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), San          | ** |                                |
| Francisco, California          |    |                                |
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**Appearances**

# *Marissa G. Repp, Esquire* and *Martin A. Price, Esquire*, on behalf of San Francisco Unified School District; *James W. Shook*, *Esquire* and *Dana E. Leavitt, Esquire,* on behalf of the Enforcement Bureau

**INITIAL DECISION**

**OF**

CHIEF ADMINISTRATIVE LAW JUDGE RICHARD L. SIPPEL

**Issued:** April 6, 2006 **Released:** April 7, 2006

PRELIMINARY STATEMENT

1.  This proceeding was set to determine whether the application of San
    Francisco Unified School District ("SFUSD") for renewal of license
    for noncommercial educational Station KALW(FM) should be granted.
    *San Francisco Unified School District*, *Hearing Designation Order
    and Notice of Apparent Liability for Forfeiture*, 19 FCC Rcd
    13326 (2004) ("*HDO*").[^1]

**Issues**

2.  The Commission specified 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.
>
> \(3\) 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.

*HDO* at Para. 24.

3.  Whether or not the hearing record warrants denial of SFUSD's
    renewal, the Presiding Judge shall determine whether an Order of
    Forfeiture in an amount not to exceed \$300,000 should be issued
    against SFUSD for willful and/or repeated violations of the
    Communications Act and the Commission's rules. *HDO* at Para. 25.
    *See* § 503(b) (1) of the *Communications Act of 1934*, as amended
    \[47 U.S.C § 503(b) (1)\]; 47 C.F.R. §§ 73.3527 and 73.3613.

4.  SFUSD was permitted to introduce evidence on meritorious service,
    limited to one year of programming that aired prior to the filing of
    a Petition to Deny -- November 3, 1996 to November 3, 1997 -- and to
    the one year of programming that aired prior to release of the\
    *HDO* -- July 16, 2003 to July 16, 2004. Meritorious programming is
    considered "only to argue ascertainment of community interests,
    and/or for considering reduction of forfeiture amounts." *See
    Memorandum Opinion and Order*, FCC 04M-31, released October 8, 2004,
    and *Memorandum Opinion and Order*, FCC 04M-37, released November
    12, 2004.

5.  The Presiding Judge added an issue:

> To determine whether station KALW(FM) has provided meritorious service
> relevant to a renewal of SFUSD's license, and/or relevant to
> mitigating the amount of any forfeiture.

*Order*, FCC 05M-42, released September 16, 2005.

6.  The Presiding Judge also added an issue:

> To determine whether San Francisco Unified School District through its
> agents made misrepresentations of fact and/or lacked candor before the
> Commission during, or in connection with, discovery testimony taken by
> the Enforcement Bureau on September 28, 2004.

*Memorandum Opinion and Order*, FCC 05M-17, released April 1, 2005,
*modified by Addendum*, FCC 05M-20, released April 5, 2005.

**Burdens of Proof**

7.  SFUSD must establish by a preponderance of the evidence that its
    renewal application certification was not intentionally false in
    representing that the public inspection file ("PIF") for Station
    KALW(FM) contained all documentation required by the Commission's
    rules, and that such documentation was placed in the file at the
    times specified by the rules. SFUSD also must prove by a
    preponderance of evidence that its subsequent representations about
    the completeness of its PIF made in responses to a petition to deny
    and to a letter of inquiry, were not intentionally false.

8.  On the added issue about the truthfulness of SFUSD deposition
    testimony, the Enforcement Bureau has the burdens of proceeding and
    proof.

9.  An evidentiary hearing on the issues was conducted from June 6 to
    June 10, 2005. The parties proffered witness testimony, conducted
    cross-examination, and introduced documentary exhibits.[^2]
    Following the hearing, there were received into evidence additional
    exhibits sponsored by SFUSD. *Order* FCC 05M-31, released June
    23, 2005. On October 7, 2005, the parties filed Proposed Findings of
    Fact and Conclusions of Law. On November 15, 2005, Reply Proposed
    Findings of Fact and Conclusions of Law were filed.

**FINDINGS OF FACT**

**Background**

10. SFUSD has held the license for station KALW(FM) ("Station") since
    its inception in 1941. (Official Notice; SFUSD Exh. 22, p. 19.) Its
    most recent license renewal was on December 31, 1990. (Official
    Notice.) KALW(FM) provides non-commercial educational service to the
    residents of San Francisco and nearby communities. This service
    includes locally-produced programs and programming obtained from
    National Public Radio and Public Radio International.[^3] SFUSD and
    the Bureau stipulate that the Station provided meritorious service
    during the relevant time periods and furnished broadcast programming
    to San Francisco responsive to community needs, interests and
    concerns. (SFUSD Exh. T-6 at 2; Stipulation filed August 31, 2005.)

**Governance**

11. SFUSD is governed and controlled by an elected Board of Education
    ("BOE"), comprised of seven members serving four-year terms. A
    Superintendent of Schools ("Superintendent") hired by the BOE has
    overall responsibility for SFUSD's operations, including the
    operation of the Station. The Superintendent has delegated
    administrative authority to oversee Station operations to one or
    more special assistants or consultants. (SFUSD Exh. T-4 at 2.) By
    letter dated February 17, 2006, counsel for SFUSD reported that
    Superintendent Arlene Ackerman is retiring and she is being replaced
    by new Superintendent Gwen Chan.

12. SFUSD and the Superintendent do not participate in the Station's
    day-to-day management. The Station's General Manager handles the
    day-to-day responsibilities, including the preparation of an annual
    report. There are assistants to the Superintendent designated to
    keep her informed of issues affecting the Station. In September
    2004, in response to the matters addressed in this proceeding, the
    superintendent issued a directive that all applications and filings
    with the Commission must be cleared by communications counsel, and
    Station management must report in writing to the Superintendent
    annually on regulatory compliance. (SFUSD Exh. T-4 at 2-3.)

13. SFUSD's support of the Station is limited to in-kind services such
    as the sites of the station's offices and studios, and
    administrative assistance. (SFUSD Exh. 22 at 19.) The Station does
    not receive direct financial support from SFUSD. All operating funds
    come from donations of listeners, grants from the Corporation for
    Public Broadcasting, and grants from underwriters. (SFUSD Exh. 15
    (dep. at 205-13); SFUSD Exh. 18 (dep. at 403-07)). During fiscal
    year ending June 30, 2004, KALW(FM) received \$1.3 million for its
    operations, more than \$1 million of which came from listener
    donations. (SFUSD Exh. 78-C at 6.)

14. On July 30, 1997, Mr. Ramirez forwarded a completed renewal
    application to SFUSD for review and signature. Under the
    Superintendent's name, SFUSD certified to the Commission that "the
    statements in this Report \[renewal application\] are true, complete
    and correct to the best of my knowledge and belief, and are made in
    good faith." On July 30, 1997, counsel for SFUSD reviewed the final
    renewal application to be certified. (EB Exh. 7 at 2.) On July 30,
    1997, former SFUSD Superintendent Waldemar Rojas signed the renewal
    application, thereby certifying that all representations were
    accurate. Mr. Ramirez mailed the renewal application to the
    Commission on July 30, 1977, and it was stamped as filed at the
    Commission on August 1, 1997. (SFUSD Exh. 5 at 1-5.) It appears from
    this record that the affixing of a signature at the Superintendent's
    level was an act taken in the course of SFUSD's business. The
    Superintendent's signature was the act of certification for SFUSD.

15. There is no evidence that indicates that supervisors at SFUSD had
    sufficient information on July 30, 1997, to believe that the renewal
    application and a related PIF were deficient. However, SFUSD's
    management must have known that a petition to deny renewal had been
    filed on November 3, 1997, and was aware of the Bureau's letter of
    inquiry of February 5, 2001 ("LOI"). On May 24, 2001, shortly after
    counsel responded to the LOI on behalf of SFUSD, they submitted to
    Superintendent Ackerman a "Report on License Renewal". (SFUSD Exh.
    22.) SFUSD was reminded by counsel that on November 3, 1997, a
    petition to deny renewal had been filed that was based on an alleged
    "failure to maintain the station's public file in accordance with
    FCC rules." (*Id*. at 3.) Counsel expressed their opinion that the
    charges lacked any merit. (*Id.*)

**General Managers**

16. The Station is a non-profit, non-commercial enterprise. Station
    Managers are salaried employees having no monetary stake, and there
    is no profit motive at any level of management, including General
    Manager. SFUSD employs a General Manager who is responsible for the
    Station's day-to-day management. Recent General Managers include:
    Margaret Ann (Nicole) Sawaya (March 1, 2001 -- March 24, 2006),[^4]
    William Helgeson\
    (acting October 2000 -- February 28, 2001 and January 1998 --
    mid-1998),[^5] Michael Johnson (mid-1998 -- September 2000), and
    Jeffrey Ramirez (August 5, 1996 -- January 31, 1998).

17. The General Manager has responsibility for updating and maintaining
    the Station's PIF. (EB Exh. 5 at 117.) One requisite is maintaining
    updated and current ownership information in the PIF. 47 C.F.R. §§
    73.3527(c), 73.3615(e), (f), (g) (1996) (EB Exh. 59). In 1997,
    supplemental ownership reports were to be placed in the PIF after
    election changes of BOE membership.[^6] Issues/programs lists were
    to be placed in the PIF on a quarterly basis, ten days following the
    end of each calendar quarter. 47 C.F.R. § 73.3527(a) (7)(1996) (EB
    Exh. 59 at\
    2-3). When a renewal application was filed on August 1, 1997, the
    Station's PIF was deficient in its ownership reports, and in its
    issues/programs lists.

18. Jeffrey Ramirez became General Manager on August 5, 1996, and left
    the Station on January 31, 1998. (SFUSD Exh. T-1 at 1.) His initial
    concerns were logistics for a Station move that was completed in
    December 1996. (Tr. 669.) At the same time, he was responsible for
    programming, funding, program changes, weather and traffic reports,
    and a new underwriting program. (SFUSD Exh. T-1 at 4-7.) The Station
    had been required to operate from a series of temporary locations
    following a 1989 earthquake that had destroyed the high school
    housing the Station's studios and offices. (SFUSD Exh. T-2 at 5.)
    PIF deficiencies existed and occurred during his tenure. He resigned
    in early 1998. He was temporarily replaced in July 1999, by\
    Mr. Michael Johnson. Mr. Helgeson served as interim manager in
    between Ramirez -- Johnson -- Sawaya appointments. Ms. Sawaya
    arrived at the Station on March 1, 2001. (SFUSD Exh. T-3\
    at 1.)

19. In August 1996, Mr. Ramirez was hired as General Manager of the
    Station. (SFUSD Exh. T-1 at 1, 2.) Mr. Ramirez believes that he
    successfully sold himself at SFUSD interviews with his "programming
    experience, creativity and positive energy." (*Id*. at 3.) He had no
    prior general manager experience, his exposure to regulatory aspects
    of station management was "very limited," and he had never before
    been involved with a license renewal application or the maintenance
    of a public information file. (*Id.* at 3-4.)

**New Oversight Policy**

20. In September 2004, Superintendent Ackerman issued a directive to the
    Station and to her immediate staff that "all applications, reports
    and filings made by \[SFUSD\] must be cleared in advance with
    outside communications counsel." (SFUSD Exh. 48.) There was no
    similar "directive" in effect in 1997, and Mr. Ramirez, a regulatory
    novice, was virtually left to his own devices. However, he did have
    access to and did utilize services of communications counsel
    provided by SFUSD to the Station and its General Manager.

**Public Inspection File**

21. Proper maintenance of a PIF is important. *See N. Benfield*, *et
    al,* 13 FCC Rcd 4102, 4105 (Mass Media Bur. 1997). Contents of a PIF
    are not optional, and a PIF must contain copies of every ownership
    report filed, and issues/programs lists for each quarter describing\
    the treatment of significant community issues. 47 C.F.R. § 73.3527.
    The Station's PIF was contained in one file cabinet drawer. It was
    located in an open space that was readily available to staff,
    volunteers, and the public. (SFUSD Exh. 22 at 4.) Shortly after
    becoming General Manager, Mr. Ramirez was counseled by a staff
    member to inspect the PIF. (SFUSD Exh. T-1 at 11; Tr. 283.) He was
    cautioned by the Station's Chief Engineer:

> \[I\]n August 1996, - - - I told Mr. Ramirez that Ownership Reports
> and quarterly issues reports hadn't been filed, - - -.

