Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In The Matter of                 | *  | MB Docket No. 04-191         |
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| **San Francisco Unified School   | ** | Facility ID No. 58830        |
| District**                       |    |                              |
|                                  | *  | File No. BRED-19970801YA     |
| For Renewal of License for       | *) |                              |
| Station KALW(FM),                | ** |                              |
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| San Francisco, California        | *  |                              |
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**HEARING DESIGNATION ORDER AND**

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: May 17, 2004 Released: July 16, 2004**

By the Commission: Commissioners Copps and Adelstein concurring and
issuing a joint statement.

1\. The Commission has on file Golden Gate Public Radio's (\"GGPR\")
November 3, 1997, *pro se* petition to deny ("Petition") the captioned
application of the San Francisco Unified School District ("SFUSD") for
renewal of the license of station KALW(FM), San Francisco,
California.[^1] We also have on file SFUSD's February 9, 1998, Motion to
Strike the subsequent (January 28, 1998) verifications appended to the
Petition, GGPR's February 18, 1998, Opposition[^2] to that motion and
SFUSD's March 18, 1998, reply, SFUSD's March 18, 1998, Motion to Dismiss
the Petition,[^3] and GGPR's April 1, 1998, Opposition. Additionally, we
consider SFUSD's April 5, 2001, and August 1, 2001, responses to
separate staff inquiries. For the reasons set forth below, we treat the
GGPR petition as an informal objection, grant it to the extent
indicated, and designate the KALW(FM) license renewal application for
evidentiary hearing. It appears that SFUSD has failed to timely place or
retain in the KALW(FM) public inspection file quarterly issues/programs
lists and supplemental ownership information, while certifying in its
renewal application that it had done so.[^4] We will therefore specify
false certification and misrepresentation issues regarding SFUSD's
representations in the renewal application that the KALW(FM) public
inspection file contained all required materials.

2\. ***Pleadings***. In its Petition, GGPR alleges that SFUSD "failed to
adequately maintain" its local public inspection file by failing to
include in the file supplemental ownership reports, issues/programs
lists, and donor lists. GGPR states that SFUSD certified in the subject
renewal application that all these reports and lists were contained in
its local public inspection file, when SFUSD knew at the time it filed
the subject application that, in fact, they were not. GGPR also alleges
that SFUSD "knowingly and deliberately" made misrepresentations in its
application for renewal of license and in its Equal Employment
Opportunity Program Report and that these misrepresentations call into
question SFUSD's qualifications to remain a Commission licensee.
Specifically, GGPR asserts that SFUSD failed to comply with the Equal
Employment Opportunity ("EEO") requirements stated in Section 73.2080,
while certifying in its renewal application that it had done so.

> 3\. In its opposition, SFUSD states that GGPR is essentially a
> collection of "disgruntled" former KALW(FM) employees who were
> dissatisfied with station management. SFUSD argues that the petition
> should be dismissed because GGPR lacks standing and has failed to
> comply with the requirements of Section 309(d) of the Communications
> Act[^5] and the Commission's rules. In addition, SFUSD maintains that,
> notwithstanding the alleged procedural deficiencies of GGPR's
> petition, the petition does not establish a substantial or material
> question of fact to warrant designation of its license renewal
> application for hearing.
>
> 4\. ***Procedural Matters***. *Standing*. When challenging an
> application pursuant to Section 309(d)(1) of the Communications Act of
> 1934 (the "Act"), as amended, 47 U.S.C. Section 309(d), a petitioner
> must demonstrate party-in-interest status.[^6] The Commission accords
> party-in-interest status to a petitioner who demonstrates either that
> he/she resides in the station\'s service area or that he/she listens
> to or views the station regularly and that such listening or viewing
> is not the result of transient contacts with the station.[^7] In this
> regard, an organization may establish standing to represent the
> interests of local listeners or viewers. To do so, it must provide the
> affidavit of one or more individuals entitled to standing indicating
> that the group represents local residents and that the petition is
> filed on their behalf.[^8] In the instant case, GGPR\'s initial
> \"petition\" does not contain the required affidavit. GGPR submitted
> in its February 18, 1998, reply pleading two affidavits from GGPR
> principals indicating that they each reside within the KALW(FM)
> listening area and are each members of the KALW(FM) listening
> audience. This attempt to cure the procedural defect in the Petition
> is untimely.[^9] We therefore will treat GGPR's Petition as an
> informal objection under Section 73.3587.
>
> 5\. *Service and Verification of pleading.* A petitioner must serve a
> copy of its petition to deny on the applicant.[^10] GGPR did not serve
> SFUSD with a complete copy of the petition until December 11, 1997,
> more than one month after filing the petition with the
> Commission.[^11] We find that GGPR has not offered any compelling
> reason to justify this delay between the filing of the petition and
> its service on SFUSD.[^12] Further, SFUSD contends, and we agree, that
> the petition did not comply with the verification requirements of
> Section 1.52 of the Commission's rules.[^13] However, in light of our
> decision to accept the GGPR pleading as an informal objection, we
> decline to dismiss it for failure to comply with the requirements of
> Sections 1.47 and 1.52.[^14]

6\. *The GGPR Reply*. In its February 17, 1998, reply, GGPR raises two
arguments for the first time: (1) that SFUSD lacked a designated Chief
Operator and has failed to designate an Interim Chief Operator since
November 4, 1997;[^15] and (2) SFUSD failed to comply with the terms of
the Public Telecommunications Funding Program ("PTFP") grant it received
from the National Telecommunications and Information Agency ("NTIA").
With regard to this latter allegation, GGPR claims that SFUSD failed to
renew a lien required to protect NTIA's interest in the event that it
could not fulfill its obligations under the grant and failed to file
required annual reports with NTIA regarding the status of the equipment
acquired with NTIA funding. These two arguments are improperly raised
and will not be considered.[^16] GGPR has not explained why these
arguments could not have been raised in the Petition. Moreover, even
were the NTIA allegations raised in the petition to deny, they would lie
within the jurisdiction of NTIA and should be resolved there.

