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                            Before the
                Federal Communications Commission
                      Washington, D.C. 20554

In re Application of            )
                                )
CRC Broadcasting Company, Inc.  )       File No.  BR-970530WG
                                )
For Renewal of License for      )       
Station KFNN(AM)                )       
Mesa, Arizona                   )


 MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY


   Adopted:  January 20, 1999;          Released:  January 20, 1999


By the Chief, Mass Media Bureau:


     1.   The Commission, by the Chief, Mass Media Bureau, pursuant to delegated authority, has
before it for consideration:  (i) a license renewal application filed by CRC Broadcasting Company, Inc.
("licensee" or "CRC") for the above-captioned station; (ii) the licensee's responses to staff inquiries; and (iii)
various other pleadings.

     2.   CRC filed its license renewal application and accompanying Form 396 for KFNN(AM) on
May 30, 1997.   Ronald Cohen ("Cohen"), President and General Manager of CRC, certified that the
statements contained in this form were true and correct to the best of his knowledge, information and belief. 
In Section VII of its Form 396, which states "[y]ou must provide here a brief description of any complaint
which has been filed before any body having competent jurisdiction under Federal, State, territorial or local
law, alleging unlawful discrimination in the employment practices of the station including the persons involved,
the date of filing, the court or agency, the file number (if any), and the disposition or current status of the
matter," CRC stated that "No Complaints Have Been Filed."  However, in August 1997, Michelle Suarez
("Suarez"), a former employee of KFNN(AM), informed Commission staff that she had filed a complaint
against KFNN(AM) and CRC with the Civil Rights Division of the Arizona Attorney General's Office ("CRD")
and the U.S. Equal Employment Opportunity Commission ("EEOC") on January 7, 1997.  

     3.   On September 17, 1997, Commission staff sent the licensee a letter of inquiry which, among
other things, sought an explanation as to why, given the Suarez complaint, the licensee stated in its Form 396
that no discrimination complaints had been filed against the station.  In his October 31, 1997, response, Cohen
stated, that before filing the renewal application, he talked to a representative of the CRD, who told him that
Suarez's Equal Employment Opportunity ("EEO") matter had not yet been assigned to an investigator and had
not been filed with the EEOC.  Cohen asserted that, because the complaint had not yet been investigated or
referred to the EEOC at the time CRC filed the renewal application in May 1997, he did not believe that it had
to be reported on Form 396.  

     4.   However, in a subsequent filing dated April 7, 1998, Cohen reports that his statement--that
an official at the CRD told him that the discrimination charge had not been filed with the EEOC--was incorrect. 
Instead, he recalls the official telling him "that the charge would not be considered by the EEOC until the CRD
completed its review and only if the CRD determined the charge stated a possible cause of action for
discrimination."  Therefore, it was his "impression that the matter was not before the EEOC for consideration
and that it was premature to report this matter to the FCC in the renewal application."  Cohen claims that the
inaccurate statement in the October 31, 1997, inquiry response was based on his memory and recollection of
his conversation--almost one year earlier--with the official and that, at the time the licensee's response to the
Commission's September 17, 1997, inquiry was filed, he had failed to review a January 1997 letter sent to him
by the CRD, informing him that the complaint had been filed with the EEOC.  Cohen claims that the licensee's
failure to report the complaint resulted from its unfamiliarity with the procedures of CRD and a
misunderstanding of the status of the discrimination charges before the CRD and the EEOC.

     5.   The United States Court of Appeals for the District of Columbia Circuit has found the
outreach portions of the broadcast EEO Rule to be unconstitutional.  Lutheran Church-Missouri Synod v.
FCC, 141 F.3d 344 (D.C. Cir. 1998), petition for reh'g denied, 154 F.3d 487, petition for reh'g en banc denied,
154 F.3d 494 (D.C. Cir. 1998).  Regarding the EEO Rule's provision against unlawful discrimination, the court
remanded to the Commission to determine whether it has authority to enforce a non-discrimination rule. 
Lutheran Church at 356-357.  Although the Commission has not yet made a final determination regarding the
non-discrimination provision in the EEO Rule consistent with the Court's remand, the provision remains in
effect.  In any event, such a determination is not necessary because Suarez' complaint is pending and it is the
Commission's longstanding policy generally to defer action on individual complaints of employment
discrimination until acted upon by the EEOC or other government agency and/or court established to enforce
non-discrimination laws.  The Commission generally will take cognizance of only a final determination of
employment discrimination.  See Memorandum of Understanding Between the Federal Communications
Commission and the Equal Employment Opportunity Commission, 51 Fed. Reg. 21,798 (1986).  Consistent
with this policy, we will defer action on Suarez' complaint pending any final determination regarding
employment discrimination.  We will expect the licensee to update the Commission periodically on the status
of the Suarez complaint.

