Federal Communications Commission DA 12-725
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of NAL/Acct. No. MB201241410032
FRN: 0010699056
University of San Francisco
(Assignor)
and File No. BALED-201 1O125ACE
Classical Public Radio Network LLC
(Assignee)
For Consent to Assignment of License
Station KUSF(FM),
San Francisco, CA
Facility ID No. 69143
ORDER
Adopted: June 7, 2012 Released: June 7, 2012
By the Chief, Media Bureau:
1. Tn this Order, we adopt the attached Consent Decree entered into by the Media Bureau
(the "Bureau"), the University of San Francisco ("USF"), and Classical Public Radio Network LLC
("CPRN"). The Consent Decree resolves issues arising from the Bureau's review of the captioned
application for consent to the proposed assignment of license for Station KUSF(FM), San Francisco, CA
(the "Station") from USF to CPRN. In particular, the Consent Decree resolves the Bureau's investigation
of the applicants' compliance with Sections 1.17 and 73.503(c) of the Commission's Rules, 47 C.F.R.
§ § 1.17, 73.503(c) (the "Rules").1
2. The Consent Decree stipulates that both USF and CPRN violated Section 1.17 of the
Rules and that USF violated Section 73.503(c) of the Rules, and provides, among other things, that USF
and CPRN will collectively make a $50,000 voluntary contribution to the United States Treasury. A copy
of the Consent Decree is attached hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree, we fmd that the public interest will be
served by its approval and by terminating the Bureau's investigation of potential violations of the Rules in
connection with the captioned application and granting that application.
4. Based on the record before us, we conclude that nothing in that record creates a
substantial or material question of fact whether either USF or CPRN possesses the basic qualifications to
be a Commission licensee.
1 C.F.R. § 1.17, 73.530(c).
Federal Communications Commission DA 12-725
5. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 4(i) of the
Communications Act of 1934, as amended,2 and by the authority delegated by Sections 0.61 and 0.283 of
the Rules,3 the Consent Decree attached hereto IS ADOPTED.
6. IT IS FURTHER ORDERED that the investigation by the Media Bureau of the matters
noted above IS TERMINATED.
7. IT IS FURTHER ORDERED that copies of this Order shall be sent, by first class mail
and certified mail, return receipt requested, to the University of San Francisco, 2130 Fulton Street, San
Francisco, CA 94117-1080, and its counsel, Dawn M. Sciarrino, Esq., Sciarrino & Shubert, PLLC, 5425
Tree Line Drive, Centreville, VA 20120, and to Classical Public Radio Network LLC, 1149 S. Hill, Suite
H-100, Los Angeles, CA 90015, and its counsel, Lawrence Bernstein, Esq., 3510 Springland Lane N.W.,
Washington, DC 20008, and John E. Fiorini III, Esq., Wiley Rein LLP, 1776 K Street, N.W., Washington
DC 20006.
FEDERAL COMMUNICATIONS COMMISSION
William T. Lake
Chief, Media Bureau
2 us• § 4(i).
347 C.F.R. § 0.61, 0.283.
2
Federal Communications Commission DA 12-725
CONSENT DECREE
I. Introduction
1. This Consent Decree is entered into by and between the Media Bureau of the Federal
Communications Commission, the University of San Francisco and Classical Public Radio Network LLC,
by their respective authorized representatives, for the purpose of terminating the Bureau's Investigation of
the parties' compliance with Sections 1.17 and 73.503(c) of the Commission's Rules, 47 C.F.R. §1.17,
73.503(c).
II. Definitions
2. For the purposes of this Consent Decree, the following definitions shall apply:
(a) "Act" means the Communications Act of 1934, as amended, 47 U.S.C. §151 et
seq.;
(b) "Application" means the application filed with the Conmiission for consent to
assign the license for the Station from USF to CPRN (FCC file no. BALED-
201 1O125ACE):
(c) "Bureau" means the Media Bureau of the Federal Communications Commission;
(d) "CPRN" means Classical Public Radio Network LLC;
(e) "Commission" or "FCC" means the Federal Communications Commission;
(f) "Effective Date" means the date on which the Bureau releases the Order;
(g) "Investigation" means the investigation commenced by the FCC in 2011, which
culminated in the Bureau's Letter of Inquiry dated June 28, 2011 (as amended by
letter dated July 27, 2011), regarding the PSOA;
(h) "Order" means an order of the Bureau adopting this Consent Decree;
(i) "PSOA" means the Public Service Operating Agreement executed by USF and
CPRNon January 12, 2011, and amended on July 25, 2011;
W "Parties" means the Bureau, USF and CPRN;
(k) "Rules" means the Commission's Rules, found in Title 47 of the Code of Federal
Regulations;
(1) "Station" means KUSF(FM), San Francisco, CA (Fac. ID 69143);
(m) "USF" means the University of San Francisco; and
(n) "Violations" means the payments received by USF pursuant to the PSOA in
violation of Section 73.503(c) of the Rules; the certification by USF in Section II,
Item 3c of the Application that the agreements between USF and CPRN,
Federal Communications Commission DA 12-725
including the PSOA, "comply fuliy with the Commission's rules and policies;"
and the certification by CPRN in Section ifi, Item 3b of the Application that the
agreements between USF and CPRN "comply fully with the Conmiission's rules
and policies."