(EB Exh. 5 at 42-43.) That exchange occurred "at some time in August
1996 with respect to the public inspection file," but Mr. Ramirez took
no action. (SFUSD Exh. 4 at 49; Tr. 352; SFUSD Exh. 1 at 64-5.) He did
not begin to focus on the PIF until after receiving a renewal
application form and instructions in May 1997, nearly nine months after
his conversation with Mr. Evans. (SFUSD Exh. T-1 at 12; Tr. 280-83, 354,
357, 368.)

22. In June 1997, Mr. Ramirez perused the PIF and he found it to be
    disorganized. (SFUSD Exh. T-1 at 12.) He asked Ms. Susen Hecht, a
    Station volunteer, to put the file in order, without giving her
    specific instructions. (Tr. 372-73.) She did not put the file in any
    particular order. But without being asked, she provided Mr. Ramirez
    with a written inventory of what she had found in the PIF. She
    entitled her report "License Renewals Materials -- In Files At
    Present" (referred to as "Hecht report"). (SFUSD Exh. T-1 at 12-13;
    Tr. 376-77.)

23. Ms. Hecht volunteered at the Station for four years. (EB Exh. 5
    at 44) She performed part-time general office work. (EB Exh. 44 at
    195.) She averred in an affidavit:

> In June 1997, Station Manager Jeff Ramirez asked me to review the
> public inspection files for license renewal purposes, which I did. I
> found the files disorganized and incomplete. I itemized the contents
> of the files and gave Mr. Ramirez written confirmation titled *License
> Renewal Materials -- In Files at Present* in June 1997. (Italics in
> original.)

(EB Exh. 5 at 44-49.) Her affidavit "testimony" confirms the position
she held as Station volunteer, and establishes the genuineness of her
written report in the form of an inventory that she provided to Mr.
Ramirez. (EB Exh. 5.) The reliability of her report was attested to by
the testimony of a knowledgeable witness, Mr. Jason Lopez. (EB Exh. 4 at
5-6.) Ms. Hecht was unavailable for deposition or cross-examination as
her whereabouts are unknown. (Tr. 722; EB Exh. 4 at 5.)

**Hecht Report**

24. The Hecht report was an exhibit to a petition to deny SFUSD's
    renewal that was filed in November, 1997. (EB Exh. 5 at 44-49.) Ms.
    Hecht itemized in writing what she found and what she did not find
    in the PIF. Mr. Ramirez elected to ignore Ms. Hecht's report, and
    there was no evidence of Mr. Ramirez questioning her on the contents
    of her report. He testified:

> .... I never read Susen Hecht's document closely, nor gave it much
> consideration at all.... Instead, I conducted and relied upon my own
> review of the PIF.

(SFUSD Exh. T-1 at 12-13.) SFUSD has acknowledged that Mr. Ramirez did
read the Hecht report. (EB Exh. 38 at 5.)

25. The Hecht report reflected the following:

> Ownership reports \-\-- for the following dates:
>
> 1/13/91; 11/90; 3/3/89; 9/16/88; 7/28/88; 7/5/83
>
> Minority ownership -- 2/28/88 and 2/20/89
>
> Employee Reports --All years included EXCEPT 1994, 1990, 1989
>
> Reports Missing: 1992, 1990, 1989, 1988 and 1983
>
> \- - -
>
> CONTENTS - - -
>
> Programs -- Incomplete 1992 (Winter and Spring ONLY)
>
> Complete 1991; partials for 97-98.
>
> \[PRO\]Gram List -- Empty

(EB Exh. 5 at 46 -- 49.) Ms. Hecht needed no expertise merely to observe
the contents of a file, write down what she found, and note what she did
not find. SFUSD offered no evidence to rebut the contents of her report.
Therefore, the Hecht report can be considered as reliable evidence of
deficiencies existing in the Station's PIF in 1997, containing ownership
reports and issues/programs lists.

26. Mr. Ramirez may have reviewed the PIF in May or June of 1997, but
    without benefit of deficiencies noted in the Hecht report. She notes
    in her affidavit that she "found the files disorganized and
    incomplete." (EB Exh. 5 at 44.) There were enough "red flags" in the
    Hecht report which, in conjunction with Mr. Evan's earlier warning,
    put Mr. Ramirez on notice that the PIF was deficient. He should have
    given the Hecht report a "hard look," and he should have debriefed
    Ms. Hecht in order to learn the true state of the PIF. He did
    neither. Mr. Ramirez was grossly negligent and irresponsible in
    failing to follow up or otherwise utilize the informative Hecht
    report.

**Renewal Application**

27. Renewal of SFUSD's license is in abeyance pending a final decision
    in this proceeding. The renewal term ran from January 1, 1991, to
    December 1, 1997. On May 15, 1997, the Commission sent SFUSD a
    renewal application packet. The documents consisted of a renewal
    application and related instructions, an ownership report form (FCC
    Form 323-E for noncommercial educational stations), and a broadcast
    EEO program report (FCC Form 396), and related instructions. (EB
    Exh. 1.) Mr. Ramirez read the renewal application question and
    instruction relating to the PIF (SFUSD Exh. 1 at 32-33; SFUSD Exh.
    T-1 at 12; Tr. 385).\
    Yet he denied familiarity with renewal instructions shown to him at
    hearing, and he could not recall whether he had reviewed the
    instructions when he filled out the renewal application.\
    (Tr. 350-51.)

**Renewal Form 303-S**

28. Question 1(b), asks:

> Have the following reports been filed with the Commission:

b.  The applicant's Ownership Report (FCC Form 323 or 323-E),

> as required by 47 C.F.R. Section 73.3615?

c.  If No, give the following information:

> Date last ownership report was filed:
>
> Call letters of station for which it was filed:
>
> (SFUSD Exh. 5 at 4.) Mr. Ramirez checked "**Yes**."

SFUSD's erroneous certification as to its ownership reports filed with
the Commission is generally relevant to candor and will receive
attention in this decision.[^7] But the gravamen of ownership reporting
alleged in the *HDO* is in relation to copies being timely deposited in
the PIF, Question 2 below.

29. Question 2 asks:

> Has the applicant placed in its public inspection file at the
> appropriate times the documentation required by 47 C.F.R. Section
> 73.3226[^8] and 73.3527 (local inspection file of noncommercial
> educational stations)?
>
> If No, attach as an Exhibit a complete statement of explanation.

(SFUSD Exh. 5 at 5.) Mr. Ramirez checked "**Yes**."

**Public Inspection File**

30. The *HDO* cites the relevant regulation:

> *Public File*. Section 73.3527 of the Commission's rules require 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, 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." 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 \[footnotes omitted\].

*HDO* at 4.

31. The *HDO* alleges, SFUSD admits, and substantial evidence proves:

> \(1\) The KALW(FM) public inspection file did not contain all of the
> supplemental ownership reports required - - - on August 1, 1997, when
> the subject license renewal application was filed.[^9] 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.

*HDO* at 5.

32. Mr. Ramirez received the form and instructions for completing the
    renewal application which he read. (SFUSD Exh. T-1 at 13.) Mr.
    Ramirez became aware of the applicable regulation (47 C.F.R. §
    73.3527(e)) which prescribes that a public information file will
    contain "ownership reports" and "issues programs lists." (*Id.*) He
    also consulted a National Association of Broadcasters ("NAB")
    memorandum and a National Public Radio ("NPR") Station Manager's
    Handbook. (EB Exh. 11-A; SFUSD Exh. 6 at 7-8.) These sources
    instruct licensees to exercise care in maintaining a complete,
    current PIF that includes supplemental ownership reports for seven
    years, and lists of programs providing significant treatment of
    local

issues. After consulting these sources, it was inexcusable and
irresponsible for Mr. Ramirez to certify "Yes" to ownership and
issues/answers, particularly in view of the "red flag" Hecht report that
he rejected.

33. *Question 2* asks the applicant to certify to the completeness of
    the Station's PIF. Mr. Ramirez understood, or could readily
    understand, the plain language of the question and instructions, and
    he had access to communications counsel for advice on how to answer
    questions. By the time he received Ms. Hecht's inventory report, he
    had, in some manner, seen the contents of the PIF. (Tr. 376-77.) The
    Hecht report, if read with a modicum of care, should have sent a
    responsible General Manager back for a second look at the PIF,
    particularly in view of Mr. Evans' earlier "heads-up" warning.
    Resources readily available were wholly sufficient to enable him to
    follow the Commission's application reporting rules, but he failed.

**Ownership Reports**

34. Question 1(b) of the renewal application asks whether the
    applicant's complete Ownership Reports required by Section 73.3615
    have been filed with the Commission.\
    Mr. Ramirez answered "Yes," based on his misunderstanding that
    Question 1(b) referred only to the current ownership report
    accompanying the renewal application. (SFUSD Exh. T-1 at 15.)

Mr. Ramirez rationalized his erroneous "Yes" answer by assuming that the
purpose of the Ownership Reports was to identify the current composition
of the BOE where staggered elections are held every two years for
four-year terms. (SFUSD Exh T-1 at 15; Tr. 442-44.)

35. Former Section 73.3615 also required licensees to retain in their
    PIF "\[a\] copy of all ownership and supplemental ownership reports
    ...." 47 C.F.R. § 73.3615(g) (1996); (EB Exh. 59 at 6.) Supplemental
    ownership reports were required within 30 days of changes to the
    BOE. 47 C.F.R. § 73.3527(f). Newly elected BOE members took office
    in January 1993, 1995 and 1997. (EB Exh. 40 at 6, 10; EB Exh. 38 at
    22-24, 29-31.) SFUSD's renewal application filed with the Commission
    provided no supplemental reports for 1993 and 1995 to reflect the
    newly elected BOE members. *Cf. HDO* at 5.

36. Mr. Ramirez claimed ignorance of requirements for supplemental
    ownership reports for years 1993 and 1995. (Tr. 442-43.) These
    reports would have disclosed newly elected BOE members in those
    years. (EB Exh. 34 at 3; EB Exh. 37 at 22-24, 29-31.) He believed
    that the rules only required placement in the PIF of the 1997 full
    ownership report (more complete than a supplemental report) which
    would be the literal "current" report. Mr. Ramirez admitted this
    misunderstanding in a January 1998 declaration in responding to a
    petition to deny renewal. (EB Exh. 6 at 17.)

**Issues/Programs Lists**

37. Section 73.3527(a)(7) provides that a non-commercial licensee must
    retain in a PIF:

> every three months a list of programs that have provided the station's
> most significant treatment of community issues during the preceding
> three-month period. The list for each calendar quarter is to be filed
> by the tenth day of the succeeding calendar quarter....

47 C.F.R. § 73.3527(a)(7) (1996); (EB Exh. 59 at 2.) Mr. Ramirez did
recognize that programming responsive to issues "important to the
community" was to be identified on a list that is placed in the PIF, and
he sought such a list when he first reviewed the PIF. (Tr. 387-88.) Mr.
Ramirez was searching for a "piece of paper" that reflected programming
that addressed community concerns. (Tr. 387.) He could not find such a
"piece of paper" and so he asked station program producers to prepare
program lists. (Tr. 388, 393.) Mr. Ramirez's "paper chase" is consistent
with Mr. Evans' observation that the PIF was a "mess" (EB Exh. 5 at 42),
and also with the findings of Ms. Hecht (EB Exh. 5 at 46-49) which were
corroborated by Mr. Lopez\
(EB Exh. 4 at 5-6).

38. A Stipulation shows that a large number of programs were aired
    during\
    Mr. Ramirez's tenure at KALW that were responsive to needs,
    interests and concerns of the local community. (SFUSD Exh. 79.)
    However, the Bureau argues, and it appears from the record, that
    from 1992 to July 1997, SFUSD was seriously remiss in preparing
    quarterly lists of programming for inclusion in the Station's PIF.
    (EB Exh. 5 at 46 \[Hecht\]; EB Exh. 4 at 13 \[Lopez\].) Station
    programming was made available to the public through quarterly
    program guides distributed at local schools, public buildings, and
    other locations. (SFUSD Exh. T-6 at 1; SFUSD Exh. T-2 at 13; Tr.
    681.) Quarterly program guides are published quarterly and describe
    weekly program-ming and special features to be broadcast during
    specified three month periods. *HDO* at 5 n. 26. SFUSD suggests that
    its program guides, which were readily available to the listening
    public, serve as a legitimate proxy for program issues lists. There
    is no provision in the rules for proxy compliance.

