628 (HDO, 1994), the applicant checked (b),
private non-profit educational institution. But it also modified the form, changing “educational
institution” to “educational institution / organization / corporation.” The Commission found it
was unable to determine whether the applicant was either a non-profit educational institution or
an otherwise qualified non-profit. In a case closely similar to this one, Dry Prong Educational
Foundation, 7 FCC Rcd 496 (1992), the applicant said it would provide educational service
through “relationships with schools.” Held: the showing falls short.

         When we turn to the description of educational activities, the application is completely
silent. Petitioner located the Articles of Organization, which have not been submitted, but
these are inadequate to fill in the gaps. The Company will be “providing unique classical
music programming” (Art. VI(A), “producing . . . classical music programming” (VI(B)), and
will distribute the same VI(B). That these activities, by themselves with nothing more, are


9. The IRS provides the following definition for Section 509(a)(3) Supporting Organizations:
     “Supporting organizations are charities that carry out their exempt purposes by
     supporting other exempt organizations, usually other public charities. The classification
     is important because it is one means by which a charity can avoid classification as a
     private foundation, a status that is subject to a much more restrictive regulatory regime.
     The key feature of a supporting organization is a strong relationship with an organization
     it supports. The strong relationship enables the supported organization to oversee the
     operations of the supporting organization. Therefore, the supporting organization is
     classified as a public charity, even though it may be funded by a small number of persons
     in a manner similar to a private foundation.”
  http://www.irs.gov/charities/article/0,,id=137609,00.html




PETITION TO DENY (Friends of KUSF) – Page 7
“educational” is an unexamined and unproved premise. This is comparable to a case where the
applicant described itself as “a religious, charitable, and educational entity for the promotion of
Christianity and all matters incidental thereto.” While the Commission has an expansive view
of education that includes many religious activities, the total absence of documentation of any
educational purpose or program in that case, apart from promotion of the faith, was found to be
insufficient. Holy Spirit Harvest Church, 7 FCC Rcd 3043 (HDO, 1992).

       The broadcast trade publication Current states that CPRN was the first non-profit LLC
in the Country.10 As with all LLC’s, CPRN’s ownership interests are known as
“memberships.” See Articles of Organization, Article IV. CPRN is also managed by
Managers. Id. Normally in an LLC the Managers are Managing Members. The present
application does not explain the ownership, but lists USC as a ninety per cent owner, and
Classical SF LLC, a California LLC, as a 10 per cent owner. Two individuals, Brenda Barnes
and Marc Hand, are listed as Managing Directors, although the entity, CPRN, would appear
not to have any directors. It is possible that 100 per cent of the control of the entity lies with
the two persons denominated “Managing Directors.” But without more information it cannot
be determined whether or not USC is a managing member or a non-managing member of the
LLC. Because it cannot be determined from the application where actual control resides, the
Commission is unable to find that the proposed assignee is legally qualified.

         In California, where Classical SF LLC is registered, an LLC is permitted to engage in
any lawful business, for profit or not for profit. See California Corporations Code Section
17002. In Colorado, where CPRN LLC is registered, a limited liability company may be
formed under this article for “any lawful business . . . .”. Colorado Revised Statutes, Title 7,
Sec. 80-103. Noncommercial FM licensing, of course, is not a business. The omission of an
explanatory exhibit is especially striking here, because a search of the Commission’s records
indicates that CPRN has never presented its qualifications and sought to become a Commission
noncommercial, educational licensee – until now.


10. See M. Janssen, “Partners to Close Classical Net for Radio But See Chance for Growth
Online, Current (March 24, 2008), located at http://www.current.org/music/ music0805cprn.shtml




PETITION TO DENY (Friends of KUSF) – Page 8
       The proposed assignee has failed to provide any explanation of its convoluted legal
structure. As far as the noncommercial standing of USC, that university many times has been
found to be a qualified noncommercial licensee. But CPRN, as an I.R.S. Sec. 509(a)(3)
supporting organization, cannot automatically bootstrap the qualifications of USC to its own
proposal.   Meanwhile the ten per cent “ownership” of Classical SF, LLC, appears to be, in
effect, a disguised brokerage fee to the Classical SF LLC owners, in consideration of their
work in structuring the deal in this market and others. The educational bona fides of Classical
SF, LLC, are likewise unexplained.11