ifi. Background
3. Section 73.503(c) of the Rules provides that:
A noncommercial educational FM broadcast station may
broadcast programs produced by, or at the expense of, or furnished by
persons other than the licensee, if no other consideration than the
furnishing of the program and the costs incidental to its production and
broadcast are received by the licensee. The payment of line charges by
another station network, or someone other than the licensee on a
noncommercial educational FM broadcast station, or general
contributions to the operating costs of a station, shall not be considered
as being prohibited by this paragraph.1
4. Under the terms of the PSOA, executed on January 12, 2011 (with an effective date of
January 18, 2011), USF agreed to make the Station's facilities available to air programming supplied by
CPRN "for up to 24 hours a day, seven days per week" for the term of the agreement.2 In consideration
for making Station airtime available to CPRN, the PSOA provides that CPRN will reimburse USF for any
expenses incurred in connection with delivering and broadcasting CPRN programming, including the cost
of broadband or other circuits used for delivery and reception of the programming, electrical power to the
transmitter site, regulatory fees, insurance rider, and telephone expenses incurred at the transmitter site.3
Additionally, CPRN agreed to pay USF: (1) $5,000 per month for the first 120 days during which the
PSOA is in effect; and (2) $7,000 per month for the remainder of the first year of the PSOA term.4
Documentation provided by USF shows that USF collected over $38,000 in PSOA fees from CPRN, plus
nearly $10,000 in tower cost reimbursement, from January through July 2011. The PSOA fees were
ended by an amendment to the PSOA after the Bureau sent its Letter of Jnquiry to USF and CPRN.5
5. USF submitted a copy of the PSOA with the Application. In the Application, USF and
CPRN each certified affirmatively that the agreements between the parties, including the PSOA, "comply
fully with the Commission's rules and policies."6 Since 1998, the Commission's policy on mass media
applications has been that it will rely on application certifications as to compliance with the
1 C.F.R. § 73.503(c).
2 PSOA, Section 2. The agreement is to terminate upon the earlier of: (1) consummation of the assignment; (2) 30
days following termination of the Asset Purchase Agreement; (3) the fifth anniversary of the PSOA's effective date
(subject to certain renewability provisions); (4) on April 1, 2011, if the effective date had not occurred; or (5) the
termination of the PSOA upon a specified default of either party. Id., Section 1.
3PSOA,ExhibitC.
PSOA, Section 6. The payment was to increase for each ensuing year to a monthly amount equal to $7,000 plus
the greater of: 1) 5 %; and 2) the Consumer Price Index plus 2%. Id. CPRN would receive apro rata credit against
the compensation due for any portion of the time during which the Station did not broadcast CPRN's programming.
Id.
Declaration of Charles Cross, Vice-President for the Division of Business & Finance and Chief Financial Officer
of USF, dated July 27, 2011.
6 Application, Section II, Item 3c, and Section III, Item 3b.
2
Federal Communications Commission DA 12-725
Commission's rules and policies and that it will not routinely review contracts submitted with assignment
of license applications.7 Parties have also been on notice since 1998 that reliance on a prior Commission
action with respect to a contract term or rule interpretation "would be appropriate only where a decision
disposing of the prior application plainly considered and found acceptable the pertinent contract term or
rule interpretation."8 In their response to the Bureau's Letter of Inquiry, USF and CPRN pointed out a
number of instances in which parties submitted agreements with terms similar to the payment terms of the
PSOA, and contended that they relied on those submissions in certifying their compliance with the
Commission's Rules and policies. However, USF and CPRN did not point out any instance in which the
Bureau or the Commission issued a decision in which it considered and found such payment terms to be
compliant with Section 73.503(c) of the Rules, because no such decision exists. In light of the foregoing,
the Bureau fmds that the terms of the PSOA as originally submitted violated Section 73.503(c) and that
the certifications by USF and CPRN that the PSOA complied with the Commission's Rules and policies
were incorrect. The Bureau does not, however, find that USF or CPRN made misrepresentations or
lacked candor.
