Tuesday, July 25, 2017
Updated with audio July 26, 2017 6:15 PM
Many months ago, confronted by ESRT’s turning to the courts for enforcement of WBAI/Pacifica’s contract, Crosier presented WBAI/Pacifica’s offer in settlement to ESRT, which offer consisted of suggesting ESRT settle for a small fraction of the value of the contract.
Crosier and WBAI/Pacifica were surprised in the time following that there was no response from ESRT to their offer in settlement.
Today, after WBAI/Pacifica had pointed happily several days ago to the fact that following some local officials having sent letters sympathetic to WBAI/Pacifica to ESRT, ESRT had requested a meeting, concluding that WBAI/Pacifica’s ‘pressure’ would force ESRT to present a ‘reasonable’ counter offer as to financial terms, Crosier, Himmelstein (WBAI/Pacifica’s pro bono firm), et al were ‘disappointed’ that ESRT presented no counter offer in settlement, but instead presented a series of questions centering solely on WBAI/Pacifica’s ability to pay monies due per contract, and particularly focusing on why WBAI/Pacifica claimed it was unable to raise the monies due by a signal swap, with the accompanying sale of their existing frequency, which, as a commercial frequency in the center of the FM band in the New York Metropolitan market, is of considerable value.
According to Crosier, they attempted to explain why they found this ‘very, very difficult,’ ie, effectively impossible to accomplish.
There have been several points in the past years where signal swaps have been proposed, internally, for various reasons, principally financial. Such a swap would require, according to Pacifica’s bylaws, a vote of the Pacifica National Board, and on all such previous occasions neither the local nor the national stakeholders were able even to approach the possibility of such a change.
That internal dysfunction is the reason why a signal swap is effectively ‘very, very difficult’ in WBAI/Pacifica’s view and understanding, if not quite simply impossible.
This line of argument as to why ESRT ought to accept WBAI/Pacifica’s continuing as it has in the past, not paying them the monies contractually due, seems to have had little effect on ESRT’s position to date.
What Berthold Reimers had to say. It is essentially complete, but I edited out some musical interruptions and confusion derived therefrom.
Monday, July 24, 2017
Sunday, July 23, 2017
These recent filings from Himmelstein appear to me, a layman, to attempt to do two things: 1) Argue explicitly as opposed to implicitly for unconscionability as to the contract; 2) In support of that attempt, introduce a statement from Crigler, a well-regarded communications lawyer.
There is a great deal of noise in the unholy mess of Himmelstein’s arguments as presented, much of which seems to me to strongly suggest that Himmelstein is utterly and absolutely well beyond their depth. In addition to the sheer confusion of presentation and argument and a seemingly near-random presentation of citations in support, consider one trivial but striking minor item: Himmelstein at several points employs as if in quasi-magical fashion the legal phrase ‘nun pro tunc’. The actual term, however, is nunc pro tunc and would seem to me to have little if any valid applicability in this context, and even less as invoked by Himmelstein.
Perhaps I err.
As to substance:
Previously Himmelstein had at best argued en passant and implicitly for unconscionability. They seem, now, to be attempting to have another go at it, emphasizing in argument that it’s an affirmative defense while in no way addressing the shortcomings of that argument already addressed by ESRT – they simply repeat that market conditions were sharply adverse at the time the lease was signed, and they produce a statement from Crigler, a communications lawyer, to that effect.
ESRT has already fully addressed the unconscionability argument, though it was only implicitly presented, and none of this new material presents any new evidence of any sort that I can see.
‘Buyers regret’ that conditions at the time of lease favored ESRT and that in the time since WBAI/Pacifica has beggared itself is a less-than-compelling argument in my opinion.
It will be interesting to see ESRT and the Court’s response and judgement
Here are the documents in PDF format:Notice of Motion
Monday, July 17, 2017
If you watched the video of last Thursday's bizarre, mis-labeled WBAI "press conference" and have sufficient knowledge of the station's past, you may have spotted some old performers in Randy Credico's one-ring circus, doddering left-overs who probably showed up on City Hall's steps more out of habit than true concern. After all, this is not the radio station that used to energize and inspire them, but the decomposed remains of a dream they once thought deferred. Circus Credico did not introduce any new acts, nor was it able to drum up a new audience—it was the old choir shouting into an abyss and hearing the decayed echo with scripted delight. It was, in fact, group masturbation from which even the claim of momentary satisfaction would have been a stretch.
Some of you may recall the time when WBAI—then in its early stages of decay—was housed in a former church on Manhattan's East Side. It was still a radio station, it had real studios, and it attracted performers, producers and listeners of real talent and intellect.
Unfortunately, it also attracted people with ulterior motives who saw an opportunity to further their own nefarious agendas. One such person was Percy Sutton, the slick—some would say, slimy—founder of Inner City Broadcasting whose career was a mixture of the commendable and contemptible. Sutton's association with WBAI was peripheral and is said to have involved the station's loss of the church location. In short, told that it was liable for property taxes, the management was forced to sell the church. It is the complicated story of an unwise and, I am told, avoidable decision.
The following enticing footnote comes from an anonymous viewer of this blog, who followed WBAI's sordid history for many years:
"You may or may not have noticed the presence of Ralph Engelman at the rally at City Hall," he writes. "Engelman was the point man for Percy Sutton’s people on the local board in late 1976 – early 1977. It was Engelman who ordered the station off the air in order to shift the station radically (pun intended) away from the original vision toward one of explicit political advocacy.
"As such, it is of course amusing to see him in the present context, once again invoking the original principles which he played a leading role in abandoning and betraying.
|Here is Mr. Engelman last Thursday with |
ringmaster Credico behind him.
"In a sense, Engelman is/was emblematic of the abandonment and betrayal of Pacifica's foundational goals and principles—while invoking them every moment, every second. He particularly drove Margot Adler nuts. She was in many ways the lead person in trying to save the station as originally conceived.
Thus Engelman was effectively the man who pulled the plug on actual free speech at free speech radio."
Perhaps perfectly innocent, but nevertheless interesting.