Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
Pacific Lutheran University,
Assignor
and

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)
)
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The University of Washington,
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Assignee,
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For: Assignment of License of
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Station KPLU(FM)
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Tacoma, WA and its associated
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stations and translators
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____________________________________)

FILE No. BALED-20160204AFY

TO: The Media Bureau
REPLY TO
UNIVERSITY OF WASHINGTON’S
OPPOSITION TO PETITION TO DENY
COMES NOW, Petitioner, Carol MacKinnon, and submits this memorandum in response
to the Opposition to Petition to Deny filed by Assignee, University of Washington, on March 21,
2016. The Commission’s attention also is invited to the supporting Supplemental Declaration of
Carol MacKinnon and associated Exhibits, together with Petitioner’s Reply to Pacific Lutheran
University’s Opposition to Petition to Deny, filed contemporaneously herewith.

As an initial matter, certain mischaracterizations made in the University of Washington
(“UW”) opposition memorandum must be corrected. Also, the Commission should be cautious in
relying upon UW’s factual assertions because some of those ostensibly factual statements are
actually baseless assertions that are contradicted by documentary evidence. For example, UW
Opp. Mem. at p.2, fn. 3, disputes Petitioner’s description of the size and extent of the geographic
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 territory covered by KPLU’s signal. Exhibit CM-71 is a map of the KPLU service area; Exhibit
CM-142 is a map of the KUOW service area (taken from the KUOW website). The two
documents speak for themselves: plainly KUOW’s service area is smaller and roughly
corresponds to the Seattle/Tacoma/Bellevue CMSA, as asserted by Petitioner. There is no
dispute that both stations have on-line streaming services and both have many, many listeners –
plainly, the public interest is implicated by this proposed transaction between giants in their field.
It is of note that UW argues in footnote 1 that Ron Waters’ Petition to Deny should be
ignored because it is not verified; however, the on-line submission process includes the author’s
verification that the facts stated are true and correct. UW is just wrong when it contends as a
factual matter that the Waters petition has not been verified.
UW’s mischaracterizations go on: at paragraphs 3 and 11, it is asserted that the
announcement of the sale was made before the Asset Purchase Agreement was finalized,
sweeping under the rug that fact that the preliminary binding contract (a Letter of Intent) was the
item that was approved by the two educational institutions’ Boards of Regents before the sale
was announced to the public. It is disingenuous to suggest that the deal was not done in secrecy
and by employing such tactics in the Opposition Memorandum, UW reflects that same
untrustworthy character of which Petitioner complains in her Petition to Deny.
UW claims that KPLU and KUOW “are highly redundant services”, with 65 hours per
week of identical NPR content (which UW counsel’s math equates to 40%3). The source of the
“65 hours” per week is comparing the face of the published weekly schedules for the two

1

Filed with the Petition to Deny, March 10, 2016.

2

See MacKinnon Supp. Decl., filed March 28, 2016.

3

The actual proportion of 65 to 168, expressed as a percentage, is 38.69%

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 stations. See Exhibits CM-12 and CM-13. The “65 hours of overlap” statement, however,
ignores the fact that during the blocks of M-F hours when “Morning Edition” or “All Things
Considered” are broadcast, each station also airs segments of locally produced programming. In
the case of KPLU, approximately two hours per day of those blocks are airing its own local
content. MacKinnon Suppl. Decl. at para. 4. The 65 needs to be reduced by ten hours (2 times 5)
for the Commission to be comparing apples to apples. Even fifty-five hours is an overstatement
and at least one investigation suggests the actual number of overlap hours is substantially less,
perhaps as low as 20 hours/week. Id.
To the extent that the foregoing disputed facts are material to a determination of whether
the subject Assignment is in the public interest, it would be erroneous to summarily approve the
Application as UW requests the Commission to do. Instead a hearing must be held to resolve any
material factual disputes.
UW affirmatively argues that the Assignment Application is in the public interest. The
lodestar of UW’s public interest argument is that the Corporation for Public Broadcasting
(“CPB”) encourages ridding the airwaves of duplication. The logical extension of UW’s
argument is that there should be no more than one NPR station in any market! The goal of CPB
is to support the success of public radio, not to shrink the number of stations. (It is curious that in
this context, UW wants the FCC to pay attention to the CPB, but in the context of Petitioner’s
request that action on this Assignment be deferred, UW wants the FCC to ignore the CPB).
In conclusory fashion, UW asserts that, "all relevant open meeting and public notice
requirements were scrupulously followed by UW". Nowhere does UW identify what notice was
required and what notice was given. On the other hand the Wing Declaration unequivocally
states that nowhere on the meeting agenda do the words KPLU appear. Instead the notice

