Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) ) National Broadcasting Co, Inc. ) File No. BRCT-940131LI ) ) For Renewal of License ) of Station WNBC(TV), ) New York, New York ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: June 3, 1999 Released: June 4, 1999 By the Chief, Video Services Division: 1. The Commission, by the Chief, Video Services Division, Mass Media Bureau has before it for consideration the application for renewal of license of television station WNBC(TV), Channel 4, New York, New York. An informal objection to the renewal application was filed by Aristides Martinez. 2. Martinez requests that the Commission designate the application for hearing to determine whether renewal would be in the public interest. Martinez lays out five grounds as bases for his request. Martinez first maintains that the employment practices of the National Broadcasting Co., Inc. ("NBC"), the licensee of station WNBC(TV), demonstrate a pattern of discrimination against Hispanics. He also maintains that the licensee has a history of Equal Employment Opportunity ("EEO") violations. Second, he contends that the station has been unresponsive to the programming needs of Hispanic viewers in the community. Third, Martinez asserts that WNBC(TV) has failed to provide appropriate programming responsive to the needs of and issues of concern to its New Jersey viewers. Fourth, he argues that NBC is unsuitable to remain a licensee because of character issues relating to criminal and civil misconduct of its parent, the General Electric Company. Finally, citing alleged failures by NBC to report certain information on its renewal application, Martinez alleges that NBC lacks the candor to be a Commission licensee. DISCUSSION 3. A petition to deny must contain specific allegations of fact, supported by affidavits, which are sufficient to show that grant of the application at issue, on its face, would be inconsistent with the public interest, convenience and necessity. Astroline Communications Company Limited Partnership v. FCC, 857 F.2d 1556, 1561 (1988). The petition must then demonstrate that the allegations of fact are both substantial and material. Id. Upon consideration of these factors and the arguments contained in his objection, we find that Martinez has failed to raise any substantial and material question of fact which shows that a renewal of WNBC(TV)'s license application would be contrary to the public interest, convenience and necessity. EEO Allegations 4. The licensee filed its license renewal application and accompanying Broadcast Equal Employment Opportunity Program Report (Form 396) for WNBC(TV) on January 31, 1994. William Bolster (Bolster), Vice-President and General Manager of NBC, Inc., certified that the statements contained in the Form 396 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," the licensee stated that "[t]o the best of WNBC's knowledge, from the beginning of the current license period," there had been no such complaints filed against WNBC. The licensee did provide information concerning a pending discrimination complaint, filed by Tessell Williams, which was filed before the start of the current license term. 5. In his informal objection, Martinez argues that "[t]he Commission should undertake an investigation to determine whether WNBC-TV's questionable Equal Employment Opportunity ("EEO") programs and compliance records, coupled with its network's failure to employ a reasonable number of minority Hispanics throughout the license term, are indicative of deliberate violations of the EEO Rules or of discrimination." (emphasis deleted). Martinez' specific allegations include WNBC(TV)'s failing to adequately recruit for Hispanics and the licensee misrepresenting the number of Hispanics it hired in 1993. Martinez contends that the station's 1994 Form 396 indicates that four Hispanics were hired in 1993 while its Annual Employment Report for 1993 (Form 395-B) shows that the number of Hispanics on staff increased by just three from 1992 to 1993. Martinez also alleges that the NBC Network has displaced older, more experienced minority employees with younger White individuals in order to reduce labor costs. Specifically, Martinez claims that the licensee uses "daily hires" or temporary employees to perform work that was previously done by permanent Hispanic employees. Finally, Martinez contends that the licensee did not report, in WNBC(TV)'s renewal application, the existence of Martinez' pending lawsuit filed against WNBC(TV) and NBC, among others. The lawsuit was filed in the U.S. District Court of New Jersey on March 20, 1992, alleging violations of the Civil Rights Act, Age Discrimination in Employment Act, and New Jersey Laws Against Discrimination. 6. The licensee denies Martinez' allegations concerning EEO program violations and discrimination. Moreover, the licensee argues that the Commission has held that its EEO oversight of broadcast licensees does not extend to networks. Thus, the licensee claims that Martinez' allegations of wrongdoing by the network are irrelevant. 