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Pacifica Board Caves to CPB Threats

On February 28 in Berkeley the Governing Board of the Pacifica Foundation voted unanimously to approve a modification of the corporation's by-laws, transferring the authority for nominating Governing Board members entirely to the Governing Board, and outlawing concurrent service on the Governing Board and a station advisory board. Prior to that, a majority of Governing Board members were required to have been nominated by and from advisory boards, two each from the five member stations. Immediately following the vote, the members originating from station advisory boards resigned from those advisory boards so that they could remain members of the Pacifica Foundation.

The unanimity of the vote was surprising since station advisory boards in Berkeley and New York, ruling on significant policy decisions as is within their explicit Corporation for Public Broadcasting (CPB) and Communications Act mandated-purview, advised their Governing Board representatives to vote to continue the matter to the subsequent meeting so that more desirable alternatives to self-selection could be considered. Other Governing Board members were also thought to be in favor of alternative means of achieving CPB compliance. In advance of the Governing Board, station managers were asked to prepare prospective budgets incorporating a loss of CPB funding. All such budgets included marked cuts in staff, up to 3/4 of paid staff in some instances. To clinch the issue, a letter from CPB Vice-President in charge of Radio, Richard Madden, sent a letter to Pacifica CEO Lynn Chadwick threatening to withold CPB disbursements to Pacifica due in mid-March unless Pacifica's by-laws were altered to "ensure compliance with Section 396(k)(8)(C) of the Communications Act of 1934 as amended which provides that "[t]he role of the [advisory] board shall be solely advisory in nature.....," and the advisory board shall advise the governing body of the station and therefore must be distinct from and independent of the governing body." The ellipsis in this quotation of law seems to have become a permanent part of all official writings on this subject. It substitutes for the phrase, "...except to the extent other responsibilities are delegated to the board by the governing body of the station."

The CPB threat appears to have been crucial in forcing the issue in the face of rising outrage both within Pacifica and without. Chair Mary Frances Berry was accompanied at all times by a bodyguard as a result of herself and several others within Pacifica having received anonymous death threats. Up to four armed, uniformed police were present, one of whom commented that the Pacifica Board was almost as bad as the UC Regents. At the meeting programmer Larry Bensky, who in the past has made public statements of support for the changes occurring at Pacifica, noted in a statement circulated to the public, while noting possible failings in a system of elected governance noted, "I believe it is nevertheless worth considering some means of election to local and national boards. Elections don't automatically mean democracy, but it is hard to have democracy without elections. There is much creative thinking to be done in this area."

The by-laws changes adopted thus culminate at least two years of sustained, dogged effort to bring self-nomination about through various means. Governing Board members previously from station advisory boards negotiated at the last moment policy language suggesting maintenance of an important role for station advisory boards, but these agreements, like NAFTA side-agreements, include no enforcement mechanism. As policy statements, they may be changed at-will by the board in the future. In contrast, subsequent alteration of the by-laws will require a 2/3 majority of a group that has just voted unanimously in their favor.

With their vote, the network that emphasizes how dependent it is on its listeners for all its support at fund drive time, has emphasized that it is more fearful of loss of government funds than of subscriber funds. The subscribers can be misled or replaced.

Perhaps the only solution is for outraged listeners to pool their money, to be witheld until Pacifica acts as it speaks. The fifteen members of the Pacifica Governing Board seem to respond only to the demands of money in the aggregate, rather than to the demands of people or principle. Those interested in contributing to the legal effort to reverse these changes may send checks to: Siegel and Yee Trust Account (write "Save Pacifica" in the memo area of your check), 499 14th Street #220, Oakland, CA 94612.

The Capturing of Pacifica

As we left it last month, in response to a solicitation from outgoing Pacifica CEO Patricia Scott, Corporation for Public Broadcasting (CPB) CEO and President Robert Coonrod (former Deputy Director of the Voice of America (VOA) overseeing Radio and TV Marti), had written a letter indicating that Pacifica's present governance structure must change to be in compliance with CPB regulations. At issue was the fact that a majority of Pacifica Governing Board members were also members of the community advisory boards of the Pacifica member stations, from whence they were nominated.