       Aside from educational qualifications of the entity, eligibility for noncommercial
licensing is additionally restricted “upon a showing that the station will be used for the
advancement of an educational program[.]” Section 73.503(a). For private universities such as
USF, accreditation is a factor that may be favorably considered. Section 73.503(a)(2). The
proposed assignee here may not avail itself of that favorable assumption. The instructions to
the Form 314 require any noncommercial applicant to make a “showing that it has an
educational objective and that the station will be used for the advancement of an educational
program that will further that objective[.]” See Instructions to Form 314, p. 5. None of this
has been done here. Accordingly, the Commission is unable to find that the proposed assignee
is qualified or is proposing service that is consistent with a noncommercial, educational



11. Whatever the relationships within the CPRN entity, it cannot be determined whether the
responses in the form are fully truthful and forthcoming. According to the application:
     “THE CERTIFICATION TO SECTION II, ITEM 5, IS BASED EXCLUSIVELY
UPON THE SIGNATORY'S ACTUAL KNOWLEDGE. [Other Authorizations]”
     “THE CERTIFICATION TO SECTION II, ITEM 6, IS BASED EXCLUSIVELY
UPON THE SIGNATORY'S ACTUAL KNOWLEDGE. [Multiple Ownership]”
      “THE CERTIFICATIONS TO SECTION II, ITEMS 9 AND 10, ARE BASED
EXCLUSIVELY UPON THE SIGNATORY'S ACTUAL KNOWLEDGE. [Alien Ownership
and Control; Financial Qualification]”

Is the Commission thus asked to credit these statements, based on the unexamined belief of the
signatory, without the need for her to make full inquiry as to all the facts?


PETITION TO DENY (Friends of KUSF) – Page 9
authorization. Wisconsin Broadcast Communications Foundation, Inc., et al, 5 FCC Rcd 5739
(HDO, MB, 1990); Toccoa Falls College, 8 FCC Rcd 3085 (1994); Dry Pong Educational
Foundation, 7 FCC Rcd 3043 (1992).

       The failure to provide any documentation of an educational program requires a
qualifying programming issue. Holy Sprit Harvest Church, supra., 7 FCC Rcd 3043 (1992).
But what we do know about the proposed assignee magnifies this concern. As mentioned, its
stated purposes are to create and distribute a classical music service and that alone. Petitioner
acknowledges that this type of programming can be meritorious, but standing alone it is not
“educational.” Pursuant to a Public Service Operating Agreement (Attachment 5 to USF’s
Form 314 application), the proposed assignee has already taken over all programming on
KUSF, originating from KDFC’s downtown San Francisco studios and using that station’s
former hosts. The new program service consists entirely of classical music previously
broadcast by the commercial KDFC (including consistent station ID's and repetitive mentions
of KDFC). See Declarations at Exhibit 5. The import of this is striking: 100-per-cent of a
commercial station's program content is transferred over to a “noncommercial” station, with
the commercials excised. The Commission might conclude that this is a noncommercial
service. But the Commission should conclude as a matter of law that it can never be
considered an educational service without some other detailed program plans in mitigation. As
noted in Way of the Cross, 101 FCC 2d 1368 (1985), the statute grants the Commission
authority to prescribe the nature of the service to be rendered by each class of stations, 47
U.S.C. Sec. 303(b). The standards called for by the application form and the procedures to
establish noncommercial eligibility fall squarely within that grant of authority. Id. at 1378.
Here the proposed assignee fails that test.

///

///

///


PETITION TO DENY (Friends of KUSF) – Page 10
        C.        TRANSFER OF USF’S NON-COMMERCIAL EDUCATIONAL FM
                  LICENSE TO CPRN IS NOT IN THE PUBLIC INTEREST
                  1.   CPRN’S SEEKS TO ACQUIRE USF’S LICENSE TO FURTHER
                       ITS UNDERLYING COMMERCIAL OBJECTIVE IN
                       PROMOTING A WEB-BASED CLASSICAL MUSIC
                       DISTRIBUTION PLATFORM
        This transaction is not a bona-fide broadcasting transaction. The clear purpose of this
transaction is not to enhance broadcasting in the public interest, but rather, to use the license
and transmitter of KUSF to develop an internet-based music resource. Brenda Barnes is both
President of USC Radio and the Managing Director of Applicant CPRN. The Barnes Plan lays
out in 216 pages a “plan for creating a New Media Music Discovery Service.” Barnes Plan at
pg. 122. As Ms. Barnes says “. . . a major issue for KUSC is loss of revenue from Southern
California listeners as they gravitate toward new media, [therefore] a long term goal is to
generate more revenue from outside the KUKSC [sic] listening area.” Id. at pg. 128. The
envisioned Musical Discovery Services (MDS) simply is not a broadcast service, but rather is a
point-to-point billboard promoting classical music by Internet. Barnes states:

        the MDS will focus on music omnivores, whereas KUSC remains focused on classical
        music. One possibility is that the New Media Service ultimately replaces KUSC.
Id. at pg. 129 (emphasis added). Barnes goes on to say candidly that the strategy “outlined
here will assist KUSC in finding a new media solution to the decreasing relevance of radio….”
Id. at pg. 130.

        The strategy of Barnes, USC and CPRN, premised on the use of public radio as a
barker channel to attract audience for Internet music distribution, is an interesting idea, and
possibly a meritorious blend of old and new technology. As a long-term use of radio HD
channels it could make a lot of sense. Here the problem is that it is a misuse of a
noncommercial, educational service, not to reach the public, but instrumentally to direct the
public elsewhere. This is incompatible with the public interest purpose of the license. CPRN’s
business model does not include providing service to the diverse local community it is licensed
to serve. This deal, in particular, demonstrates the type of localism and diversity that is lost in
communities when non-local entities with non-local agendas are allowed to indiscriminately
pick off the few remaining non-commercial stations that cater to uniquely local audiences.



PETITION TO DENY (Friends of KUSF) – Page 11
               2.      ASSIGNMENT OF THE LICENSE TO CPRN WILL NOT SERVE
                       ANY EDUCATIONAL PURPOSE AND WILL DEPRIVE
                       STUDENTS, FACULTY AND THE BAY AREA COMMUNITY
                       OF A VALUABLE PUBLIC BROADCASTING RESOURCE

       Until January 2011, KUSF served as a primary educational platform for USF students
alumni and community members. As the attached declarations attest, the USF Department of
Media Studies used the station as a teaching laboratory, with students learning production
skills as well as using the station as a “best practices” model in University courses addressing
media-related issues. In addition to serving as a location for teaching, mentoring, internships,
and workshop experiences for thousands of USF students and alumni, KUSF serviced as a
resource for faculty seeking a wider audience for their research. Approximately 25% to 50% of
students in USF’s Dept. of Media Studies used the station in some way, and in many instances
it is what brought them to USF in the first place. Student volunteers and interns at USF
regularly become engaged in tasks such as music research, program production, music
promotion, analog and social marketing, publicity and community outreach. As a result, those
students learned valuable on-the-job skills, essential training in today’s very competitive job
market. See Exhibit 4-C.

       The attached declarations also document the educational and vocational impact USF
has had on generations of staff and programmers. Literally hundreds of KUSF alumni have
gone on to national and international prominence as radio programmers and producers,
musicians, writers, managers, record executives and more. USF students have learned
professional skills at a station that has been a primary creative cluster in San Francisco, and an
incubator of independent music in a wide range of genres, including European classical music,
and local programming in twelve languages. Students who volunteered or studied at KUSF
have gone on to develop rich professional networks, leading to internships and jobs in the
recording, promotions, and cultural industries. See Declarations of Department of Media
Studies and Emily Griffin at Exhibit 4. See also, Howie Klein, The Systematic Destruction Of
Independent Media-- From KUSF To NBC



PETITION TO DENY (Friends of KUSF) – Page 12
http://downwithtyranny.blogspot.com/2011/01/systematic-destruction-of-independent.html
(Jan. 19, 2011).

       The Declaration of Adriel Taquechel at Exhibit 4 also shows that the proposed transfer
of KUSF to CPRN is not just the loss of another venue where real-life broadcast skills are
taught. Rather, this deal if consummated would result in the loss of a broadcast outlet that
taught students how to reach out to, and communicate with, their community. Recognizing the
potential loss of a valuable educational asset, the USF Faculty Association Policy Board has
adopted a resolution opposing the sale of the University’s broadcast license to CPRN and
urging the FCC to reject the proposed assignment of USF’s license. See Declaration of Dr.
Dorothy Kidd at Exhibit 4-H.

