The ESRT Story continues

AND, IN THIS CORNER...

Here, in chronological order, are three recent court documents in the case of the Empire State Building (ESRT) vs. WBAI/Pacifica. One of these papers was posted earlier, but is duplicated here for the sake of completeness.

We are indebted to 'indigopirate' for retrieving these documents and submitting the following summary:

Himmelstein today presented the court with its response to ESRT’s presentations of last Friday.

Their argument consisted of essentially the following points:

Their first argument, as to why the court should grant WBAI/Pacifica the right to file an amended answer, consists solely of the argument that the court has such latitude, not any argument as to why it ought to do so.

Their second argument consists of asserting that ESRT has not proven that WBAI/Pacifica had the option in 2005 of moving to 4 Times Square, only that the option existed and that 4 Times Square had in the aftermath of the destruction of the twin towers significantly improved and upgraded its broadcast facilities and options. They therefore assert that ESRT has not proven WBAI/Pacifica had this option and was aware of this option at that time.

Most interestingly, I thought, they in no way attempted to address the point made in ESRT’s filing, accompanied by the relevant expert affidavit, that the lease rates paid by other FM stations at Empire State were comparable in 1992 and 2005 to those of Pacifica.

That statement as to fact remained unaddressed by WBAI/Pacifica.

I’ll be frank: In my judgement they have no case, no evidence, and no argument.

What conclusion the court may reach is, as always, a separate question.

~ ‘indigopirate’

Affidavit

Memorandum of Law

Affirmation in Reply

Faction infraction

In case you weren't tuned in this evening, here, in its entirety (except for a tired commercial break) is the Wednesday night LSB meeting as broadcast live.

If, like I, you had the impression that this was going to be a gathering of the entire Local Board, uou should know that the participants were few and, obviously, selected. The host is John Kane, who sounds jittery and obviously doesn't totally believe in freedom of speech, and members of both factions are present, although the destructive Cerene Roberts is not. I imagine she could be seen pacing and cursing up and down that block of Atlantic Avenue. I frankly expected her to come crashing through the skylight and onto the card table. I was wrong, but she did get mentioned—not by name, but as disrupter.

You will notice how reference to the WBAI JUC faction's failure to vote approval of the long overdue audit is met with nervous attempts to change the subject; how one board member keeps pushing the JUC desire to hand WBAI over to MNN (the Manhattan Neighborhood Network)—which, as Max Schmid correctly points out, would spell the end of Pacifica's NY station. 

Missing from this show is any semblance of the LSB being unified, having the same goal, or—in general—facing reality. In short, you will probably come away from this show with a pretty good idea of how things stand and are likely to remain standing... until they fall.

Listen for yourself. Relish an intelligent caller's observations and bemoan the many members of WBAI's LSB who simply don't get it.

The show was still on the air when visitors to this blog began to react, Here's a good exemplar—you will find more as further comments come in. 

The full meeting sans commercials.

A BLOG VISITORS EARLY REACTION
I listened for a bit, but I'm about to tune away (if that phrase still applies on the net). These are unintelligent, uninteresting, talentless people who, at best, sound as if they're running for the least interesting, least important local school board, ever.

They have no interest in the original mission, or in radio, and are simply wannabe apparatchiks who can't draw a simple conclusion like 'Well, gee, we don't have listeners because we don't have money and we don't have money and had to lay off people because we don't do radio that's interesting or anyone wants to actually listen to except for a very small, very unintelligent, microscopic audience that can't possibly support the radio station.

None of this is new, all of it is obvious, but none of it is obvious to them..

Perhaps most importantly, none of these people are the sort of people who do things, who get things done, who make things happen.

Sure they're mindless leftists who still support the ghost of Samori Marksman, Revolutionary Hero & Savior of The Oppressed, but there are other people out there of similar mindsets who actually get something to happen occasionally.

Not these people.

They clearly have no interest in the foundational ideals which once made the station matter.

They clearly have no interest in radio, only their personal failures and their personal agendas.

The takeaway, I suppose, is the same as it's been for years and years and years and years:

Failures Fail.

—anonymous

ESRT Court Filing...