> 7\. **Substantive matters***.* In evaluating an application for
> license renewal, the Commission's decision is governed by Section
> 309(k) of the Communications Act. That section provides that if, upon
> consideration of the application and pleadings, we find that (1) the
> station has served the public interest, convenience, and necessity;
> (2) there have been no serious violations of the Communications Act or
> the Commission's Rules; and (3) there have been no other violations
> which, taken together, constitute a pattern of abuse, we are to grant
> the renewal application.[^17] If, however, the licensee fails to meet
> that standard, the Commission may deny the application -- after notice
> and opportunity for a hearing under Section 309(e) of the Act -- or
> grant the application "on terms and conditions that are appropriate,
> including a renewal for a term less than the maximum otherwise
> permitted."[^18]

8\. *Public File*. Section 73.3527 of the Commission's rules requires
all licensees of noncommercial educational broadcast stations to
maintain a public inspection file containing designated information.
Among the materials required to be in the public inspection file are
copies of every ownership report and related materials filed by the
station,[^19] and issues/programs lists for each quarter describing the
programs that represent "the station's most significant treatment of
community issues during the preceding three month period."[^20] Both the
ownership reports and the issues/programs lists are required to be
placed in the public inspection file in a timely manner and retained
until the Commission acts on the station's renewal application.[^21]

9\. The purpose of this requirement is to provide the public with timely
information at regular intervals throughout the license period.[^22]
When lapses occur in maintaining the public file, neither the negligent
acts or omissions of station employees or agents, nor the subsequent
remedial actions undertaken by the licensee, excuse or nullify a
licensee's rule violation*.*[^23] The evidence indicates that SFUSD
failed to keep the station's public inspection file complete and current
as required by the rule. It appears, therefore, that SFUSD violated
Sections 73.3527 and 73.3615(g) of the Commission's rules as follows:

(1) The KALW(FM) public inspection file did not contain all of the
    supplemental ownership reports required by Sections 73.3527 and
    73.3615(g) on August 1, 1997, when the subject license renewal
    application was filed.[^24] Missing items include the 1995 ownership
    supplement, which was not signed and dated until December of 1997.
    Additionally, it appears that the 1993 ownership supplement was not
    executed and submitted until July 30,1997, four years after it
    should have been placed in the public file.

(2) The KALW(FM) public inspection file did not contain the quarterly
    issues/programs list required by then Section 73.3527(a)(7). That
    rule requires: (1) a brief narrative describing what community
    issues were given the station's most significant treatment (2) the
    programming that provided this treatment; (3) the time, date,
    duration, and title of each program in which the issue was treated.

10\. With respect to the issues/programs list requirement, SFUSD states
that it and the KALW(FM) present management "believe that \[the
KALW(FM)\] public inspection files, as of August 1, 1997, contained all
required issues/program list materials for the entire period in
question."[^25] However, SFUSD admits that, when the present management
reviewed the issues/programs list file in preparing its response to the
staff's February 5, 2001, inquiry letter, it found only the "nationally
produced NPR issues/programs lists" but not the "specifically prepared
lists with respect to locally produced programs." SFUSD indicates that
it is "unable to explain what may have happened" to the missing lists of
issues covered by its locally produced programs. However, it argues that
that the KALW(FM) quarterly program guides,[^26] plus the list of issues
of public importance that received treatment in programs provided to
KALW(FM) by National Public Radio, are sufficient to satisfy the
requirements of Section 73.3527 regarding issues/programs lists. SFUSD
enclosed "representative samples" of the file's contents, including one
of its quarterly program guides and an "issues" list derived from a list
of NPR programming aired by KALW(FM). This latter submission consisted
of a computer-generated list of NPR programming aired by KALW(FM) from
April 1-July 1, 1997, to which was affixed a general "subject list" of
topics allegedly covered during the specified period; it does not
specify which program(s) specifically addressed the listed topics.

11\. We disagree with SFUSD's claim that its listing of NPR programming
and general topic list satisfy the issues/programs list requirement in
Section 73.3527. A licensee is required to identify issues of importance
to its listeners and provide programming responsive to those interests.
The pertinent Commission rule requires that the licensee place a list of
programs providing the "most significant treatment" of identified issues
in its public file on a quarterly basis; the quarterly list requirement
does not distinguish between self-produced and acquired programming.
Nevertheless, simply typing a list of topics on a downloaded NPR
programming list does not fulfill this requirement. Thus, SFUSD appears
to have violated Section 73.3527 from 1991 -- when the first
issues/programs list for KALW(FM) after the station's last renewal grant
was to be placed in the station's public inspection file -- until April
5, 2001, when SFUSD assured the Commission that its public inspection
file was complete.

12\. We reject SFUSD's contention that it must "create lists for each
and every one of its locally produced programs each quarter, in addition
to the NPR quarterly issues/program lists which are already in the
files."[^27] SFUSD has produced a list of topics from an NPR programming
guide. It has provided no information on non-NPR-produced programming.
We do not require a list of issues covered in each of its locally
produced programs, nor do we require that important issues be covered in
local, as opposed to nationally syndicated, programming. In fact, the
rule draws no distinction between locally produced and nationally
syndicated programming, and the rule does not contemplate production of
issue lists for any individual programs. We simply require that the
licensee identify issues of importance to its community and identify
specific programming it broadcast responsive to those issues. SFUSD
cannot locate the lists it created for programs it produced, and it must
instead rely on its quarterly program guide and its downloaded lists of
NPR programs it claims to have aired. As noted above, these are
insufficient.

