Will Bill Cunningham Control Two Austin Radio Stations?

By Jennifer Wong
February 1991; pages 4, 12-13; Volume 2, No. 4

As of February 5, the KOOP-KTSB radio war has officially begun. The FCC issued a hearing designation order and, sometime this year, will schedule a comparative hearing to decide the fate of Austin's last non-commercial FM frequency. This hearing will be an egregious waste of time and money for both groups, and the Austin community will suffer as well. While "we the people" may own the airwaves in theory, the people of Austin will have practically no control over what happens to 91.7 FM. An FCC judge in Washington D.C., using criteria that are often described by FCC experts as "virtually meaningless," will decide what Austin must live with indefinitely.

The lack of local control in media is a problem for everybody in the United States. But it makes the situation in Austin all the more teacherous because of the nature of the two competing groups. KTSB is a student group (currently operating as a cable radio station); KOOP is a community group. Both aim to provide Austin with exactly what it has craved for years - innovative radio.

Austin's last non-commercial frequency war

It would seem, then, that Austin is in a win-win situation. However, the students applied for the frequency through the University of Texas, which means that the UT Board of Regents would actually own the license. Bringing the university system into the acquisition of an FM license was the students' fatal mistake. While supposedly working in the students' "best interests," UT officials have wrested almost all the power away from KTSB staff members - the power to choose their leader, to use their funds, and to negotiate with KOOP. Through its tyipcal overbearing tactics, the university has cut off negotiations with the community group in favor of gaining an FM license at all costs, even if at the expense of its students. But in spite of these tactics, UT could possibly end up as the big loser, especially since there appear to be some serious flaws in its application. The legal fight will force both sides to show their hands. But for now, we'll have to wait and see.

Peace pipe in one hand, knife in the other

Just 10 years ago, the frequency space at 91.7 FM didn't technically exist. An antiquated Mexican-American Radio Non-Interference Treaty, designed originally in the 1930s to limit the power of border radio stations, prevented communities in South Texas from starting new stations even if frequencies were available. It was community neighbors, principally Wheatsville Co-op employee Jim Ellinger, who worked to repeal this law. KOOP filed for the newly legitimate frequency on July 4, 1986; its application was accepted on June 25, 1988. Following FCC procedure, KOOP made public notice of the event, and other groups had 30 days to apply for the frequency.

On July 22, 1988, three days before the deadline, the University of Texas filed a competing application on behalf of KTSB. (A popular misconception among students is that KOOP is to blame for the delay in granting a license; in actuality, if it's anybody's fault, it's university's.) UT's application was finally accepted on September 20, 1990. On that day the FCC, trying to stave off a comparative hearing battle, gave the groups 60 days to work out a broadcasting arrangement together. While the FCC doesn't like non-commercial comparative hearings and is typically lenient with deadlines, it was becoming clear that the two groups were not going to be able to work things out. The KOOP board members and the KTSB "negotiating team" met twice in confidence last fall, but found little common ground.

Administrators at Texas Student Publications, the institution that controls KTSB as well as The Daily Texan and Utmost, have never seriously considered compromising with KOOP. Dick Lytle, the general manager of TSP, made this clear when he told a group of students last fall that he didn't understand why they wanted to negotiate with KOOP. He asked them, "Why would you want to settle for just half a loaf when there's a good chance you could get the whole thing?"

In an informal meeting in 1989, the KTSB broadcast supervisor and station manager inquired whether KOOP members could be bought for a price - whether a cash settlement might sway them into dropping their application. At the same meeting, KOOP was told that sharing the frequency would be possible only if KTSB could have more than 50 percent of programming time.

Once notified that KTSB's application had been accepted by the FCC in 1990, the university's first reaction was to get a UT system attorney, Bob Giddings, to write a letter to the vice-president of the KOOP board, Shaya Zucker, demanding to know answers to a list of 14 detailed questions. Answering these questions would, according to the October 12, 1990 letter, "assist the University in both understanding your organization and determing whether it will be possible to proceed with negotiations at this time."