7. The licensee also argues that Martinez is a disgruntled former employee who "has failed to obtain a favorable decision [against WNBC(TV) or The National Broadcasting Company] from any court or agency." Specifically, the licensee cites a 1992 decision by the EEOC in NBC's favor and the Commission's decision in WRC-TV, Washington, D.C. (BRCT-910523KL) in response to an informal objection Martinez filed with respect to that NBC-owned station. The licensee urges the Commission to defer Martinez' discrimination claims and allow those courts and agencies with primary jurisdiction to decide them. In addition, the licensee notes that many of the alleged incidents of discrimination cited by Martinez occurred prior to the beginning of the license term under review, and thus are not relevant to this renewal application. In a subsequent submission, the licensee acknowledges that it inadvertently failed to report Martinez' complaint in its renewal application. However, it notes that the complaint was fully disclosed in its letter responding to Martinez' informal objection and that the complaint as to WNBC(TV) was effectively dismissed by the U.S. District Court of New Jersey when it granted NBC's motion for summary judgement in part. Therefore, the licensee requests that the Commission grant its renewal application. 8. In response to the licensee's argument that the Commission's EEO oversight does not extend to networks, Martinez asserts that, in 1987, NBC merged all its operations such that there is no differentiation among them. He contends that many employees work both for WNBC(TV) and the network without distinction and that many employees working for WNBC(TV) are "recruited and hired outside any use of minority and female referral sources." Martinez also argues that the court's denial of NBC's summary judgement motion in part in December 1994, and its subsequent denial of another such motion, represent a granting of his claims and show that "the court is on [his] side," particularly with respect to his remaining claims against NBC, CNBC, and WNBC(TV). However, we note that, in denying the latter motion, the court states that the plaintiff's (Martinez) only remaining complaints are against CNBC and NBC. Martinez also alleges that WNBC(TV) failed to report other discrimination complaints in its Form 396, specifically complaints filed with the National Labor Relations Board ("NLRB"), alleging discrimination due to membership in, and/or activities on behalf of, a union. Martinez provides copies of these eight complaints. Although all of the complaints list NBC as the employer, only one of the complaints, filed on November 30, 1995, after the expiration of the subject license term, specifically mentions WNBC(TV). 9. In 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) ("Lutheran Church"), the Court of Appeals for the District of Columbia Circuit held that the EEO program requirements set forth in Section 73.2080 of the Commission Rules, 47 C.F.R.  73.2080, are unconstitutional under the Equal Protection Clause of the Fifth Amendment. The court's mandate has issued. Therefore, Martinez' allegations concerning WNBC(TV)'s EEO program, even if true, fail to raise a substantial and material question of fact, given that the requirements allegedly violated have been ruled unconstitutional and, therefore, are no longer enforceable. 10. Regarding Martinez' allegations of discrimination against WNBC(TV), it is the Commission's longstanding general policy to defer action on individual complaints of discrimination in the first instance. Here, as noted above, a U.S. District Court, in summary judgement, has denied Martinez' allegations as concerning WNBC(TV). Nor does our own review of the record reveal any evidence raising a substantial and material question of fact that the licensee engaged in discrimination at WNBC(TV). Therefore, we will not consider Martinez' allegations of discrimination concerning WNBC(TV). 11. Moreover, there is no evidence that the licensee misrepresented the number of Hispanics it employed or hired. Broadcasters are to report the number of hires made during the twelve months prior to filing its Form 396. However, the numbers reported on a licensee's Annual Employment Report (FCC Form 395-B) reflect the staff composition during a two-week period. Thus, due to staff turn-over, the number of hires reported by a licensee on its Form 396 may not match the data reported on its Annual Employment Report. Here, the mere fact that the number of Hispanic hires reported did not result in a corresponding increase in Hispanic employees does not, without more, raise any question about the accuracy of any hiring or employment data reported by WNBC(TV). Accordingly, we find no evidence of misrepresentation on the part of WNBC(TV). 