39. Mr. Ramirez consulted NAB guidelines. (EB Exh. 11-A at 1-6 "Your
    Public File," copyright 1997, NAB, Washington, D.C.) (SFUSD Exh. T-1
    at 13.) The NAB guidelines warn that maintaining the PIF is "an
    important task," that FCC enforcement is "alive and well," and that
    there is a forfeiture policy for a \$10,000 fine on violations. The
    NAB's guidelines instruct that issues/ programs lists should be
    retained for eight years, that they should be placed in the PIF file
    by January 10, April 10, July 10 and October 10 of each year, and
    that each list should include the issues examined, the time, date
    and length of the program, the program title, the type of program,
    and the guests appearing on the program. (EB Exh. 11A at 2, 4.)\
    Mr. Ramirez should have realized before filing the renewal
    application that SFUSD had not followed NAB guidelines relating to
    issues/programs lists to be maintained in its PIF at the time SFUSD
    filed its renewal application in August 1997.

40. Mr. John Covell was producer of a popular program entitled "City
    Visions" covering local news, elections, and the city's economy.
    (Tr. 302-03.) Mr. Ramirez asked\
    Mr. Covell to prepare written materials for inclusion in the PIF
    prior to the submission of the renewal application. (Tr. 305.) Mr.
    Covell prepared a document providing a list of "City Visions"
    programs for the period 1992-1997. This "issues/ programs" list was
    placed in the PIF. (SFUSD Exh. T-1 at 14.) At the time the Station's
    renewal application was filed, Mr. Ramirez believed that Mr.
    Covell's list alone was sufficient to satisfy the PIF requirement.
    (SFUSD Exh. T-1 at 14.)

41. Mr. Ramirez learned after August 1, 1997, that the "City Visions"
    list was defective in that it did not specify the community issues
    addressed by each program, that it did not date back to the start of
    the license term in 1991, and that it was prepared just prior to the
    completion and filing of the renewal application and did not meet
    the quarterly filing requirement. (SFUSD Exh. T-1 at 14.) But there
    is no evidence linking Mr. Ramirez's certification on renewal with
    other program guides. The "City Visions" list is the sole program
    documentation that Mr. Ramirez relied upon for certification, and
    was his only basis for answering "Yes" to Question 2. (EB Exh. 6 at
    17-18; SFUSD Exh. T-1 at 14.) Reliance on the "City Visions" list as
    the basis for PIF certification is unacceptable, and Mr. Ramirez had
    no basis to rely on the incomplete "City Vision's" list. (EB Exh. 5
    at 70-72; Exh. "O" to petition to deny at 1-3.)

**Legal Advice on Renewal\
**

42. Mr. Ramirez had no experience in preparing a renewal application.
    (SFUSD Exh. T-1 at 9; Tr. 586.) In exercising good judgment, on May
    8, 1997, he contacted the Sanchez Law Firm which had served as
    communications counsel for SFUSD for 15 years. The firm consisted of
    Ernest T. Sanchez, Esquire and Susan M. Jenkins, Esquire, both
    experienced communications counsel ("Sanchez counsel or attorneys").
    The firm served as counsel for SFUSD from the 1980s continuing until
    withdrawal as counsel in September 2004. (SFUSD Exh. 22 at 2, 43.)

43. Mr. Ramirez claims to have relied on counsel for advice in
    completing the renewal application. (SFUSD Exh. T-1 at 13; EB Exh. 7
    at 12.) Mr. Sanchez had conversations with Mr. Ramirez at times
    between receipt of the renewal application materials on May 15,
    1997, and his filing of the renewal application on August 1, 1997.
    Mr. Ramirez spoke to Mr. Sanchez regarding renewal on at least four
    separate occasions prior to the submission of the application to
    SFUSD headquarters for the Superintendent's signature. (EB Exh. 7 at
    1-2, billing entries 2309, 1943, 2310 & 1956; Tr. 533-37.) Billing
    records introduced by the Bureau reflect four separate occasions
    before filing the renewal application that Mr. Ramirez spoke with
    Mr. Sanchez. (EB Exh. 7 entries 1943, 1956, 2309-10; Tr. 533.) When
    Mr. Ramirez completed the application, including his erroneous "Yes"
    certifications, he forwarded his draft to Mr. Sanchez for review one
    day before filing. (EB Exh. 7 at 2.)

44. But Mr. Ramirez cannot recall what he asked Mr. Sanchez. (SFUSD
    Exh.T-1 at 13; Tr. 362-64.) Mr. Ramirez also did not recall whether
    he told Mr. Sanchez what was in the station's PIF, what he planned
    to put in the PIF, or whether issues/programs lists had or had not
    previously been placed in the PIF. (Tr. 403-04.) Notwithstanding
    this inability to recall, billing records reflect that Mr. Sanchez
    had conversations with Mr. Ramirez between receipt of the renewal
    application and the filing of the renewal application. (EB Exh.
    7.)[^10] But the legal advice given is subject to privilege, and
    SFUSD has not offered to waive its privilege. In the final analysis,
    his inability to recall specific advice sought, requires rejecting
    Mr. Ramirez's claim that he relied on advice of counsel in answering
    "Yes" to Questions 1 and 2.

**Petition to Deny**

45. Golden Gate Public Radio ("GGPR") is a non-profit corporation.
    (SFUSD Exh. 22 at 35; EB Exh. 4 at 2.) GGPR's members were employees
    of Station KALW(FM), either full-time, or part-time, or volunteers.
    (SFUSD Exh. 4 at 48; SFUSD Exh. 22.) Mr. Dave Evans was Chief
    Engineer, Mr. Jason Lopez and Ms. Deirdre Kennedy were part-time
    announcers, and\
    Mr. Mel Baker began working at the Station in early 1996. (EB Exh. 4
    at 1; EB Exh. 44 at 123, 139.) Other announcers included Ms. Joann
    Mar, Mr. Joseph Hughes and Ms. Hedy Jacobitz. All these individuals
    are described by Mr. Ramirez as "disgruntled." (EB Exh. 6 at 14.)

46. Mr. Ramirez made unpopular programming changes and cut programs that
    had been popular with the Station's staff. (SFUSD Exh. T1 at 6-7.)
    He also implemented a new underwriting program for the Station to
    raise more grant money. (SFUSD Exh. T1 at 7.) Those changes were not
    favored by certain long-serving staff, and some became upset. (SFUSD
    Exh. T-1 at 8.) The goal of GGPR was to take over governance and
    management of the Station. Essentially, GGPR demanded that the
    School Board turn over operation of the Station. (SFUSD Exh. T1 at
    8; SFUSD Exh. 22 at 6; SFUSD Exh. 4 at 79-80.)

47. On October 1, 1977, counsel for GGPR sent to Mr. Sanchez a
    threatening list of justifications for a petition to deny, making
    clear that the petition could be avoided by agreeing\
    to allow GGPR to operate the Station. (SFUSD Exh. 4 at 79-80.) There
    was much at stake for SFUSD, and so Mr. Ramirez relied heavily on
    experienced counsel to make appropriate corrections and to provide
    acceptable explanations to the Commission. (SFUSD Exh. T-1 at 18.)

Billing records reflect that in October 1997, Mr. Ramirez prepared and
sent an "inventory of public file" to Mr. Sanchez, (EB Exh. 7 at 3; EB
Exh. 3 at 3), and also reflect contemporaneous discussions between Mr.
Ramirez and Sanchez attorneys. (EB Exh. 7 at 3.) On advice of counsel,
supplemental ownership reports were to be prepared that had been due to
be filed in 1993 and 1995, and as of December 1997, Mr. Ramirez "made
sure" that supplemental ownership reports were added to the PIF. (SFUSD
Exh. T-1 at 18.) But SFUSD failed to file corresponding supplemental
reports with the Commission (SFUSD Exh. 7), and the compliance quality
of the PIF remained in question.

48. On November 3, 1997, GGPR made good on its threat and filed its
    petition to deny renewal, alleging that supplemental ownership
    reports had not been timely prepared, filed, or included in the PIF,
    and that issues/programs lists had not been timely prepared
    since 1992. (EB Exh. 5.)[^11] GGPR further alleged that the
    Station's management knew that such documenta-tion had not been
    timely prepared, filed, or placed in the PIF, and that the licensee
    had falsely certified in its renewal application that all ownership
    reports and issues/ programs lists had been placed in the PIF in a
    timely manner. (EB Exh. 5 at 1-5.) These allegations were supported
    by affidavits from Dave Evans, Susen Hecht and Jason Lopez. (EB Exh.
    5 at 42-43.)

**Opposition to Petition to Deny**

49. SFUSD filed its opposition to GGPR's petition on January 20, 1998.
    (EB Exh. 6.) The truth and correctness of factual allegations in the
    opposition were certified to by\
    Mr. Ramirez as General Manager, and by Mr. Enrique Palacios, Special
    Assistant to the Superintendent who was an off-premises supervisor
    of Mr. Ramirez. (SFUSD Exh. 4 at 31, 45-46, 49-51.) (EB Exh. 6 at
    13-14 *et seq.*) The petition also contained allegations of
    violations of EEO rules that were not included in the *HDO.* Mr.
    Palacios was the primary source for rebutting those EEO allegations.
    Mr. Ramirez was primarily responsible for erroneous certifications
    concerning supplemental ownership reports and programming lists and
    the PIF.

50. SFUSD's opposition was a pleading prepared by counsel. The pleading
    argues that affidavits of Mr. Evans and Ms. Hecht are insufficient
    because they did not allege specific fact that "told" Mr. Ramirez
    "about what was in the files at the time he prepared the renewal
    application." (SFUSD Exh. 4 at 37.) That argument lacks conviction
    because it fails to mention the reasonable conclusion that Ms.
    Hecht's report showed that there were specific omissions of
    ownership reports and programming lists that should have been in the
    PIF. If Ms. Hecht had been wrong, the opposition would have alleged
    that Mr. Ramirez had searched the PIF and had found all or some of
    those missing items which would reduce or destroy Ms. Hecht's
    credibility. But counsel could not so allege because, as Ms. Hecht
    had reported and as corroborated by\
    Mr. Lopez, missing documents which she inventoried as missing
    actually were missing.

51. Mr. Ramirez rejected Ms. Hecht's work product and relied on his own
    judgment. (SFUSD Exh. T-1 at 12-13.) But he never pointed out any
    factual errors. Mr. Ramirez declared that when he certified to
    ownership and programming, he found the Hecht report to be
    "inaccurate and confused" without specifying any example, and that
    he did not "recall any prior conversation" with Mr. Evans. (EB Exh.
    6 at 17.) *Compare* the following evidence: The Hecht report was a
    spontaneous delineation of what was found in and missing from the
    PIF (EB Exh. 5 at 46-49). It was corroborated by Mr. Lopez's
    personal review of the PIF. (EB Exh. 4.) Both Ms. Hecht and Mr.
    Lopez specified documents found and the years of reports that were
    missing, thereby making their evidence reliable and credible.

52. On January 17, 1998, Mr. Ramirez signed a declaration in support of
    SFUSD's opposition, representing that he "believed" that he had
    "fully accounted for all public issues/programs during \[his\]
    tenure as "General Manager," and that he was mistaken but his was a
    "good faith" belief. (SFUSD Exh. 4 at 38, 50; Tr. 447.) He testified
    that he had meant to admit that he had certified "incorrectly," but
    that he was relying on legal advice. (Tr. 447, 450-51.) The
    declaration also represented that after talking with Mr. Evans in
    1996, Mr. Ramirez sought "to determine what was in the files" and
    "what was needed to make them complete," and that "review and update
    of the file has been and is an ongoing process." (SFUSD Exh. 4 at
    49-50.) On cross-examination, Mr. Ramirez at first hesitated but
    then answered:

> I did look at the file and I did pretty much see the same thing that I
> think Dave was trying to call to my attention and followed up on it in
> the way that I did.

(Tr. 452-53.) He admitted that he "might have wrote this differently."
But he testified that the declaration was a "good faith effort" to show
that "ultimately -- I looked at the file." (Tr. 454.) Mr. Ramirez
avoided answering whether there was an "ongoing process" for reviewing
the PIF, and he testified that he meant to say that he started reviewing
the PIF to bring it into compliance by the time the renewal application
was filed. (Tr. 455.) That testimony provides no additional explanation
and it does not alter his untrue declaration that there was an "ongoing
process" of file review and update.

53. On January 16, 1998, Mr. Sanchez filed a declaration which he
    prepared for\
    Mr. Helgeson in support of the opposition. (SFUSD Exh. 4 at 74-75.)
    Mr. Helgeson represented in paragraph 4 of his declaration:

> I am aware of and have assisted with, an ongoing affirmative effort
> since the arrival of Jeffrey Ramirez \-\-- to update and maintain the
> station's public information file \-\--.