The long-awaited response from the ESRT was filed last Friday, August 25, 2017. The original document can be accessed here:

Here is 'indigopirate's' summary.

Friday last the Empire State Realty Trust responded to WBAI/Pacifica’s recent attempt to amend its filing so as to include an argument asserting that the existing contract is and was unconscionable.

ESRT’s response disassembles that attempt along two separate lines: Firstly, that WBAI/Pacifica fails to meet the criteria for an amended filing. Secondly, that the argument as to unconscionability is meritless both as to law and as to fact.

It is with respect to this latter that ESRT’s filing is most amusing.

WBAI/Pacifica omitted the fact that the 2005 contract still in effect and which WBAI/Pacifica presently seeks to challenge was effectively an extension of the previous 1992 contract that WBAI/Pacifica had signed. That contract reflected the fact that WBAI/Pacifica and ten other FM broadcasters had at that time requested major capital improvements as to the master antenna and broadcast facilities provided to them at Empire State. That contract therefore reflected the shared capital expenses for the improvements, which would improve and extend broadcast reach and radius and thus potential audience, which the eleven FM broadcasters at Empire State had sought and which were agreed upon by all parties.

All eleven broadcasters, including WBAI/Pacifica had contracts at essentially the same rates and all of which expired ca 2005, at which time they might, if they wished, walk away from Empire State as their broadcast site and from their contracts.

None, including WBAI/Pacifica, chose to do so, and all eleven contracts were at effectively the same rates.

As to WBAI/Pacifica’s assertion that ESRT took advantage of the fact that there were no alternatives available to it in 2005 because of the twin towers having been brought down in 2001, ESRT notes that in fact 4 Times Square had in the aftermath of that event substantially increased its broadcast options, including major antenna and facility upgrades, and that WBAI/Pacifica noted that fact in the course of the 2005 negotiations.

Therefore, as a matter of fact, WBAI/Pacifica was aware of the lower cost option of shifting to 4 Times Square at the time and in the course of its contract negotiations in 2005, and chose to stay with ESRT, presumably to take advantage of the superior reach of the signal from that location, as did the other FM broadcasters, all of whom pay comparable rates.

It ought perhaps be noted as a point of possible interest that John Crigler, who filed an affidavit in support of WBAI/Pacifica’s recent attempt to amend, failed to note or in any way take account of these facts despite his having represented WBAI/Pacifica in these negotiations in 1992 and 2005.

Nor has he or WBAI/Pacifica in any way asserted, formally or informally, any claim as to the recently alleged ‘unconscionability’ of the existing contract in the course of the twelve years since he approved of the signing of that contract.

~ ‘indigopirate’

Houston, we have a problem

Today, Bill Crosier posted a letter to apprise us of the storm situation in Houston and how things are going at KPFT relative to that.

Here is a link to Bill's letter in PDF format. Can you imagine Berthold Reimers posting such a letter? Chances of Pacifica's survival, much less its restoration, are as slim as they have ever been, but I urge all who care to be as supportive of Bill Crosier as possible.

Letter from Bill Crosier re Harvey

Pacifica's Uncivil War

You probably know that five avowed disruptive elements made a sorry attempt to stop the long awaited approval of Pacifica's FY2015 Audit Report, a move upon which hinged the organization's immediate future. Here is a summary of this failed attempt as posted elsewhere by Stephen M. Brown, Gary Null's Man Friday.   —CA

August 25, 2017

Why did these five national board members vote to kill Pacifica last week?

Dear Pacifica Supporter –

In the last three years, Pacifica has lost grants from the CPB (Corporation for Public Broadcasting) totaling more than $3 million, which has crippled it badly. In addition, the Attorney General of California has threatened to take away Pacifica's non-profit tax-exempt status, which could destroy it entirely.

Why has Pacifica lost its CPB funding, and why has the Attorney General threatened to take away its non-profit tax-exempt status? The reason is that Pacifica failed to file yearly audits with the California Attorney General, as required by law.