12. In addition, we decline to consider Martinez' allegations of discrimination against him on the part of the NBC Network. The Commission's EEO rules and policies do not extend to network operations. In Amendment of Part 73 of the Commission's Rules Concerning Equal Employment Opportunity in the Broadcast Radio and Television Industries, 2 FCC Rcd 3967, 3999, n. 17 (1987), the Commission stated: "[w]e note that the focus of our EEO policies... is on individual broadcast stations and does not extend to related segments of the mass media industry...such as network program services...." We find the arguments set forth by Martinez concerning the non-differentiation of the network from individual stations to be unpersuasive. His general allegations alone do not raise any questions about the distinctiveness of WNBC(TV) from the NBC Network. Thus, we reject Martinez' allegations with respect to the NBC Network. 13. We are, however, troubled by the licensee's initial failure to report the discrimination complaint filed by Martinez in its Form 396. We find no evidence of an intent to deceive that would support a finding of misrepresentation or lack of candor. Evidence of an intent to deceive is necessary to support such a finding. Swan Creek Communications v. FCC, 39 F.3d 1217, 1222 (D.C. Cir. 1994); Fox Television Stations, Inc., 10 FCC Rcd 8452, 8487 (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. Nonetheless, we believe that the licensee'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. 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). 14. We find that the licensee's Form 396 omitted material facts, as described above. Further, we find that this action was willful inasmuch as Bolster, Vice-President and General Manager of NBC, Inc., certified that the information contained in the Form 396, including the licensee's response in Section VII, was true and correct to the best of his knowledge, information and belief. The licensee admits that it failed to report Martinez' complaint. Although the licensee states that the omission was "inadvertent," the licensee does not deny that it was aware of the existence of the complaint filed on March 20, 1992, at the time the renewal application was filed on January 31, 1994. Bolster had a responsibility to ensure the accuracy of the information contained in the station's Form 396 before signing the certification. His failure to do so reflects an apparent lack of concern for the accuracy of information provided to the Commission. The licensee's acknowledgement of the existence of the discrimination complaint over eight months after the station's renewal application was filed and only after an informal objection had been filed alerting the Commission to the existence of the complaint further supports this conclusion. The subsequent denial of the complaint by the U.S. District Court of New Jersey as to WNBC(TV) on December 13, 1994, does not mitigate the licensee's failure to report it in its Form 396 when it filed its renewal application on January 31, 1994. 15. Accordingly, we find that a forfeiture should be assessed against the licensee of WNBC(TV) for willfully omitting material facts in its Form 396 in violation of Section 73.1015 of the Commission's Rules. In The Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), the Commission adopted guidelines for assessing forfeitures. However, these guidelines do not enumerate a base forfeiture amount for a willful material omission. Under these circumstances, the forfeiture must be assessed taking into account the relevant statutory factors in Section 503(b)(2) of the Communications Act of 1934, including "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 our assessment of these factors, we conclude that the licensee's violation of Section 73.1015 warrants issuance of a Notice of Apparent Liability for a forfeiture in the amount of $5,000. See Application of WRKL Rockland Radio, L.L.C., 14 FCC Rcd 1042 (MMB 1999). Cf. Abacus Broadcasting. Issues of Interest to Hispanics 16. Martinez next assails WNBC's commitment to addressing the needs and issues of concern to the Hispanic community in its service area. He asserts that Hispanic concerns such as poverty, teenage pregnancy, education, drug abuse, AIDS, Hispanic stereotyping, and under-representation of Hispanics in the media, do not receive enough attention either from WNBC(TV) or the other commercial and non-commercial English-language broadcasters in New York. 17. NBC responds that WNBC(TV) has an Hispanic consultant, Tonio Burgos, who works closely with the Hispanic community on Latino issues. NBC also cites specific programming aired by WNBC(TV) that was devoted to issues of concern to the Hispanic community, including those issues identified by Martinez. 18. Section 326 of the Communications Act and the First Amendment to the Constitution prohibit any Commission action which would improperly interfere with the programming decisions of licensees. With certain limited exceptions, such as the broadcast of obscene or indecent programming, licensees are accorded a great deal of discretion in the scheduling, selection and presentation of programs and announcements to be aired by their stations. In regard to licensees' general issue-responsive programming obligations, we have eliminated previous guidelines regarding the provision of specified quantities of certain types of non- entertainment programming. See Commercial TV Stations, 98 FCC 2d 1076, 1090-92 (1984). 