Mr. Ramirez did not know whether that statement was accurate." (Tr.
476-77.) When asked about any assistance Mr. Helgeson provided, Mr.
Ramirez testified: "I'm not aware of any assistance that Bill
\[Helgeson\] provided me \-\--." (Tr. 476-77.) Mr. Ramirez was not aware
of\
Mr. Helgeson ever working independently on the PIF. (Tr. 483.)

54. On January 30, 1998, Mr. Helgeson sent a fax transmittal to Mr.
    Sanchez:

> Attached is list that Jeff, Ana and I used yesterday to "clean up"
> KALW's Public File. \-\--.

(EB Exh. 10.) Mr. Ramirez was asked whether he understood the reference
to "clean up" the PIF, and he testified: "No, I don't." (Tr. 484.) He
was asked whether new documents were being added to the PIF in January
1998, and he answered, "I don't remember." (Tr. 484.) This one page
document was fact-specific about a "cleanup-list" that if it existed
would have significance in corroborating Mr. Ramirez's account that he
had reviewed the PIF in connection with his completion of the renewal
application. His inability to recall a "list" that was sent to\
Mr. Sanchez leads to the conclusion that there never was such a "list."

55. Mr. Lopez rebutted both declarations, including with respect to the
    1993 and 1995 ownership reports that Mr. Sanchez had attached to the
    opposition. According to Mr. Lopez,\
    the 1993 report "was inaccurate" in representing that three of those
    listed were BOE members\
    in 1993. The 1995 report bore a date of December 10, 1997, and it
    was not in the PFI when\
    Mr. Lopez had inspected it in July 1997. (EB Exh. 4 at 3, 7.)
    Earlier Mr. Lopez affirmed that when he reviewed the PIF in July
    1997, he did not find any "Program Guides" or any "NPR programming."
    He did find a list consisting of pages 5, 6 and 7 for a program
    believed to be "City Visions," which he photocopied and returned to
    the PIF. (EB Exh. 4 at 3.) Mr. Lopez was never contradicted by a
    subsequent declaration or on his cross-examination. (Tr. 1199-1235.)
    In July 1997, he found that there were incomplete lists of
    issues/programming, and that there were no supplemental ownership
    reports showing changes in the BOE's membership following 1992 and
    1994 elections. Mr. Lopez also found that the PIF did not contain
    program guides or lists that were based on NPR programming. (EB Exh.
    4 at 3.)

**New General Manager**

56. In January 1998, Mr. Ramirez resigned and left the Station "to find
    alternative employment in a more positive environment." (SFUSD Exh.
    T-1 at 19; EB Exh. 40 at 4.) He regretted his "mistake" but he
    believes that he did his best to understand the PIF obligations, to
    answer renewal questions in "good faith," and to provide counsel
    with information needed to respond to GGPR's complaints. (SFUSD Exh.
    T-1 at 19.) Mr. Helgeson immediately became interim General Manager.
    (SFUSD Exh. T-2 at 10.)

57. In February 2001, SFUSD offered the position to Ms. Margaret Ann
    (Nicole) Sawaya. (Tr. 869-72.) She was hired and started as General
    Manager on March 1, 2001. On March 6, 2001, Mr. Sanchez obtained an
    extension to respond to the LOI to enable Ms. Sawaya to become
    involved in responding. (SFUSD Exh. T-3; EB Exh. 16.) Ms. Sawaya had
    held a former position as a general manager. (SFUSD Exh. T-3 at
    2-4.) She was an intern at KQED(FM), a public radio station in San
    Francisco where she worked for "several years" as producer and
    journalist. She was a "public affairs host" at KQED-TV, San
    Francisco. She was hired as Program Director at KZYX(FM) in Phito,
    CA and there she was promoted to Station Manager for her last six
    months. She became employed by NPR in Washington, D.C. where she
    worked for two years. She was hired by Pacifica Foundation Station
    KPFA(FM), Berkeley, CA, where she became General Manager. She
    supervised 28 employees and 25 volunteers. But all regulatory work
    was done at Pacifica headquarters. She worked at KPFA(FM) for
    eighteen months, and lost her position in a labor dispute. She was
    working as a media consultant for Pacifica News Service when she was
    contacted by Mr. Helgeson who knew her through NPR. Mr. Ramirez
    recommended her as a replacement General Manager at Station
    KALW(FM). She was hired without being told of the pending petition
    to deny renewal. (SFUSD Exh. T-3 at 2-4.)[^12]

**Letter of Inquiry**

58. On February 5, 2001, the Bureau issued a Letter of Inquiry ("LOI")
    requiring SFUSD to provide information concerning allegations of
    GGPR's petition to deny (EB Exh. 13). The Bureau also delayed action
    on the renewal application to allow time for SFUSD to reply. (*Id.*)
    The LOI posed questions on whether at the time the renewal
    application was filed, the\
    PIF contained supplemental ownership reports and quarterly
    issues/programs lists. (EB Exh. 13 at 1-3.)

59. On March 8, 2001, Ms. Sawaya sent her first memo to Mr. Sanchez: "I
    really\
    hope we can put this license challenge to bed very soon...." (EB
    Exh. 20.) In a second memo\
    on March 8, 2001, Ms. Sawaya recommended "No's" in responding to the
    LOI questions.\
    (Tr. 1338; SFUSD Exh. 21.)

**LOI question 1 asked:**

> On August 1, 1997, when the subject license renewal application was
> filed, did the KALW(FM) public inspection file contain all of the
> ownership and supplemental ownership reports required to be kept in
> the file by Section 73.3527?
>
> a\) If the answer is "no," detail any omission or deficiency. If the
> answer is "yes," please include a copy of each such report with the
> response to this inquiry letter.

(EB Exh. 13 at 2.)

**Sawaya response:**

> 1\) **No**. Missing was: ownership report January 31, 1993 -- was\
> put in file December 10, 1997. Missing was ownership report January
> 31, 1995 -- was put in file December 10, 1997. (see enclosed copies)
> ....

(EB Exh. 21; Tr. 1339-41.)

**LOI question 2 asked:**

> On August 1, 1997, did the KALW(FM) public inspection file contain all
> of the issues/programs lists required by Section 73.3527? Did any
> lists that were in the file contain the information required by
> Section 73.3527?
>
> a\) If the answer is "no" to either inquiry, detail any omission or
> deficiency. If the answer is "yes," include a copy of each
> issues/programs list with the response to this letter.
>
> (EB Exh. 13, p. 2.)

**Sawaya response:**

> 1\) **No**. The premises of KALW, \[FM\] were almost entirely
> destroyed during the Loma Prieta earthquake in the Fall of 1989 in San
> Francisco. Until the beginning of 1997, when KALW moved to its current
> location (Philip & Sala Burton High School), the station was moved
> several times to temporary facilities. During this period, KALW was
> operating out of a variety of abandoned school gyms. Many day-to-day
> operations did not happen during this period, and the record-keeping
> ability of the station was severely hampered by the constant changing
> of locations. Most files and paperwork were kept in boxes, some of
> which were lost as moves kept occurring. Unfortunately, the public
> file of issues/ programs was susceptible to the physical chaos at the
> station.

(EB Exh. 21.)

> **LOI question 4 asked:**
>
> If the answer to any of the above questions is "no," detail when and
> precisely what steps were instituted to correct any problems and
> ensure that the public inspection file contained all requisite
> materials?
>
> (EB Exh. 13 at 2.)

**Sawaya response:\
**

> KALW did ownership reports for 1993 & 1995, and we have brought all
> ownership reports up to date, with the most recent being January 31,
> 2001. KALW's reports were spottily corrected during the late 1990's.
> However, all reports were corrected in the Fall of 1997 when matters
> came to the attention of then general manager, Jeff Ramirez.[^13]

(EB Exh. 21.)

> **LOI question 5 asked:**
>
> As of the date of this letter \[February 5, 2001\], is the KALW(FM)
> public inspection file now complete?
>
> a\) If the answer to any of the questions 1-3 above is "no" and
> presuming that the public inspection file is now complete and current,
> give the date on which the KALW(FM) public inspection file contained
> all required materials.
>
> (EB Exh. 21.)

**Sawaya response:**

> Ownership reports are now completed and current. Donor support for
> specific programs is non-applicable. Issues and program listings are
> current, and back listings are in the process of being completed to
> the best of our ability.

(EB Exh. 21.) (SFUSD Exh. T-3 at 8.) This is an admission that there
still were incomplete issues/programs lists, and that the lists were
being updated.

60. Ms. Sawaya transmitted her March 8 memos to Mr. Sanchez. (EB Exhs.
    13, 21; Tr. 1367.) On April 5, 2001, counsel represented to the
    Commission that "present General Manager and Operations Manager of
    KALW(FM) \[Ms. Sawaya and Mr. Helgeson\] have completely reviewed
    KALW's public inspection file and made sure that it contains all
    required documents, reports and information through to the present."
    (EB Exh. 34 at 8.) There is not sufficient evidence in the record
    proving that there was such a complete review of the PIF, or that on
    April 5, 2001, it contained "all required documents." SFUSD's
    response to the LOI is inconclusive in these respects.

61. Ms. Sawaya "determined rather quickly" that the PIF was not properly
    maintained, "a fact that she reported to the Sanchez Law Firm." The
    Bureau concludes that she "accurately reported" to Mr. Sanchez that
    Mr. Ramirez prepared supplemental ownership reports after the August
    1997 filing and that he placed reports in the PIF in December 1997.
    She also "accurately reported" to Mr. Sanchez that issues/ programs
    lists were in the process of being completed. By March 26, Ms.
    Sawaya believed the "public file is now in excellent order including
    past years in question" and communicated that to Mr. Sanchez. (SFUSD
    Exh. 19.)\
    By April 3, Ms. Sawaya sent Mr. Sanchez documents related to the
    license challenge. (SFUSD Exh. 20.) On April 3, Mr. Helgeson sent an
    e-mail to Ms. Sawaya, Mr. Campos, and\
    Ms. Wright, advising them that he had had a one-hour conversation
    with Mr. Sanchez and\
    Ms. Jenkins specifying "what documents were (or should be) in KALW's
    public file ... ownership reports, quarterly issue reports and donor
    lists." (EB Exh. 27.) These events show that Ms. Sawaya acted
    reasonably and responsibly in attempting to provide Mr. Sanchez with
    the current status of the PIF.

62. Mr. Helgeson declared that Mr. Sanchez had provided him with a copy
    of the final response, that he had reviewed it, and that he had
    personal knowledge of the facts therein. (EB Exh. 34.) Mr. Helgeson
    was relying on counsel who prepared the response and drafted his
    declaration. Both the letter and the declaration bore a date of
    April 5, 2001. Mr. Helgeson could not have meaningfully reviewed the
    final LOI response that was still being edited on April 5. Mr.
    Helgeson could not have personal knowledge of all facts asserted in
    the response, and he did not have personal knowledge of the PIF's
    contents as of August 1, 1997. Therefore, he did not have a factual
    basis for affirming or ratifying Mr. Ramirez's input on SFUSD's
    erroneous certification. He merely assumed that Mr. Ramirez was
    accurate and truthful. And he was not in control of counsel's
    strategy in replying to the LOI.

**SFUSD's Financial Condition**

63. The Station receives no direct financial support from the District.
    The District provides in-kind contributions of office, production
    and broadcasting space, and administrative support. (SFUSD Exh. 78-C
    at 11.) The Bureau concedes that the District would be the "source
    for paying forfeitures." (Tr. 644.)

64. The operating budget of the Station is funded almost entirely by
    contributions from more than 13,000 members along with grants
    received from groups such as the Corporation for Public
    Broadcasting. Mr. Helgeson indicated in testimony that the Station
    had a "pretty good year" with its contributions. (Tr. 645.) The
    Station's budget for fiscal year 2003-2004 was approximately \$1.5
    million dollars, slightly more than in fiscal year 1996-1997. (SFUSD
    Exh. 78-C at 6; SFUSD Exh. 2 at 14.) It is concluded that SFUSD, as
    licensee, would be responsible for paying any forfeiture. (Tr. 644.)

