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University attorney explains specifics of GSU-GPB contract

On May 12, 2014 • By

Georgia State and Georgia Public Broadcasting (GPB) signed the Intergovernmental Programming Agreement on May 5. WRAS 88.5 FM was informed of the new partnership the morning of May 6.

Georgia State’s university attorney, Kerry Heyward, said the university was still negotiating terms with GPB, causing the agreement not to be signed until May 5.

“In negotiating the contract, we [the university] were literally negotiating terms of the contract even through the weekend and that is why it wasn’t signed until May 5,” Kerry Heyward, Georgia State’s university attorney said.

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Term of Agreement:

The agreement states the contract was made between the Board of Regents of the University System of Georgia on the behalf of the university and the Georgia Public Telecommunications Commission (GPTC).

The contract states the GSU-GPB agreement shall continue two years after the commencement date (June, 2014). However, the contract also states the agreement will automatically renew at the end of the two years.

“…The Agreement shall automatically renew at the end of the Initial Term for a term of two years (the “Initial Renewal Term”), at the end of each subsequent Renewal Term, until April 1, 2020, when the Agreement shall automatically renew for successive terms of eight (8) years, unless either party terminates this Agreement in accordance with Section 3, but in no event beyond May 6, 2064,” the contract states.

Heyward said the agreement does have a two-year term and then the contract will continue until April 2020. This is when the university’s next FCC license renews.

“…That is for a term of eight years, so the idea is that the contract would then renew in terms of eight years to coincide with the university’s FCC license,” Heyward said.

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Frank LoMonte, Executive Director of the Student Press Law Center (SPLC) said legally the university is under no compulsion to provide complete answers to the public’s questions about the contract.

“Legally all they are under compulsion to provide is access to documents. So having released the contract they satisfied their obligations under the law,” LoMonte said.

Heyward said the university is under the open-records law and they have provided and responded to all open records requests.

“The university is under the open records law and we have provided, in response to open records requests, full copies of the contract,” she said.

However, LoMonte also said it is a valid question for individuals to ask whether the university was transparent about the terms defined within the contract or if they made misleading statements.

“It seems like it would be pointless to make misleading statements if [the university] is about to release the contract and people could immediately see that there was an automatic renewal of provisions,” LoMonte said.

Station Expenses:

In a recent interview with The Signal, President Mark Becker explained the new partnership wasn’t created for monetary purposes.

“…In fact, one of the misconceptions that have come out from some of the media is that this was a deal about money. Well if it was a deal about money, we would’ve actually sold the license, because that’s where the money would’ve been. This is really a deal about providing students access and opportunity,” Becker said.

The station expenses portion of the contract outlines GPTC will reimburse Georgia State for the actual operating costs such as rent, maintenance and repair. It also includes replacement of facilities and compensation for the employees assigned to the station.

“…Up to a cap of $50,000 for the first year of the Agreement and up to a cap of $100,000 for the second year of the Agreement as set forth in Exhibit 1 (c),” the contract states.

The station expenses also outlines for third and subsequent years after the initial two year term, Georgia State and GPTC will negotiate on additional compensation money to be paid to the university.

“Caps for the third and subsequent years will be negotiated from time to time by GPTC and GSU but shall not be less than $100,000 and shall not be more than the actual operating costs of the station,” the contract states.

Heyward said Georgia State and GPB are public entities and the way their FCC licenses are held, GPB can only reimburse the university’s expenses.

“In the agreement that amount is a reimbursement of expenses up to $50,000 in year one [and] up to a $100,000 in year two, and then subsequent years the university and GPB have agreed to negotiate what the dollar amount will be,” Heyward said. “After the second year it could exceed $100,000.”

The entities reimbursable each year by Georgia State are electric power ($48,000 per year), salary and benefits of the staff supervisor ($49,042) and occupied office and studio space ($2,958 or more).

LoMonte said the university again is under no obligation under law to explicitly state exact revenue amounts, because they openly provided documentation to the public that asked for it.

“It sounds to me like they’re really looking at this maybe as something they’re just going to try for two years and see if it works. That’s [possibly] why they are talking about it in terms of a two-year deal with $150,000 in revenue, rather than a deal that could go on indefinitely,” LoMonte said.

Institutional Cooperation and Media Promotion:

Section 5 titled contract states without any provisions to the agreement, the Georgia Public Telecommunications Commission (GPTC) will retain “ultimate authority and power with respect to the operations of the station.”

GPB will be in control of the analog programming from 5 a.m. – 7 p.m. every day of the week, according to the contract. WRAS will have control of all online material broadcasted during that time and will return to analog after 7 p.m.

“The parties agree and acknowledge that GPTC’s ultimate control of the Stations is an essential element of the continuing validity of this Agreement,” the contract states.

LoMonte said this clause of the contract seems to turn over the programming authority to GPTC to settle any possible dispute either party may have in the future.

“Since it is the university that signed the contract, in other words the person that signed the contract signed on the behalf of Georgia State University and not on behalf of WRAS, this is a pledge between WRAS and GPTC,” LoMonte said.

Termination:

Either GBP or Georgia State may terminate the contract agreement upon a year’s notice, according to Heyward.

The contract states termination of the agreement may occur within 30 days of written notice if in good faith programming would be contrary to the public’s interest.

Public interest, convenience and necessity is a phrase seen throughout FCC regulations, according to LoMonte. He also said he believes this was stated in the contract so there is never a threat to the continued validity of the license.

“Basically in order to keep your license as a non-commercial educational broadcaster, you have to show that your programming serves the public interest,” he said.

GPTC may terminate the agreement with university the same way, according to the contract.

If either party decides to terminate the agreement, Georgia State University will assume complete responsibility for the station. This includes programming.

“Each party shall be relieved of all obligations under this Agreement with the respect to the Station on and after the effective date of termination, including GPTC’s obligation to provide any Programming or to reimburse any of GSU’s expenses, except for unsatisfied obligations incurred prior to the effective date of the termination…,” the contract states

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