The TSP general manager Lytle, as well as his sidekick John Curvan, the TSP Board-appointed station manager, claimed that the letter was perfecty routine and designed to facilitate informal discourse. But many of the questions dwelt upon information that ordinarily is not disclosed until the comparative hearing process is already well under way. For example, Giddings wanted a list detailing the age and condition of any radio equipment KOOP had acquired, and a budget for the first year of operation identifying "specific budget categories for tower construction, operation, equipment purchases, engineering, maintenance of equipment and salaries for employees."

KOOP board members interpreted the letter as a form of intimidation, especially since attorney-client etiquette dictates that a lawyer communicate through another lawyer, and not the other party directly. Since Zucker had previously filed a public open-records request on certain KTSB documents (UT, as a public institution, is open to public scrutiny - to a limited extent), KOOP members wondered if the letter was a form of retaliation.

Meanwhile, the KTSB station manager and the TSP general manager, Broadcast Advisory Committee, and board refused to involve more KTSB staff members in negotiations, ignoring the suggestion by many students that staff would be more likely than bureaucrats to find common ground with KOOP members (see Ovetz, p. 5). On January 16, KTSB station manager John Curvan, representing the KTSB "negotiating team," recommended to the TSP Broadcast Advisory Committee that the University file for an FCC comparative hearing - in other words, to cease negotiations with KOOP in favor of a court-mandated solution. The next day, the recommendation was carried to the TSP board of directors, which voted to do just that.

Bureaucratic bungling and barefaced lying

Now, both KOOP and KTSB are preparing for the legal fight. The FCC will soon appoint an FCC judge to preside over the case, if it hasn't done so already: The judge will call a conference between the counsels, who will have 20 days to file an appearance stating that they will be present and will defend the parties. Next, each group will submit evidence and testimony arguing its case. Based on when the FCC judge and facilities are available, the judge will schedule a comparative hearing, which could happen anywhere between three to nine months from now.

No to KTSB's FM license

It's impossible, at this point, to determine the outcome of the case. Non-commercial hearings have little precedent, and the lawyers - who are often more experienced than the FCC judges - largely determine the content and result of a hearing. (In the KOOP-KTSB case, both lawyers are evenly matched, both from reputable firms.) Too often, the trial becomes a war of attrition, with costs ranging from $20,000 to $100,000 or more - which may put KOOP at a disadvantage.

But there are several aspects of KTSB's application that could make the university look downright foolish if it goes to a comparative hearing. TSP sycophants Curvan and broadcast supervisor Andrea Morrow like to flaunt statistics "proving" that KTSB's proposed signal would reach twice as many people, giving KTSB an advantage in comparative hearing. True enough, the FCC has taken note of the "significant difference in the size of the areas and populations which would receive service from the proposals. But according to TSP records, even if KTSB does win the right to broadcast on 91.7 FM, its signal might not even reach Austin.

KTSB's application has been fraught with problems from the start, probably because it had to be hastily slapped together in time to compete with KOOP's. (The fact that the university submitted the same home address for all its Regents should tell you something.) Soon after the University of Texas Board of Regents submitted the application for a construction permit, the FCC notified them that their transmitter location would be short-spacing KPEZ-FM, in other words, interfering with an existing frequency. KTSB then requested a "relaxation of the current IF interference requirements" (a waiver) for its applications.

Dennis Williams, chief of the FM branch of the FCC denied the request on November 30, 1988, saying that he did not find adequate justification that "a waiver of the spacing requirements would serve the public interest." The FCC then gave KTSB 30 days to correct its application. On January 3, 1989, UT President Bill Cunningham submitted an amendment to KTSB's application, proposing a new transmitter site that "fully complies" with FCC requirements.

But a memo addressed to TSP General Manager Dick Lytle from the broadcast supervisor, dated three weeks earlier, presented in its own words, a "knotty problem". To avoid short-spacing, it said, KTSB would have to propose placing its tower in an area northwest of Bergstrom AFB - which it did, on 6301 Harold Court, 3.3 miles from the base. Because of the low altitude of the area, however, "it would be necessary to erect a tower of approximately 400' " to reach Austin. The memo goes on to say that "it is very likely that the FAA would object strenously to a structure of this height anywhere within a five mile radius of Bergstrom AFB. ...Our educated guess is that an allowable structure in this area will not put out an adequate signal over Austin.