65. The District's Annual Financial Report dated June 30, 2004
    ("Financial Report") noted patterns of deficit spending during the
    2003-04 fiscal year that resulted in a deficit in available reserves
    in an amount of \$6.9 million.  (SFUSD Exh. 78-A at 64.) The
    Financial Report identifies causes of the deficit as reduced State
    revenues, costs of fringe benefits, declining school enrollment
    which caused a reduction in funding, and an increase in the number
    of charter schools which cost more to run than the school revenues
    that the District receives. (*Id*. at 64-65.) The Financial Report
    urges the District to reverse its deficit spending, and warns that
    without new sources of revenue, significant spending cuts will be
    necessary. (*Id.*) The Report concludes that District management
    concurs with the recommendation to achieve expenditure reductions,
    and that the District is investigating and/or implementing hiring
    freezes, reductions in central office staff, furloughs, reductions
    in all discretionary budgets, and decreases in special education and
    child development programs.[^14]

66. SFUSD's "Budget Outlook" reports that the District's deficit for
    Fiscal Year 2004-2005 is expected to be \$4.9 million and that the
    District's deficit for Fiscal Year 2005-2006 is expected to be
    \$22.3 million, unless cost saving measures are implemented. (SFUSD
    Exh. 78-B.) Mr. Lopez observed in his testimony that the District
    had closed several schools in the city in an effort to narrow the
    budget shortfall. (Tr.1232.) Mr. Ramirez testified that the Station
    was never "living from paycheck to paycheck," and "there was never a
    budget crisis that I can remember ever having." (Tr. 317.) The
    evidence on financial condition that was provided by SFUSD, does not
    establish that SFUSD cannot pay a forfeiture of a reasonable amount.

**CREDIBILITY ANALYSIS**

67. The controlling issue of intent to deceive, or gross indifference
    for the truth that is tantamount to intent, is grounded in an
    admittedly erroneous "Yes" certification to completeness of the
    Station's PIF. That admittedly untruthful certification, recklessly
    solicited of SFUSD's\
    top manager by Mr. Ramirez, will be considered in the context of
    declarations in support of SFUSD's opposition to a petition to deny,
    declarations in support of its counsel's response to the LOI, and
    related depositions, hearing testimony, and cross-examination.

**Ownership**

68. Question 1(b) asked if the applicant's ownership report was filed
    with the Commission. The word "Ownership Report" is in the singular.
    The regulation then in affect required noncommercial stations to
    file an "Ownership Report" at the time the application for renewal
    is filed. A literal reading of the question could have caused Mr.
    Ramirez to believe there was good faith compliance by filing a
    current ownership report. The question and answer are of lesser
    significance because the same question of ownership is also
    addressed in the question on completeness of the PIF. Finally, the
    policy requiring supplemental ownership reports became moot, which
    renders the lack of supplemental ownership reporting a *de minimis*
    shortfall. SFUSD has met its burden of proof with respect to
    mistakenly answering "Yes" as to ownership reporting, and there are
    no adverse credibility findings to be made with respect to Question
    1.

**Public Information File**

69. SFUSD relies on advise of counsel in defense of its certification
    that the licensee had the required documentation in the PIF at
    appropriate times. But there is no evidence as to what advice, if
    any, counsel provided to Mr. Ramirez, and SFUSD never proffered any
    evidence that shows when or whether Mr. Sanchez had actual knowledge
    of the contents of the PIF. It was when counsel relied on Mr.
    Ramirez to answer the petition to deny through his 1998 declaration
    that Mr. Ramirez reportedly sent counsel an inventory of the PIF, as
    shown by billing records. (EB Exh. 7 at 3.) Yet there was no written
    "inventory" offered in evidence, and the only "inventory" was the
    Hecht report.

70. Mr. Ramirez answered Question 2 about the Station's PIF with an
    erroneous "Yes." Before answering he asked Ms. Hecht for help in
    reviewing the PIF, but he has no recollection of instructions.
    (SFUSD Exh. T-1 at 12.) What follows is baffling. Mr. Helgeson
    recalls that "she \[Ms. Hecht\] was assisting Jeff \[Ramirez\] in
    regards to the renewal documenta-tion that needed to be done and the
    forms that needed to be filled." (Tr. 675.) Mr. Ramirez testified
    that Ms. Hecht reviewed the PIF and then prepared what would be
    useful for certification in the form of an inventory of the file's
    deficiencies. Mr. Ramirez looked at the information with editorial
    criticism, testifying that he had found Ms. Hecht's document to not
    "look like professional, reliable work," but failing to point out
    any factual inaccuracy. (SFUSD Exh. T-1 at 12.)[^15] Ms. Hecht
    provided a current inventory or accounting of the PIF that revealed
    the most recent supplemental ownership report to be dated 1991, and
    the last complete issues/ programs lists to have been prepared
    in 1992. Ms. Hecht's report clearly had flagged the problem. (EB
    Exh. 44 at 79-80; 87-89.)

**Ignoring Information**

71. When he first arrived at the Station, Mr. Ramirez was told by Mr.
    Evans about deficiencies. He was again warned by the Hecht report
    about deficiencies. Ms. Hecht did what she was asked to do albeit in
    a more complete format than requested. Mr. Ramirez had given her a
    task without instruction, and then forthwith rejected her efforts.
    Instead, he conducted and relied upon his own review of the PIF. Yet
    he could not testify to specifics about the PIF he claims to have
    examined. It cannot be concluded on this record that Mr. Ramirez
    learned more on his own about the PIF's deficiencies than did Ms.
    Hecht, a disinterested volunteer who he told to look into the
    condition of the PIF, who did so, and who had the good sense to
    write down a list of observed deficiencies. His own review was
    comparatively less adequate, and he admittedly erred in causing
    SFUSD to certify to a complete PIF.

72. In one instance of poor recollection, Mr. Ramirez was asked who had
    told him that reports were needed for BOE election results in '92
    and '94 elections. He answered:\
    "I don't remember \-\-- \[but\] I can think through how I think I
    came to that decision." (Tr. 442.) A list of delicts regarding
    renewal prepared by GGPR's attorney was given to Mr. Ramirez, and as
    he testified:

> \-\-- the list would have drawn my attention to the fact that the
> certification I made with respect to the ownership report was not
> accurate. So I think that would have then caused me to undertake \-\--
> to create the ownership reports for 1993 and 1995.

(Tr. 443.) Soon after October 4, he drafted '93 and '95 reports and sent
them to the Superintendent's office for signature where they apparently
languished for two months. (Tr. 444; SFUSD Exh. T-1 at 18.) While he
does admit in testimony to preparing these missing reports, his memory
of the operative facts was "a very vague memory." (Tr. 445.) As was
frequently the case, when shown a billing reference to refresh
recollection of a conference with Mr. Sanchez, Mr. Ramirez reminded
Bureau counsel: "There's a lot that I don't remember. I don't know why."
(Tr. 446.)

**Issues/Programs Lists**

73. Mr. Ramirez was unclear and unconvincing in his contention that he
    relied in good faith on only an incomplete "City Visions" list.[^16]
    There was additional important programming. "AIDS Update" was a
    weekly show involving a significant local public health issue. (Tr.
    293.) Arts and culture are an important part of the San Francisco
    community, and "Open Air" features fine arts interviews with local
    authors and artists. (Tr. 296.) Mr. Ramirez recalls generally asking
    producers, which would include producers of "AIDS Update" and "Open
    Air," to provide similar lists of issues and programming for the
    renewal application. (Tr. 393.) However, his recollection was faulty
    (Tr. 297), and there is no credible evidence of "AIDS Update" or
    "Open Air" programming being referenced in the PFI in 1997. (SFUSD
    Exh. T-1\
    at 14.)

74. Mr. Ramirez failed to testify to particulars about what he had found
    present or missing from the PIF, repeatedly claiming that he could
    not remember specifics. By contrast, credible evidence of Ms. Hecht
    and credible testimony of Mr. Lopez identified specific reports
    which were missing and specifically noted the incomplete "Exhibit
    O." There were no allegations and no proof was offered that Ms.
    Hecht or Mr. Lopez had fabricated testimony, or that their
    conclusions were factually wrong. But Mr. Ramirez was grossly and
    recklessly negligent in misrepresenting to the Superintendent that
    the PIF was in compliance with Commission regulations, which caused
    SFUSD to erroneously certify by Superintendent's signature on the
    renewal application. (EB Exh. 5 at 25-28.)

**Repeated Inabilities to Remember**

75. Mr. Ramirez repeatedly forgot what he would be expected to remember.
    He represented in written testimony attested to on May 2, 2005:

> I do generally recall asking various producers to put together lists
> of programs that demonstrated the Station's treatment of community
> issues prior to submitting the Renewal Application.

(SFUSD T-1 at 14.) In cross-examination, Mr. Ramirez was asked if he had
looked in the PIF to determine "whether or not any such material made it
into the file," to which he answered, "I don't remember if I did that."
(Tr. 393.) Mr. Ramirez then was asked about specific producers who were
responsible for important programming. Mr. Alan Farley produced "Open
Air" dealing with local fine arts and culture, yet Mr. Ramirez could not
recall asking him to prepare material for the PIF. (Tr. 291-93, 297.)
Mr. Ramirez recalled a program called "Commonwealth Club of California"
but he did not remember the producer's name, Mr. Ricardo Esway. (Tr.
305.) He recalled Mr. Martin Nemko, producer of "Work With Marty Nemko"
which dealt with careers and related training. When asked if he recalled
asking Mr. Nemko to prepare material for inclusion in the PIF, Mr.
Ramirez answered "I don't remember." (Tr. 306-309.) He then was asked
about Mr. Chuck Finney, producer of a program called "Your Legal
Rights." He was asked whether he recalled asking Mr. Finney to create a
document for inclusion in the PIF. He answered, "No, I don't remember
that." (Tr. 309-312.)

76. Overall testimony shows -- and perhaps dictates -- that when it came
    to certification of PIF completeness in 1997, Mr. Ramirez was
    prepared to rely on the incomplete list of "City Vision" programming
    while knowing full well that there were no other lists of
    issues/programs in the PIF when he certified an unconditional "Yes."
    When pressed on individual producers' names, he fell back on
    repetitive responses of "I don't remember." His representation in
    testimony that "I believed that the "City Visions" list alone was
    sufficient to satisfy the issues/ programs list requirements for my
    tenure at the Station" was at best an irresponsible rationalization
    with no foundation in fact, and Mr. Ramirez knew that to be the
    case. (SFUSD T-1 at 14.) Here, despite repeated denials of memory,
    Mr. Ramirez was lacking in candor in his testimony presented in 2005
    when he was on notice of relevant facts. In considering the totality
    of his testimony, it is impossible to credit Mr. Ramirez with
    credibility as a witness.

**1998 Opposition to Petition to Deny**

77. SFUSD's attorneys relied on Mr. Ramirez's declaration of January
    1998, and on Mr. Helgeson's companion declaration, both of which the
    attorneys prepared, and both of which claimed that they undertook
    efforts to maintain the PIF, but both failing to state specifics.
    Rationalizations as to good faith innocence that are insufficiently
    tied to facts are speculative, and therefore are not to be believed.
    But SFUSD's opposition papers, including the Ramirez and Helgeson
    declarations, were prepared and advocated by counsel, and SFUSD
    followed its counsel's legal advice. It would be unreasonable for
    Mr. Ramirez and Mr. Helgeson to reject counsel's advice when that
    could have delayed the filing of an opposition, or otherwise might
    have prejudiced SFUSD's pleading cycle.

78. On January 30, 1998, Mr. Helgeson reported to Mr. Sanchez about a
    "clean up" of the PIF. (Tr. 831-859.) Until then, he had only
    assisted Mr. Ramirez in "cleaning up" the PIF, having little
    knowledge of the PIF. Mr. Ramirez testified at hearing that he knew
    nothing about\
    Mr. Helgeson working on the PIF. Mr. Helgeson's declaration of
    January 16, 1998, lacks specificity and does not support a
    conclusion that he had sought to determine "what was in the files,"
    or that there was an "ongoing process" of review and update of the
    PIF. To the contrary, he never meant to represent in his declaration
    that he was "responsible for maintaining" the PIF, and he had never
    been responsible "for keeping the PIF up-to-date." (SFUSD Exh. T-2
    at 9.) Because of counsel's involvement in preparing the
    declaration, Mr. Helgeson's questionable and

misleading declaration does not establish that Mr. Helgeson had
intentionally misrepresented to the Commission. Mr. Helgeson's
credibility is assessed further below in connection with responding to
the LOI.

**2001 Reply to Letter of Inquiry**

79. Ms. Sawaya became concerned with a timely response to the LOI while
    maintaining a detachment from substance. (EB Exh. 23.) She never
    submitted a supporting declaration. On March 26, 2001, she inquired
    of Mr. Sanchez whether the "reply to the FCC ha\[d\] been written."
    (SFUSD Exh. 19.) Her prompting e-mails were copied to Ms. Jackie
    Wright, Executive Director, Office of Public Engagement, her
    "immediate boss" at SFUSD, and to Mr. David Campos, a Deputy City
    Attorney embedded at SFUSD. (EB Exhs. 22, 23, 49.) Most of the work
    of the Sanchez attorneys on the letter's preparation occurred just
    before submitting the response when on April 2 and 3, Ms. Jenkins
    billed 17 hours. (EB Exh. 35.)