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 referred to KUOW License Assignment and Acquisition. Wing Decl. at paras. 3-4. The Wing
Declaration is uncontroverted, and uncontrovertible because the truth is that the agendas for the
UWBOR and the UWBOR Subcommittee on Finance and Asset Management meetings on
November 12, 2015, only referenced a matter pertaining to the KUOW License. Both meetings
were subject to the open public meetings law, R.C.W. 28B.20.105. Washington law is wellsettled that when public notice is required, that notice must not be misleading.
The purpose of the notice required by this statute is to fairly and sufficiently apprise those
who may be affected by the proposed action of the nature and character of the amendment
so that they may intelligently prepare for the hearing. Glaspey & Sons, Inc. v. Conrad, 83
Wash.2d 707, 711, 521 P.2d 1173 (1974).
Our holding that the notice in this case is deficient is mandated by the constitutional
requirement calling for procedural due process of law. One of the basic touchstones of due
process in any proceeding is notice reasonably calculated under all the circumstances to
apprise affected parties of the pending action and afford them an opportunity to present
their objections. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).
Barrie v. Kitsap County, 84 Wn.2d 579, 583-585, 527 P.2d 1377, 1380-81 (Wash. 1974) (“The
question is whether or not the notice was defective in that the plaintiffs and concerned citizens
were in fact misled. We agree with Plaintiffs”). Accord, Amalgamated Transit Union Local 587
v. State, 142 Wn.2d 183, 226-27, 11 P.3d 762, 791 (Wash. 2000) (inadequate notice in title of an
initiative).
UW would have this Commission act in a vacuum! They assert that legal violations outside
the purview of the FCC’s enforcement responsibility, should be ignored when ruling upon the
character of the proposed licensee. Such a preposterous proposition subverts the entire premise
upon which the character regulations are based. The provisions of the Policy Regarding
Character Qualifications in Broadcast Licensing, 102 F.C.C. 2d 1179 (1986), are clear.
The linchpin of the analysis is “the likelihood that an applicant will deal truthfully with the
Commission and comply with the Communications Act and our rules and policies.” Id. at ¶7, p.
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 1183. “[B]oth misrepresentation and lack of candor ‘represent deceit; they differ only in form.’”
Id. ¶ 35, p. 1196 (internal citation omitted).
In this Policy Statement, the Commission has determined that the relevant character traits
with which it is concerned are those of ‘truthfulness’ and ‘reliability’. Regardless of the
manner in which we have historically described the matters before us, our concerns when
reviewing FCC-related misconduct in the licensing context have clearly had a relationship
to those two traits; we have questioned whether the licensee will in the future be likely to
be forthright in its dealings with the Commission and to operate its station consistent with
the requirements of the Communications Act and the Commission’s Rules and policies.
From this perspective it appears that as a general matter any violations of the
Communications Act, Commission rules or Commission policies can be said to have a
potential bearing on character qualifications.
Id., ¶¶ 55-56 p. 1209. The Commission specifically considered and concluded that “deception or
defrauding of the broadcast public” should be considered as a qualifications issue. “The act of
willful misrepresentation not only violates the Commission’s Rules; it also raises immediate
concerns over the licensee’s ability to be truthful in any future dealings with the Commission.”
102 F.C.C. 2d at 1209. “[T]he trait of ‘truthfulness’ is one of the two key elements of character
necessary to operate a broadcast station in the public interest. The Commission is authorized to
treat even the most insignificant misrepresentation as disqualifying. (n. 7: ‘The fact of
concealment may be more significant than the facts concealed.’).”