In his September 14, 1998 letter to Scott, Coonrod stated:

"...the Communications Act provides that the Community Advisory Board 'shall be solely advisory in nature.' The law adds that the Community Advisory Board shall 'in no case have any authority to exercise any control over the daily management or operation of the station.'" Coonrod went on to point out that the CPB interpretation of the relevant law holds that there be, "a clear demarcation between the governing and the advisory board." Thus, the fact that Governing Board members also sit on advisory boards was taken to be at odds with the rules, and Coonrod commented, "As you may be aware, compliance with this portion of the law gives little wiggle room to CPB in its interpretation. Failure to comply risks future CPB funding for any station." The lack of "wiggle room" has not been a problem for the last twenty plus years, however, during which the law has not changed.

What is most interesting about Coonrod's citation, however, is the omission of an important clause. The law he quotes is from Section 396(k)(8) of the Communications Act. The omitted clause is as follows: "The role of the [community advisory] board shall be solely advisory in nature, except to the extent other responsibilities are delegated to the board by the governing body of the station."

Thus, advisory boards may be given authorities extending beyond advisory capacity, such as nominating Governing Board members, so long as this does not result in authority of the advisory board to exercise control over the daily management of the station. This leaves only the question of a clear demarcation between advisory and governing boards, the problem arising from members who sit as voting members of both bodies.

The Pacifica Governing Board considered the threat of losing CPB funding at its October 1998 meeting in Houston. The posting of the transcript of that meeting coincided with the publication of the Jan. 15-31 CounterPunch article notifying the public that something was afoot. In the discussion of the threat, board member Ken Ford of WPFW commented that the Board needed to have a way of tracking changes in the law that affect CPB status. New Pacifica CEO Lynn Chadwick responded, "This is not a change. It is just that we've come under scrutiny." She was referring to the CPB, not the public. In response to a suggestion by one board member that arguments for and against taking CPB money should be posted at Pacifica's web site, at-large member Roberta Brooks, longtime aide to former Congressman Ron Dellums of Berkeley and presently aide to his hand-picked successor Barbara Lee, asserted, "I don't think we should give argument for and against it, because we haven't made the decisions." So much for open inquiry at Free Speech Radio. Brooks is believed to be one of the prime motive forces behind the changes that have occurred and those imminent.

The value of CPB qualifying status was deemed sufficient to warrant action to comply, and a vote was taken to move toward compliance. Board Chair Mary Frances Berry commented on the vote:

"We voted that instead of saying we're not getting into compliance and shoving it essentially, that we will follow the process of getting into compliance... Now you must expect, those of you who are unwary, that you will be assailed by people complaining about this. And by the time I get home e-mail will be overloaded and I'll be getting messages by e-mail saying, they've done it again. But let's hope it doesn't get to be like it was last time."

The "last time" Berry refers to occurred a year and a half ago. A similar attempt by the Governing Board to get control of its own composition occurred in June 1997, then delayed until September of 1997. In that instance the reason given for the change was the need for Governing Board members with more skills than those found on advisory boards. The governance change then proposed would have given the board direct control over two-thirds of its membership and elective control over the remaining third, who would still be sent from advisory boards. Ultimately, however, the proposed change was withdrawn at the last minute, at least in part due to the oversight of attorney Daniel M. Siegel, who was sent to the September 1997 meeting by a list of clients that included such luminaries as Helen Caldicott, Lawrence Ferlinghetti and Edward Herman, as well as dissident groups from Los Angeles, New York, and the Bay Area. Siegel pointed out a number of violations in the manner in which the by-laws change was being attempted. In response, the Board opted to increase the number of at-large directors (which it itself nominates) from five to nine, a move that did not require a change in by-laws. The falsehood of the original motivating claim, the need for more skilled board members, is demonstrated by the fact that the four newly created seats remain unfilled one year later.

Fast forwarding to the present moment, the Pacifica Board is dispensing with all pretense of interest in shared governance. The proposal now being put forth calls for current Governing Board members who originated from station advisory boards to resign from those advisory boards if they wish to remain on the Governing Board. Thereafter, nominees to the Governing Board may be proposed by any person or group, and would be elected by the Governing Board in the way that at-large members presently are elected. Presto. Complete, unassailable control of ownership.

However, this solution is only one among many possible. It happens to be the one that gives the group making the decision the most power, but there are alternatives that would accomplish compliance without autocracy. CPB vice-president for Radio Richard Madden told a San Francisco Bay Guardian reporter that alternatives allowing for local input and democratic governance would meet the requirement, commenting that, "You and I could probably figure out half-a-dozen ways to set that up." As an example, public radio and TV station KQED in San Francisco has listener-elected boards, with candidates for the position appearing on the air to state their positions on the issues.