80. There was one significant exception to Ms. Sawaya distancing herself
    from the LOI response. In a candid March 8 memo to counsel, she
    wrote "No" to the LOI's question about whether the PIF contained all
    required supplemental ownership reports and issues/programs lists on
    August 1, 1997. In the same memo, Ms. Sawaya advised Mr. Sanchez
    that Mr. Ramirez prepared supplemental ownership reports for 1993
    and 1995, after the renewal application had been filed, but that
    these reports had not been placed in the PIF until December 1997.
    (EB Exh. 21.) Ms. Sawaya concluded that the PIF had not been
    maintained as required, and reported that to counsel. Then Ms.
    Sawaya sent Mr. Sanchez copies of these two ownership reports, plus
    three others that were overdue. Ms. Sawaya was the first manager at
    SFUSD to try to come to grips with specific facts as they existed in
    July-August 1997, and to report them to counsel.

81. Counsel's final letter of April 5, 2001, stated that Station
    management had a "belief" that its PIF as of August 1, 1997,
    "contained all of the issues/program lists for the entire period in
    question." (EB Exh. 34 at 3.) After attorney-client dialogue between
    Mr. Sanchez\
    and Ms. Sawaya and others, the LOI was answered as Sanchez counsel
    had drafted it. Inexplicably, Mr. Sanchez rejected Ms. Sawaya's
    candid "No" answer. There is no evidence to show that Ms. Sawaya was
    factually in error in recommending "No" responses. Mr. Sanchez
    shifted the response to mitigation, emphasizing sequential location
    changes of Station premises causing disruption of PIF maintenance.
    Counsel also tied the reply letter to a good faith "belief" that on
    August 1, 1997, all required supplemental ownership reports were in
    the PIF.

82. Mr. Helgeson was asked whether he had seen counsel's letter before
    it was sent on April 5, and he testified that "I do not have any
    recollection of having seen this letter before it was sent in, given
    the date of April 5^th^." (Tr. 1072.) Counsel had taken control of
    the LOI response, and it would not be expected that there would be
    any objection from Ms. Sawaya, or from any other Station employee.
    The contents of counsel's letter cannot be accepted as a reliable
    reconstruction of decisional facts, and the "Yes" answers were
    misleading. But no intention to deceive is apparent in counsel's
    letter.

**Depositions and Testimony**

**William Helgeson**

83. Mr. Helgeson was asked on cross-examination about his intent in his
    1998 declaration. (Tr. 804-14.) When the Presiding Judge intervened,
    Mr. Helgeson conceded\
    that, contrary to the assertion in his declaration, he (Mr.
    Helgeson) did not have knowledge of what the rules required. (Tr.
    824-25; 831-42 \[discussing EB Ex. 10\].) And even though
    contemporaneous e-mails reflected that Mr. Helgeson was supposed to
    have helped answer\
    the LOI's questions, he repeatedly insisted that his role was only
    to bring the PIF up-to-date, notwithstanding that he was the only
    SFUSD employee to verify SFUSD's assertions in the final LOI
    response. (Tr. 921-22, 942, 1096-97.)

84. Bureau Exhibit 10 (EB Exh. 10) is a one sheet hand-written message
    to\
    Mr. Sanchez which Mr. Helgeson identified as his handwriting. (Tr.
    831.) It shows a date of January 30, 1998, and states:

> Attached is list that Jeff, Ana & I used yesterday to "clean up"
> KALW's Public File.

Mr. Helgeson testified that now he is "not sure what list it refers to
particularly." He went on to testify "I'm not sure what I meant at this
time \[and\] I can't remember what or why I put the words 'clean up' in
quotes, either." (Tr. 832.) He testified further: \[W\]e felt that we
needed some list because I certainly didn't know what should and
shouldn't be in a public file \-\-- I just assumed there was some
printed list." (Tr. 833.) He continues: "I'm not sure \-\-- like I say I
don't know what clean up was then." (Tr. 834.) When asked if the public
file had been reorganized, he answered "I don't know if we reorganized"
and did not "recall us taking an inventory." (Tr. 835-36.) Mr. Helgeson
showed an inability to recall what he should have known concerning the
state of the Station's PIF in January 1998. Disarray in testimony with
regard to his declaration and the PIF when he assumed the General
Manager's position in 1998, seems mainly attributable to his ignorance
of regulations, his loyalty to Mr. Ramirez, and recently to his
disability.[^17] It could not be determined from his misdemeanor whether
he was being untruthful, and he receives the benefit of the doubt.

85. Mr. Helgeson testified at hearing that he had no intent of attesting
    to the PIF's contents in August 1997, but only intended to state
    what was in the PIF in April 2001. His declaration of 2001 was to
    support the LOI response, and he candidly testified that his
    certifica-tion as to the truth of the entire contents of the reply
    was not "accurate." (Tr. 1112.) He had misguided faith in Mr.
    Ramirez knowing Commission rules, and in believing that Mr. Ramirez
    would have acted in accord with the rules. (Tr. 824-825.) None of
    what Mr. Helgeson believed was based on fact, and none of it proved
    to be true. However, Mr. Helgeson's reliance on counsel, his naiveté
    regarding Mr. Ramirez's ability and trustworthiness, and his candid
    admission, negate any focused intent to deceive the Commission.

**Nicole Sawaya**

86. On September 28, 2004, the Bureau deposed Ms. Sawaya. Her deposition
    testimony was convoluted with inabilities to remember and
    re-directing of questions. (SFUSD Exh. 18 at 371, 391.) To
    illustrate, when asked whether she had seen the LOI, she responded:

> My guess is, and this is only a guess, that I have not or that I did
> not, but quite frankly, sir, I really don't remember.

(SFUSD Exh. 18 at 368.) Such testimony of unfamiliarity with the LOI is
facially inconsistent with her hearing testimony. She acknowledged
drafting memos on March 8, 2001, and testified at the hearing that she
had used the LOI as a guide in formulating the substantive responses in
her memos. (Tr. 1365.) Ms. Sawaya and Mr. Helgeson collaborated in
making the 1999, 2000, and 2001 ownership reports current, and these she
mailed to Mr. Sanchez. (Tr. 1346.) She was involved in a meaningful way
in completing incomplete files of the Station. (Tr. 1361.) (SFUSD Exh.
18, *passim.*) When asked whether she had been asked to respond to the
LOI's first question, she answered "No." (*Id.* at 368-69.) She was
asked whether she knew if anyone was asked to respond to that question,
and she answered "I don't know." (*Id.*) Identical responses were given
for remaining questions in the LOI. (*Id.* at 369-70.) She had seen a
final reply in draft form, but could not remember providing any
information or comments. (*Id.* at 370-71.) Ms. Sawaya "didn't want to
come to any quick judgments, especially given the fact that some people
were still at the station that was involved in this." She had not even
looked at the PIF until "my second week there \[at the station\], \-\--
. (SFUSD Exh. 18 at 367-76.) She concluded that by mid-March the PIF
appeared to her to be in good order. (SFUSD Exh. 18 at 375-76.) Ms.
Sawaya lacked candor in denying having any recollection about the LOI.
But her denial is not found to be disqualifying for SFUSD because it is
obviously not true so that no one would be misled, and she had no
discernable motive to lie on the merits.

87. Ms. Sawaya prepared for her deposition by reading GGPR's petition to
    deny and the *HDO*. (SFUSD Exh. T-3 at 9.) Both documents discuss in
    detail what was, or what was not, in the PIF at various times. For
    context *see HDO* Paras. 9-11. But she testified that she only
    expected to be "asked to discuss what the Station was doing on the
    programming front and its fiscal situation and \[her\] role in
    bringing it to its current status." (SFUSD Exh. T-3 at 9.) Yet in an
    e-mail sent two months earlier, Ms. Sawaya stated that she
    understood the *HDO* and that "the issue at hand is FCC regulations
    around what must be in a station's public file, not whether we
    'think' our programming is public service or not." (EB Exh. 57.)
    This e-mail shows that\
    Ms. Sawaya understood the focus of her deposition would be issues of
    the *HDO*. Certainly, in advance of her deposition with qualified
    counsel at her side, she must have known that she would be asked
    serious and penetrating questions about *HDO* allegations. Her
    testimony that she expected to testify only about programming was
    misleading. But it should not be attributable to SFUSD for
    disqualification because it is *de minimis*, and there is no clear
    motive to deceive.

88. Ms. Sawaya asserted that she had memory loss because she "had not
    seen \[her\] March 8 memo in over three and a half years," that she
    "wasn't asked about the memo at the deposition," and that she "was
    not told of the document until some time afterwards." (SFUSD Exh.
    T-3 at 9.) Ms. Sawaya asserted that she did not retain a hard copy
    of her March 8 memo because "it is not my practice to print paper
    copies of electronic documents and place them in a file." (SFUSD
    Exh. T-3 at 10.) Ms. Sawaya then admitted that her March 8 memo was
    stored in her computer in a directory styled "MyDocs," which she
    claims she did not access due to a technician's glitch (SFUSD Exh.
    T-3 at 10.) It is difficult to accept her explanation about
    forgotten March 8 memos which were important evidence. It also is
    difficult to accept that she would keep an "Ernie file" that omitted
    to include her March 8 memos. But as unreliable as is this
    testimony, it does not prove an intentional lack of candor with
    respect to her testimony on substantive issues.[^18]

89. There is a lack of proof of any intentional and knowing concealment
    on\
    Ms. Sawaya's part of prior misrepresentations in connection with
    certification of the PIF. There is insufficient evidence to conclude
    that Ms. Sawaya attempted through a knowing deception to convince
    the Commission that in August 1997, the station had maintained its
    PIF in accordance with Commission rules. Ms. Sawaya was concerned
    about showing superiors at SFUSD that she was pressing counsel on
    whether a "reply to the FCC ha\[d\] been written." (SFUSD Exh. 19.)
    Her deposition testimony does not support a conclusion that she
    intended to mislead. She had no motive to deceive the Commission,
    she never executed a declaration, and her candor in March 2001
    offsets failures at deposition to recall details, and any
    misstatements in deposition are not decisionally significant.

**CONCLUSIONS OF LAW**

**General Considerations**

90. The Commission's policy on ownership responsibility is applicable in
    assessing responsibility of SFUSD for the actions of the Station's
    management. The Commission has a policy that "\[a\] corporation must
    be responsible for the FCC -- related misconduct \-\-- of its
    employees in the course of their broadcast employment." *Character
    Policy Statement*, 102 FCC 2d 11179, 1218 (1986). SFUSD has
    vicarious responsibility for Mr. Ramirez's conduct under this
    policy. The policy also provides that "mitigating factors must be
    considered." *Id.*

91. The Commission's policy on renewal where there has been wrongdoing
    concludes that "a range of sanctions short of revocation or failure
    to renew a license can be imposed by the Commission." (*Id.*) It is
    concluded that gross negligence, vicariously attributable to SFUSD
    under principles of *respondent superior*, does not automatically
    result in denial of license renewal. The evidence and applicable
    case law establish that Mr. Ramirez causing "Yes" certification by
    SFUSD as to condition of the PIF and his lack of candor in
    testimony, are serious. But it is concluded that these are isolated
    violations and are not likely to reoccur. Furthermore, the fact that
    Mr. Ramirez has left the Station, coupled with the adoption of a
    compliance policy and retention of new counsel, constitutes reliable
    evidence that the Station may continue to be operated by SFUSD in
    the public interest.

**Legal Considerations**

92. Section 309(k) of the Communications Act provides that if upon
    consideration of a renewal application and related record, the
    Commission finds 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 violations that, taken together, show a
    pattern of abuse, the Commission will grant the renewal application.
    But if after hearing the licensee fails to meet the standard, the
    Commission still may grant the application "on terms and conditions
    that are appropriate, including a renewal for a term less than the
    maximum otherwise permitted." 47 U.S.C. §§ 309(k)(2), 209(k)(3). The
    questions for remedial decision are whether the evidence proves
    "serious violations" and if so, whether the renewal application
    should be denied, or granted for a term shorter than eight years. 47
    C.F.R.\
    § 73.1020.