An FAA feasibility study concluded on March 22, 1989, that KTSB's proposed tower height of 196 feet violated FAA obstruction standards, which limit tower height to 102 feet. The FAA initiated a further study to check on hazards to air navigation. In two letter addressed to Ken Fleishfresser, FAA Airspace Specialist, dated May 25 and September 11, 1989, KTSB requested that the FAA "hold in abeyance any ruling regarding our proposed tower's potential for hazard to aviation."

With this second and final FAA ruling against KTSB's tower site, the FCC would have promptly rejected the application. But the FAA suspended its decision for more than a year. Then, last November, TSP general manager Lytle wrote to Fleishfresser saying that KTSB would comply with FAA standards, reducing its proposed tower height to 102 feet. The FAA, on November 14, 1990, terminated its study. According to the FCC order, however, the potential air hazard is still an issue: "Attempts to obtain FAA clearance through the Commission's Antenna Survey Branch and the University have been unsuccessful." KOOP, on the other hand, passed all FAA standards.

And even if the FCC obtains FAA clearance for the university, there still remains the question of the KTSB tower's transmission capability. If it is true - as the TSP broadcast supervisor pointed out - that the tower would probably only reach Austin if it was "approximately 400' " high, its charges of tower superiority are a total sham. UT could be bluffing its way through the process at the expense of students.

The blatant error on KTSB's application has the UT President's signature affixed to it. Bill Cunningham claimed that National Public Radio requirements prevented students from being on the air at KUT. Later, he changed the application in an amendment to read Corporation for Public Broadcasting instead of NPR. In fact, neither are accurate. Students could be on the air practically 24 hours a day without the loss of any funding. KUT was actually supposed to be a student station founded in the 1950s, but was taken away in an administrative sleight of hand - an intriguing though largely forgotten story. It will be interesting to see how university officials will explain this one to the judge.

And finally, the strangest twist of all: Bernard Rapoport, American Income Life Insurance Company CEO, is a perennial and generous supporter of liberal causes - including KOOP, which he joined several years ago. As of last month, Rapoport is also a newly appointed UT Regent. The legal implications of this development are mind-boggling. It's strange enough to have an KOOP member as an applicant for KTSB's license, but Rapoport could radically change the radio battle overnight if he chooses to argue openly against UT Regent involvement.

In addition to these considerations, KOOP has the benefit of FCC precedent in commercial hearings, which have served as the basis of non-commercial cases. In commercial hearings, the FCC prefers applications who would be participating full-time in the station and who are local residents involved with the community. They also tend to favor applicants with prior experience in broadcasting who support affirmative action. Based on these preferences, KOOP again looks like they have a better shot than KTSB. KOOP's board members are all Austin residents with a wealth of prior radio experience. None of the University of Texas Board of Regents, who would actually own KTSB's license, live in Austin. In addition, according to its application, the university has yet to resolve nine discrimination cases filed against it within the past six years. These cases involved race, national-origin, sex, and age discrimination, as well as sexual harassment.

There is one particular non-commercial case that could play a part in the KTSB-KOOP hearing. This year, a religious group called Real Life Foundation was awarded a license over Jimmy Swaggert Ministries, principally because the latter group owned six other radio stations and produced daily and weekly TV programming, according to the FCC Memorandum Opinion and Order issued last June 7. At the time, the FCC judge asked the Commission to consider diversifying the media as a special consideration in non-commercial hearing, as it is in commercial. While the FCC recently ruled not to adopt the recommendation, the issue of media monopoly could still easily take the foreground of the KOOP-KTSB debate. Besides owning a 100,000-watt station already (KUT-FM), UT owns a TV station, a daily newspaper, a monthly magazine, and a national radio program distribution system.

TSP hopes that KTSB's two years broadcasting experience will help its application. There is no FCC precedent for the issue of cable radio experience, however. Students could argue that it has given them an edge. Then again, it could also be argued that "an opportunity to get practical experience" for UT students (KTSB's principal mission) is best suited for cable radio - not FM, where the standards are higher.