        In interviews, Ms. Barnes has justified the purchase of KUSF and the expansion of
KUSC’s classical programming as a means of staying in touch with USC alumni in the Bay
Area and “reaching out” to prospective students.12 However, stripping a vital public resource
of its educational component and transforming it into a classical music jukebox and
recruitment tool will not achieve any educational mission. By allowing CPRN to pursue its
true goal of profiting off its new media strategy, the Bay Area will lose one of the few
remaining training grounds for future generations of broadcasters, students and faculty.

                   3. ASSIGNMENT OF THE LICENSE TO CPRN WILL NOT SERVE
                      THE INTERESTS OF BROADCAST LOCALISM OR
                      DIVERSITY
       Throughout its history, KUSF has played a valuable role in broadcasting to the
uniquely diverse Bay Area community. The breadth and depth of KUSF’s cultural and public
affairs programming is reflected in its most recent programming guide covering January



12. D. Lowenstein, “USC-owned ration stations to be ad-free, Daily Trojan, Jan. 20, 2011,
located at http://dailytrojan.com/2011/01/20/usc-owned-radio-stations-to-be-ad-free/ (“’There
are a lot of Trojans in the Bay Area,’ said Brenda Barnes, the president of USC Radio. ‘USC
wanted to have a more tangible presence in an area that is so important for alumni and
perspective [sic] students.’”).




PETITION TO DENY (Friends of KUSF) – Page 13
through March 2011, a copy of which is attached at Exhibit 4-A. In contrast to CPRN’s
proposed 24/7 classical programming, the KUSF program guide documents a unique blend of
public interest programming geared towards local audiences and issues. Until its broadcast
staff was yanked off the air by USF security personnel, KUSF routinely provided a wide range
of invaluable community based programming that has given a voice to, and educated, a unique
range of linguistic and cultural communities. KUSF’s programs included Senior News;
Disability Report (broadcast for over 25 years; Chinese Star Radio which broadcast community
news, health, and cultural information in Cantonese for over 15 years; Armenian Hour which
broadcast for over 25 years; the Turkish Cultural Program which broadcast for over 10 years;
Radio Goethe which broadcast in German for over 10 years; and So Da Brasil, which broadcast
for over 10 years. Through its programming and staff, and interactions with the wide diversity
of community volunteers, KUSF also provided an opportunity for students to learn about local
broadcasting in the public interest. See Exhibit 4-H.

       Given its achievements, it is no surprise that KUSF has received numerous awards for
its long-running community-service programming, including the National Association of
College Broadcasters' National College Radio Award for Best Community Service
Programming in 1993-94. A Certificate of Merit was awarded to KUSF by the American
Heart Association for outstanding service in stimulating public support in the fight against
heart disease and on June 7, 1998, San Francisco Mayor Willie Brown held "Fighting Back
Day in San Francisco" in honor of KUSF's community service series for senior and disabled
citizens. See also Declaration of Alan Korn, Exh. 2 (printout from USF’s website at
http://www.kusf.org/awards.html documenting dozens of awards, including “Best Cultural
Diversity” from American Women in Radio & Television, “Certificate of Commendation”
from U.S. Senate and a California State Senate Resolution commending KUSF). Such is the
overwhelming public support for KUSF’s programming in San Francisco that on February 8,
2011, the San Francisco Board of Supervisors passed a resolution opposing the sale of USF’s
broadcast license to CPRN. Exhibit 4-B.



PETITION TO DENY (Friends of KUSF) – Page 14
   The proposed transfer of KUSF will have a devastating impact on the Bay Area’s local
music and arts community. In an era of increasing media consolidation and restricted playlists,
KUSF has been a reliable media outlet for thousands of Bay Area artists and their fans. Many
now-famous musical acts gained exposure on KUSF before commercial radio expressed any
interest, including U2, REM, The B-52s, Depeche Mode and The White Stripes. More
important, KUSF through the years has consistently featured thousands of local artists,
broadcasting their earliest demo tapes and inviting them into its studios for interviews, readings
and live in-studio performances. Many of these artists, including Metallica, Faith No More and
Primus were later awarded major record deals and went on to receive international acclaim.
Not surprisingly, KUSF’s eclectic programming of new music has also brought numerous
awards, including College Media Journal’s “Radio Station of the Year,” National Association
of College Broadcasters “Best Creative Production” and “College Station of the Year” awards,
awards for Best Radio Station by SF Weekly and San Francisco Bay Guardian newspapers and
Gold Records from groups including REM, Red Hot Chili Peppers, B-52s, The Bangles and
others. Korn Declaration, (Exhibit 4-B).