Filing yearly audits is usually a simple administrative matter, and Pacifica has never failed to file the required audits during its more than half a century of existence. So its sudden default in filing – not just one – but three successive yearly audits was, for many, not only astonishing but inexplicable. So inexplicable, in fact, that many believed the default to be deliberate – that is, part of a strategy to destabilize the foundation in order to break it up and reassemble it, under different ownership, for private gain.

Suspicion that a deliberate destabilizing strategy was indeed in effect was directed at then-board member Margy Wilkinson, who, in her position as Board Chair and Interim Executive Director, had repeatedly failed to file timely audits, despite numerous pleas from worried board members. Suspicions about Wilkinson were intensified when it was discovered that she, together with Pacifica’s former Corporate Counsel, Dan Siegel, had created, in secrecy (that is, without informing the rest of Pacifica’s board or its newly appointed Executive Director John Proffitt), a “shadow” entity called KPFA Foundation. This entity took over Pacifica’s trademarked call letters without permission, which seemed to be a violation of the law. Its corporate charter had also plagiarized, word for word, the entire mission statement from Pacifica’s own corporate charter. The purpose of this shadow KPFA Foundation, as later admitted by Siegel (after its existence had been brought to light), was to acquire for its owners (Wilkinson and Siegel) one or more of Pacifica’s broadcasting licenses (valued at approximately $200 million), in the event that Pacifica lost its non-profit tax-exempt status, became inoperable, or entered bankruptcy.

Because a failure to file audits was so serious, and so dangerous, Pacifica’s membership voted overwhelmingly, in the most recent election, to throw out the delinquent national board and its (apparently corrupt) Wilkinson-Siegel-Brazon management team. The board then promptly appointed a new Executive Director whose first order of business was to immediately bring Pacifica’s audits up to date, so that (1) the foundation could regain millions of dollars in future CPB grants, and (2) it would no longer be under threat of losing its non-profit tax-exempt status (which the California Attorney General promised would happen if it did not file an approved FY2015 audit with his office by the “drop dead” deadline date of August 27).

So what happened? (Suspenseful, right?) Well, you will be happy to know, if you haven’t heard, that by dint of extraordinary efforts, the new Executive Director, Bill Crosier, and Chief Financial Officer, Sam Agarwal, managed to dig through the chaotic jumble of disorganized financial information left to them by Pacifica’s prior management, and then hire a top auditing firm that succeeded in completing the FY2015 audit ten days ahead of the Attorney General’s deadline.

Only one crucial step remained.

Before an audit can be filed with the Attorney General, it has to be formally approved by a vote of the Pacifica National Board. One might think that this was a no-brainer. Because if the audit were not approved, Pacifica would be dead.  So the board took a vote on August 17. Did it approve the audit?

The answer is -- yes, of course. But with one big surprise. Five board members actually voted No -- that is, voted against approving the audit, against letting Pacifica regain its CPB grants, and against letting it keep its non-profit tax-exempt status.

Unbelievable? Sure. But not if one understands that those five board members – the ones who, in effect, voted to kill Pacifica – were hold-over members or supporters of the same Wilkinson-Siegel-Brazon team suspected of trying to destabilize and dismember Pacifica in order to funnel its $200 million worth of broadcast licenses into their own shadow KPFA Foundation (whose legal address is the law offices of Dan Siegel).

The rest of the board was so upset by the No vote of these five members – which it viewed as a betrayal of fiduciary responsibility to the foundation -- that it did something unprecedented. Although the vote whether to approve the audit was cast in executive (that is, closed) session, the board decided to waive the privacy of executive session and publicly reveal how each member voted. So that those five members – who thought their No votes would remain private – will now be forced to explain themselves to the angry local station boards that appointed them. (Do I see tar and feathers in their future?)

Anyway, this is how each board member voted, by station. Check out the 5 who voted No, and let them know what you think of them.