> 13\. Further, we reject SFUSD's speculative suggestion that GGPR may
> be partly responsible for the disappearance of the program/issue
> lists. SFUSD states that one document -- a three-page listing of
> issues covering a period from June 1995 through July 1997 -- was
> included as an attachment to GGPR's petition to deny but is now
> missing from the KALW(FM) public inspection file. SFUSD has provided
> no credible evidence that GGPR was involved in the disappearance of
> documents, and it admits that "KALW(FM)'s public inspection file,
> until recently, was located in a file cabinet in a publicly accessible
> location in its offices and was never locked, so that any station
> employee had access to those files."[^28]

14\. *Misrepresentation*. SFUSD checked "yes" on FCC Form 303-S, page 3,
question 2,[^29] which asks, in pertinent part:

> Has the applicant placed in its public inspection file at the
> appropriate time the documentation required by 47 C.F.R §
> 73.3527?[^30]
>
> In its petition, GGPR claims SFUSD was aware that certain public file
> documentation was missing and that SFUSD did not adequately maintain
> issues/program lists when it filed the renewal application. GGPR bases
> its misrepresentation allegations on the declarations of Dave Evans
> ("Evans") and Susan Hecht ("Hecht"), a former KALW(FM) employee and
> volunteer, respectively. GGPR submits an affidavit from Evans (Exhibit
> C to the Petition) in which Evans states that in August 1996, he had a
> meeting with KALW(FM) Station Manager at the time, Jeffrey
> Ramirez[^31] "to discuss problems that \[Evans\] thought needed
> attention." At that time he advised Ramirez that the public inspection
> file "was a mess and it needed his immediate attention" and that
> ownership and quarterly issues reports had not been placed in the
> file. Hecht states that in June, 1997, Ramirez requested that she
> inspect the public file "for license renewal purposes."[^32] Finding
> the file "disorganized and incomplete," she itemized the contents of
> the file and issued a report entitled "License Renewal Materials - In
> Files at Present," which she claims listed missing documentation.[^33]
> In this regard, GGPR submits that SFUSD's board changed three times
> since the last ownership report of 1991 but the file contained no
> supplemental ownership reports reflecting the changes.[^34] In
> addition, GGPR states that public file did not include twenty-five
> issues/programs reports for the period between January 1, 1991, and
> March 31, 1994, and that SFUSD failed to file donor lists for a period
> of two years. GGPR concludes, based on the Evans and Hecht reports to
> Ramirez, that SFUSD "was aware eleven months before license renewal"
> that the public file contained the specified deficiencies, yet SFUSD
> indicated otherwise in the subject application.

15\. In its Opposition to the Petition, SFUSD submits a declaration from
former Station Manager Ramirez. Ramirez states under penalty of perjury
that he answered question 2, concerning the filing and retention of its
issues/programs lists and ownership reports, in the affirmative because
the lists and reports were fully accounted for during his tenure, "which
is what he understood the rule to call for." SFUSD submits that GGPR's
assertions concerning the non-filing of donor lists are misplaced
because KALW(FM) did not have any donors whose donations were earmarked
for specific programs, which is a prerequisite for establishing a donor
list.[^35]

16\. Ramirez also states that he vaguely recalls having a meeting with
Evans "some time in August, 1996," during his first weeks at KALW(FM) as
general manager. However, he recollects that the conversation was
"confusing" and that Evans "refused" to be specific about the public
file deficiencies. Ramirez states he nevertheless attempted to ascertain
the contents of the file to assure their conformance with the
Commission's rules, and that "review and updating" the file has been "an
ongoing process." Concerning Hecht's affidavit, Ramirez states he
assigned Hecht the task of reviewing the file in June 1997, "as part of
the review and update process," but he did not consider the list she
produced to be accurate, even surmising that she may have misunderstood
his directions. Ramirez states that the subject application was the
first renewal application he had ever prepared, and that although he
believes he may have misunderstood what was required in responding to
the questions, he responded "honestly and accurately" based on his
knowledge of the file's contents, and his understanding of the advice of
counsel and a broadcast industry trade association.

17\. On February 5, 2001, the staff sent a letter to SFUSD indicating
that SFUSD had not adequately addressed the specific allegations
concerning the completeness of KALW(FM)'s public file on August 1, 1997,
(the date that the license renewal application was filed) and requested
that SFUSD submit certain information.[^36] In its April 5, 2001,
response, SFUSD states that the public file contained all the required
ownership reports as of August 1, 1997. It also states "SFUSD and its
present management[^37] also believe that all required supplemental
reports were, in fact, present in the public inspection file on August
1, 1997." However, it admits that it "is unable to prove" that a
specific 1995 supplemental report that should have been placed in the
file "in January or February, 1995," but is dated "December, 1997," was
in fact in the file on August 1, 1997.[^38] Further, as noted above,
SFUSD and the present KALW(FM) management state that they "believe" the
public file contained all the quarterly issues/programs lists for the
period in question and that they had no reason to disbelieve Ramirez's
certification that the file contained the lists. However, their recent
examination has indicated otherwise. Specifically, SFUSD states that its
examination revealed that the file contained the quarterly
issues/program lists for its nationally produced programming, but did
not contain all the lists for its locally produced programming. SFUSD
submits that it is "unable to explain" why the "25 specifically-created
lists" for its locally produced programming are missing.

18\. Regarding its donor list, SFUSD states that,

> As a matter of policy and long-term practice, KALW(FM) does not
> solicit or accept underwriting support for specific programs. Rather,
> all underwriting funds are considered general support. If a particular
> underwriter requests that its underwriting announcement be aired
> during a particular day-part or program, KALW(FM) will honor that
> request. The underwriting funds in question are, nevertheless, not
> allocated to support for that program, or for any specific program,
> and underwriting funds are not solicited on the basis of support for
> specific programs. Thus as a general matter, KALW(FM) has had no
> reason to file donor lists as required by Section 73.3527.