93. SFUSD had to truthfully and accurately check off "No" to Questions 1
    and 2.\
    47 USC § 312(a). Instead, SFUSD unwittingly boxed itself into a very
    close call for license renewal, a box built by Mr. Ramirez's
    unwitting choice to rationalize wrong answers to simple questions
    that could have been rectified, but were not rectified until
    issuance of the *HDO*.[^19] To make matters worse, it was after the
    erroneous "Yes" certifications were announced by GGPR that Mr.
    Ramirez dissembled. Thus, there were three scenarios involving
    disqualifying misrepre-sentations or lack of candor: first, the
    "Yes" certifications on August 1, 1997; second, the opposition to
    the petition to deny on January 20, 1998; and third the response to
    LOI filed on April 5, 2001. In each scenario, SFUSD represented that
    the Ramirez certifications of August 1, 1997, were correct. In any
    one of these three scenarios -- or all -- SFUSD had the opportunity
    to reflect, research, answer correctly, and perhaps avoid this
    hearing. SFUSD and its Station management failed all three times to
    get it right.

**Misrepresentation and Candor**

94. In order for there to be a disqualifying certification, it must be
    shown that there\
    is a misrepresentation or lack of candor in connection with an
    application. *In re Application LUJ, Inc.,* 17 FCC Rcd 16980, 16982
    (2002); *In the Matter of Certification of Financial Qualifications
    by Applicants for Broadcast Station Construction Permits,* 2 FCC
    Rcd. 2122 (1987). Misrepresentation and lack of candor differ as
    legal concepts only in that misrepresenta-tion involves false
    statements of fact, while an absence of candor involves concealment,
    evasion, and failures to be fully informative. *Fox River
    Broadcasting, Inc.,* Order, 93 FCC 2d 127, 129 (1983). Both
    misrepresentation and lack of candor can be disqualifying.

95. Substantial evidence of an intent to deceive is required to support
    a finding of misrepresentation. *See LUJ, Inc.*, 17 FCC Rcd 16980,
    17982 (2002) (certifications in assignment application were not
    false where Commission was not deprived of dispositive information,
    there was no motive that inferred an intent to deceive, and there
    was no direct evidence of such an intent). *See Liberty Productions
    Ltd. P'ship*, 16 FCC Rcd 12061, 12083-93 (2001). In *Liberty
    Productions,* there was an issue of misrepresentation/lack of candor
    based on a site availability certification, a more narrowly focused
    inquiry than here, and the Commission did not find substantial
    evidence of an intent to deceive. The Commission would not rely on
    conflicting deposition testimony showing that a witness had "no
    clear memory" of conversations occurring years before hearing
    testimony. *Id.* at 12092-93. Commission decisions require a showing
    of substantial evidence of intent to deceive in order to sustain a
    finding of misrepresentation. *Id.* at 12085. *Compare Ronald
    Brasher*, 19 FCC Rcd 18462, 18491-92 (2004) (license revocation for
    undisclosed parties-in-interest, control of licenses without
    authorization, concealment of scheme to apply for excessive
    licenses, numerous misrepresentations and lack of candor, false
    signatures, false testimony). By contrast, Mr. Ramirez, an
    inexperienced General Manager who was not a member of any control
    group, was merely a salaried employee without motive to deceive the
    Commission.

96. False or misleading representations of Mr. Ramirez that were
    consequences of his inexperience and absence of oversight do not
    rise to the level of disqualifying misconduct.\
    *In re Application of Pinelands, Inc.,* 7 FCC Rcd 6058, 6065 (1992).
    Mr. Ramirez's "Yes" determination of a complete PIF is found to be
    "wanton, gross and callous, and in total disregard of obligations to
    the Commission to certify honestly in renewal applications as to be
    equivalent to an affirmative and deliberate intent." *Golden
    Broadcasting Systems, Inc.,* 68 FCC 2d 1099, 1106 (1978), quoting
    *Tipton County Broadcasters*, 37 F.C.C. 191 (1964). *See also
    Liberty Cable Co. Inc.*, 15 FCC Rcd 25050 (2000), *reh. den.,* 16
    FCC Rcd 16105 (2001) (unlicensed operations were legion and in
    disregard of obligation to activate only authorized paths held to be
    "tantamount to intentional misconduct.") But in that case,
    management knew of continuing premature activations and encouraged
    an employer to continue to activate without concern to
    non-licensure. *Id.* There is no such active complicity of SFUSD in
    Mr. Ramirez's misleading acts of misjudgment, and SFUSD should not
    be denied renewal based on Mr. Ramirez's one-time instance of
    ineptness and gross negligence.

97. Also, the Commission will not impute a disqualifying lack of candor
    to an applicant where the record shows a good faith reliance on
    counsel. *WEBR, Inc. v. FCC*, 420 F.2d 158, 167-168 (D.C. Cir. 1969)
    (good faith reliance on counsel is relevant to determining candor);
    *Professional Radio, Inc.*, 2 FCC Rcd 6666 (1987) (applicant not
    penalized for erroneous site designation made on advice of counsel);
    *Broadcast Association of Colorado*, 104 FCC 2d 16 (1986) (applicant
    improperly certifying on advice of counsel not disqualified). In the
    case of *Abacus Broadcasting Corp.*, 8 FCC Rcd 5110 (Rev. Bd. 1993),
    the Review Board affirmed\
    an *Initial Decision* finding of justified reliance on counsel for
    applicant's erroneous site certification, noting particularly that
    the certification was prepared hastily by counsel and neither the
    applicant nor counsel were focused on "significance of details." 8
    FCC Rcd at 5113. This case is similar to *Abacus Broadcasting* in
    the haste that was required in signing declarations, and in the
    reliance on counsel to draft appropriate documents, pleadings and
    correspondence to be submitted to the Commission without meaningful
    review by Station management.

**Discussion**

98. Due to inexperience with renewal applications and inattention to
    details,\
    Mr. Ramirez negligently failed to maintain the PIF. He was grossly
    negligent in soliciting SFUSD management to certify wrongfully to
    the PIF's compliance in the face of his inattention, negligence,
    inexperience, or even disinterest. But the fault was not solely his.
    He arrived at a Station which had been disrupted by an earthquake
    and a series of moves. There is no evidence of supervision by the
    Superintendent's office that would have provided effective
    managerial direction to Mr. Ramirez. Equally important, there is no
    evidence that communications counsel on retainer to SFUSD had
    advised Mr. Ramirez to repair, or how to repair, a deficient PIF,
    and there was no legal auditing procedure. Supervisory deficiencies
    coupled with failures on the part of Mr. Ramirez to receive or
    follow legal advice that could have rectified the PIF's contents,
    constitute circumstances that in their totality raise serious doubts
    that there was ever any intent by the licensee to mislead or deceive
    the Commission. The weight of the evidence establishes that the
    Station's violations were mainly caused by Mr. Ramirez's gross
    negligence which was unknown to SFUSD until after the fact.

99. If he had taken seriously the NAB memo, the FCC instructions, and
    the information in the Hecht report, Mr. Ramirez, who had been
    sensitized by Mr. Evans when he first came aboard, would have known
    that the PIF was not current and would be in violation.\
    Mr. Ramirez at least suspected by June 1997, more than a month
    before filing the renewal application, that the Station's PIF was
    deficient. Had Mr. Ramirez acted with reasonable diligence, it could
    have been corrected by the time the renewal application was filed.
    Making matters worse, Mr. Ramirez signed a misleading declaration to
    oppose a petition to deny wherein he represented that the Station
    had an "ongoing process" of updating the PIF. He later testified
    falsely at hearing to the truth of that assertion, thereby putting
    license renewal further at risk.\
    Mr. Ramirez cannot rely on advice of counsel as a defense for his
    misconduct because he could not recall whether he told Mr. Sanchez
    anything about the state of the PIF. (Tr. 403-04.) And when he
    testified to "working too fast," "not paying attention," while there
    was an "ongoing process" to update the PIF, Mr. Ramirez cannot rely
    on advice of counsel for his lack of candor. (Tr. 452, 455.)

100. But Mr. Helgeson and Ms. Sawaya justifiably relied on counsel. Mr.
     Helgeson reasonably relied on Mr. Sanchez in connection with his
     declaration of January 1998 and April 2001, because Mr. Helgeson
     was not familiar with the events of the 1997 renewal application
     and he had to rely on counsel who were advising Mr. Ramirez. Ms.
     Sawaya had recommended to counsel correct and candid answers to the
     LOI shortly after she was hired. She only changed her position in
     order to accommodate counsel who had been advising SFUSD on legal
     matters for many years. She did not wish to jeopardize SFUSD's
     legal defense, and there were deadlines that had to be met. The
     erroneous response to the LOI was prepared and sent by counsel and
     there was little time for any Helgeson/Sawaya review. The testimony
     of Mr. Helgeson and\
     Ms. Sawaya at deposition and hearing was persuasive as to their
     reasonable reliance on counsel.

101. The 1998 Helgeson declaration was misleading in representing "an
     ongoing effective effort \-\-- to update and maintain the Station's
     public inspection file." But there are mitigating circumstances.
     When Mr. Helgeson realized that SFUSD's certification was under
     serious attack by GGPR, he assumed that Mr. Ramirez had reviewed
     the PIF and had knowledge of its contents before certifying "Yes."
     Mr. Helgeson played no part in certification of the PIF. As a
     latecomer, he had to rely on the only (and best) resources who had
     been involved in advising Mr. Ramirez, *i.e*. the Sanchez
     attorneys. With the license under challenge by GGPR,\
     Mr. Helgeson was compelled to rely on informed and experienced
     counsel to draft the declaration. In addition, the signing and
     filing of the declaration was rushed, and Mr. Helgeson had great
     difficulty in reading documents. His testimony at hearing did not
     demonstrate an abundance of candor, but his near blindness
     precludes any negative assessment of his demeanor and related
     candor.[^20] The Bureau does not challenge his deposition. In
     assessing his declarations and his testimony, Mr. Helgeson receives
     the benefit of the doubt.

102. The Bureau is correct that the evidence establishes that Ms. Sawaya
     understood the issues in this proceeding prior to her deposition.
     Ms. Sawaya knew that "the issue at hand is FCC regulations
     concerning a station's public file, not whether we 'think' our
     programming is public service or not." (EB Exh. 57 \[e-mail from
     Ms. Sawaya to Mr. Sanchez showing an understanding of *HDO*
     issues\].) Her ability to assess which issues would likely be
     explored at deposition, is a reliable indicator of her awareness
     and caution in giving deposition testimony. Short of speculation,
     there is no inference to draw that Ms. Sawaya consciously avoided
     questions at her deposition about her involvement in responding to
     the LOI by "shading" her testimony in order to distance herself, or
     by having strategic amnesia. As new General Manager, she presented
     truthful answers which counsel rejected. She then deferred to
     counsel, and as would be expected by her SFUSD superiors, she
     cooperated with counsel in facilitating a timely response to the
     LOI.

103. Ms. Sawaya attempted at deposition to excuse her failure to recall
     her March 8 memo, a copy of which was located on her computer. A
     lack of memory as to such an important document that the witness
     prepared and sent to counsel is difficult to understand, but a loss
     of memory as explanation cannot be summarily rejected. *See Liberty
     Productions Ltd. P'ship, supra* at 12092-93. Her e-mail
     communications with counsel show that the "license challenge" was a
     matter of grave concern to her as it had a potentially negative
     impact on her future employment. That realization motivated her to
     cooperate with SFUSD's long-time counsel who she trusted. It seems
     highly unlikely that she could "forget" a memo that she had
     prepared that raised questions with counsel about the veracity of
     answers in filings made with the Commission. Her not remembering
     the memo and that she "doesn't typically print out documents," is
     hard to accept in view of her ability to print two March 8 memos,
     one of which served as a cover memo for the original signed
     supplemental ownership reports that she sent to Mr. Sanchez. (SFUSD
     Exh. T-3 at 9.) It is also difficult to accept that Ms. Sawaya
     could have set up and maintained her own "Ernie file," and not
     place these March 8 memos therein. However, this circumstantial
     proof does not establish that she intended to mislead the
     Commission, and it is plausible to conclude on this record that she
     did temporarily forget in 2004 her March 8 memos of 2001. Here, Ms.
     Sawaya is entitled to receive the benefit of the doubt.

104. At hearing, Ms. Sawaya insisted that her role in drafting and
     completing an LOI response was merely that of facilitator. (Tr.
     1328-29, 1332, 1437-38.) Such testimony is transparently
     inconsistent with the detail of her March 8, 2001 memos to Mr.
     Sanchez, and her correspondence regarding the LOI in March and
     April 2001. (SFUSD Exh. T-3 at 9.) There is over-statement in her
     oft-repeated claim that the issues raised by the LOI were complex
     and beyond her ken. (Tr. 1332, 1364, 1436.) To the contrary, after
     only one week on the job,\
     Ms. Sawaya had ascertained that SFUSD's renewal application
     certification about the PIF was wrong and drafted a focused memo
     recommending correction and explaining the deficiencies in the PIF
     which she sent to counsel. Ms. Sawaya also directed her staff to
     achieve compliance, which involved researching the PIF and
     responding to the LOI in a timely and truthful manner. When
     questioned at her deposition about her role in responding to the
     LOI, Ms. Sawaya attempted to create an appearance that she was only
     a facilitator and had no substantive involvement in responding. But
     there was no discernable deceit or intent to deceive on her part,
     best illustrated by how quickly, candidly and thoroughly she
     responded in early March. From observing her testifying, there was
     nothing in her demeanor to suggest that she was intentionally lying
     about not recalling. However, there also is little weight to be
     accorded her testimony which is based on recollection, since there
     is very little of substantive value that she could remember.