VOTING YES --
For KPFK: Jonathan Alexander (Board Chair), Grace Aaron, Mansoor Sabbagh
For KPFT: Bill Crosier (Pacifica’s Executive Director), Robert Mark, Rhonda Garner
For WBAI: Kathryn Davis, Ken Laufer
Sabrina Jacobs, Akio Tanaka, TM Scruggs
VOTING NO --
For WPFW: Jim Brown, Benito Diaz
FOR KPFT: Adriana Casenave
FOR WBAI: Cerene Roberts
FOR UHURU RADIO AFFILIATE: Themba Tshibanda

—Stephen M. Brown

A step forward

CLICK ON IMAGE BELOW TO ENLARGE

The following letter was sent to the pnb@Pacifica.org site as well as to the Pacifica Radiowaves forum. It was picked up by this blog unofficially and unashamedly.

Dear Mr Brown, Ms Casenave, Mr Diaz, Ms Roberts, and Mr Tshibanda et al of the PNB

This is a polite and quite sincere request for information from the five of you as well as a request for further information from the PNB as a whole.  

It relates to votes cast at the August 17 2017 PNB Executive Session.  

The report out from the PNB executive session held on August 17 states that three motions related to the Pacifica audits were passed at that executive session.

I am one of many concerned Pacifica listener members, including several attorneys, who have been actively tracking and documenting the board behavior of PNB members for over a year--as individuals and as voting blocks.  

Our goal is to examine the accusation, frequently made, that a subset of PNB members are working from within to sabotage Pacifica in hopes of walking away from the destroyed organization with valuable pieces of it and/or control over those pieces, or for some as yet identified self serving purpose. 

Should evidence of this sabotage be apparent, legal action against such PNB members could commence. This action could include civil AND CRIMINAL prosecution under a host of state and federal fraud statutes, including breach of fiduciary duty, conspiracy to breach fiduciary duty, and conspiracy charges under the RICO statutes.  

As I understand it, a group of board members, acting in a coordinated fashion, and in collusion with each other can qualify as a corrupt organization or enterprise under the RICO statutes.  

Those found guilty under the RICO statutes can be fined up to $25,000 and sentenced to 20 years in prison for EACH RACKETEERING COUNT of which they are convicted. RICO includes 27 federal counts and 8 state counts under which legal charges can be brought. 

Collusion to commit fraud would be easy to prove, given the lock step voting pattern of the group of you, usually joined by Ms Washington, Ms Turner, and Ms Sorden.

This quote is from Wikipedia information on the RICO statutes: 

"Despite its harsh provisions, a RICO-related charge is considered easy to prove in court, as it focuses on patterns of behavior as opposed to criminal acts."

Nothing would be easier to prove than "patterns of behavior" on the part of each of you as individuals and as a group. 

As you well know, a cornucopia of open source audio exists that would easily establish a coordinated voting pattern on the part of this group.  

In addition, evidence of coordination among you is not limited to voting patterns of your group, but also to the intense and unremitting and often successful vocal disruptions, designed to create delay and chaos, that your group engages in. Your behavior occurs every meeting along very well established, highly predictable guidelines and methods and absolutely suggests a coordinated or conspiratorial quality to your group.  

The report out from the August 17 2017 PNB Executive Session states that three audit related motions were approved. A vote count was given for the first motion only:

"The PNB accepts and approves the Audit Report, Management Letter, and Amended Tax Return prepared by Regalia & Associates for FY2015."

Failure to produce timely audits has afflicted Pacifica for some time now, without any clear explanation given as to why. This is but one piece of suggestive evidence of a "plan from within" to sabotage Pacifica.

The lack of timely audits is an existential threat to the Pacifica Foundation by at least two, and possibly more, mechanisms--denial of CPB funding and the revocation of Pacifica's tax exempt status by the Attorney General of the State of California. Other vendors, lenders, etc often demand to see audited financials before deciding whether or not to do business with Pacifica. Absence of the audits obviously seriously jeopardizes Pacifica's basic ability to function day to day. 

Therefore, I would respectfully ask that you clarify your vote on this motion to "clear your name" before the public. For starters, I would suggest responses to the following:

1) Published statements by each of the 5 PNB members referenced above who voted "No" on this motion to clarify the reasons and rationale led to your "No" vote.

2) So many of your votes, if not all, are in lock step with one another, whether on something as weighty as a Pacifica audit or as minor as extending time. This vote absolutely bears that stamp. Why would a reasonable person not conclude that your No vote was not part of a coordinated attempt to block approval of the audit, hurting Pacifica, potentially fatally if your side had prevailed? Please elaborate.