SFUSD indicates that the only exception to this policy is a weekly
program, *Your Legal Rights*, supported by donations from the San
Francisco Bar Association and the State Bar of California, as a public
service to provide information about lawyer referral services. SFUSD
states that to its "knowledge and belief," a listing of these donors, in
connection with their support of *Your Legal Rights*, was in the
KALW(FM) public inspection file on August 1, 1997.[^39]

> 19\. Based on the foregoing discussion, it appears that the KALW(FM)
> public inspection file was not complete when the subject license
> renewal application was signed and filed with the Commission. It
> therefore appears that SFUSD falsely certified that it had placed all
> required documentation in the station's public file at the appropriate
> times in the subject license renewal application. We also believe
> that, as discussed below, GGPR has raised a substantial and material
> question regarding whether SFUSD intended to deceive the Commission by
> making the false certification.[^40] Commission precedent holds that a
> misrepresentation is a false statement of fact made with intent to
> deceive the Commission.[^41] Lack of candor is a concealment, evasion,
> or other failure to be fully informative, accompanied by an intent to
> deceive.[^42] Fraudulent intent can be found from "the fact of
> misrepresentation coupled with proof that the party making it had
> knowledge of its falsity."[^43] Intent can also be derived from
> motive.[^44] Because "the \[Commission\] relies heavily on the honesty
> and probity of its licensees in a regulatory system that is largely
> self-policing," federal appellate courts have recognized that "the
> Commission may disqualify an applicant who deliberately makes
> misrepresentations or lacks candor in dealing with the agency."[^45]
>
> 20\. GGPR has submitted sufficient evidence -- particularly the
> allegations of Evans and Hecht that KALR(FM) management was repeatedly
> informed of the deficiencies in its public inspection file \-- to
> raise a substantial and material question of fact calling for further
> inquiry into the candor of SFUSD's representations regarding the
> sufficiency of its public inspection file.[^46] Certainly, SFUSD had a
> motive for falsely certifying that the KALW(FM) public inspection file
> was complete: not merely in order to obtain favorable action on its
> license renewal application,[^47] but to conceal an apparent violation
> of the Commission rule governing the contents of the KALW(FM) public
> inspection file. If proven, GGPR's misrepresentation allegations would
> establish a "serious violation" that calls into question the propriety
> of granting the KALW(FM) renewal application under Section 309(k) of
> the Act. Accordingly, we will designate that application for
> evidentiary hearing, specifying appropriate issues.
>
> 21\. *EEO/Misrepresentation*. GGPR also alleges violations of the EEO
> program requirements set forth in Section 73.2080(b) and (c) of the
> Commission\'s Rules in effect at the time the KALW(FM) license renewal
> application was filed. Specifically, GGPR alleges that SFUSD: (1)
> failed to post notices informing employees and applicants for
> employment of their EEO rights;[^48] (2) failed to disseminate its EEO
> policy to prospective employees;[^49] (3) failed to seek the
> cooperation of its employees' union to help implement the EEO
> program;[^50] and (4) failed to promote individuals on a
> nondiscriminatory basis.[^51] GGPR states that KALW Station Manager
> Ramirez was aware of KALW(FM)'s failure to comply with EEO
> requirements[^52] and that SFUSD misrepresented that fact in the
> subject renewal application.[^53]
>
> 22\. In its opposition, SFUSD denies violating any of the Commission
> EEO policies then in effect. It claims, among other things, that (1)
> SFUSD did in fact post notices informing employees and applicants of
> their EEO rights at SFUSD's Human Resources Department and at the
> government offices for the City and County of San Francisco, where all
> employment-related matters are handled by SFUSD; (2) SFUSD publishes
> prominent EEO notices on its job opening announcements and
> correspondence with prospective employees;[^54] (3) none of GGPR's
> personnel complaints regarding the hiring of provisional employees or
> independent subcontractors is relevant to the question of whether or
> not SFUSD has "established, maintained, and carried out" an EEO
> program satisfying the Commission's guidelines; and (4) SFUSD did
> promote on a nondiscriminatory basis, as more than fifty percent of
> KALW(FM) full-time employees, including those in the upper four job
> categories, are members of a minority group, as is more than half of
> its governing board, the San Francisco Board of Education.[^55] With
> respect to the charge of misrepresentation, not only does SFUSD deny
> that there were violations, but Mr. Ramirez affirms the truth of the
> representations made in the renewal application regarding KALW(FM)'s
> compliance with the Commission's EEO rules and policies.

23\. The United States Court of Appeals for the District of Columbia
Circuit has held that the EEO program requirements in effect at the time
of the alleged misconduct were unconstitutional.[^56] Therefore, GGPR\'s
allegations that SFUSD violated those requirements, even if true, would
not warrant denial or designation of the subject application.
Nevertheless, those requirements were in effect during the KALW(FM)
license term here, as well as when the subject renewal application was
filed, and applicants are not excused from accurately representing their
compliance with those rules by their subsequent invalidation.[^57] It
appears from the record in this proceeding that there may have been
minor deficiencies in the dissemination of SFUSD's EEO program during
the subject license term.[^58] Accordingly, SFUSD's representations in
the KALW(FM) renewal application regarding the station's compliance with
the Commission's EEO rules and policies appear to be incorrect. We find,
however, that the evidence presented by GGPR and the record as a whole
are insufficient to raise a substantial and material question as to
whether SFUSD intended to deceive the Commission by making a false
certification regarding its compliance with the Commission's
then-existing EEO rules. We nevertheless caution SFUSD that it should
exercise more care in the future to ensure that the information it
submits to the Commission is accurate, because a false statement, even
absent an intent to deceive, may constitute a violation of Section 1.17
of the Commission\'s rules, as revised last year.[^59]

> 24\. Accordingly, IT IS ORDERED, that, pursuant to Section 309(e) and
> 309(k) of the Communications Act of 1934, as amended,[^60] the
> captioned application of the San Francisco Unified School District for
> renewal of license of station KALW(FM), San Francisco, California IS
> DESIGNATED FOR HEARING, at a time and place to be specified in a
> subsequent *Order*, upon the following issues:

1.  To determine whether San Francisco Unified School District falsely
    certified its application with respect to the completeness of the
    KALW(FM) public inspection file and the effect thereof on its
    qualifications to be a Commission licensee.

2.  To determine whether San Francisco Unified School District made
    misrepresentations of fact or was lacking in candor and/or violated
    Section 73.1015 of the Commission's Rules with regard to its
    certification in the subject license renewal application that it had
    placed in the KALW(FM) public inspection file at the appropriate
    times the documentation required by Section 73.3527, and the effect
    thereof on its qualifications to be a Commission licensee.

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3.  To determine, in light of the evidence adduced pursuant to the
    specified issues, if the captioned application for renewal of
    license for station KALW(FM) should be granted.