6. Because of the compliance issues identified in the Bureau's investigation, the Parties
have agreed to enter into this Consent Decree to which USF, CPRN, and the Bureau intend to be legally
bound.
IV. Agreement
7. The Parties acknowledge that any proceeding that might result from the Violations would
be time-consuming and require a substantial expenditure of public and private resources. In order to
conserve such resources, to resolve the matter, the Parties are entering into this Consent Decree, in
consideration of the mutual commitments made herein.
8. The Parties agree to be legally bound by the terms and conditions of this Consent Decree.
Each of USF, CPRN, and the Bureau represent and warrant that its signatory is duly authorized to enter
into this Consent Decree on its behalf. USF and CPRN agree that the Bureau has jurisdiction over the
matters contained in this Consent Decree and the authority to enter into and adopt this Consent Decree.
9. The Parties agree and acknowledge that this Consent Decree shall constitute a fmal
settlement between USF, CPRN, and the Bureau concerning the Violations, as discussed herein.
10. In express reliance on the covenants and representations in this Consent Decree and to
avoid further expenditure of public resources, the Bureau agrees to terminate its Investigation into the
Violations. The Bureau further agrees that, in the absence of new material evidence, it will not use the
facts developed in the Investigation through the Effective Date of this Consent Decree, or the existence of
this Consent Decree, to institute any new proceeding, formal or informal, or take any action on its own
motion against USF or CPRN concerning the matters that were the subject of the Investigation. The
Bureau also agrees that it will not use the facts developed in the Investigation through the Effective Date
of this Consent Decree, or the existence of this Consent Decree, to institute any proceeding, formal or
informal, or take any action against USF or CPRN with respect to either party's basic qualifications,
including character qualifications, to be a licensee. In the event that either USF or CPRN fails to satisfy
any of its obligations under this Consent Decree, however, USF and CPRN each acknowledges that the
Bureau may take any enforcement action available pursuant to the Act and the Rules with respect to each
7See 1998 Biennial Regulatory Review - Streamlining of Mass Media Applications, Report and Order, 13 FCC Rcd
23056, 23074-6 (1998).
81d 13 FCC Rcd at 23076.
Federal Communications Commission DA 12-725
Violation, and/or the violation of this Consent Decree.
11. The Parties stipulate the following:
(a) USF violated Section 73.503(c) of the Rules by accepting the PSOA
fees from January through July, 2011;
(b) USF violated Section 1.17 of the Rules by submitting the
unintentionally false certification that the PSOA as originally submitted complied
with the Commission's Rules and policies; and
(c) CPRN violated Section 1.17 of the Rules by submitting the
unintentionally false certification that the PSOA as originally submitted complied
with the Commission's Rules and policies.
12. USF and CPRN hereby jointly agree to make a voluntary contribution to the United
States Treasury in the amount of Fifty Thousand Dollars ($50,000) within 15 days of the Effective Date.
13. The Bureau fmds that its Investigation raises no substantial and material questions of fact
as to whether USF or CPRN possesses the basic qualifications, including those relating to character, to
hold or obtain a Commission license or authorization. Accordingly, the Bureau is granting the
Application as of the Effective Date.
14. Payments hereunder must include the Account Number and FRN referenced in the
caption to the Order. Payments by check or money order may be mailed to the Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63 197-9000. Payments by overnight mail may be sent to
U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payments by wire transfer may be made to ABA Number 021030004, receiving bank
TREAS/NYC, and account number 27000001. For payments by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the Form 159, enter the Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in block number 24A (payment type
code). Each party shall send electronic notification of its payment to Tom Hutton at tom.hutton(fcc.gov
on the date its payment is made.
15. USF and CPRN each agrees that it is required to comply with each individual condition
of this Consent Decree. Each specific condition is a separate condition of the Consent Decree as
approved. To the extent that either USF or CPRN fails to satisfy any condition or Commission Rule, in
the absence of Commission alteration of the condition or Rule, it will be deemed noncompliant and may
be subject to possible enforcement action, including, but not limited to, revocation of relief, designation
of the matter for hearing, letters of admonishment, or forfeitures.
16. USF and CPRN each waives any and all rights it may have to seek administrative or
judicial reconsideration, review, appeal or stay, or to otherwise challenge the validity of this Consent
Decree and the Order, provided the Order adopts the Consent Decree without change, addition or
modification.
17. USF and CPRN each agrees to waive any claims that it may otherwise have under the
Equal Access to Justice Act, 5 U.S.C. § 504 and 47 C.F.R. § 1.1501 et seq., relating to the matters
discussed in this Consent Decree.
