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The Fight to Overturn the Latest Corporate Coup at Pacifica Has Only Begun

Photograph Source: Doc Searls – CC BY 2.0

Crisis is never far away at the Pacifica radio network, but it is now facing perhaps its worst crisis ever as a new “corporate coup” has, at least for now, shut down WBAI in New York City.

Pacifica listeners and on-air hosts have successfully fought back against prior attacks on the progressive network, most notably reversing the lockout at KPFA in Berkeley in 1999 and the “Christmas Coup” at WBAI in 2000. In those cases two decades ago, the national board of Pacifica had become self-selecting, with board members with corporate backgrounds selecting like-minded people to new board seats and trying to rewrite the bylaws to not only sell off one or more Pacifica stations but be able to personally pocket some of the proceeds. Intense organizing and a boycott of donations eventually not only reversed the coup but begat a new democratic structure of elected local station boards and a national board made up of local-station representatives supplemented by affiliate representatives. (Many stations across the United States carry Pacifica programs to supplement their local programming.)

In that case, many activists believed that starving listener-supported WBAI of funds would reverse the coup. (Full disclosure: I was personally involved in that struggle.) Indeed that proved to be the case. Yes, Pacifica listeners, and exiled staff members and producers won in court, but as that was ultimately a political struggle, it had to be won through the actions of its supporters.

Unfortunately, the latest coup, which began with a dramatic physical takeover of WBAI facilities on October 7, won’t be so simply solved. This is a fight that WBAI listeners and staff believe can be, and will be, won — and this fight is also a political fight. But in the Christmas Coup two decades ago, the intention was to maintain all five Pacifica stations intact for potential sale. This time, however, the coup mongers are strongly believed to want to destroy WBAI in order to sell its license.

The coup mongers, led by Interim Executive Director John Vernile (on the job for all of two months!) and National Board Secretary Bill Crosier, insist they executed their takeover in an effort to “save” WBAI, citing the New York station’s operating deficit. It is true that WBAI has struggled financially for several years, although Mr. Vernile has drastically overstated the size of the debt. But what really stands out is how the takeover was accomplished.

WBAI was in the midst of a fund drive, but the fund drive was stopped, the web site at which listeners could make donations was disabled and all local programming was taken off the air, replaced with canned programming from California with no local content. The team led by Mr. Vernile that descended on the station the morning of October 7 dismantled the equipment, rendering it impossible to broadcast; immediately fired all employees; ordered them to leave; confiscated the station bank account; took checks left in the office; put padlocks on the doors; and told the station’s landlord she should find a new tenant while cutting off rent payments. The transmitter was switched to broadcast the canned California programming and the WBAI web site, including all archives of past shows, was wiped clean and replaced with a one-page site with a propaganda message justifying the coup.

Do these sound like the acts of someone interested in the well-being of the station?

And if a financial deficit were really the problem, it would seem most counter-intuitive to do everything possible to prevent the station from raising funds and to block its bank account.

No, this was not an act of benevolence.

Scapegoating WBAI for the network’s problems

As with most things Pacifica, this is a complicated story. The entire network, not only WBAI, is struggling financially. A faction centered at Pacifica’s two California stations, KPFA in Berkeley and KPFK in Los Angeles, have long advocated the selling of WBAI’s license and to use the proceeds to benefit the remaining stations, particularly their own. Although WBAI has been commercial-free for its 60 years as a listener-supported Pacifica station, its frequency, 99.5, is in the commercial portion of the FM band, and thus worth tens of millions of dollars. This faction has made WBAI into a scapegoat for the financial difficulties of the network as a whole.

That is the context that is behind this latest coup. Of the nine National Board members supporting the coup, three are from KPFA, two from KPFK and three from the Houston station, KPFT. There are 22 members of the National Board, so nine do not constitute a majority. Moreover, 12 board members — an outright majority — oppose the WBAI takeover. Yet nearly two weeks into the coup, nothing has been reversed and the minority, for now, remains in control.

As noted above, this is complicated. An October 21 court date has been scheduled, when the contours of the legal case may begin to take shape. There have already been multiple court appearances, however, and those will be discussed below. Regardless of what happens, or doesn’t happen, on October 21, this standoff between the coup mongers and those opposed will not be resolved for some time, and resolving it will require considerable activist energy on the part of listeners, paid and unpaid staff, and other supporters.