25\. IT IS FURTHER ORDERED, that, irrespective of whether the hearing
record warrants an Order denying the renewal application for KALW(FM),
it shall be determined, pursuant to Section 503(b)(1) of the
Communications Act of 1934,[^61] whether an ORDER OF FORFEITURE in an
amount not to exceed \$300,000 shall be issued against SFUSD for willful
and/or repeated violations of Sections 73.1015, 73.3527, and/or 73.3613
of the Commission's Rules,[^62] which occurred or continued within the
applicable statute of limitations.

26\. IT IS FURTHER ORDERED, that, in connection with the possible
forfeiture liability noted above, this document constitutes notice
pursuant to Section 503(b)(3) of the Communications Act of 1934, as
amended.[^63]

27\. IT IS FURTHER ORDERED, that Golden Gate Public Radio and the Chief,
Enforcement Bureau, ARE MADE PARTIES to this proceeding.

28\. IT IS FURTHER ORDERED, that a copy of each document filed in this
proceeding subsequent to the date of adoption of this Order SHALL BE
SERVED on the counsel of record appearing on behalf of the Chief,
Enforcement Bureau. Parties may inquire as to the identity of such
counsel by calling the Investigations and Hearings Division of the
Enforcement Bureau at (202) 418-1420. Such service copy SHALL BE
ADDRESSED to the named counsel of record, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, 445
12th Street, S.W., Room 3-B443, Washington, D.C. 20554.

29\. IT IS FURTHER ORDERED, that, in accordance with Section 309(e) of
the Communications Act of 1934, as amended,[^64] the burden of
proceeding with respect to issues 1 and 2 shall be upon the applicant,
and the burden of proof with respect to all issues shall be upon the
applicant.

30\. IT IS FURTHER ORDERED that, to avail themselves of the opportunity
to be heard and the right to present evidence at a hearing in these
proceedings, pursuant to Section 1.221 of the Rules,[^65] the parties,
in person or by its attorney, shall file within 20 days of the mailing
of this Order, a written appearance in triplicate stating its intention
to appear on the date fixed for hearing and to present evidence on the
issues specified in this *Order*.

31\. IT IS FUTHER ORDERED, that the applicant herein shall, pursuant to
Section 311(a)(2) of the Communications Act of 1934, as amended,[^66]
and Section 73.3594 of the Commission's Rules,[^67] give notice of the
hearing within the time and in the manner prescribed in such Rule, and
shall advise the Commission of the publication of such notice as
required by Section 73.3594(g) of the Commission's Rules.[^68]

32\. IT IS FURTHER ORDERED that copies of this *Order* shall be sent
*via* Certified Mail, Return Receipt Requested, and by regular first
class mail to the following:

San Francisco Unified School District

500 Mansell Street

San Francisco, California 94134

Golden Gate Public Radio

484 Lake Park Avenue, Box 419

Oakland, CA 94610-2730

Ernest T. Sanchez, Esq.

The Sanchez Law Firm

2000 L Street, N.W., Suite 200

Washington, D.C. 20036

33\. IT IS FURTHER ORDERED that the Secretary of the Commission shall
cause to have this *Order* or a summary thereof published in the Federal
Register.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

JOINT STATEMENT OF

COMMISSIONERS MICHAEL J. COPPS AND JONATHAN S. ADELSTEIN

CONCURRING

*Re:* *San Francisco Unified School District for Renewal of License for
Station KALW(FM), San Francisco, California*

We concur in the decision to designate KALW(FM)'s license renewal
application for a hearing. There are factual questions at issue here
that warrant further review. It is important for the Commission to
ensure that licensees are meeting their obligation to serve their local
communities and provide the public with timely and complete information
about how they are meeting that obligation. It is also important for the
Commission to take its public interest obligations seriously and
establish an effective license renewal process.

That being said, we also have concerns about this decision. In recent
months, the Commission has gone out of its way to avoid sending cases to
hearings even when there were legitimate allegations of wrongdoing. In
KALW(FM)'s case, there are questions as to whether the public file was
complete and whether the station misrepresented the situation to the
Commission. As just one example, in another recent case, there was also
an incomplete public file as well as allegations of misrepresentation
and material omissions in filings. In addition, in that case, there were
also issues related to unauthorized transfer of control. Yet, in that
case, the Commission, over our dissent, determined that it would not
designate the case for hearing. When the Commission finally decides to
make an example of a station and designate its case for a hearing, it
chooses a small noncommercial broadcast station run by the local school
district. We are troubled by the message we send when we send small,
independent stations to hearings but give a pass to stations owned by
larger media companies for troubling allegations.

[^1]: SFUSD filed an opposition to the petition on January 20, 1998, to
    which GGPR replied on February 18, 1998.

[^2]: GGPR's reply to SFUSD's opposition to its petition and its
    opposition to SFUSD's motion to strike are consolidated in its
    February 18, 1998, pleading.

[^3]: Also on March 18, 1998, SFUSD filed a Motion to Strike GGPR's
    Reply and a "Motion to Place Under Seal, Redact, or Remove Exhibit"
    certain proprietary information contained in GGPR's February 18,
    1998, reply pleading. The latter motion was granted by the staff on
    February 5, 2001. *See Letter to Ernest T. Sanchez, Esq.*, reference
    1800B3 (Chief, Audio Services Division, Mass Media Bureau).

[^4]: The requirement that noncommercial educational station licensees
    maintain ownership reports was formerly set forth in 47 C.F.R. §
    73.3615(g) and is now set forth in 47 C.F.R. § 73.3527(e)(4). The
    quarterly issues/programs list requirements were formerly found in
    47 C.F.R. § 73.3527(a) and are now described in 47 C.F.R. §
    73.3527(e)(8). *See Review of the Commission's Rules Regarding the
    Main Studio and Public Inspection Files of Broadcast Television and
    Radio Stations,* 13 FCC Rcd 15691 (1998), *recon. granted in part,*
    14 FCC Rcd 10922 (1999).

[^5]: 47 U.S.C. § 309(d).

[^6]: 47 U.S.C. § 309(d)(1).

[^7]: *See Tabback Broadcasting Company,* 15 FCC Rcd 11899, 11900 n. 3
    (2000), and *Maumee Valley Broadcasting, Inc*., 14 FCC Rcd 21734
    (1999).

[^8]: *See Petition for Rulemaking to Establish Standards for
    Determining the Standing of a Party to Petition to Deny a Broadcast
    Application*, 82 F.C.C.2d 89 (1980); *see also Infinity Broadcasting
    Corp. of California*, 10 FCC Rcd 9504 (1995); *Tabback Broadcasting
    Company*, *supra*, and *Niles Broadcasting Company*, 7 FCC Rcd 5959
    (1992).

[^9]: ^?^ *See Infinity Broadcasting Corp. of California,* 10 FCC Rcd at
    9506 (petitioner who does not establish standing in its petition
    cannot cure the failure in its reply).

[^10]: *See* 47 U.S.C. § 309(d)(1); 47 C.F.R. § 1.47.

[^11]: GGPR acknowledges that it served SFUSD with an "incomplete" copy
    of the petition (minus exhibits) on November 12, 1997.

[^12]: *See Columbia Broadcasting System, Inc*. 46 F.C.C.2d 903 (1974);
    *License Renewal Applications of Certain Broadcast Stations*, 59
    F.C.C.2d 1335 (1976) and *D.W.S.*, *Inc.*, 7 FCC Rcd 7170 (1992)(a
    petition to deny is procedurally defective if a copy is not served
    on the applicant). On December 5, 1997, the Chief, EEO Branch sent a
    letter to GGPR advising it that it could not be determined from
    GGPR's petition whether GGPR had served SFUSD with a copy in
    compliance with § 309(d)(1), and advised GGPR to submit proof of
    service within 20 days from date of the letter.

[^13]:
    > ^?^ Under 47 C.F.R. § 1.52, a *pro se* petitioner must submit a
    > declaration made before a duly authorized officer, e.g. a notary
    > public, stating that the contents of the petition are true.

    ### 

    *See also Harrea Broadcasters, Inc*., 52 F.C.C.2d 998 (1975)
    (verification is a declaration, made before any officer authorized
    by law to administer oaths \[*e.g*., a notary public\], that the
    contents of the petition are true.) GGPR is not represented by an
    attorney, and therefore the instant petition was required to be
    verified. Although GGPR's petition is signed by two of its
    principals, there is no evidence that the pleading was declared true
    before an appropriate officer.

[^14]: *See, e.g., WTWV, Inc*, 51 F.C.C.2d 1247, 1248 n.4 (1975).

[^15]: GGPR references an affidavit from Dierdre Kennedy that Dave
    Evans, SFUSD's designated Chief Operator, was critically injured in
    an automobile accident on November 4, 1997, remaining in a coma
    until his death on January 17, 1998. *Declaration of Dierdre
    Kennedy* at 2-3. It provides no evidence to support its contention
    that SFUSD did not appoint a new Chief Operator in light of Mr.
    Evans' incapacity and subsequent death.

[^16]: *See* 47 C.F.R. § 1.45(c) ("\[t\]he reply shall be limited to
    matters raised in the oppositions . . . .").

[^17]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read
    as described by Section 204(a) of the Telecommunications Act of
    1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). S*ee Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, 11 FCC Rcd 6363 (1996).

[^18]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^19]: 47 C.F.R. §§ 73.3527(a)(3) and 73.3615(g)(1997); 47 C.F.R. §
    73.3527(e)(4) and 73.3613(g)(2003).

[^20]: 47 C.F.R. §73.3527(a)(7)(1997); 47 C.F.R. § 73.3527(e)(8)(2003).

[^21]: *See, e.g., Riverside Broadcasting, Inc.*, 15 FCC Rcd. 18322
    (2000).

[^22]: *See, e.g., Letter to Kathleen N. Benfield from Linda B. Blair,
    Chief, Audio Services Division*, 13 FCC Rcd 4102 (MMB 1997) (*citing
    License Renewal Applications of Certain Commercial Radio Stations,*
    8 FCC Rcd 6400 (1993)).

[^23]: *See Padre Serra Communications, Inc.*, 14 FCC Rcd 9709
    (1999*)(citing Gaffney Broadcasting, Inc*., 23 F.C.C.2d 912, 913
    (1970) and *Eleven Ten Broadcasting Corp*., 33 F.C.C. 706 (1962));
    *Surrey Front Range Limited Partnership*, 71 RR 2d 882 (FOB 1992).

[^24]: Former SFUSD Superintendent Waldemar Rojas signed the renewal
    application, certifying that all representations made therein were
    accurate, on July 30, 1997.

[^25]: SFUSD April 5, 2001, letter at 5.

[^26]: The Program Guide is a quarterly publication describing the
    weekly programming and special features to be aired on KALW(FM)
    during a specified three-month period.

[^27]: SFUSD April 5, 2001, response letter at 7.

[^28]: April 5, 2001, response at 2.

[^29]: SFUSD also checked "yes" on FCC Form 303-S, page 3, question
    1(b), which asks:

    > Have the following reports been filed with the Commission: The
    > applicant's Ownership Report (FCC Form 323 or 323-E) as required
    > by 47 C.F.R. 73.3615?

    Although GGPR references that portion of Section 73.3615 requiring
    the filing of ownership reports and supplemental ownership reports
    *with the Commission*, GGPR bases its petition on SFUSD's failure to
    retain these reports in its public inspection file. The petition
    contains no factual representation regarding what was or was not in
    the Commission's Reference Information Center. We take official
    notice, however, of the fact that the KALW(FM) file in the
    Commission's Reference Information Center contains no ownership or
    supplemental ownership reports -- other than those submitted in
    SFUSD's April 5, 2001, response to a staff inquiry letter --
    subsequent to January 31, 1991.

[^30]: This documentation included, in pertinent part: ownership reports
    and related material, issues/programs lists and donor lists. *See*
    47 C.F.R. § 73.3527(e)(2001), 47 C.F.R. §73.3527(a)(1997)

[^31]: Mr. Evans indicates that at the time of the meeting he was
    KALW(FM)'s Chief Engineer. It appears that Mr. Ramirez resigned as
    KALW(FM) Station Manager in January of 1998.

[^32]: *See* Exhibit D appended to GGPR's petition to deny.

[^33]: *See* Exhibit E appended to GGPR's petition to deny. The report
    is not dated, and it consists of a list of items purportedly found
    in the KALW(FM) public inspection file. It notes the absence of
    several Annual Employee Reports and EEO Reports (Exhibit E, Page 1);
    that the "Problems & Programs" list is "incomplete" and "partial"
    (Exhibit E, Page 3); and that the "Program List" space is "Empty"
    (Exhibit E, Page 3).

[^34]: *See* Petition, Exhibit R, a listing of Board members as of July
    1990 (the date of KALW(FM)'s previous license renewal), January 1991
    (the date of the allegedly last ownership report in the file),
    January 1993, January 1995, and January 1997.

[^35]: *See* Section 73.3527(a)(8)(1997); Section 73.3527(e)(9)(2003).

[^36]: *See Letter to Ernest T. Sanchez, Esq. from Linda Blair, Chief
    Audio Services Division* (MMB 2001). The letter asked SFUSD, *inter
    alia*, if :

    > \(a\) On August 1, 1997, when the subject license renewal
    > application was filed, did the KALW(FM) public inspection file
    > contain all the ownership and supplemental ownership reports
    > required to be kept in the file by then Section 73.3527?; (b) on
    > August 1, 1997, did the KALW(FM) public inspection file contain
    > all the issues/programs lists required by then Section 73.3527?
    > Did any of the lists that were in the file contain the information
    > required by Section 73.3527?; (c) on August 1, 1997, did the
    > KALW(FM) public inspection file contain a complete listing of
    > donors supporting specific programs, as required by then Section
    > 73.3527?; and (d) was KALW(FM)'s public file currently complete?

[^37]: SFUSD indicated in its March 6, 2001 letter requesting additional
    time to respond that KALW(FM) had hired a new general manager\-- its
    fourth since August 1, 1997, according to GGPR \-- and wanted to
    involve this new general manager in all matters relating to the 1997
    renewal application.

[^38]: We note that the 1993 supplemental ownership report, a copy of
    which is included with SFUSD's April 5, 2001, response, was
    apparently not signed or submitted until July 30, 1997, long after
    it should have been tendered but prior to the August 1, 1997, filing
    of the license renewal application.

[^39]: SFUSD did not consider the preferences expressed by those making
    donations during pledge drives to constitute "support for a specific
    program" such that the donor's pledge form or card must be kept in
    the public inspection file. Nonetheless, GGPR contests SFUSD's claim
    that it does not accept underwriting for specific programs. It
    points to two syndicated programs, *Car Talk* (for which it claims
    that the *San Francisco Chronicle* and the *San Francisco Examiner*
    are the exclusive local "underwriters") and *West Coast Live* (which
    it claims is sponsored by the Crystal Geyser Water Company). In an
    August 1, 2001, response to an additional informal staff inquiry,
    SFUSD emphatically asserts that (1) KALW(FM) does not produce *West
    Coast Live* and receives no support from Crystal Geyser Water
    Company in connection with the program, as the financial support is
    given directly to the program's producer, Sedge Thomson; and (2)
    *Car Talk* is produced and distributed by National Public Radio, and
    KALW(FM) does not seek or accept funding for this or any other
    nationally distributed NPR program. We see no basis on this record
    for further consideration of this matter.

[^40]: S*ee, e.g., Ronald E. Patterson & Cal E. Varner d/b/a Capitol
    City Broadcasting Company*, 8 FCC Rcd 8478 (Rev. Bd. 1993)
    (designating false certification and misrepresentation issues
    against applicant when there were substantial and material questions
    about the applicant's financial qualifications which could not be
    resolved based upon the pleadings). *See also LUJ, Inc.,* 17 FCC Rcd
    16980 (2002) (petitioner did not raise a substantial and material
    question of fact regarding whether assignor and assignee intended to
    deceive the Commission by making a false certification). The
    Commission has stated that false certifications are abuses of the
    Commission\'s processes which waste Commission resources and which
    may not only break Commission rules, see 47 C.F.R. § 1015, but may
    subject the applicant to a monetary forfeitures under 47 U.S.C. §§
    502 and 503, as well as criminal liability under 18 U.S.C. Section
    1001. *In the Matter of Financial Certifications by Applicants for
    Broadcast Station Permits*, FCC No. 87-97 (Mar. 19, 1987). A false
    certification, like other false statements of fact made in FCC
    applications and pleadings, may of course also constitute
    misrepresentation under the Commission's rules and policies.
    *Revision of Radio Rules and Policies,* 7 FCC Rcd 6387, 6399 n.74
    (1992).

[^41]: *Fox River Broadcasting, Inc.,* 93 F.C.C.2d 127, 129 (1983)*.*

[^42]: *Id.*; *Trinity Broadcasting of Florida, Inc.*, 10 FCC Rcd 12020,
    12063 (1995).

[^43]: *David Ortiz Radio Corp. v. FCC*, 941 F.2d 1253, 1260 (D.C. Cir.
    1991) (*quoting* *Leflore Broadcasting Co. v. FCC*, 636 F.2d 454,
    462 (D.C. Cir. 1980)).

[^44]: *Joseph Bahr*, 10 FCC Rcd 32, 33 (Rev. Bd. 1994).

[^45]: *Contemporary Media, Inc. et al. v. FCC*, 214 F.3d 187, 193, 196
    (D.C. Cir. 2000), *citing Schoenbohm v. FCC*, 204 F.3d 243, 247
    (D.C. Cir. 2000).

[^46]: *See* 47 U.S.C. § 309(e)*; WWOR-TV, Inc.*, 5 FCC Rcd 193, 197
    n.10 (1990).

[^47]: *See, e.g., Hispanic Broadcast System, Inc.,* 16 FCC Rcd 8072,
    8074 (2001); *Joseph W. Bollinger and Donna M. Bollinger*, 16 FCC
    Rcd 18107 (2001) (Commission will not infer intent to deceive merely
    because applicant submits allegedly false statements in an
    application on which it wants favorable action).

