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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In re Application of ) ) WRKL Rockland Radio, L.L.C. ) File No. BR-980202K7 ) For Renewal of License for ) Station WRKL(AM), ) New City, New York ) MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY Adopted: January 20, 1999; Released: January 20, 1999 By the Chief, Mass Media Bureau: I. INTRODUCTION 1. The Commission, by the Chief, Mass Media Bureau, pursuant to delegated authority, has before it for consideration: (i) the license renewal application of WRKL Rockland Radio, L.L.C. ("WRKL Radio" or "licensee") for Station WRKL(AM), New City, New York; (ii) an informal objection to the renewal application filed by Steven Possell ("Possell"), a former employee of WRKL(AM); (iii) an informal objection to the renewal application filed by Florence Teich ("Teich"), a former employee of WRKL(AM); (iv) a request by Possell to withdraw his informal objection; and (v) the licensee's response to a staff letter of inquiry. 2. The licensee filed its license renewal application and accompanying FCC Form 396 for WRKL(AM) on February 2, 1998. Michael Kakoyiannis ("Kakoyiannis"), President and Chief Executive Officer of Big City Radio, Inc. ("Big City Radio"), the sole member manager of WRKL Radio, 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 "None." However, Possell indicated in his February 28, 1998, informal objection that he had filed a discrimination complaint against Big City Radio with the New York State Division of Human Rights in March 1997. Further, Teich indicated in her April 20, 1998, informal objection that she had filed discrimination complaints against Big City Radio with the United States District Court for the Southern District of New York and the New York State Division of Human Rights in July 1997. In an amendment to its renewal application filed on May 27, 1998, the licensee reported the discrimination complaints filed by Possell and Teich, and also reported that a discrimination complaint was filed by Renee Dawson-Harel ("Dawson-Harel"), another former WRKL(AM) employee, with the New York State Division of Human Rights in December 1997. The amendment did not include any explanation regarding the licensee's initial failure to report the discrimination complaints in its Form 396. 3. On November 9, 1998, Commission staff sent the licensee a letter of inquiry which sought an explanation as to why the licensee indicated in its Form 396 that no discrimination complaints had been filed against the station. In the licensee's November 23, 1998, response, Kakoyiannis stated that, consistent with his customary practice, he delegated the preparation of the Form 396 to WRKL(AM)'s business manager and instructed her to work on the form with the licensee's communications counsel. According to the licensee's counsel, the drafts of the Form 396 provided by the business manager did not include page five, which includes Section VII, and the associate attorney who prepared the final version of the form inserted "None" in response to Section VII without any knowledge of the facts and without having asked the business manager or Kakoyiannis if that answer was correct. Kakoyiannis asserted that when he received the final Form 396 for his signature, he was not aware that the business manager had neither provided nor reviewed the response to Section VII. Kakoyiannis further asserted that since he knew that the business manager and counsel prepared the form together, he trusted that the answers were correct and signed the Form 396 without noticing the error in Section VII. The licensee's counsel states that she subsequently discovered the error while conducting due diligence in connection with negotiations for the sale of WRKL(AM), and the licensee amended the renewal application at that time to report the pending discrimination complaints. II. DISCUSSION 4. On October 6, 1998, Possell filed a request to withdraw his informal objection to the renewal application for WRKL(AM), along with a copy of a settlement agreement between Possell and Big City Radio relating to Possell's discrimination complaint. The withdrawal request includes a statement by Possell that he has not and will not receive any money or other consideration from the licensee in exchange for the withdrawal of his informal objection and that there are no oral agreements between the parties. However, review of the settlement agreement reveals that Possell did receive consideration from Big City Radio in excess of his legitimate and prudent expenses in settlement of his discrimination complaint against Big City Radio and that Possell's withdrawal of the informal objection was an express condition of the settlement agreement. Accordingly, we find that Possell's request to withdraw the informal objection does not comply with Section 73.3588 of the Commission's Rules, 47 C.F.R.  73.3588, and we deny the request. 5. Possell alleges in his informal objection that Big City Radio discriminated against him based on his physical disability, blindness. In her informal objection, Teich charges Big City Radio with sexual discrimination. The United States Court of Appeals for the District of Columbia Circuit recently held that the outreach portions of the broadcast equal employment opportunity ("EEO") Rule were 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). With respect to the provision against unlawful discrimination in the EEO Rule, the Court remanded to the Commission to determine whether it has authority to enforce a non-discrimination rule. 141 F.3d at 356-357. Although the Commission has not yet made a final determination regarding the non-discrimination provision consistent with the Court's remand, the provision remains in effect. In any event, such a determination is not necessary to resolve the informal objections to the renewal application for WRKL(AM). Possell's allegations, even if true, would not constitute a violation of our broadcast non-discrimination provision because that provision does not encompass discrimination based on physical disability. 6. Although Teich's allegations of sexual discrimination would fall within the scope of the non- discrimination provision, her discrimination complaints are still pending. It is the Commission's long-standing policy generally to defer action on individual complaints of employment discrimination until acted upon by the Equal Employment Opportunity Commission 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 Teich's allegations pending any final determination regarding employment discrimination. We will expect the licensee to update the Commission periodically on the status of the pending complaints filed by Teich and Dawson-Harel. 7. We are, however, troubled by the licensee's initial failure to report the discrimination complaints in its Form 396. We find no evidence of an intent to deceive which is necessary to support a finding of misrepresentation or lack of candor. 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 complaints. The pending discrimination complaints would not, by themselves, 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 omissions 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"). 8. We find that the licensee's Form 396 omitted material facts, as described above. Further, we find that this action was willful inasmuch as Kakoyiannis certified that the information contained in the Form 396, including the "None" response in Section VII, was true and correct to the best of his knowledge, information and belief. It is undisputed that Kakoyiannis was aware of the pending discrimination complaints when the station's renewal application was filed. Thus, the omitted facts were clearly within his personal knowledge. Moreover, the fact that Kakoyiannis delegated responsibility for preparation of the Form 396 to the licensee's business manager and communications counsel did not relieve him of his responsibility to review the form and ensure the accuracy of the information contained therein before signing the certification. His failure to do so reflects an apparent lack of concern for the accuracy of information provided to the Commission. 9. Accordingly, while we conclude that the informal objections fail to raise a substantial and material question of fact warranting further inquiry and that grant of the renewal application for WRKL(AM) would be consistent with Section 309(k) of the Communications Act of 1934, as amended, we find that a forfeiture should be assessed against the licensee of WRKL(AM) 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. Cf. Abacus Broadcasting. III. ORDERING CLAUSES 10. ACCORDINGLY, IT IS ORDERED that Steven Possell's request to withdraw his informal objection to the license renewal application for Station WRKL(AM) IS DENIED. 11. IT IS FURTHER ORDERED that the informal objections filed by Steven Possell and Florence Teich to the license renewal application for Station WRKL(AM) ARE DENIED. 12. IT IS FURTHER 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 WRKL Rockland Radio, L.L.C. for Station WRKL(AM) IS GRANTED subject to a NOTICE OF APPARENT LIABILITY FOR FORFEITURE in the amount of $5,000. 13. IT IS FURTHER ORDERED that the licensee of WRKL(AM) update the Commission on any change in the status of the pending discrimination complaints within 30 days of such change. 14. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order and Notice of Apparent Liability be sent by Certified Mail -- Return Receipt Requested -- to WRKL Rockland Radio, L.L.C., Steven Possell and Florence Teich. 15. Regarding the forfeiture proceeding, the licensee of Station WRKL(AM) 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 ability to pay should include those financial items set forth in the attachment. 16. 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