       The potential transfer of KUSF to CPRN does not just negatively impact local artists.
The loss of KUSF’s many daily announcements and event calendars will hurt independent Bay
Area venues, promoters, music stores, record labels, independent publishers, local theaters, art
galleries and community spaces that relied on the station to keep listeners apprised of their
latest events and releases. The loss of KUSF’s eclectic music programming means that much
of San Francisco will lose access to local musicians and artists and entire genres that do not
receive airplay else on the radio dial.

       Community oriented stations like KUSF have become an endangered species in our
increasingly consolidated media environment. As such, their preservation becomes ever more
important as a matter of public policy. CPRN’s acquisition of USF’s FM license to advance a
homogenous classical music business model substantially erodes the policies of localism and
diversity that lay at the heart of the licensing scheme for noncommercial, educational stations


PETITION TO DENY (Friends of KUSF) – Page 15
under the Communications Act. The concept of localism has been a cornerstone of broadcast
policy for decades, and derives from Title III of the Communications Act of 1934, as amended
(the “Communications Act”), as reflected in and supported by a numerous Commission
policies and rules.” Broadcast Localism, Report on Localism and Notice of Proposed
Rulemaking, 23 FCC Rcd 1234, Par. 5 (2008) (“Broadcast Localism”). As the Commission
noted in its 2008 Notice of Proposed Rulemaking on localism, broadcasters are temporary
trustees of the public’s airwaves, and obligated to operate their stations to serve the public
interest—specifically, to air programming responsive to the needs

         and issues of the people in their communities of license. Id. at Par. 6. According to
 the Commission:

        The principle of localism requires broadcasters to take into account all significant
        groups within their communities when developing balanced, community-responsive
        programming, including those groups with specialized needs and interests. While the
        Commission has observed that each broadcast station is not necessarily required to
        provide service to all such groups, it has nonetheless recognized the concerns of some
        that programming – particularly network programming – often is not sufficiently
        culturally diverse.
Id. at Par. 69.
        Here, the launch of a uniform classical music feed, tightly integrated with an Internet
program service, would eliminate a unique broadcast service that catered specifically to the
needs of local audiences, issues and artists. Rather than serve the unique and diverse needs of
the Bay Area community, CPRN will provide a narrow stream of musical content to a limited
(albeit affluent) audience in order to maximize fundraising and grow its network. For CPRN
and USC, the needs of local listeners are an impediment to their own need to generate cash and
expand their reach as a classical radio network. In an era of massive broadcast consolidation, it
is all the more urgent that the Commission listen to the concerns of an outraged community
and weigh the loss of KUSF’s localism and diversity against the expansion of CPRN’s and
USC’s narrowly focused classical music business model.




PETITION TO DENY (Friends of KUSF) – Page 16
        D.    THE FACTS UNDERLYING THIS TRANSACTION RAISE
              SUBSTANTIAL CHARACTER ISSUES BASED ON THE PARTIES
              VIOLATION OF COMMISSION RULES

       The secretive nature of this transaction underscores why CPRN lacks fitness to acquire
USF’s license. CPRN’s attempts to avoid public scrutiny and unrestrained control over the
station’s operating policies since January 18th have resulted in willful and repeated violations
of Commission rules. Unless CPRN can show in a hearing that its conduct as a licensee
would be markedly superior to its record now as an interim steward, the Commission cannot
conclude that it is possesses the requisite fitness to become a Commission licensee.

              1.      THE PARTIES’ BEHAVIOR UNDER THE PURPORTED LOCAL
                      MANAGEMENT AGREEMENT WITH CPRN CONSTITUTES
                      AN IMPERMISSIBLE LOSS OF CONTROL BY THE LICENSEE

        The licensee and CPRN have acted as though the license and assets to the station all
had been transferred as of January 17, 2011. The parties, by filing with the Commission a
Local Management Agreement styled a “Public Service Operating Agreement” have misled
the Commission. The many pro forma statements in the agreement, retaining full oversight
and control by the licensee, are belied by many facts on the ground.