3) That the report from Executive Session for the August 17 meeting be amended to include the roll call results on the other two motions approved during this Executive Session.  

4). That explanation be given as to why these Audit Committee motions were made, discussed and voted under a cloak of secrecy in Executive Session. Under which of the limited "reasons for consideration in Executive Session" do these Audit related motions fall?

I would suggest that responses to the above be placed on the Pacifica Radio Waves Yahoo Group website, along with any other places you choose. 

Once your statements and the voting results outlined above are published, that you make yourselves available for written questions and answers to the public you serve on the Radio Waves group site. Or, in the case of Mr Tshibanda, responses to "The People" you purport to represent.

Thank you so very much,

S D Cohen

The hole gets deeper

Read this and see what they have done to WBAI.

WBAI Treasurer's Report - August 2017
__________________________________ FYI

On Sat, Aug 19, 2017 at 7:42 AM, Gary Null wrote to Berthold Reimers, the token, well-paid "general manager" of WBAI:

Berthold..late last evening  while getting a fresh juice a man approached me to tell me that he had been at the Plant Codes premier and was a long time listener. He then mentioned that he has been waiting for a premium for more than a year….that he has either received premiums very late or not at all and that the only reason he pledged this spring drive was because I gave my personal promise that all of the funds from the premier would go to the purchase of premiums. I assured him that the manager was in the process of making final arrangements for all spring premiums to be delivered. He reiterated his enjoyment at the premier and lecture. I asked him his occupation . He said he was a lawyer. I  thanked him for his continued support to WBAI. Berthold please honor your word and on Monday wire the money for the premiums. I hope you realize that one of the main reasons the station has lost so many supporters is due to not getting the listeners their premiums in a timely manner or not getting them at all. Also everyone tells us that no one responds to their phone calls or e mails.  This time I gave my word. You gave me your word. We must keep our words. Just last week I had a tragic death very close to me . I flew out of town to grieve and handle all arrangements. I told Scott…my in house council …to let you know I would not be able to attend the premier. He told me that the audience would be very upset and disappointed and that I should fly back for the premier then return  the next day. I did the best I could and let no one know that I am in a grieving period. I also spent thousands out of my own pocket for the two free films and forgave my normal lecture fee…all for the station. Also do you realize that during the past three years that I have paid for more than 50% of the premiums…saving you tens of thousands. I hope you will do the right thing and pay for these premiums. Please honor your word. Thank you.

From: Michael Hudson [mailto:michael.hudson@earthlink.net] 
Sent: Friday, August 18, 2017 10:13 AM
To: Gary Null
Subject: Re: Iceland Recovering Fastest in Europe After Jailing Bankers Instead of Bailing them Out

Another stretch without imagination

As the absurd Mimi Rosenberg crawls around in blackface spewing her toxic JUC drivel and advocating handing WBAI over to MNN, Reimers, Bates, and the rest of the scammers are pulling harder and longer on those udders. However, that alleged cash cow is feeling rather poorly these days, so there's but a trickle where it used to flow rather nicely.

Null is rumored to be the only one generating a mentionable amount of sales, which means that he is doing okay for himself. That said, the station's credibility is now such that nothing we hear coming out of there (on or off the air) is to be taken seriously.

The Pacifica National Board is no help—it spent its entire public meeting this evening (1 hour and 21 minutes) arguing about what to argue about.

We laugh, but it isn't the least bit funny.

Where censorship and self-satire go hand in hand...

They may in many ways be as race-obsessed and dishonest as WBAI, but KPFA—Pacifica's mother station—will at least allow themselves to be the subject of satire. I don't know about Washington and Houston, but WBAI has Randy Credico, whose humor belongs on milk cartons, KPFK has predictable Jimmy Dore, whose weekly attempts are better, but have too much in common with Credico's, and KPFA has the Twit Wits, who know what's going on and have the intelligence topical humor demands. The following link will take you to last Sunday's ungodly goodie.

Twit Wit - July 30, 2017