19. The basic renewal standard consists of an obligation that a licensee address community issues with responsive programming. In meeting this obligation, licensees may address community issues with whatever types of programming they determine to be appropriate to respond to those issues. In challenging a licensee's programming performance, a petitioner must demonstrate that a licensee is failing to address issues facing the community in its overall programming, not merely that a particular issue is not being addressed. The Commission will not interfere with the broadcaster's judgment without a showing that the broadcaster was unreasonable or discriminatory in its selection of issues or that the licensee has offered such nominal levels of responsive programming as to have effectively defaulted on its obligation to contribute to the discussion of issues facing its community. Commercial TV Stations, 98 FCC 2d at 1092-94; Office of Communication of the United Church of Christ v. FCC, 707 F.2d 1414, 1431 (D.C. Cir. 1983). 20. We find that Martinez has failed to raise a prima facie case that NBC has abused or otherwise unreasonably exercised its discretion in determining which issues should be discussed or in selecting programming to address those issues. We also find that no substantial and material question of fact is presented. In reviewing the record of WNBC(TV), we find that the station has devoted significant amounts of programming responsive to issues of concern to the local community. For example, WNBC(TV) broadcast, among other local programming, Visiones, a half-hour public affairs program hosted by Maria Hinojosa, which is designed to address the needs of the Hispanic community. In addition, the station has aired episodes of programs such as The McLaughlin Group and News Forum, as well as local News 4 New York stories, that focused on issues of concern to Hispanics. WNBC(TV) has also aired a number of PSAs targeted at children that address issues Martinez has identified as of special concern to Hispanics. New Jersey Service Obligations 21. Martinez next contends that WNBC(TV) has failed to be responsive to the programming needs of New Jersey residents in its service area. He states that the total time WNBC(TV) reported spent on issue- responsive programming ranged from .6 hours to 3.4 hours per week and that the station never "contemplated" a program series to cover the needs of New Jersey residents. He alleges that the station has not documented its claim that local consultants have been hired to ascertain community issues. He states that one major New Jersey broadcast, a live gubernatorial debate, was actually produced by a Philadelphia station. In response, NBC points to its "Statement Regarding Service to New Jersey" that it attached to its renewal application, in which the station summarized its services to the New Jersey area. NBC also points out that it maintains a full- time bureau in Newark. 22. As set forth above, the Commission's policy on enforcement of community service programming obligations is based on a belief that competition among stations for audiences is the best mechanism to ensure that the needs of a viewing community will be served, and the Commission does not substitute its judgment for that of the licensee regarding the type and amount of programming that will be appropriate for meeting those needs. Nevertheless, a review of NBC's Statement Regarding Service to New Jersey, which Martinez himself cites, demonstrates that Martinez again has failed to raise a prima facie case that WNBC(TV) has abused its discretion in determining what issues are of importance to New Jersey residents and how they should be addressed by programming. In fact, the station has provided significant service to New Jersey residents about issues of importance to the community. Martinez acknowledges that the station supplements its local news coverage with New Jersey news items such as fires, accidents and traffic conditions and that WNBC(TV) produced and aired an in-depth report on the resurgence of Newark neighborhoods. Despite Martinez's allegation that the gubernatorial debate was actually produced by KYW-TV, Philadelphia, he does not dispute that the program was of major concern to New Jersey residents and that it was broadcast and extensively publicized by WNBC. NBC also lists among the station's service to New Jersey political reports featuring the state's politicians and episodes of public affairs programs including "Positively Black," hosted by a New Jersey resident, which focused, inter alia, on topics of interest to New Jersey viewers. WNBC(TV) also provided live election results from New Jersey and blizzard and flood updates specific to New Jersey. 23. On a related matter, Martinez alleges that he visited the New Jersey bureau office maintained by WNBC(TV) more than once during business hours sometime in the summer of 1994 but found no one staffing the office and ultimately found that the studio was not listed in the building directory. On that basis, he claims that the office is a "false front" and questions whether the office serves as a legitimate news bureau or community liaison. 