        Section 310(d) of the Act and Section 73.3540 of Commission Rules prohibit the
transfer of control of a broadcast station without prior consent by the Commission. While it is
permissible for a licensee to enter into a local management agreement with third parties, any
delegation must be limited to ensure that the licensee retains ultimate control of basic station
policies and air. See e.g., Long Island University Public Radio Network (WLIU-FM), 25 FCC
Rcd 13579, par. 3 (2010).13 In that matter, the prospective purchaser of a non-commercial FM
licensee entered into a management agreement with a licensee pending FCC’s grant of the
assignment application. Following receipt of a complaint and an FCC investigation into




13. http://www.fcc.gov/eb/Orders/2010/DA-10-1861A1.html.



PETITION TO DENY (Friends of KUSF) – Page 17
whether this arrangement amounted to a transfer of control of the station without prior
authorization the parties entered into a consent decree. Id., Par. 4 and Par. 12.

        “The Commission has traditionally looked beyond the legal title to ascertain whether a
new entity or individual has obtained the right to determine the basic operating policies of the
station. The key factor in determining control is ultimate responsibility for essential station
matters, such as personnel, programming, and finances.” In re Delta Radio Inc., FCC DA98-
1676, Par. 7 (MMB 1998).14 Here, the fine words of the Public Service Operating Agreement
do not insulate the transaction from scrutiny, where the evidence of misconduct continues to
grow. “Control” need not be legal control in a formal sense, but may consist of actual control
by virtue of the special circumstances presented, Lorain Journal Co. v. FCC, 351 F. 2d 824
(D.C. Cir., 1966), cert. denied, 383 U.S. 967, reh’g denied, 384 U.S. 947.

        Here, CPRN has exercised total and absolute control over the licensed station since
KUSF staff was locked out of the station premises by security guards on January 18th. Once
the “switch was pulled,” all station operations emanated out of the KDFC station premises on
Montgomery Street in San Francisco. According to the Declaration of Ken Freedman
(General Manager of WFMU, New Jersey), the station’s former longtime General Manager
who had been with the station for more than 30 years until January 17, 2011 advised that
KUSF’s main studio was being used for audio production unrelated to broadcast, with the
current programming signal fed directly [from KDFC’s downtown San Francisco studio] to
the USF’s transmitter room. The former General Manager also advised Mr. Freedman that
KUSF’s Chief Operator was located across campus in a separate building and unaware of a
Chief Operator’s duties other than maintaining the public file. Mr. Freedman was also told
that USF’s Main Studio had no Emergency Alert System unit. When he inquired where the
EAS unit was located, the former General Manager stated he did not know, except that it was




14. http://www.fcc.gov/Bureaus/Mass_Media/Orders/1998/da981676.txt



PETITION TO DENY (Friends of KUSF) – Page 18
 removed by USF following the events of January 18, 2011. See Exhibit 5-A (Declaration of
 Ken Freedman). These admissions against interest by the station’s former General Manager
 raise substantial questions about USF’s ability to maintain operational readiness of EAS
 equipment in accordance with 47 CFR Rules 11.1 – 11.62.

         USF’s loss of control of the broadcast license is also demonstrated by CPRN’s
 repetitive us of KDFC call letters and its failure to provide listeners with accurate station
 identification, as documented infra. See also Exhibit 5. Indeed, CPRN boldly proclaims on
 its website that it is the “owner” of the station broadcasting on KUSF’s former frequency. See
 http://www. kdfc.com/pages/9115079.php (“Classical Public Radio Network LLC (CPRN),
 the owner of Classical KDFC-FM in San Francisco, has an immediate opening for
 Host/Producer of on-air classical music”) (emphasis added). Despite the language of the
 Local Management Agreement, the Freedman Declaration indicates that subsequent to
 January 18th the licensee no longer retained any ability to select, approve or reject programs,
 and lost its ability to originate programming, in violation of the Commission’s main studio
 rule. At present, there is nothing to suggest that USF retains the ability to broadcast
 emergency alerts or shut the station down or re-program it in an emergency. Petitioner
 recognizes that the Commission generally views its tasks here as passing on the qualifications
 of the proposed assignee. But it is fundamental that the Commission will not consider
 assignment of a broadcast authorization until it has determined that the assignor has not
 forfeited the authorization. In re: National Broadcasting Co., Inc., 37 FCC 705 (1964).
 Accordingly, Petitioner respectfully seeks a hearing into whether the violation of Commission
 rules is sufficiently egregious such that that transfer of the license is not in the public interest.

