A Battle Between Spies; Indie rock station ceases operations in dispute with Citadel, but moves online
By Danniel Parker
Indie-rock station, 105.3 The Spy KINB, Kingfisher, officially stopped transmitting on March 4.
Listeners driving home from work that evening heard Louie Armstrong’s song “Star Dust” interrupt a five-hour loop of REM’s “It’s the End of the World as We Know It.”
That’s when, in the eyes of many, the The Spy ceased to exist. That’s when 105.3 the Martini, a station playing rat-pack era lounge music, debuted from the 930 Kilowatt tower in Kingfisher.
But Doug Howard, otherwise known as Ferris O’Brien, stopped running the Spy on Nov. 24. He was in a contractual agreement to purchase the $2 million station from The Last Bastion Station Trust when they refused to lower the price.
Citadel Broadcasting is the beneficiary of Last Bastion.
The fallout from the broken business arrangement has left both O’Brien’s camp and Last Bastion considering legal action against each other.
O’Brien and company allege Last Bastion is responsible for FCC violations, breaking trademark copyright laws, and intellectual property theft.
Last Bastion’s attorney Andy Kersting said they thought about taking legal action against O’Brien for breach of contract and using their trademark, but he felt that there wasn’t any real benefit in pursuing the matter.
“One of the reasons the format was changed to The Martini, was we wanted to move away from The Spy so we could avoid further conflict with O’Brien,” said Kersting.
“O’Brien breached the purchasing agreement with Last Bastion,” he said. “His company, Spymedia LLC, entered into an asset purchasing agreement on December 23 2009 and a local marketing agreement to lease the station.”
Kersting said when O’Brien dropped out of his contract to buy 105.3 FM, he was two months behind on lease payments for the tower and frequency.
Yet, after O’Brien left, his alternative station stayed on the air, just without him or his DJs at the controls. That’s when 105.3 KINB started calling itself The “Real” Spy FM.
O’Brien and his associates kept the name The Spy FM, and continue to broadcast as a streaming Internet radio station at www.thespyfm.com.
The first question under debate, is who owns the trademarked name, The Spy FM, and the names of the shows on the station?
O’Brien claims he is the trademarked owner of the station, and has been since the late 90’s.
“I felt they were trying to steal my trademarked radio station. We did the leg work, we got the ratings and they saw an opportunity try and steal and replicate what we were doing,” said O’Brien.
“He has no trademark to the name The Spy,” claims Kersting.
“Back in 2002, Citadel assigned Last Bastion a whole series of trademark registrations,” said Kersting. “I’ll start reading our trademarks, K-Spy 105.3, The Spy 105.3 FM, K-Spy Rock in Oklahoma City, K-Spy Rocks in Oklahoma.”
The station format and name were not the only things Last Bastion replicated. The Real Spy FM kept two allegedly trademarked shows going, but without the DJs that created the shows.
Erick O’Neal deejayed the “Breakfast Toaster,” a Reggae and Ska show on Sunday mornings.
“Citadel pretty much hijacked us,” said O’Neal. “They tried to recreate our trademarked shows, using the same names.”
“They ran a fake version of my show, The Breakfast Toaster and the “Juke Joint Revivial,” O’Neal said.
Secondly is the allegation that Last Bastion stole intellectual property from The Spy.
Maureen Horton is O’brien’s head of advertising.
When the “Real” Spy FM’s website went up, Horton said that Last Bastion copied the advertisement art directly off O’brien’s website. She said they did this without permission and without a contract or payment from the businesses they were advertising.
Horton provided The City Sentinel with screenshots of her advertisement art being placed on www.therealspyfm.com as evidence.
“If I build an ad for somebody, it’s the intellectual property of mine and the clients,” said Horton. “If you take that, and you use it without our permission, then that’s the theft of our intellectual property.”
Brian Winkeler of Simon Hurst Photography contacted Citadel about why his intellectual property was displayed on their website without permission.
Winkeler spoke with Larry Bastida, the Marketing Manager at Citadel, about his grievance. A day later the advertisements were taken down.
Kersting admits this occurred and said it was a mistake.
“It was a Citadel employee who did that. The material was up for less than 24 hours and when Bastida found out he had it taken down immediately,” said Kersting.
Joey Senat is a professor of Media Law at Oklahoma State University and the head of Freedom of Information Oklahoma. He is not a representative or connected to either faction.
“The ad agency or the company advertised owns the copyright to their ad graphics,” Senat said. “Those are clearly owned by someone and it’s certainly not a radio station using it without permission.”
“If they are implying endorsement by those companies, they might be looking at some fraud. You can’t take a person or a company’s name and claim they are endorsing a station if they aren’t really doing it,” he said.
The last question is were FCC regulations broken during the Spy’s change of management.
“After November 24, my station was being operated by Citadel,” O’Brien said. “The Last Bastion Station Trust is just a corporate loophole they use to own more frequencies in a market than are allowed by FCC guidelines,” he claimed.
Kersting said Citadel uses the trust to avoid FCC violations from owning too many stations in a single market. But the purpose is to operate these stations only until the frequencies are sold to private parties.
O’Brien’s the Spy FM was running out of his main studio at 7725 W. Briton Road in Oklahoma City, which he says was the maximum distance it could be from the tower in Kingfisher under FCC rules, 25 miles away.
Horton said when she visited her old jobsite to inquire about her advertisements being used she found virtually nothing.
“There were no DJ booths, no equipment, the site was barren except for a man in a wheelchair using a laptop. He was just occupying the space,” said Horton.
FCC regulations state that a station’s main studio and transmission facilities must keep a meaningful management and staff presence.
Sean Beall is an employee of Citadel Broadcasting and worked for Last Bastion’s 105.3 The “Real”Spy FM. According a post from his Facebook, the mailing address for the Spy after O’Brien left was Citadel Broadcasting’s Oklahoma City headquarters at 4045 N.W. 64th St.
Citadel’s office is over 30 miles away from the KINB tower in Kingfisher.
According to FCC rule 73.1125 a station’s studio must be within 25 miles of the stations community of license or within the community contour. Ultimately, the rules are not broken until ruled so by the FCC, said Janet Wise of the FCC.
Cumulus Media is currently in talks to buy Citadel Broadcasting.
“We broadcast online now, because this is the future, plain and simple. When Cumulus buys Citadel, the Spy will remain and I will prevail,” O’Brien said.
His Spy FM recently created an I-Phone and an I-Tunes app that allows their listeners to tune into their internet stream from anywhere.
Kersting even begrudgingly gives credit to O’Brien’s tenacity.
“We never anticipated that anyone in their right mind would continue on like he has. We were content to just let him do his thing, hoping this matter would just drift away,” said Kersting