24. Long concerned that New Jersey suffered from inadequate locally-oriented television service, the Commission sought to remedy the dearth of New Jersey stations by imposing a special New Jersey service obligation on the commercial VHF stations licensed to New York and Philadelphia. To fulfill this obligation, New York City and Philadelphia licensees were required to establish and maintain a physical presence in the state of New Jersey. See, e.g., Petition Into the Need for Adequate Television Service for the State of New Jersey, 58 FCC 2d 790, 799 (1976); Petition Into the Need for Adequate Television Service for the State of New Jersey, Second Report and Order, 59 FCC 2d 1386, 1406 (1976). 25. According to its renewal application, WNBC(TV) maintains a full-time bureau in Newark, New Jersey, with two full-time correspondents, a staff editorial assistant and a staff photographer/editor. That studio has its own video editing equipment and facilities to feed tape to the station, as well as a microwave vehicle based in New Jersey. NBC disputes Martinez's characterization of the bureau as a "false front operation" used mainly for storage. In fact, NBC states that the size of the bureau doubled during the last license period. NBC states, however, that the office is not especially designed to receive unexpected visitors, in the manner of the main studio, because the staff is often in the field covering stories. Noting that it moved its offices during the license period, NBC suggests that Martinez may have visited the bureau's former offices and that may explain why he believed the office appeared defunct and why its name was not listed in the building directory. We find NBC's explanations for what Martinez experienced in attempting to visit the New Jersey bureau to be convincing. Martinez has not provided the dates or times of his visits and has not indicated that he made any appointments in connection with his visits. Based on the lack of specificity and support for his claim and on the unrebutted statements of NBC, we conclude that this allegation warrants no further inquiry. Allegations of Criminal Conduct by General Electric 26. Martinez alleges that criminal conduct of NBC's parent company, the General Electric Company ("GE"), demonstrates that NBC lacks the character qualifications required of a licensee. He cites various cases in which GE settled claims against it for alleged wrongdoing, including cases involving charges of false claims submitted to the federal government. 27. As NBC points out, most of Martinez's allegations involve matters that were considered at the time of the Commission's approval of GE's acquisition of RCA and the NBC television stations. See, e.g., RCA Corp., 60 RR 2d 563, 569, 572 (1986); WBC Associates, L.P., 2 FCC Rcd 6083, 6090 (1987); National Broadcasting Company, Inc., 6 FCC Rcd 4882 (1991). Many of Martinez's allegations concern claims that were settled by consent decree. The Commission does not consider matters resolved in consent decrees adjudicated misconduct for the purposes of assessing an applicant's character qualifications. Policy Regarding Character Qualifications in Broadcast Licensing, 102 FCC 2d 1179, 1205 n. 64 (1986). 28. Only one instance of alleged misconduct cited by Martinez that has occurred since the time of GE's acquisition of NBC was broadcast-related. That item is a lawsuit, subsequently settled by the parties, filed by General Motors, which claimed an NBC News story concerning an alleged fire hazard associated with certain GM pickup trucks was defamatory. Pursuant to its long-standing policy against news staging by broadcast licensees, the Commission has already reviewed the matter in detail. The Commission found that the incident involved misjudgments and professional lapses and issued an admonition to NBC. See Letter of Roy J. Stewart, Chief, Mass Media Bureau, to Robert C. Wright, July 22, 1993. Martinez presents no information that warrants revisiting the matter. 29. Martinez also raises a more recent case, not broadcast-related, which involved charges stemming from attempts by GE to improperly influence Israeli officials to purchase GE jet engines. The Commission has already made a determination, during our review of a petition to deny the renewal of another NBC owned and operated station, filed by Mr. Glenn M. Heller, that the Israel matter did not raise a substantial and material question of fact concerning the character qualifications of GE. See Letter from Barbara A. Kreisman, Chief, Video Services Division, December 22, 1994, affirmed, National Broadcasting Co., Inc., 11 FCC Rcd 10,779 (1996), aff'd per curiam, 1997 WL 404,736 (D.C. Cir. 1997). As noted in that decision, the crimes were not broadcast-related, no one at NBC or in the NBC-GE chain of responsibility was apparently involved in the misconduct, all of the terms of the settlements and convictions have been met, and the Department of Defense has continued to award new contacts to GE's Aircraft Engines Division and other divisions and subsidiaries of GE. Finally, the civil case concerning the Israel matter involved did not result in an adjudication of misconduct. 