So what is the takeover really about? Although there is a widespread belief that the real intention is to sell off the station’s license, despite the denials of the coup mongers, speculation is all that can be done for now. And perhaps there are other reasons.

“Make no mistake about it — it’s all about content — community voices,” said the lead attorney who has sued on behalf of WBAI, Arthur Schwartz, in an October 9 statement. “Nothing in the Pacific bylaws allows such a takeover by its executive director, who acted without even debate or a vote by Pacifica’s Board of Directors.”

A 40-year veteran of WBAI, Mimi Rosenberg, an activist attorney who has hosted WBAI’s outstanding labor program, Building Bridges, for decades, noted that although the takeover was sudden, the planning was not. “This has been in the works for a long time,” Ms. Rosenberg said. “The intent of the secret raid — or coup — was to wound the station irreparably by wrecking the fund drive, then drive the station to bankruptcy to sell it off so that the other stations in the network could feed off the monies from the sale of WBAI’s license.”

Ms. Rosenberg appears also to be slated by the coup mongers to be a scapegoat. She recently was handed a completely unjustified one-week suspension for allegedly putting WBAI in jeopardy. What was her “transgression”? It was uttering the words “stop Trump” in a promo for her Labor Day special broadcast. Pacifica claimed that uttering those words constituted an impermissible political endorsement that could put WBAI’s tax-exempt status at risk. So with the worst president in anyone’s memory in the White House, someone with the desire (thankfully not the competency) to become a fascist dictator, Pacifica should refrain from serious coverage? What sort of community radio station would WBAI be under such constraints?

Decisions of Pacifica headquarters worsened WBAI finances

Before we get to the legal twists and turns, it is proper to examine the financial situation that is the stated cause of the takeover. It is true that WBAI has experienced financial difficulties for several years and was expected to have a cash deficit for fiscal year 2020. By far the biggest reasons for WBAI’s financial woes are the massive back rent that was owed to the Empire State Building (where the transmitter was formerly located) and to the owners of 120 Wall Street (where its offices and studious used to be located.) That is significant because WBAI management had nothing to do with either contract — the onerous terms of those leases were negotiated and signed by the Pacifica national office around the time of the Christmas Coup.

The rent for the new locations of the transmitter and studios is considerably lower, but the heavy expenses of the previous locations weighed the station down for years and ultimately required the taking of a loan to pay off. WBAI does need to raise more money to keep itself afloat, but would be in much less jeopardy without the Pacifica-imposed expenses. The pro-coup faction on the National Board has taken no note or responsibility for those actions of its predecessors.

According to a document filed with the New York State Supreme Court Appellate Division, WBAI is projected to have a cash-flow deficit of $394,000 for fiscal year 2020. That is the largest deficit of any of the five Pacifica stations, but is not substantially larger than some others. KPFA is expected to have a cash-flow deficit of $366,000 and KPFK a deficit of $314,000. There is no movement to sell the license of either California station. (It should be noted that not all KPFA directors back the coup, and KPFA listeners staged a demonstration opposing the WBAI shutdown, an act of solidarity cheered by advocates in New York.)

“There are so many mischaracterizations and distortions, both through ignorance and of course from distain and to otherwise misrepresent the essence and structure of how the network/stations work,” Ms. Rosenberg said.

Directly addressing the allegations that WBAI’s finances are “dragging down” the network, WBAI Station Manager Berthold Reimers said:

“The Pacifica National office is largely to blame for deals they made without consulting WBAI as well as for not doing audits which prevented the station from receiving Corporation for Public Broadcasting (CPB) funding. … [The debt] was caused by a contract negotiated and signed by the Pacifica national office without consultation with WBAI. The station was put in an untenable position of having to pay $65,000 a month for the transmitter rental space. They also negotiated moving WBAI to 120 Wall Street, where the monthly payment was $45,000 per month.”

Mr. Reimers said that if the nearly $25,000 per month from the CPB that the station lost because the national office didn’t perform necessary audits in time is added to the unnecessarily high rents, WBAI lost close to $300,000 in annual revenue for many years.