     6.   We are, however, troubled by the licensee's failure to report Suarez' discrimination complaint. 
We find no evidence that the licensee's actions in this case resulted from an intent to deceive, which is required
to support a finding of misrepresentation or lack of candor.  Evidence of an intent to mislead is necessary to
support specification of such an issue.  Swan Creek Communications v. FCC, 39 F.3d 1217, 1222 (D.C. Cir.
1994); Fox Television Stations, Inc., 10 FCC Rcd 8452, 8478 (1995); Fox River Broadcasting, Inc., 93 FCC
2d 127, 129 (1983).  In this regard, we are unable to discern any motive for the licensee to conceal the pending
discrimination complaint.  The pending discrimination complaint would not, by itself, delay grant of the
licensee's renewal application because, as noted above, the Commission's general policy is to defer action on
individual discrimination complaints until acted upon by a government agency and/or court established to
enforce non-discrimination laws.

     7.   Nonetheless, we believe that CRC's factual omission cannot be ignored.  Full and clear
disclosure of all material facts is essential to the efficient administration of the Commission's license renewal
process because proper analysis of a licensee's renewal application is critically dependent upon the accuracy
and completeness of information and data which only the licensee can provide.  Section 73.1015 of the
Commission's Rules, 47 C.F.R.  73.1015, states in pertinent part that "No applicant...shall ....in any
application, pleading, or report or any other written statement submitted to the Commission, make any ...
willful material omission bearing on any matter within the jurisdiction of the Commission."  A "willful material
omission" need not be accompanied by an intent to deceive.  It is sufficient that the omission be conscious and
deliberate, irrespective of intent.  Abacus Broadcasting Corp., 8 FCC Rcd 5110, 5115 (Rev. Bd. 1993)
(Abacus Broadcasting).  

     8.   We find that the licensee's Form 396 omitted material facts, as specified above.  Further, we
find that this action was willful inasmuch as Cohen certified that the information contained in Form 396,
including the statement that no complaints had been filed, was true and correct to the best of his knowledge,
information, and belief.  Cohen acknowledges that he was aware that the complaint had been filed with the
CRD before the station's renewal application was filed.  The omitted fact was clearly within his personal
knowledge.  His misunderstanding of the status of the complaint or, at what point in the status of the complaint
he was required to report its existence to the Commission, does not mitigate the licensee's violation of Section
73.1015.  Furthermore, he compounded his omission by failing to accurately report his reasons for the omission
when initially questioned by Commission staff because of his sole reliance on memory and his failure to
thoroughly consult documentation in his possession concerning this matter.  His actions reflect an apparent lack
of concern for the accuracy of the information provided to the Commission.

     9.   Accordingly, while we conclude that grant of the renewal application for Station KFNN(AM)
would be consistent with Section 309(k) of the Communications Act, as amended, 47 U.S.C.  309(k), we find
that CRC violated Section 73.1015 of the Commission's Rules by willfully omitting material facts in its Form
396.  Pursuant to Section 503 of the Communications Act of 1934, as amended, 47 U.S.C.  503, factors to
be considered when assessing a forfeiture include "the nature, circumstances, extent, and gravity of the
violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay,
and such other matters as justice may require."  Based on that assessment, we conclude that the licensee's
violation of Section 73.1015 warrants issuance of a forfeiture in the amount of $8,000.  Cf. Abacus
Broadcasting.

     10.  Accordingly, IT IS ORDERED that, pursuant to Section 503 of the Communications Act
of 1934, as amended, 47 U.S.C.  503, the license renewal application filed by CRC Broadcasting Company,
Inc. for Station KFNN(AM) IS GRANTED subject to a NOTICE OF APPARENT LIABILITY FOR
FORFEITURE in the amount of $8,000. 

     11.  IT IS FURTHER ORDERED that the licensee of KFNN(AM) update the Commission on
any change to the status of the pending discrimination complaint within 30 days of such a change.

     12.  IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order and
Notice of Apparent Liability be sent by Certified Mail -- Return Receipt Requested -- to CRC Broadcasting
Company, Inc.

     13.  With respect to the forfeiture proceeding, the licensee may take any of the actions set forth in
Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, as summarized in the attachment to this Order.  Any
comments concerning the ability to pay should include those financial items set forth in the attachment.

     14.  This action is taken under delegated authority pursuant to Section 0.283 of the Commission's
Rules, 47 C.F.R.  0.283.

                         FEDERAL COMMUNICATIONS COMMISSION   




                         Roy J. Stewart
                         Chief, Mass Media Bureau