Presently, a building movement among the public is calling for subscriber-elected Governing and Advisory Boards at Pacifica. (Interested CounterPunchers can find information on this effort at http://www.radio4all.org/freepacifica) Although this is certainly no safeguard against intrigue, it provides a direct means of accountability to the public that to date has been sorely lacking. Perhaps public pressure will result in this most desirable of options being adopted, though this possibility seems remote absent greater public involvement than has occurred to date. More likely, the lure of power will override the concern of public opprobrium. The same strategy as that taken last year may be used again: let the furor die down and then head back to the trough when it does, perhaps loading the board with several more at-large members of proper bent to clinch the vote. Or something more subtle might be attempted, giving the appearance of compromise but still accomplishing the goal of self-selection. Ultimately, until some form of enforced openness is imposed on Pacifica, we are likely to see this scenario repeated until someone wins and almost everyone else loses.

Who is doing it and how did it get this way?

Despite the theatrical appearance of a Pacifica under assault from a threatening CPB, Pacifica and the CPB have been on rather close terms in recent years. Solicited comment from CPB in 1997 was part of the impetus for disfranchising station staff who sat on advisory boards. Prior to that, Brian McConnville, the CPB investigator who originated the inquiry on Pacifica's closed-door practices in response to a complaint in1995 by the dissident group Take Back KPFA, was abruptly removed before the completion of his report. CPB Inspector General Lester Latney denied the removal had anything to do with the Pacifica investigation, but when interviewed after the firing McConnville said he was offered a "memorandum of understanding" regarding his "departure." In return for four weeks' pay (about $3,000), he was to promise not to give "testimony in any form" regarding his case. He refused the offer. McConnville also said that he learned after his firing that Pacifica's lawyer had called the Inspector General about the investigation, a fact that should have been, but was not, reported to him at the time. McConnville's immediate superior was not notified of his removal until after it was a done deal. A deputy Inspector General subsequently took up the case, but found his job title eliminated before its completion. Finally, in 1997, when Inspector General Joe Arvizu completed his audit, it was critical of Pacifica. The Executive Summary found that, "Pacific Foundation was not allowing the public to observe their board deliberations," a violation of CPB open meeting requirements. The Summary also noted that, "advisory boards were not being provided with the autonomy they needed to perform their functions..." Ultimately, however, the CPB Board took no punitive action toward Pacifica, and declared as follows in its findings written prior to receiving testimony regarding the IG's report on the subject:

"...the Board wishes to commend Pacifica for actions taken in recent years to strengthen and improve operations and programming."

The Pacifica-CPB relationship is most obvious, however, in that both former Pacifica CEO Patricia Scott and current CEO Chadwick served on the CPB Public Radio Issues And Policies Task Force (comprising only 14 members) that in 1996 recommended changes in CPB regulations concerning qualification requirements for CPB funding. The recommendations emanating from the resulting Task Force Report set thresholds for station fundraising and audience size that threatened a small number of stations in densely populated metropolitan areas, including Pacifica's Los Angeles station, KPFK. This threat of de-funding and loss of CPB status was part of the given reason for programming, format, and structural changes that made Pacifica broadcast more in the way that, to use CEO Chadwick's phrase, "people use radio," and made the network look more like a typical corporate hierarchy. Pacifica's Strategic 5-Year Plan calls for centralization of operations and programming decision-making, and, according to a report made given at a recent KPFK local advisory board meeting, Chair Mary Berry has indicated that CEO Chadwick has been charged with executing this mandate. The new fundraising and audience size thresholds also impelled Pacifica to become, officially, a minority network. Minority stations only need meet half the fundraising and audience goals of other stations to qualify for CPB grant support. To qualify as a minority station, a station must meet two of three criteria: half of its board of directors comprised of minority persons, half of its staff minority, or 35 percent of its weekly listenership minority.

One of the lessons about how people "use radio" is what the consultants teach: people who listen longer donate more money, so dispense with serving many audiences, pick the one you want, and keep them tuned in. Those not part of the target market are out of luck, even if they have been supporters for decades. And here is the interesting point. The Pacifica Board and administration are fond of claiming that prior to the recent changes, no one was in control at the network and there was no accountability. Thus, neither the Board nor the administration can be accused of having created the immense store of value to which they are now laying claim. Those who did participate in the growth of the institution, its supporters, staff, volunteers, and so forth, are steadfastly to be denied any say in what happens. To let them have a say would constitute a conflict of interest. The Board and administration claim to be engaged in saving Pacifica from threats to its existence. Based on these threats, they have saved the institution from its longtime audiences and its staff, and are now in the process of saving it from its advisory boards. This puts one in mind of "liberating" money from a vault.