18. USF, CPRN, and the Bureau agree that the effectiveness of this Consent Decree is
4
Federal Communications Commission DA 12-725
expressly contingent upon issuance of the Order, provided that the Order adopts the Consent Decree
without change, addition or modification.
19. USF, CPRN, and the Bureau agree that, if USF, CPRN, the Commission or the United
States on behalf of the Commission, brings a judicial action to enforce the terms of the Order adopting
this Consent Decree, no party will contest the validity of the Consent Decree or Order, and USF, CPRN,
and the Commission will waive any statutory right to a trial de novo with respect to any matter upon
which the Order is based (provided in each case that the Order is limited to adopting the Consent Decree
without change, addition, or modification), and will consent to a judgment incorporating the terms of this
Consent Decree.
20. USF, CPRN, and the Bureau agree that, in the event that this Consent Decree is rendered
invalid by any court of competent jurisdiction, it shall become null and void and may not be used in any
manner in any legal proceeding.
21. This Consent Decree may be signed in counterparts and/or by telecopy and, when so
executed, the counterparts, taken together, will constitute a legally binding and enforceable instrument
whether executed by telecopy or by original signatures.
MEDIA BUREAU
FEDERAL COMMUNICATIONS
COMMISSION
By: L±
William T. Lake, Chief
Date: JUN 072012
UNIVERSITY OF SAN FRANCISCO
By:
Charles E. Cross, Vice President, Business and
Finance
Date:
CLASSICAL PUBLIC RADIO NETWORK LLC
By:
Brenda Barnes, Managing Director
Date:
5
Federal Communications Commission DA 12-725
expressly contingent upon issuance of the Order, provided that the Order adopts the Consent Decree
without change, addition or modification.
19. USFS CPRN, and the Bureau agree that, if USF, CPRN, the Commission or the United
States on behalfof the Commission, brings a judicial action to enforce the terms of the Order adopting
this Consent Decree, no party will contest the validity of the Consent Decree or Order, and USFS CPRN,
and the Commission will waive any statutory right to a trial de novo with respect to any matter upon
which the Order is based (provided in each case that the Oider is limited to adopting the Consent Decree
without change, addition, or modification), and will consent to ajudgment incorporating the terms of this
Consent Decree.
20. USF, CPRN, and the Bureau agree that, in the event that this Consent Decree is rendered
invalid by any court of competent jurisdiction, it shall become null and void and may not be used in any
manner in any legal proceeding.
21. This Consent Decree may be signed in counterparts and/or by telecopy and1 when so
executed, the counterparts, taken together, will constitute a legally binding and enforceable instrument
whether executed by telecopy or by original signatures.
MEDIA BUREAU
FEDERAL COMMUNICATIONS
COMMISSION
By:
William 1. Lake, Chief
Date:
UNIVERS OF SAN FRANCISCO
By: C
aries E. Cross, Vice President, Business and
Finance
Date:
CI
CLASSICAL PUBLIC RADIO NETWORK LLC
By:
Brenda Barnes, Managing Director
Date:
Federal Communications Commission DA 12-725
expressly contingent upon issuance of the Order, provided that the Order adopts the Consent Decree
without change, addition or modification.
19. USF, CPRN, and the Bureau agree that, if USF, CPRN, the Conunission or the United
States on behalf of the Commission, brings a judicial action to enforce the terms of the Order adopting
this Consent Decree, no party will contest the validity of the Consent Decree or Order, and USF, CPRN,
and the Commission will waive any statutory right to a trial de novo with respect to any matter upon
which the Order is based (provided in each case that the Order is limited to adopting the Consent Decree
without change, addition, or modification), and will consent to a judgment incorporating the terms of this
Consent Decree.
20. USF, CPRN, and the Bureau agree that, in the event that this Consent Decree is rendered
invalid by any court of competent jurisdiction, it shall become null and void and may not be used in any
manner in any legal proceeding.
21. This Consent Decree may be signed in counterparts and/or by telecopy and, when so
executed, the counterparts, taken together, will constitute a legally binding and enforceable instrument
whether executed by telecopy or by original signatures.
MEDIA BUREAU
FEDERAL COMMUNICATIONS
COMMISSION
By:
William T. Lake, Chief
Date:
UNIVERSITY OF SAN FRANCISCO
By:
Charles B. Cross, Vice President, Business and
Finance
Date:
CLASSICAL PUBLIC RADIO NETWORK LLC
By: -cLU J2_V
Brenda Barnes, Managing Director
Date: