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Responses to the lawyer's current bylaws draft
1-21-03


The lawyer's bylaws draft
Response index

Below Gregory's analysis of Mimi's analysis is Mimi's analysis of Gregory's analysis.

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From: Gregory Wonderwheel
Date: Thu, 6 Feb 2003 09:54:55 -0800
Subject: [Bylaws] Re: Mimi Rosenberg's legal analysis of affirm. action

Dear People of Pacifica,

(As a preliminary response, let me say I take offense at the propagandistic use of the terms "brothers or sisters" and "family" as these are intended only to weaken emotional independence and analytical objectivity.)

The errors in Ms. Rosenberg's preliminary analysis indicate the degree of reliability in the preliminary nature of the analysis.

1. The legal analysis is primary political. This is important in a case such as this would be where public policy is at issue. But one must remember that the political is the context not the main merits of legal analysis. However, I will agree that the legal analysis should not be the end all of the question. Categorical numbers of required categories of people is offensive on its face whether or not it is legal. Categories are fine for measuring whether a board is diverse. For instance, looking at the board and counting dark skin verses light skin, or any of the other characteristics of ancestry, ethnicity, notional origin, gender, disability, etc. But that is a totally different quantum of event from requiring that people be categorized and only allowed access according to their identification as a member of that category. Creating mandated categories only perpetuates and institutionalizes a caste system, it does not make progress to eradicating the caste system. In other words, pointing out the appearance of caste discrimination for the purpose of criticizing such discrimination is a morally legitimate use of caste categorization. Perpetuating and requiring people to participate in caste categorization is not morally legitimate.

2. In her section 3, Rosenberg writes, "While a nonprofit status does not exempt Pacifica as a business establishment under the Unruh Act, it has never been decided that a noncommercial entity is a business establishment." This statement is plainly false. The Unruh Act is California law and has nothing to do with congress or the FCC which Rosenberg seems to confuse. There are arguments against Unruh Act application but this is not one of them. It has definitely been decided that noncommercial entities were business establishments under the Unruh Civil Rights Act. The Rotary Club and the Boy's Club were both among the noncommercial nonprofit corporations that have been found to be business establishments. (Rotary Club of Duarte v. Board of Directors (1986) 178 CalApp3d 1035) (Isbister v. Boys' Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72) In so finding, the courts have pointed out the wording of the statute which says, "in all business establishments of every kind whatsoever." Courts have found that even public schools are business establishments under the Unruh Act. (Nicole M. v. Martinez Unified School Dist. (1997) 964 F. Supp 1369) There are factors which the court considers and any analysis of whether Pacifica would be considered a business establishment must discuss these factors. (Harris v. Mothers Against Drunk Driving (1995) 40 CalApp4th 16.)

3. Rosenberg attempts to define the debate as whether or not there should be an affirmative action policy and plan at Pacifica. This is disingenuous at best. The question has always been what kind of affirmative action policy, not whether. The FCC's own affirmative action policy fits an allowable area of practice. The FCC affirmative action policy provides economic incentives for minority stations. The FCC may not require quotas for the number of station ownerships. These are two very different kinds of affirmative action. The government may provide or withhold money for many kinds of incentives without running afoul of anti-discrimination. However, they could not set aside the number of licenses to categories of minorities. The opinion that categorical numbers not be in the bylaws (or required elsewhere) is not a statement that Pacifica have no affirmative action policy. This is another example of baseless rhetoric.

Rosenberg refers to the Balanced Budget Act of 1997 as if the removal of random selection of station licenses has something to do with affirmative action. The Balanced Budget Act of 1997 was an omnibus act having many sections. I have appended the sections from Title III of the Act below. It is clear that what Congress did was remove random selection in favor of competitive bidding for licenses. This has nothing to do with affirmative action and shows the false reasoning of the argument. The law 47 USCA 309(j)(C) says "consistent with the public interest, convenience, and necessity, the purposes of this chapter, and the characteristics of the proposed service, prescribe area designations and bandwidth assignments that promote (i) an equitable distribution of licenses and services among geographic areas, (ii) economic opportunity for a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women, and (iii) investment in and rapid deployment of new technologies and services." Thus minority ownership is one factor to consider within the context of competitive bidding. This is a nonoffensive affirmative action goal.

4. Rosenberg's arguments in her Section 4 are about employment which no one has argued is at issue. The tax exempt arguments revolve around whether the IRS would find discrimination in elections of directors to be against public policy as discrimination in admission to schools was against public policy in Bob Jones University v. United States ((1983) 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157)

5. Rosenberg quotes FCC as stating "Full minority participation in the ownership and management of broadcast facilities results in a more diverse selection of programming." Does anyone seriously believe that Pacifica stations do not have full opportunity for minority participation or diverse selection of programming? Pacifica has more diverse programming that any minority owned stations. Only small community stations that have essentially followed Pacifica's example equal Pacifica stations in diversity of programming. The framing of this argument is not remotely credible. Rosenberg appears to be advocating that Pacifica stations become minority controlled station in order to receive the CPB incentives. This is stupid and wrong.

6. The prohibition of discrimination by recipients of state funding specifically requires "reasonable efforts to achieve a representative board" but clearly states this does not include discrimination that smells of quotas. (See excerpt of 22 CCR 98101(f)) . This whole discussion is about what constitutes reasonable efforts. Those advocating mandatory caste quotas have not even engaged in discussion of whether proportional representation is a reasonable effort to achieve a representative board. Instead they have regressively advocated for pigeonholing people into caste categories and assumed that the castes should be represented on that basis.

Gregory Wonderwheel

California Regulations:
Specifically, 22 CCR 98101 provides:"It is a discriminatory practice for a recipient, in carrying out any program or activity directly, or through contractual, licensing or other arrangements, on the basis of ethnic group identification, religion, age, sex, color, or a physical or mental disability:

(a) to deny a person the opportunity to participate in, or benefit from an aid, benefit or service; (b) to afford a person the opportunity to participate in or benefit from an aid, benefit or service that is not equal to that afforded others;

(c) to provide a person with an aid, benefit or service that is not as effective in affording an equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others. In some situations, identical treatment may be discriminatory;

(d) to provide different or separate aid, benefits or services to a person, or to any class of persons, than is provided to others, or to provide aid, benefits or services at a different time, unless such action is clearly necessary to provide such persons with an equal opportunity to receive as truly effective aid, benefits or services as those provided to others;

(e) to aid or perpetuate discrimination by transferring State support to another recipient that discriminates in providing any aid, benefit or service;

(f) to exclude a person from participation as a member of a planning or advisory board. Under this requirement, it is a discriminatory practice for a recipient to fail to make reasonable efforts to achieve a representative board. However, such requirement is not deemed to impose adherence to a quota system;

Reference to Balanced Budget Act of 1997:

TITLE III--COMMUNICATIONS AND SPECTRUM ALLOCATION PROVISIONS SEC. 3002. SPECTRUM AUCTIONS.

(a) EXTENSION AND EXPANSION OF AUCTION AUTHORITY.--

<< 47 USCA 309 >>

(1) IN GENERAL.--Section 309(j) of the Communications Act of 1934 (47 U.S.C. 309(j)) is amended--

(A) by striking paragraphs (1) and (2) and inserting in lieu thereof the following:

1) GENERAL AUTHORITY.--If, consistent with the obligations described in paragraph (6)(E), mutually exclusive applications are accepted for any initial license or construction permit, then, except as provided in paragraph (2), the Commission shall grant the license or permit to a qualified applicant through a system of competitive bidding that meets the requirements of this subsection.

2) EXEMPTIONS.--The competitive bidding authority granted by this subsection shall not apply to licenses or construction permits issued by the Commission--

A) for public safety radio services, including private internal radio services used by State and local governments and non-government entities and including emergency road services provided by not-for-profit organizations, that--
 i) are used to protect the safety of life, health, or property; and ii) are not made commercially available to the public;

B) for initial licenses or construction permits for digital television service given to existing terrestrial broadcast licensees to replace their analog television service licenses; or

C) for stations described in section 397(6) of this Act.";
(B) in paragraph (3)--
  (i) by inserting after the second sentence the following new sentence: "The Commission shall, directly or by contract, provide for the design and conduct (for purposes of testing) of competitive bidding using a contingent combinatorial bidding system that permits prospective bidders to bid on combinations or groups of licenses in a single bid and to enter multiple alternative bids within a single bidding round.";
  (ii) by striking "and" at the end of subparagraph (C);
  (iii) by striking the period at the end of subparagraph (D) and inserting "; and"; and
  (iv) by adding at the end the following new subparagraph:

E) ensure that, in the scheduling of any competitive bidding under this subsection, an adequate period is allowed--
  i) before issuance of bidding rules, to permit notice and comment on proposed auction procedures; and
  ii) after issuance of bidding rules, to ensure that interested parties have a sufficient time to develop business plans, assess market conditions, and evaluate the availability of equipment for the relevant services.";
(C) in paragraph (4)--
  (i) by striking "and" at the end of subparagraph (D);
  (ii) by striking the period at the end of subparagraph (E) and inserting "; and"; and
  (iii) by adding at the end the following new subparagraph:

F) prescribe methods by which a reasonable reserve price will be required, or a minimum bid will be established, to obtain any license or permit being assigned pursuant to the competitive bidding, unless the Commission determines that such a reserve price or minimum bid is not in the public interest.";

(D) in paragraph (8)(B)--
  (i) by striking the third sentence; and
  (ii) by adding at the end the following new sentence: "No sums may be retained under this subparagraph during any fiscal year beginning after September 30, 1998, if the annual report of the Commission under section 4(k) for the second preceding fiscal year fails to include in the itemized statement required by paragraph (3) of such section a statement of each expenditure made for purposes of conducting competitive bidding under this subsection during such second preceding fiscal year.";

(E) in paragraph (11), by striking "1998" and inserting "2007"; and

(F) in paragraph (13)(F), by striking "September 30, 1998" and inserting "the date of enactment of the Balanced Budget Act of 1997".

(2) TERMINATION OF LOTTERY AUTHORITY.--Section 309(i) of the Communications Act of 1934 (47 U.S.C. 309(i)) is amended--

(A) by striking paragraph (1) and inserting the following: 1) GENERAL AUTHORITY.--Except as provided in paragraph (5), if there is more than one application for any initial license or construction permit, then the Commission shall have the authority to grant such license or permit to a qualified applicant through the use of a system of random selection."; and

(B) by adding at the end the following new paragraph:
5) TERMINATION OF AUTHORITY.--(A) Except as provided in subparagraph (B), the Commission shall not issue any license or permit using a system of random selection under this subsection after July 1, 1997.

B) Subparagraph (A) of this paragraph shall not apply with respect to licenses or permits for stations described in section 397(6) of this Act.".

(3) RESOLUTION OF PENDING COMPARATIVE LICENSING CASES.--Section 309 of the Communications Act of 1934 (47 U.S.C. 309) is further amended by adding at the end the following new subsection:

l) APPLICABILITY OF COMPETITIVE BIDDING TO PENDING COMPARATIVE LICENSING CASES.--With respect to competing applications for initial licenses or construction permits for commercial radio or television stations that were filed with the Commission before July 1, 1997, the Commission shall--

1) have the authority to conduct a competitive bidding proceeding pursuant to subsection (j) to assign such license or permit;

2) treat the persons filing such applications as the only persons eligible to be qualified bidders for purposes of such proceeding; and

3) waive any provisions of its regulations necessary to permit such persons to enter an agreement to procure the removal of a conflict between their applications during the 180-day period beginning on the date of enactment of the Balanced Budget Act of 1997.".

Law::

47 USCA 309(j) Use of competitive bidding

(1) General authority

If, consistent with the obligations described in paragraph (6)(E), mutually exclusive applications are accepted for any initial license or construction permit, then, except as provided in paragraph (2), the Commission shall grant the license or permit to a qualified applicant through a system of competitive bidding that meets the requirements of this subsection.

(2) Exemptions

The competitive bidding authority granted by this subsection shall not apply to licenses or construction permits issued by the Commission--

(A) for public safety radio services, including private internal radio services used by State and local governments and non-government entities and including emergency road services provided by not-for-profit organizations, that--

  (i) are used to protect the safety of life, health, or property; and

 (ii) are not made commercially available to the public;

(B) for initial licenses or construction permits for digital television service given to existing terrestrial broadcast licensees to replace their analog television service licenses; or

(C) for stations described in section 397(6) of this title.

(3) Design of systems of competitive bidding

For each class of licenses or permits that the Commission grants through the use of a competitive bidding system, the Commission shall, by regulation, establish a competitive bidding methodology. The Commission shall seek to design and test multiple alternative methodologies under appropriate circumstances. The Commission shall, directly or by contract, provide for the design and conduct (for purposes of testing) of competitive bidding using a contingent combinatorial bidding system that permits prospective bidders to bid on combinations or groups of licenses in a single bid and to enter multiple alternative bids within a single bidding round. In identifying classes of licenses and permits to be issued by competitive bidding, in specifying eligibility and other characteristics of such licenses and permits, and in designing the methodologies for use under this subsection, the Commission shall include safeguards to protect the public interest in the use of the spectrum and shall seek to promote the purposes specified in section 151 of this title and the following objectives:

(A) the development and rapid deployment of new technologies, products, and services for the benefit of the public, including those residing in rural areas, without administrative or judicial delays;

(B) promoting economic opportunity and competition and ensuring that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women;

(C) recovery for the public of a portion of the value of the public spectrum resource made available for commercial use and avoidance of unjust enrichment through the methods employed to award uses of that resource;

(D) efficient and intensive use of the electromagnetic spectrum; and

(E) ensure that, in the scheduling of any competitive bidding under this subsection, an adequate period is allowed--

  (i) before issuance of bidding rules, to permit notice and comment on proposed auction procedures; and

  (ii) after issuance of bidding rules, to ensure that interested parties have a sufficient time to develop business plans, assess market conditions, and evaluate the availability of equipment for the relevant services.

(4) Contents of regulations

In prescribing regulations pursuant to paragraph (3), the Commission shall--

(A) consider alternative payment schedules and methods of calculation, including lump sums or guaranteed installment payments, with or without royalty payments, or other schedules or methods that promote the objectives described in paragraph (3)(B), and combinations of such schedules and methods;

(B) include performance requirements, such as appropriate deadlines and penalties for performance failures, to ensure prompt delivery of service to rural areas, to prevent stockpiling or warehousing of spectrum by licensees or permittees, and to promote investment in and rapid deployment of new technologies and services;

(C) consistent with the public interest, convenience, and necessity, the purposes of this chapter, and the characteristics of the proposed service, prescribe area designations and bandwidth assignments that promote (i) an equitable distribution of licenses and services among geographic areas, (ii) economic opportunity for a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by members of minority groups and women, and (iii) investment in and rapid deployment of new technologies and services;

(D) ensure that small businesses, rural telephone companies, and businesses owned by members of minority groups and women are given the opportunity to participate in the provision of spectrum-based services, and, for such purposes, consider the use of tax certificates, bidding preferences, and other procedures;

(E) require such transfer disclosures and antitrafficking restrictions and payment schedules as may be necessary to prevent unjust enrichment as a result of the methods employed to issue licenses and permits; and

(F) prescribe methods by which a reasonable reserve price will be required, or a minimum bid will be established, to obtain any license or permit being assigned pursuant to the competitive bidding, unless the Commission determines that such a reserve price or minimum bid is not in the public interest.

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Mimi Rosenberg responds:

Date: Tue, 11 Feb 2003 21:57:36 -0500
From: Mimi Rosenberg

Dear Sisters & Brothers,

In Gregory Wonderwheel's "preliminary response," the offense taken at the "propagandistic use of the terms brothers or sisters and family" is revealing. It tells us that treating others as part of your concern, your kinship, your blood, your human equals is not to be embraced. Strong supportive human feelings threaten "emotional independence" and "analytical objectivity." However, for many of us who look to a world where human values are important, it is still true that the best of human beings are, as Che Guevara said, "guided by great feelings of love of the people, of the most sacred causes."

The disassociated legal analysis presented by the Response is perhaps best understood by the disassociated view of struggle. The Response states "the political is the context not the main merits of legal analysis." This is misleading. Anyone who has followed the decisions of the Courts or who has studied the sources of Anglo-American law and its many efforts to protect a system of private wealth and its rulers knows that the political is not only the context but also the purpose, the motor for the legal analysis. The discussion of a "caste system" is fundamentally flawed. Affirmative action, or categorization does not perpetuate or institutionalize a caste system. To the contrary, affirmative action is directed at eliminating the societal differences which create what the Response labels as castes. While the letter refers to "perpetuating and requiring people to participate in caste categorization" a correct and precise description of affirmative action is requiring people to participate in a program that will eliminate the basis of caste categorization.

The Preliminary Response also declares "the question has always been what kind of affirmative action policy, not whether." Yet no affirmative action policy is proposed; mere protestations in favor of affirmative action which is forwarded in the earlier Finck letter should be treated for what it is - nothing but empty space. Now the Preliminary Response points to the FCC's own affirmative action policy and states it "fits an allowable area of practice." For Pacifica to be satisfied with tailing the FCC on the issue of equality is striking. From cutting edge we now seek the role of "me-too" behind the U.S. government. The absurdity of the FCC reference is shown when it is specifically applied to Pacifica. While the FCC may provide economic incentives for minority stations, the providing of economic incentives to nonwhites to serve on the board would make profit rather than a dedication to principles a key element of Pacifica board membership.

The Preliminary Response's discussion of the Balanced Budget Act misses the point. There the Act, within the context of the media, separated noncommercial enterprises in allowing in that area "significant preferences" for minority controlled enterprises. Thus, in the context of the media, noncommercial enterprises have been distinguished with regard to procedures that give preferences to nonwhites. This suggests that the law permits distinct categories unique to media. While the Unruh "Civil Rights" Act is a California statute that is broadly worded, it does not mean that it automatically applies to Pacifica's affirmative action plans.

Interestingly, the Preliminary Response itself states "There are arguments against Unruh Act application." Yet the Preliminary Response presents the Unruh Act as a reason for rejecting the affirmative action plan in the original by-laws draft. Rather than considering how to preserve and extend affirmative action, Finck's letter and the Preliminary Response have already surrendered.

Finally, the Preliminary Response's reference to 22 CCR 98101(f) refers to recipients of state funding. it does not affect Pacifica. Further, the cited subdivision (f) reflects the contradiction that Pacifica finds itself in: on the one hand it cannot discriminate by failing to make reasonable efforts to achieve a representative board; on the other hand this requirement cannot impose adherence to a quota system. The problem with the Finck letter and the Preliminary Response is that they appear to view any efforts at a representative board to be too dangerously close to the prohibited area of quotas. This is not an appropriate approach for Pacifica which should be looking for ways to achieve equality while avoiding the legal abyss of quotas.

La Luta Continua

Mimi Rosenberg,
WBAI producer & LAB member


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