30. Martinez also argues that NBC's withdrawal of a petition to deny that it filed in 1995 against the Fox Network, combined with the subsequent business arrangements between NBC and Fox, demonstrates that NBC continued to engage in conduct which made a mockery of our regulatory process. In this regard, Martinez claims NBC used the Commission's petition to deny process to intimidate its competitor and to advance its own competitive position. However, Martinez has provided no factual evidence to support his conclusory allegations. Martinez has not demonstrated that the purpose of NBC's petition to deny was to intimidate Fox, nor has he shown that the allegations raised in NBC's petition were completely without merit. Finally, he has not demonstrated that any subsequent business arrangements between NBC and Fox violate any Commission rule or policy. Therefore, Martinez has failed to demonstrate that NBC committed any abuse of Commission processes. 31. Martinez has submitted no new information that would require further investigation. Martinez has not made any showing concerning any misconduct that would warrant further Commission consideration. Specifically, Martinez has not demonstrated, by personal knowledge or any supporting documentation, that any of GE's alleged non-FCC misconduct will affect its ability to deal truthfully with the Commission and to comply with our rules and policies. In light of the foregoing analysis, we conclude that this issue does not raise a substantial and material question of fact concerning the character qualifications of the licensee or its parent under the Commission's established policies. Allegations of Reporting Violations 32. Finally, Martinez alleges that NBC failed to disclose certain charges pending against it before the National Labor Relations Board (NLRB). Martinez implies that NBC purposefully failed to report the charges filed by employees with the NLRB concerning alleged discrimination or retaliatory practices on account of union activities. Only one of the charging documents submitted by Martinez refers specifically to station WNBC(TV). However, even assuming the charges all relate to WNBC(TV), the renewal application itself requires disclosure of adjudicated matters, not pending complaints. Kaye-Smith Enterprises, 46 RR 2d 1583, (1980). While the reporting requirements of FCC Form 396 do mandate disclosure of pending court or agency complaints of discrimination on the basis of race, color, national origin, and sex, they do not encompass an obligation to disclose charges of discrimination based on other, unprotected categories, such as union status or activities. See, e.g., Kaye-Smith Enterprises, 90 FCC 2d 27 (1980) (affirming earlier decision that licensee was not required to report suits alleging retaliatory discharge as opposed to employment discrimination based on race, color, sex, religion, or national origin); see also 47 C.F.R.  73.2080(a); FCC Form 396 instructions, purpose statement, and policy statement. 33. In sum, we find that the issues raised in Martinez's informal objections to the renewal application fail to demonstrate that a substantial and material question of fact is presented which indicates that grant of the application is inconsistent with the public interest. In accordance with Section 309 of the Communications Act of 1934, we therefore find no basis for a hearing in this matter and will deny Martinez's requested relief. Further, we find that the applicant is otherwise qualified and that grant of the renewal application would serve the public interest, convenience and necessity. Notwithstanding this conclusion, we find that the imposition of a forfeiture in the amount of $5,000 is appropriate. 34. NBC is afforded a period of thirty (30) days from the date of this Order "to show, in writing, why a forfeiture penalty should not be imposed or should be reduced, or to pay the forfeiture. Any showing as to why the forfeiture should not be imposed or should be reduced shall include a detailed factual statement and such documentation and affidavits as may be pertinent." 47 C.F.R.  1.80(f)(3). Other relevant provisions of Section 1.80(f)(3) of the Commission's rules are summarized in the attachment to this Order. 35. ACCORDINGLY, IT IS ORDERED, That the informal objection filed by Aristides Martinez IS DENIED. 36. IT IS FURTHER ORDERED, That the license renewal application filed by the National Broadcasting Co., Inc. for Station WNBC(TV)(File No. BRCT-940131LI) IS HEREBY GRANTED, subject to the condition that, on December 31, 2006, or by such other date as the Commission may establish in the future under Section 309(j)(14)(A) and (B) of the Communications Act, the licensee shall surrender either its analog or its digital television channel for reallocation or reassignment pursuant to Commission regulations. The channel retained by the licensee will be used to broadcast digital television only after this date. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau Enclosures