Where the students fit in

Last fall, negotiations with KOOP were a source of controversy among KTSB students. But based on what little information they have been given - and heavily biased information, at that - most staff members support fighting it out in court. They believe that UT will prevail. They believe that they have the overwhelming support of the Austin community. As a cable radio station, KTSB has been received with unmitigated and justified enthusiam. However, the Austin community may not support an FM station that only allows UT students to participate, to the exclusion of community member (and even students who don't attend UT). And it may not want the last non-commercial frequency to go to the UT Board of Regents, which refuses to divest from South Africa, promotes military contract research at Universities, and has gained a reputation for their callousness toward the Austin community - and toward its students, for that matter.

To their credit, several students are work toward much-needed reform of both KTSB and TSP policy. However, they fail to see beyond the charade of the TSP "Declaration of Trust," in which the Regents agree to let TSP make its own policy as long as the Regents have final approval. Many argue that the Regents would never actually take over KTSB; granted, this is not a likely outcome. But the subtle mechanisms of institutional control are already in place in TSP, where student conformists rise to the top and never challenge the system. And there is, and always will be, the chance of Regental interferance.

Univiersity Regents and Chancellors of the past have maintained a hands-off policy toward their student stations. But they are the owners of the FM license, and they will take advantage of their power if it suits them. It has already happened to several student radio stations - from Tampa, Florida; to Green Bay, Wisconisn; to Lawrence, Kansas. Stations are either taken away outright or forced to adopt a bland "college radio" format that is profitable for major record labels. KLSU of Baton Rouge, Louisiana is currently being subjected to the same pressures. "You really are at the mercy of the administration," says Annie McElroy, KLSU station manger. "I feel like we're very precariously perched between being alternative and being a muzak station."

The FCC, reluctant to make a decision in even the few cases it has tried, often resolves the cases by ordering the applicants to share the frequency. The FCC judge in the KTSB-KOOP case might order the groups to further negotiate before a hearing, since "none of the applicants have indicated that an attempt has been been made" to share-time, according to the FCC record.

While a time-sharing arrangement sounds fair, it's becoming apparent that it's not an ideal use of a license. The FCC delivered such a fate to Maricopa County Community College and Arizona State University earlier this year. The community college was ordered to take Mondays, Wednesdays, and Frdays; the university got Tuesdays, Thursdays, and Saturdays; and they were to alternate Sundays.

Donald Mullally, director of broadcasting at the University of Illinois and general manager of WILL-FM, testified at the ASU-Maricopa County hearing that time-share arrangements are problematic because, "for most people, a station is a dial position." Inconsistent radio tends to lose listeners, something a cash-poor station wouldn't be able to afford. Mullally's theory is grounded in simple fact: Based on a survey of fourteen stations that were sharing time on a frequency, all reported that "their ability to accomplish their mission is impeded by their shared-time constraints." Six said the arrangment impaired their service to the community; four are off the air.

For KTSB, whose yearly budget is about $61,000 - $50,000 from student service fees and the rest from KTSB underwriting/fundraising - time-sharing wouldn't represent much of a hindrance. But for KOOP, which would be dependent on loyal contributors, time-sharing could impose serious financial difficulties from the start.

But a time-share arrangment is not the only means of cooperation. Because they work on the principles of direct community access, KOOP members seem amenable to working something out with students, who do comprise a sizeable chunk of the Austin community. KOOP members say that student usually make a substantial contribution to community radio, and that it might be hard to tell the difference between the programming they would like to offer and the programming KTSB offers on cable. And KOOP might ultimately serve students better than KTSB ever could. In contrast with TSP's current management of KTSB, students involved with KOOP could actually be voting members on the board that forms the policies for the station.

But talk will amount to nothing if KTSB and KOOP rush into comparative hearing. It is up to the Austin community to force these groups to be accountable for their future actions.


KOOP will hold a public meeting at the Austin History Center, 810 Guadalupe, on Thursday, February 28 from 6:30 p.m. to 8:30 p.m. They are also scheduling a benefit show in April.