[^48]: *See* 47 C.F.R. § 73.2080(c)(1)(i) (1997).

[^49]: *See* 47 C.F.R. § 73.2080(c)(1)(ii) (1997). GGPR alleges that
    SFUSD did not provide an EEO notice in the print advertisement for
    the position of station manager or in the letter confirming the
    hiring of Enrique Palacios. GGPR Petition, at 7-8; Exhibits J, K.

[^50]: *See* 47 C.F.R. § 73.2080(c)(1)(iii). GGPR states that KALW
    employees are represented by the Service Employees International
    Union ("SEIU") and that the SEIU/SFUSD employment agreement is
    governed by Civil Service Commission rules on EEO, hiring practices,
    and other employment procedures. GGPR alleges that SFUSD failed to
    cooperate with SEIU by (1) refusing to follow Civil Service hiring
    requirements in the appointment of Clerk/Typist William Helgeson to
    the position of Operations Manager; and (2) by appointing
    "Provisional" personnel and independent contractors instead of
    hiring union-certified regular employees. GGPR states that SFUSD
    also did not file the appropriate documentation regarding these
    independent contractors with the Commission, in violation of 47
    C.F.R. § 73.3613(c).

[^51]: *See* 47 C.F.R. § 73.2080(c)(4) (1997). GGPR states that SFUSD
    did not inform its KALW employees, many of them qualified minorities
    and women, of job openings throughout the term of the license. GGPR
    also claims that SFUSD "did not practice recruitment" under then
    Section 73.2080(c)(1)(iv), but GGPR's allegation is unclear as to
    the nature of the alleged violation. Petition, at 14-15. Given the
    lack of evidence, no further discussion is warranted with respect to
    this final allegation.

[^52]: GGPR references the August 1996 meeting between Evans and
    Ramirez, in which Evans purportedly informed Ramirez that the
    station's EEO program was "out of date." *See* Exhibit C to GGPR's
    Petition.

[^53]: The FCC Form 396 ("Broadcast Equal Employment Opportunity Program
    Report") submitted with the license renewal application contained
    the following "Policy Dissemination" certifications on Page 3:

    > Notices are posted informing applicants and employees that the
    > station is an Equal Opportunity Employer and that they have the
    > right to notify an appropriate local, State, or Federal agency if
    > they believe they have been the victims of discrimination.
    >
    > Our station's employment application form contains a notice
    > informing prospective employees that discrimination because of
    > race, color, religion, national origin, or sex is prohibited and
    > that they may notify the appropriate local, State, or Federal
    > agency if they believe they have been the victims of
    > discrimination.
    >
    > We seek the cooperation of the unions represented at the station
    > to help implement our EEO program and all union contracts contain
    > a nondiscrimination clause.

[^54]: SFUSD Opposition, at 25; Ramirez declaration ¶¶ 1, 13, 14. These
    assertions are contradicted by Exhibits J (a KALW(FM) job
    announcement in the May 15, 1996 edition of *Education Week)* and K
    (form letter from Enrique Palacios purporting to confirm the hiring
    of a new employee), each of which are devoid of any reference to EEO
    policies. SFUSD counters that Exhibit K was an "obvious fraud," as
    it is only a draft of a letter actually sent out to successful
    applicants. SFUSD attaches to the Ramirez declaration an actual
    letter sent to Philip Morgan, an applicant for General Manager of
    KCLW(FM). That letter contains the notation "an equal opportunity
    employer" at its bottom. SFUSD also argues that the *Education Week*
    job announcement notice was immaterial because the form only asks
    for examples of such media announcements and Mr. Ramirez did not
    mention that advertisement or publication in his response to the
    form.

[^55]: Ramirez indicates additionally that "KALW was recently notified
    by the Corporation for Public Broadcasting that it is eligible for
    Community Service Grant and NPPAG funds because of its high
    percentage of minority employees and board members." Ramirez
    Declaration ¶ 15.

[^56]: *Lutheran Church - Missouri Synod v. FCC*, 141 F.3d 344, *pet.
    for rehearing denied*, 154 F.3d 487, *pet. for rehearing en banc
    denied*, 154 F.3d 494 (D.C. Cir. 1998). The Court did not find the
    anti-discrimination portion of the broadcast EEO rules to be
    unconstitutional.

[^57]: *See, e.g., CRC Broadcasting Company, Inc.*, 14 FCC Rcd 1038 (MMB
    1999); *WRKL Rockland Radio, L.L.C.*, 14 FCC Rcd 1042 (MMB 1999)
    (Notice of Apparent Liability for failure to disclose discrimination
    complaint even though the EEO rules had been found unconstitutional;
    no evidence of intent to deceive present).

[^58]: For example, SFUSD submits a form letter on SFUSD letterhead to
    rebut GGPR's charge that SFUSD's confirmation letter to prospective
    employees did not contain a notice of KALW(FM)'s EEO policy. *See*
    Petition, Page 8 and Exhibit K; Opposition, Page 28 and Ramirez
    Declaration, Exhibit 7. The Letter submitted by SFUSD clearly
    indicates at its bottom that the sender is "an equal opportunity
    employer." It does not, however, inform applicants "that they have
    the right to notify an appropriate local, State, or Federal agency
    if they believe they have been the victims of discrimination." *See
    also supra* note 54 (some job announcements in educational trade
    publications did not contain contain an EEO policy reference).

[^59]: 47 C.F.R. § 1.17. *See Amendment of Section 1.17 of the
    Commission's Rules Concerning Truthful Statements to the
    Commission*, 18 FCC Rcd 4016 (2003).

[^60]: 47 U.S.C. §§ 309(e), (k).

[^61]: 47 U.S.C. § 503(b)(1).

[^62]: 47 C.F.R. §§ 73.1015, 73.3527, and 73.3613.

[^63]: 47 U.S.C. § 503(b).

[^64]: 47 U.S.C. § 309(e).

[^65]: 47 C.F.R. § 1.221.

[^66]: 47 U.S.C. § 311(a)(2).

[^67]: 47 C.F.R. § 73.3594.

[^68]: *Id.* Section 73.3594(g).