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Home My WebLink Aboutbocc.con.229.23 - BOCCPage 1 of 6 MEMORANDUM OF UNDERSTANDING AMENDMENT BETWEEN PITKIN COUNTY, COLORADO PUBLIC RADIO, CARBONDALE COMMUNITY ACCESS RADIO, AND ROARING FORK PUBLIC RADIO 1.THIS MEMORANDUM OF UNDERSTANDING (MOU) AMENDMENT is entered into as of the 12th day of July, 2023, by and among Pitkin County, Colorado, hereinafter referred to as “County”, and Colorado Public Radio (“CPR”), Carbondale Community Access Radio (“CCAR”), and Roaring Fork Public Radio (“RFPR”), hereinafter referred to as the “Public Stations” and jointly referred to as the “Parties.” WHEREAS Pitkin County is the owner and licensee of a network of publicly-funded FM radio translators (the “Translator System”), located throughout the Roaring Fork watershed; and WHEREAS Colorado Public Radio (CPR) is a Denver-based non-commercial FM radio broadcaster, and licensee of local FM broadcast stations KVOV on 90.5 FM in Carbondale and KNDH on 96.7 FM in Carbondale; and WHEREAS Carbondale Community Access Radio (CCAR) is a Carbondale-based non- commercial FM radio broadcaster, and licensee of local FM broadcast station KDNK on 88.1 FM in Carbondale; and WHEREAS Roaring Fork Public Radio (RFPR) is an Aspen-based non-commercial FM radio broadcaster, and licensee of local FM broadcast stations KAJX on 91.5 FM in Aspen and KCJX on 88.9 FM in Carbondale; and WHEREAS the Parties previously entered into a Memorandum of Understanding in 2001 (the “2001 MOU”, attached hereto) regarding local public radio programming; and WHEREAS the Parties agree to amend the 2001 MOU to better reflect the current local FM radio market and reaffirm the covenants therein. NOW, THEREFORE in consideration of the above premises and of the mutual covenants and agreements contained herein, the receipt and sufficiency of which consideration is hereby acknowledged, the Parties agree as follows: 2.PURPOSE: The 2001 MOU was drafted in the interest of preserving programming diversity and exclusivity among the various local public radio entities. This MOU serves as an amendment to the 2001 MOU, to clarify the current state of the local public radio market, Page 2 of 6 to acknowledge Colorado Public Radio’s new Indie programming format within the Roaring Fork Valley as it pertains to the original MOU, and to reaffirm the covenants and spirit of the 2001 MOU. 3.AUTHORITIES: The County, as the license holder of the various FM radio frequencies across theTranslator System, holds the exclusive right to decide which stations are rebroadcastwithin the Translator System and to allocate the licensed frequencies within theTranslator System, accordingly. The Public Stations, as non-commercial FM broadcasters, hold independent rights tobroadcast FM radio programming within the Roaring Fork watershed, and to makestrategic decisions regarding the format, content, and expansion thereof. 4.STATEMENT OF MUTUAL INTERESTS, BENEFITS ANDCONSIDERATION: The Pitkin County Translator System exists to expand the reach and diversity of local FM radio broadcasts throughout the mountainous terrain of the Roaring Fork watershed for the benefit of the local public. Because the Translator System is publicly-funded, allocation priority has historically been given to public non-commercial FM stations with emphasis on locally-serving content. The 2001 MOU was drafted to resolve a contention between the Parties surrounding the entrance of CPR into the local public radio market. The spirit of the 2001 MOU is to improve transparency, maintain format diversity and exclusivity, and create partnership among the Public Stations and with Pitkin County for benefit of the local public radio listenership. The covenants, in brief, were as follows: •The Parties jointly agreed to coordinate the mutual exclusivity between theirvarious FM broadcast frequency licenses. •The Public Stations agreed to coordinate mutual exclusivity among their programming content, and to work together in the creation of a new jointly-owned broadcast facility on Sunlight Peak. •Pitkin County agreed to first translator allocation priority to radio stations ownedby CCAR and RFPR as the locally-sourced programming creators, and secondpriority to the new station owned by CPR. Since the ratification of the 2001 MOU and the completion of construction and licensing, the Public Stations and County have worked harmoniously to bring diversified public radio to the local listenership. The local FM radio market has changed since the 2001 MOU. New broadcast technologies have expanded the reach and application of FM radio, including improved simulcasting capabilities and the development of multi-channel Hybridized Digital Radio. Page 3 of 6 The Parties have each undergone changes in personnel and leadership, most of whom were not present when the original MOU was ratified. Station formats have also changed, such as RFPR’s shift at KA/CJX to a news-only format in 2020. Of important note, CPR introduced a new Indie format to the Denver market in 2019. In 2021, CPR acquired local broadcast station KUUR, and began broadcasting this new format in the Roaring Fork watershed under the new call letters KNDH. The ratification of this MOU amendment achieves several goals: •Updates the 2001 MOU to reflect the current state of the local public radiomarket, providing clarity for all Parties •Refreshes the awareness and protections of the original MOU covenants •Promotes