Id. ¶ 60, p. 1210.

Particularly germane to the situation at hand is the guidance with respect to misleading
advertisements: the proper inquiry is, did the licensee knowingly participate in the creation of a
deliberately fraudulent ad? Id., ¶ 66, at p. 1213. Here, UWBOR bears ultimate responsibility for
providing a notice of its meetings that is reasonably calculated to apprise the citizens who may
be affected by a proposed action of the nature and character of the action so that they might have
a meaningful opportunity to prepare and participate. Their word choice concealed the true nature
of the agenda item. That UWBOR might have relied upon others to supply the wording for the

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 agenda item, does not remedy the fact that a misleading advertisement was made. Inquiry into
the extent of UWBOR’s active participation in the creation of the misleading advertisement is a
matter requiring this matter to be designated for a hearing. At that time, but not now, it will be
relevant to inquire just who did supply the misleading meeting label.4
Nothing in this memorandum is intended to imply that KUOW/PSPR is not enthusiastic
about station KUOW and does not look after that station’s and its listening audience’s best
interests.5 Obviously KUOW/PSPR cares about the community it serves and endeavors to serve
the public interest as it defines it (which is that single format stations are better than dual format
stations, something that Petitioner disputes). The content of this memorandum is nothing more
than a citizen looking after her listening community’s interests in securing a community license
to operate KPLU, an objective that even UW believes is the best outcome for the Puget Sound
region. See Ex. CM-3.
Conclusion
UW argues that the decision on the transaction was conducted, fairly, openly and in
compliance with all relevant public disclosure requirements. The factual evidence before the

4

If it proves to be the entity contracted by UWBOR to manage its existing license, then other
more far-reaching issues associated with KUOW/PSPR management responsibilities might
surface during the adjudicative process about adding a second license to the UW portfolio.
5

So too, Petitioner didn’t mean to be insulting of the KUOW news staff and was not impugning
their integrity. Rather, the Petition was stating the obvious, that as a purely legal matter
journalists employed by a station owned by a government agency are controlled by that agency
and therefore cannot have the same level of independence as can journalists employed by a
community licensee. The bottom line, one that fortunately we don’t often face in our democracy,
is that a reporter employed by a state agency ultimately is a voice of the state. Look at other
nations to see how journalists can be restrained by governments and reflect upon the current state
of things in this country: no one would have imagined two years ago that demagogues could
actually rise to the highest executive offices in America. Petitioner’s concern about the relative
journalistic independence of reporters who work for government agencies is relevant to
consideration of the public interest.
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Commission is that it was not. The UW meeting notices were misleading. ?ame, ?lm.

Petitioner has introduced facts that this transaction is not in the public interest. This
transaction represents the merger of two competitors, KPLU and KUOW, who are each big
players in the market, with respective annual individual donations of $3.6 million and $7.8
million and budgets of $8 million and $12 million (FY 2014). Plainly the actual marketplace is
one where these two stations can continue to exist on a competitive basis and the public benefit
of there being multiple sources of news available to Western Washington is manifest.
Undeniably this matter implicates the public interest and merits a full airing before an
administrative law judge. UW seeks an NPR monopoly; and PLU seeks to liquidate one of its
intangible assets in order to infuse its balance sheet with cash. Meanwhile, a real alternative
buyer exists.

As more thoroughly explicated in the Reply to Opposition, filed contemporaneously
herewith, this Application for Assignment is not ripe for determination. Even if it were able to be
decided despite the community buyer contingency, the deleterious impact upon the public
interest dictates designation for public hearing as the appropriate course. In short, Petitioner has
raised a plethora of issues within the purview warranting denial of, or delay in, processing
the Application.

Respectfully Submitted,
 a  . 
{?rm War/?sz

Carol MacKinnon, Attorney at Law
7612 27th Street West
University Place, WA 98466-4108

Phone: 253-460?5582
Fax: 253?460?9548

Email: carolmackinnon@mac.com

 

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