Multiple court filings in first two weeks

Following the October 7 shutdown of WBAI, a group of WBAI producers and listeners asked the New York State Supreme Court (despite its name, that is the state’s trial-level court) for a temporary restraining order (TRO) to reverse the takeover pending further legal action. The next morning, a state judge granted the TRO directing the station to be returned to its pre-October 7 state and scheduled a hearing to consider if the injunction should be made permanent.

WBAI advocates argued that the takeover was illegal under Pacifica bylaws because no vote of the National Board was taken and thus there was no authority for Mr. Vernile to take such action. Mr. Vernile and the National Board faction backing him argued in an appeal to the Appellate Division that the TRO was “issued in the dead of night” and therefore invalid, and further argued that “Pacifica owns the property, offices and equipment of WBAI and thus cannot ‘seize’ it from itself.”

The Appellate Division ruled in favor of the appeal, vacating the TRO except for the termination of the 12 paid staffers. That order vacating the TRO was issued despite WBAI’s argument that the Appellate Division has no jurisdiction to overturn a TRO in the absence of a grant of appeal, which WBAI’s filing said had not been given, and that “We could not find a single decision where an appellate court assumed jurisdiction so that it could vacate a temporary restraining order.”

The coup faction on the National Board then sought to endorse the coup after the fact. A phone meeting of the National Board was convened and a vote taken on October 12. By any reasonable standard, this vote could not be considered fair. Apparently realizing they would lose the vote, five anti-coup members of the board had their phones muted so they couldn’t speak and were thus presented from voting! WBAI representatives on the board were told they had “a conflict of interest” and shouldn’t be allowed to vote. No such suspension of voting rights had ever been handed down under any circumstance. With the five board members blocked from voting, the motion to give after-the-fact blessing to the coup was nine in favor and seven against.

However, an emergency meeting was called by a majority of the National Board for the next day, October 13, and this time, 12 board members (an outright majority on a board of 22) voted to reverse the coup and instructed the corporate law firm that the coup faction had hired, Foster Garvey, to “withdraw from all litigation on behalf of Pacifica.” The board had never approved the hiring of the firm, which has filed all motions in support of the coup and the coup faction. According to the advocacy group Pacifica Radio In Exile, “All 12 board members, who represent a quorum of the nonprofit’s board of directors, formally waived notice requirements for the special [October 13] meeting and convened on a conference line that did not permit the involuntary muting of participants.” It is also notable that the 12 anti-coup members included at least one representative of each of the five Pacifica stations.

The Pacifica faction then moved the case to federal court, and asked that court to issue a TRO reversing the October 13 vote, arguing that proper notice was not given for the second vote and thus should be vacated. That request was granted, with the court also scheduling an October 21 hearing. Until then, WBAI remains under the control of the coup faction and, effectively, WBAI supporters argue, under the control of the court. So reports after the initial state-court TRO was issued that WBAI supporters had won were premature. Additionally, station equipment was dismantled on the day of the coup, so work will be necessary before WBAI can resume local broadcasting should it be allowed to do so.

The federal judge who issued the TRO in favor of the coup faction issued an order “Enjoining Petitioners [WBAI representatives and two WBAI National Board members] from disregarding or causing others to disregard the properly passed motions of the Pacifica National Board on October 12, 2019, until such time as this Court has issued a ruling determining the validity of the October 13, 2019, motions.” The judge ordered that no meetings be held that do not follow Pacific bylaws and further ordered that WBAI’s lead attorney, Mr. Schwartz, have no contact with any Pacifica employees or National Board members.

The law firm that the coup faction hired (with no authorization from the National Board) is Foster Garvey, one of the largest corporate law firms in the Pacific Northwest. One of the firm’s specialties is “labor and employment litigation,” which for a law firm of this type means that it assists corporations in screwing its employees, no matter the pretty euphemisms the firm uses in its description of its labor services. That ought to be inappropriate for what is supposed to be a progressive community-based radio network. What is inescapable is that corporate ideology is so pervasive that our own institutions are far from free of it.

More articles by:

Pete Dolack writes the Systemic Disorder blog and has been an activist with several groups. His book, It’s Not Over: Learning From the Socialist Experiment, is available from Zero Books.

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