improved communication between all Parties •Protects first assignment priority to Roaring Fork-based public radio •Protects and creates second priority to Colorado-based public radio 5.THE JOINT PARTIES MUTUALLY AGREE THAT: Several terms of the 2001 MOU do not properly suit the current state of the local public radio market; and CPR’s newly acquired and created station KNDH, is broadcasting an indie format musicwhich is not in compliance with a classical format as stated in clause 4 of the 2001 MOU; and Notice should be provided to all Parties for any newly created, acquired, or alteredstations or formats by any of the Public Stations, including the introduction of HD Radiotechnologies or any other multi-channel broadcasts or subcarrier content; and In duty to public interest, priority for newly available, non-duplicative, FM radiorebroadcast allocation within the Translator System should be granted to public, non-commercial radio programming, with a particular consideration for those public stationsservicing the local community; and Only the stations and formats described herein should be granted priority allocation onthe Translator System without additional review. In addition to Notice, any significantlychanged or newly introduced formats will require additional amendment to this MOUprior to any automatic allocation within the Translator System; and Except as otherwise specified in this amendment, the Parties agree to the covenants,terms, and conditions of the signed 2001 MOU attached hereto. Page 4 of 6 6.THE PUBLIC STATIONS SHALL: Continue to operate local public radio broadcasts on their current radio frequencies and intheir respective formats as they exist at signature of this document, including a newsformat on KAJX 91.5 and KCJX 88.9, a variety format on KDNK 88.1, a classical formaton KVOV 90.5, and an indie format on KNDH 96.7; and Notify all Parties to this agreement of any significant changes to their local representationand/or their FM stations whose broadcast coverage overlaps Pitkin County as definedwithin the 60dBu service contours as licensed by the FCC. This includes acquisition ofor significant changes to existing FM broadcasts and facilities, new FCC applications for broadcast licenses, and introduction of HD Radio technologies or any other multi-channel broadcasts or subcarrier content within the described area; and Maintain mutual exclusivity between formats and broadcasting content (including thepromotion on KVOV and KNDH of other CPR-owned broadcast or digital services) in accordance with the covenants of the 2001 MOU. 7.THE COUNTY SHALL: Allocate non-duplicative first priority for FM translator rebroadcasting of Roaring Fork Valley-based, public, local, non-commercial stations owned by CCAR and RFPR on the Pitkin Translator System as they exist at signing of this document. These include KDNK, KAJX, and KCJX under variety and news formats; and Allocate non-duplicative second priority for FM translator rebroadcasting of Colorado- based, public, local, non-commercial stations owned by CPR on the Pitkin Translator System as they exist at signing of this document. These include KVOV and KNDH under classical and indie formats. Page 5 of 6 8.NOTICES: Notices. Any notice required or permitted under this Agreement shall be in writing and shall be provided by electronic delivery to the e-mail addresses set forth below and by one of the following methods 1) hand-delivery or 2) registered or certified mail, postage pre-paid to the mailing addresses set forth below. Each party by notice sent under this paragraph may change the address to which future notices should be sent. Electronic delivery of notices shall be considered delivered upon receipt of confirmation of delivery on the part of the sender. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. To: Pitkin County With copies to: Pitkin County BOCC Pitkin County Attorney’s Office 530 E Main St. 530 E Main St. Aspen, CO 81611 Aspen, CO 81611 translator@pitkincounty.com attorney@pitkincounty.com To: CPR With copies to: Jenny Gentry None listed. Bridges Broadcast Center 7409 S Alton Ct Centennial, CO 80112 jgentry@cprmail.org To: KDNK With copies to: Megan Passmore None listed. 76 S. Second Street Carbondale, CO megan@kdnk.org To: KAJX With copies to: Breeze Richardson Karp, Neu, Hanlon c/o Karl J. Hanlon 110 East Hallam St. Suite 134 201 14th Street, Suite 200 Aspen, CO 81611 Glenwood Springs, CO 81602 breeze.richardson@aspenpublicradio.org kjh@mountainlawfirm.com Page 6 of 6 This Memorandum of Understanding was approved by the Board of County Commissioners at its regular meeting held on the 12th day of July, 2023. In Witness whereof, the parties hereto have caused this agreement to be executed as of the day and year first above written. ATTEST: ____________________________ ATTEST: ____________________________ ATTEST: ____________________________ BY: __________________________ Greg Poschman, Vice Chair ___________________________ Jon Peacock, County Manager COLORADO PUBLIC RADIO By: ________________________ Jenny Gentry, CPR Chief Operating Officer CARBONDALE COMMUNITY ACCESS RADIO By: ________________________ Megan Passmore, KDNK General Manager ROARING FORK PUBLIC RADIO By: ________________________ Breeze Richardson, KAJX Executive Director ATTEST: ____________________________ Sam Engen Deputy County Clerk APPROVED AS TO FORM: ___________________________ John Ely, County Attorney Form Revised 01-01-2022