///

///

///




PETITION TO DENY (Friends of KUSF) – Page 19
               2.      IN THEIR ATTEMPT TO AVOID PUBLIC INQUIRY INTO THE
                       TRANSACTION, USF AND CPRN HAVE VIOLATED THE
                       COMMISSION’S PUBLIC FILE RULES

       Rules regarding public inspection files for non-commercial educational stations are
found in 47 C.F.R. §73.3527 which provides in part:

       (c) Access to the materials in the file. (1) The file shall be available for public
       inspection at any time during regular business hours. All or part of the file may be
       maintained in a computer database, as long as a computer terminal is made available, at
       the location of the file, to members of the public who wish to review the file. Material
       in the public inspection file shall be made available for printing or machine
       reproduction upon request made in person.

       Besides filing Ownership Reports, the Commission requires any agreement or
document providing for the assignment of a license to be placed in the public file. Section
73.3613(b)(3). Section 73.3527(e)(4) also requires that the public file of a NCE broadcaster
include a copy of the station’s most recent complete ownership report filed with the FCC,
together with all related material.15 Any management consultant agreements with a person
other than an officer, director or employee of the station, such as an independent contractor,
must also be included in the station’s public file. See Section 73.3613(c)(1). See also San
Francisco Unified School District (KALW (FM)), Hearing Designation Order and Notice of
Apparent Liability for Forfeiture, 19 FCC Rcd 13326, Par. 8 (2004), Initial Decision, 21 FCC
Rcd 3837 (ALJ 2006) (“San Francisco Unified School District”) (“Section 73.3527 of the
Commission’s rules require all licensees of non-commercial educational broadcast stations to
maintain a public inspection file containing designated information. Among the materials
required to be in the public inspection file are copies of every ownership report and related



15. “The permittee or licensee must retain in the public file either a copy of the contracts listed
in such reports in accordance with 73.3615(d)(3), or an up-to-date list of such contracts.
Licensees and permittees who choose to maintain a list of contracts must provide a copy of any
contracts to requesting parties within 7 days.”




PETITION TO DENY (Friends of KUSF) – Page 20
material filed by the station, and issues/program lists for each quarter describing the programs
that represent ‘the station’s most significant treatment of community issues during the
preceding three month period.’”).

       Here, USF’s attempt to conceal this controversial transaction from the public resulted in
numerous improprieties, including violation of the Commissions’ public file rules. The
attached declarations of Ken Freedman, Jeff Shaw and Clay Leander (Exhibits 5-A through 5-
C) reflect USF’s repeated and willful failure to include relevant documents in its public file.
For instance on January 25, 2011 KUSF’s public file did not contain a copy of the licensee’s
January 12, 2011 Local Management Agreement with the proposed assignee, nor a copy of the
Asset Purchase Agreement between the parties. Also absent from the public file was a list
identifying those agreements or any other agreements relating to the University’s ownership
report previously filed with the Commission. These material omissions were discovered
almost two (2) weeks after those contracts were signed by the parties, and one (1) week after
CPRN took effective control over the University’s broadcast operations.

       Despite the above, the parties had failed to remedy these defects as of February 16,
2011. On that date, USF’s public file was again missing a copy of USF’s Local Management
Agreement with CPRN. Nor was there any other document in the public file suggesting KUSF
was now operated by CPRN. The public file was also missing a copy of the minor change
application filed on February 14, 2011. Exhibit 5-A. These defects are all the more egregious
given the concerns set forth in Jeff Shaw’s prior January 25th email to Michael Bloch, the
employee in charge of USF’s public file, concerning the absence of these documents. Exhibit
5-B.

