Frequent Fire

A lawsuit is the latest salvo in the continuing battle over a donated AM radio station

For a wee frequency (merely 5,000 watts) on the AM dial that barely reaches out past Interstate 270, little 1380 AM has kicked up more than its share of static over the past year.

On the surface, there have been three changes in call letters and format. Owned by local broadcasting giant Emmis Broadcasting until early 1998, it operated as WKBQ-AM. The call letters were changed to KKWK-AM when Unity Broadcasting took control of the station in a "donation" deal via the New Horizon Seventh-Day Christian Church and its pastor, the Rev. Booker T. Rice, brokered by local talk-show aficionados Mark Kasen and Richard "Onion" Horton and their lawyers, Lee Platke and Stuart Berkowitz of the St. Louis firm of Platke & Berkowitz. When the talk-show heat generated by KKWK got too hot, both the format and its creators, Kasen and Horton, were kicked off the air and replaced with an all-jazz format and new call letters -- KZJZ-AM ("KKWK Krazy," RFT, July 15).

Beneath the surface, there's more white noise and white light being thrown on the deal that created KKWK and eventually scuppered its controversial talk format a mere five months after it signed on in February 1998. A suit filed in circuit court in St. Louis by Kasen and Horton and their joint enterprise ("Onion Horton Productions Inc.") on Oct. 26 against Platke and Berkowitz and their entity (Unity Broadcasting L.L.C.) alleges that the defendants essentially conned the two talk-radio gadflies out of their ownership stakes in a deal to acquire the 1380 AM frequency at a price the suit describes as "substantially below the fair market value of the station."

The suit insists that the complicated deal was the brainchild of Kasen, and that he and Horton believed up until they were let go by the station in July that they had an equal ownership in the lease-purchase agreement. The agreement, as delineated in the suit, provided that Emmis would donate the station to Rice's church, which would then sell the station for $750,000 to Kasen's group.

John Beck, local head of Emmis Broadcasting, says that he dealt almost exclusively with Kasen during the brokering of the donation deal last year. "It's not my recollection," Beck observes. "It's what happened."

When the station's programming went awry in a blaze of controversy early this summer -- a fire set mostly by the ugly verbal attacks of hosts that Kasen and Horton hired -- the two didn't realize they could be cut out of the deal so easily.

"What Platke and Berkowitz said to them," says Joe Jacobson, the lawyer retained by Kasen and Horton, "is that 'You're employees. We can fire you.' That was news to Onion and Mark." The suit alleges a pattern of "conflict of interest" in Platke and Berkowitz's dealing with Kasen and Horton -- a pattern that includes giving themselves ownership stakes in Onion Horton Productions and eventually forming Unity Broadcasting and substituting it for Onion Horton Productions to cut Kasen and Horton out of control in the deal.

"Prior to the scheduled closing," the suit alleges, "Mr. Platke told Mr. Kasen that Platke & Berkowitz would be substituting Unity for Productions on the lease-purchase agreement. Mr. Platke represented to Mr. Kasen that this would be better for everyone involved in the transaction, and that Messrs. Horton and Kasen would be fully protected and their ownership interests taken care of."

Kasen and Horton are asking for $25,000 apiece, and (more important) to regain control of the lease-purchase agreement. That would put them back on the air -- for better or for worse.

Gerard Noce -- the local lawyer representing Platke and Berkowitz -- sent the RFT a faxed statement in which he stated that "as a general rule I recommend that my clients not respond to media inquiries regarding pending litigation. However, I can tell you that this lawsuit is utterly without merit and will be defended vigorously."

Noce didn't respond to specific follow-up questions sent by e-mail, but his faxed statement reiterated what Berkowitz told St. Louis Post-Dispatch reporter Fred Faust in a Monday, Nov. 9, article on the suit in the daily paper.

Berkowitz told Faust that the suit was "a total fabrication. The suit is totally frivolous; there's not a shred of truth to it."

Noce's statement is very much in the same vein. "The allegations are not only groundless," Noce writes, "but actually constitute a personal attack on two fine attorneys who enjoy reputations of unquestioned integrity throughout the community in general and the legal community in particular."

Rice -- a central figure in both the transfer of the station and the ousting of Kasen and Horton and the talk format -- continues to refuse to return RFT calls about the station that he acquired from Emmis Broadcasting. Rice has not returned RFT calls about the public airwaves that he controls since before acquiring the frequency in February.

In the days after the suit was filed, a number of other allegations have swirled around the suit. In its Nov. 12 edition, the St. Louis American's pseudonymous columnist Mark Wilson recapped the suit's essentials in the weekly "Political Eye" column and then further alleged that the racially charged U.S. Senate campaign was one of the prime causes of the drama.

Quoting a "reliable source," Wilson alleged that Kasen and Horton's talk format was axed after ancontinued on page 10KZJZ-AMcontinued from page 9unsuccessful meeting set up by Berkowitz to garner the hosts' support for Democratic candidate and Missouri Attorney General Jeremiah "Jay" Nixon. Wilson further alleged that Platke and Berkowitz were in line to be among the lawyers involved in the Blue Cross/Missouri settlement, a position that -- according to Wilson -- "would bring huge fees to Berkowitz."

In a Monday interview, Jacobson -- Kasen and Horton's lawyer -- mentioned the American piece, but when he was asked why those same allegations weren't made in the suit, Jacobson said that he didn't need them to make his case. A question about the veracity of the American story was also one of the specific questions that Noce declined to answer.

If nothing else, the suit does fully delineate (from at least one side) the complicated architecture of the deal that got Kasen and Horton back on St. Louis airwaves, albeit briefly. It also points out how few rules the Federal Communications Commission (FCC) places upon the transfer of radio stations in this era of massive media deregulation.

Quizzed by the RFT about donated frequencies and lease-purchase agreements like the one involving 1380 AM, Taft Snowdon of the FCC's Audio Services Division's legal-inquiries department noted that the FCC doesn't look at what the groups that have stations donated to them will do with the frequencies once they possess them. The agency focuses, says Snowdon, on whether the broadcast licensee donating the station maintains a "confiscatory" interest in the station (i.e., "continued control of the station").

Rice, then, was completely free to receive the station under Kasen's scheme and to then sell it to Kasen's group for less than market value. Says Snowdon of the subsequent plans of those who receive stations: "We don't look at that."

The filing of the suit by Kasen and Horton, however, almost ensures that the circuit court will look at the deal in detail.

For his part, Emmis' Beck is also looking back at the deal with mixed feelings, particularly because of the station's switch to a low-key jazz format on an AM signal. "I'd feel a lot better," he says, "if it was being used by a minority organization to make them money or to create another minority business, or to help black people in this town to move ahead.