Letter of John Crigler, Pacifica lawyer re: CPB Compliance
- Oct. 12, 1998

The following letter was sent by Pacifica's lawyer, John Crigler in apparent response to Lynn Chadwick's inquiry over the validity of CPB President Robert Coonrod's letter to Pat Scott saying that Pacifica was out of compliance with CPB Guidelines and federal regulations regarding separation of the governing and advisory boards.

What is interesting about this letter is that does NOT contain what would be the obvious legal advice:  seek a way to continue the waiver that CPB has given Pacifica for the lifetime of their relationship, or to seek a longer time period in which to come into conformity based on the fact that CPB has allowed Pacifica to exist this way since the federal regulations and the CPB came into existence.

That Crigler did not do this means (A) that this was exactly the letter that Chadwick wanted, i.e., a reiteration of Coonrod;s conclusion or (B) that he is an incompetent lawyer and Chadwick is an incompetent Executive Director.  After all, it is the job of both to defend Pacifica, not roll over as both seem to have done, and apparently without objection from Dr. Berry.

Jeff B

Haley Bader & Potts P.L.C.
4150 No. Fairfax Dr. Suite 400
Arlington, Virginia 2203-1633

October 12, 1998

Ms. Lynn Chadwick
Pacifica Foundation
1929 Martin Luther King, Jr. Way
Berkeley, CA 94704

Dear Lynn:

You have asked me to outline the requirements of the Corporation for Public Broadcasting concerning Community
Advisory Boards.

In relevant part, 396(k)(8) of the Communications Act of 1934, 47 C.F.R. s 396(k)(8) provides that:

(A)  Funds may not be distributed pursuant to this subpart to any public broadcast station." unless such
station establishes a Community Advisory Board"

(B)  The Board shall be permitted to review the programming goals established by the station, the service provided by the station and the significant policy decisions rendered by the station.  The Board may also be delegated any other responsibilities, as determined by the governing body of the station.  The Board shall advise the governing body of the station with respect to
whether the programming and other ;policies of such station are meeting the specialized educational and cultural needs of the communities served by the station, and may make such recommendations as it considers appropriate to meet such needs.

(C)  The role of the board shall be solely advisory in nature, except to the extent other responsibilities are delegated to the board of (sic) the governing body of the station.  In no case shall the board have any authority to exercise any control over the daily management or daily operation of the station.  CPB publishes a guide to these provisions, entitled Communications Act and Certification Requirements for CPB Station Grant Recipients.. The 1998 edition of this publication contains the same interpretative guidelines with respect to Community Advisory Boards as contained in the previous edition (1986).  These guidelines state that:  "The law segregates the management and operation functions of the governing board from the advisory board's function to assure a clear demarcation between the governing board and the advisory board."

In a letter dated September 14, 1998, the President and Chief Executive Officer of the CPB, Robert T. Coonrod, expressed his concern that "The Pacifica Foundation's and CPB's interpretation about the definition and operation of Community advisory Boards may differ in importantt ways."  He goes on to say that the "Pacifica Foundation's current governance structure appears to be at variance with both the law and our guidelines.  If it is true that the majority of numbers (sic) making up Pacifica's Governing Board are also members of Pacifica station Community Advisory Boards, that makes it impossible for the two to
remain distinct and independent."

Neither the Communications Act nor CPB guidelines, dictate a particular legal structure for Community Advisory Boards, nor any method for selecting members of such Boards other than that the members should be "reasonably representative of the diverse needs and interests of the communities served by the station."  Pacifica thus has considerable leeway in structuring its
Community Advisory Boards and establishing criteria for selecting members to serve of those boards.  The key distinction, and the one emphasized in Mr. Coonrod's letter, is that the Community Advisory Boards must be "solely advisory in nature."  To the extent that Pacifica permits individuals to serve on both a Community Advisory Board and the Pacifica Governing Board, Pacifica blurs this distinction and ignores CPB's guideline that there be a "clear demarcation" between the two types of

Mr. Coonrod points out that the law gives little "wiggle room to CPB in its interpretation" of Community Advisory Board requirement and that the consequences of non-compliance are severe:  "Failure to comply risks future CPB funding for any station."

To avoid the risk of losing CPB funding, Pacifica would be wise to structure its Community Advisory Boards in a way that clearly distinguish (sic) the purpose and composition of such Boards from the purpose and composition of Pacifica's Governing  Board.

Sincerely yours,

John Crigler


cc:  Dr. Mary Frances Berry (via fax)

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