       “When lapses occur in maintaining the public file, neither the negligent acts or
omissions of station employees or agents, nor the subsequent remedial actions undertaken by
the licensee, excuse or nullify a licensee’s rule violation.” San Francisco Unified School
District, 19 FCC Rcd 13326 at Par. 9. As a result, public file violations can result in



PETITION TO DENY (Friends of KUSF) – Page 21
substantial sanctions. This was recently seen, for instance, when San Francisco Unified School
District was found to have violated Section 73.3527 and 73.3615(g) of the Commission’s rules
because its public file failed to contain all supplemental ownership reports and quarterly
issue/programs lists. Id, Par. 9. In response, the Commission issued an initial $300,000 fine
(later reduced) against SFUSD and designated for hearing the issue of whether SFUSD made
misrepresentations of fact or lacked candor with respect to its renewal application, and
accordingly whether renewal should be granted. Id. at Par. 24 and 25. But see San Francisco
Unified School District, 21 FCC Rcd 3837 (ALJ 2006).16

       Both parties, through their conduct, fail to demonstrate the requisite fitness or character.
Therefore, they must first establish that there is a license without forfeiture to assign, and
second that there is a fully qualified assignee. Further inquiry into the proposed assignment is
warranted for this reason too.

               3.      CPRN HAS VIOLATED STATION IDENTIFICATION RULES
                       WHILE EXERCISING ACTUAL CONTROL OVER THE
                       LICENSE

       In its headlong rush to “re-brand” the radio station, CPRN has also failed to follow the
Commission’s station identification rules. Since January 18th, CPRN’s mantra-like repetition of
the formerly commercial KDFC’s call letters throughout its broadcasts, and its general
omission of KUSF’s actual call letters (including in multiple instances during station breaks at



16. The Declarations of Jeff Shaw and Clay Leander also document USF’s attempt to restrict
access to the public file by requiring individuals to sign in prior to any review. “Because we do
not monitor a station’s programming, viewers and listeners are a vital source of information
about the programming and possible rule violations. The documents in each station’s public
inspection file contain information about the station that can assist the public in serving this
important role.” In re: Community Television of Southern California (KCET), Notice of
Apparent Liability for Forfeiture, DA 11-216, Par. 7 (Enf. Bur. 2011) (levying $10,000 fine for
station’s failure to make public file available without an appointment).




PETITION TO DENY (Friends of KUSF) – Page 22
the top of the hour) reveals a contempt for Commission rules intended to protect the public and
avoid listener confusion.

        All broadcast stations are required make station identification announcements at the
beginning and end of day if the station does not broadcast 24 hours per day (Section
73.1201(a)(1)), and hourly, as close to the top of the hour as feasible, during a natural break in
programming. Section 73.1201(a)(2). All required station announcements must include the
station’s assigned call letters followed by the community (or communities) specified in the
station’s license. Section 73.1201(b). See e.g., Perihelion Global, Inc., 23 FCC Rcd 17025
(2008) (monetary forfeiture of $15,000 for several violations, including failure to transmit
station identification); In re Application of B&C Kentucky, LLC, 16 FCC Rcd 9305 (2001)
(monetary forfeiture after monitoring revealed network identification, but no station
identification for local broadcast licensee); Bay Broadcasting Corp., 15 FCC Rcd 9387 (2000)
(monetary forfeiture for willful and repeated violations, including violation of station
identification rules).17

        Although Petitioner is unable to provide a recording or transcript of every violation by
CPRN of station identification rules, attached at Exhibit 5-E to 5-H are declarations
documenting specific instances of those violations. These declarations reveal that CPRN has
consistently avoided compliance with Section 73.1201 and operated at all times as though the
previously commercial KDFC had merely switched frequencies to 90.3 FM. CPRN’s violation
of station identification rules, in conjunction with its other conduct, reflects a blatant disregard
for Commission rules and further evidences the proposed assignee’s absolute exercise of
control of broadcast operations while the application is pending. Given the above, CPRN’s
willful and repeated violations also warrant that a hearing into its fitness as a potential licensee.


17. Where a station license or permit is being transferred or assigned, the proposed transferee
or assignee may request a new call sign for the station. However, such a change will not be
effective until the relevant application is granted and the Commission receives notification of
the consummation of the transaction. 47 CFR Section 73.3550(c).


PETITION TO DENY (Friends of KUSF) – Page 23

								
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