So then, who are these presumptive saviors? The most prominent member is surely the chair, constitutional scholar Mary Frances Berry, also of the U.S. Civil Rights Commission and the Geraldine R. Segal Professor of American Social Thought at the University of Pennsylvania, a title suggesting sophisticated understanding of democratic structures. Other well-known at-large members include Loretta Ross, the executive director of the National Center for Human Rights Education, and William Lucy, National Secretary-Treasurer of AFSCME. Roberta Brooks, Pacifica Board Secretary and aide to Congresswoman Barbara Lee (D-Oakland), and June Makela, Pacifica Board Treasurer and a Manhattan school board member, round out the at-large members. The board members sent from station advisory boards are Andrea Cisco and Frank Millspaugh from New York, Kenneth Ford and Rob Robinson from Washington DC, David Acosta and Michael Palmer from Houston, Aaron Kriegel and Robert Farrell from Los Angeles, and Peter Bramson and Jewelle Taylor-Gibbs from the SF Bay Area. Ms. Taylor-Gibbs replaces late scratch Cheryl Fabio-Bradford, who abruptly resigned from the board for as-yet unclear reasons. Ms. Fabio-Bradford was one of the few voices at the Houston meeting calling for a more open process, including the suggestion that the local boards be brought into the discussion on the governance change.

In the context of the changes being driven by the CPB, it is worth consideration that the heads of two of the most important entities in American public broadcasting both come out of the government's broadcast propaganda apparatus. As mentioned above, CPB President and CEO Robert Coonrod is a former Deputy Director of VOA, overseeing Radio and TV Marti. Similarly, recently appointed NPR CEO Kevin Klose has been director of the U.S. International Broadcasting Bureau and was president of Radio Free Europe/Radio Liberty from 1992 to 1997. Thus, the question of who controls public broadcasting and toward what end merits the attention of thoughtful listeners. The answers to such questions illuminate a view of the future of this important medium.

How are the listeners of public radio, the group supposedly being served by those fighting so hard for power over what happens at public stations, to know about the changes affecting the medium. At Pacifica, self-proclaimed Free Speech Radio, a gag-rule is in effect that threatens with permanent banishment any programmer using Pacifica airwaves to notify the listeners of matters of Pacifica policy. Happily, free speech does seem to be breaking out. On Tuesday Feb. 16, WBAI morning-show host Bernard White and shop steward Errol Maitland on the air announced to their listeners the existence of the previous CounterPunch article on Pacifica, which they referred to as "pretty accurate" and a matter of concern and importance for listeners. It is not yet clear the penalty they shall face for this act of defiance.

One of the staples of the Pacifica broadcasting diet is constant alarums about unaccountable corporate power. The present governance struggle at Pacifica is thus rich with a sorrowful irony. The Pacifica Foundation is itself a corporation, specifically, a 501(c).3 non-profit educational corporation. The essential feature of the form of the corporation, that which has allowed its almost cancerous spread as the structure gaining dominance over the resources needed to sustain life, is the authority its owners have over the assets of their institution, coupled with limited liability. As anyone familiar with the non-profit world knows, boards of directors of 501(c).3 corporations enjoy autocratic powers over those corporations that for-profit directors, who have a formal accountability to shareholders, only dream of. So the present governance struggle at Pacifica must be understood in these terms.

And perhaps it must be fought on these terms as well. Late word received by CounterPunch indicates that the Pacifica Governing Board, in a clumsy lunge toward the power it has long coveted, has ignored the corporate law that governs by-laws changes in the state of California where the Foundation is incorporated. According to attorney Daniel M. Siegel, the California Corporate Code requires advance written notice to directors of a corporation 45 days in advance of any by-laws change such as that being contemplated by Pacifica. A letter indicating violation of this provision was sent on Feb. 23 to Mary Berry and the Pacifica Board of Directors. We shall see if the foresight of the drafters of the Corporate Code regarding the potential venality and duplicity of those entrusted with corporate power will succeed in forestalling the present attempt. Those interested in contributing to the legal effort to block, delay or reverse these changes may send checks to: Siegel and Yee Trust Account (write "Save Pacifica" in the memo area of your check), 499 14th Street #220, Oakland, CA 94612.

Ultimately, however, any hope for a decent outcome to this sorry tale will require widespread, sustained public awareness and involvement.

Stay tuned. CP