105. Counsel had crafted a reply to the LOI and erroneously reported
     that on August 1, 1997, the PIF "contained all of the ownership
     reports." There was no basis in fact for making such a claim, since
     the Hecht report showed that ownership reports and program/issues
     lists were missing. It also was factually wrong to assert that
     program guides and NPR issues lists were in the PIF as of August
     1, 1997. (EB Exh. 5 at 44-49; EB Exh. 4 at 3.) Mr. Helgeson had
     placed both sets of documents in the PIF in March 2001, only after
     he had confirmed that the PIF was a "disorganized mess" and lacked
     documents. NPR materials were added as attachments to the LOI
     response, but those documents were not in the PIF. By the time the
     letter was sent on\
     April 5, neither Mr. Helgeson (Tr. 1012) nor Ms. Sawaya (Tr. 1424)
     had control over what the letter contained. Preparation and
     issuance of counsel's letter response to the LOI do not support any
     conclusion that Mr. Helgeson, Ms. Sawaya, or SFUSD intended to
     mislead, or were motivated to mislead, in responding to the LOI.

**Mitigation**

106. What was missing from the PIF in 1997, were supplementary ownership
     reports for earlier periods. Such reports were discontinued by the
     Commission. Station program guides were regularly made available in
     the community which gave information on programming. Thus, SFUSD
     was making efforts to inform the community about its programming,
     and there is no question about the responsiveness of its
     programming to the community's issues. And despite deficiencies in
     quarterly issues/programming lists, the Station consistently
     produced programming that was responsive to San Francisco.

107. Mr. Sanchez's preparation of an opposition to GGPR's petition to
     deny and response to the Bureau's LOI was the primary
     responsibility of SFUSD's retained counsel. It also was the
     responsibility of Mr. Ramirez and Mr. Helgeson to cooperate with
     counsel.\
     Counsel took control over the process of preparing and finalizing
     supporting declarations of\
     Mr. Ramirez and Mr. Helgeson, and therefore counsel was also
     responsible for the accuracy of the declarations. SFUSD's response
     to the LOI also became the responsibility of counsel. The
     questioned testimony of Mr. Ramirez, Mr. Helgeson and Ms. Sawaya
     was given with the assistance of counsel, and as sequestered
     witnesses, their testimony was beyond the supervision of SFUSD. It
     is concluded that advice of counsel played a substantial role in
     the preparation of SFUSD's opposition to petition to deny in its
     response to the LOI, and in preparing the testimony of Messrs.
     Ramirez and Helgeson and Ms. Sawaya. *See Abacus Broadcasting
     Corp., supra* at 5112. *See also WADECO, Inc. v. FCC*, 628 F. 2d
     122, 127 (D.C. Cir. 1980).

108. There is no evidence of a repetition of compliance violations.
     Except for isolated violations attributed to former General Manager
     Ramirez, SFUSD has a record of compliance with the Commission's
     rules throughout the renewal period. In reacting to this case,
     SFUSD adopted a responsible policy that requires counsel to monitor
     compliance with Commission rules. (SFUSD Exh. T-4 at 3.) SFUSD has
     retained new communications counsel to diligently oversee
     compliance, and in that way SFUSD will increase its oversight of
     Station management. The General Manager who prepared the renewal
     application is no longer employed by the licensee. His successor
     had prior experience as a General Manager and showed greater
     concern for compliance. SFUSD is now in the process of selecting
     another new General Manager, and hopefully will select one who has
     solid compliance experience. There is good reason to conclude that
     there should be no reoccurrence of failures to maintain the
     Station's PIF, and that there\
     will be no misleading application or report filed with the
     Commission in the future. These circumstances show that SFUSD
     should be fully rehabilitated with respect to PIF maintenance and
     reporting within two years of this ruling. "*Compare Abacus
     Broadcasting Corp., supra* at 5113 (question of intent to deceive
     is a "close one" but "on balance" the record as a whole does not
     support a disqualifying intent to deceive).

109. While considerations of negligence in failing to hire and supervise
     apply in this case, a licensee's negligence is not disqualifying
     misconduct that precludes renewal. *In re Application of Pinelands,
     supra* at 6065. SFUSD acted reasonably by relying on its counsel.
     There is ample authority for holding that when there is good faith
     reliance on qualified communications counsel who is retained to
     prepare pleadings, declarations, and responses to Commission
     require (LOI), the misconduct of employees, even if potentially
     disqualifying, should be substantially mitigated. *See WEBR,
     Inc. v. FCC,* 420 F2d 158, 167-68 (good faith reliance on counsel
     is relevant to determining who is acting with candor); *WADECO,
     Inc. v. FCC*, 628 F.2d at 127 (good faith reliance on counsel
     protects applicant from disqualification).

**Forfeiture**

110. Section 73.3527 of the Commission's Rules (Rules) requires
     non-commercial broadcast licensees to maintain a public inspection
     file containing specific types of information related to station
     operations. Section 73.3527(e)(8)(i) provides that an
     issues/programs list is to be placed in a station's public
     inspection file each calendar quarter. Where lapses occur in
     maintaining the public file, neither the negligent acts nor
     omissions of station employees or agents, nor the subsequent
     remedial actions undertaken by the licensee, excuse or nullify a
     licensee's rule violation. *See Padre Serra Communications, Inc*.,
     14 FCC Rcd 9709 (1999). There is no dispute that serious willful
     lapses of PIF maintenance occurred at the Station for which SFUSD
     is responsible.

111. The *HDO*, Para. 25 provides that:

> 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, 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, which occurred or continued within the
> applicable statute of limitations. \[Footnotes omitted.\]

The "Yes" certification on August 1, 1997, concerning the PIF was
grossly negligent and so wanton as to equate with an act of willful
misrepresentation of compliance with Section 73.3527(a)(2)(e)(4)(8) of
the Commission's rules \[47 C.F.R. § 73.3527\]. As a separate and
distinct violation, the licensee failed to maintain ownership reports
and issues/programs lists in its PIF from 1991 to 2001.

112. The Bureau asks for denial of renewal for alleged violations, but
     does not ask that any forfeiture be applied in this case. SFUSD
     admits that under usual circumstances a \$10,000 base forfeiture
     would be imposed for violation of the PIF rule. But SFUSD asserts
     that its current deficit condition demonstrates an inability to pay
     even the base amount. SFUSD has not persuaded of its inability to
     pay a reasonable forfeiture.[^21] Section 1.80 of the Commission's
     rules establishes a base forfeiture amount of \$10,000 for public
     file violations.[^22] The evidence presented by SFUSD on its
     financial condition does not prove an absolute inability to pay any
     forfeiture.[^23] Considering the record as a whole, a \$10,000
     forfeiture is appropriate for SFUSD's erroneous "Yes" certification
     in connection with maintaining a deficient PIF.

**CONCLUSION**

113. The Enforcement Bureau has presented its case in support of license
     denial. But\
     it is "only in the most egregious case" that "termination of all
     rights \[must\] be considered, and this case does not fall among
     the "most egregious." *Character Policy Statement*, *supra*
     at 1228. *Compare Contemporary Media, Inc.*, 13 FCC Rcd 14437
     (1998), *reh. den.* 14 FCC Rcd 8790 (1999) (disqualification for
     criminal acts and repeated misrepresentations which were
     unaccompanied by adequate remedial measures.) Rehabilitation is
     significant, and SFUSD's changes in Station personnel and its
     adopted compliance program show a tendency toward rehabilitation.
     *Id.* Another positive factor is the "ability to operate in the
     public interest with no likelihood of future misconduct." (*Id.* at
     1229.) *Policy Regarding Character Qualifications*,\
     5 FCC Rcd 3252 (1990) (mitigating factors include frequency,
     willfulness, currentness and seriousness of misconduct, the nature
     of participation by managers, efforts to remedy, record of
     compliance, rehabilitation.) All of these factors considered in
     their totality, and particularly the probability of full
     rehabilitation, rule out denial of SFUSD's license renewal. Full
     rehabilitation usually can best be assured by ordering a short-term
     renewal and forfeiture. *See Abacus Broadcasting Corp.*, 8FCC Rcd
     5110, 5117 (1993) (short-term renewal appropriate to test future
     compliance; forfeiture also assessed).

114. The Superintendent's recognition of need for effective future
     compliance with Commission rules shows persuasive remediation. The
     fact that Mr. Ramirez was a salaried, at-will employee who left the
     Station in 1998, makes it unlikely that there would be a
     reoccurrence of non-compliance in the future. Nor should SFUSD's
     long-held license be jeopardized by poor judgments of an uninformed
     General Manager. Ultimately, the misconduct proved by the Bureau
     pales in comparison to misconduct found to justify the harshest
     penalty, revocation or denial. *Compare Contemporary Media, supra*
     (criminal conduct), *Ronald Brasher, supra* (fictitious names in
     scheme to transfer licenses), *Liberty Cable Co.,* *supra*
     (management sanctioned unauthorized activations by employee).

115. Under established Commission policies favoring renewal and allowing
     for mitigation of violations which could be a basis for renewal
     denial, it is concluded that SFUSD qualifies for a short-term
     renewal.

**ORDER**

Based on the record in this proceeding, IT IS ORDERED that pending
renewal application (File No. BRED-19970801YA) of San Francisco Unified
School District for License for Station KALW(FM), San Francisco,
California, IS GRANTED for a period of two years\
from the release date of this *Initial Decision*.

IT IS FURTHER ORDERED that San Francisco Unified School District IS
ASSESSED a forfeiture penalty in an amount of Ten Thousand Dollars
(\$10,000), to be paid within two years from the release date of this
*Initial Decision*.

> FEDERAL COMMUNICATIONS COMMISSION[^24]

Richard L. Sippel

Chief Administrative Law Judge

[^1]: The *HDO* was issued incident to allegations of a petition to deny
    renewal filed on November 3, 1997. *HDO* at Paras. 1-5.

[^2]: Hereafter, each of SFUSD's exhibits will be referred to as (SFUSD
    Exh. \_\_) and each of the Bureau's exhibits will be referred to as
    (EB Exh. \_\_). Hearing transcript pages will be referred to as (Tr.
    \_\_).

[^3]: SFUSD Exh. T-6 at 2.

[^4]: SFUSD has advised that Ms. Sawaya was resigning effective March
    24, 2006.

[^5]: Since 1992, Mr. Helgeson has at various times served in the dual
    capacity of Operations Manager and acting General Manager.

[^6]: Current responsibilities differ. *See* 47 C.F.R. §§ 73.3527(e)
    (4), 73.3615(d), (f), (g) (2004). There are no longer requirements
    for supplemental ownership reports.

[^7]: Official notice is taken of the fact that the Station's licensing
    file maintained in the Commission public reference room contains no
    "filed" ownership reports subsequent to January 31, 1991. 47 C.F.R.\
    § 1.361 (other proof of official record). The rule requiring
    educational stations to keep ownership reports was formerly at
    Section 73.3615(g), and is not at Section 73.3527(e)(8). *See Review
    of Public Inspection Files*, 13 FCC Rcd 15691 (1998), *recon
    granted*, 14 FCC Rcd 10922 (1999).

[^8]: Section 73.3526 pertains to public inspection files of commercial
    stations and has no application to KALW(FM), an educational station.

[^9]: It is officially noted that the Commission has abolished the
    supplemental ownership report requirement. *See Biennial Regulatory
    Review et seq.*, 13 FCC Rcd 11349, 11380 (1998).

[^10]: Mr. Sanchez's billing records reflect time spent during this
    period selecting documents for Mr. Ramirez. (EB Exh. 7 at 1, entry
    1819.) Billing records reflect a 45 minute conference call on the
    renewal application occurring on June 30, 1997. (EB Exh. 7 at 1.)
    SFUSD was billed for conferences with Mr. Ramirez on May 8, June 30,
    July 7 and July 10, 1997. (EB Exh. 7 at 1-2.) Telephone calls on
    July 7 and 10, 1997 exceeded 75 minutes. (EB Exh. 7 at 2.) Mr.
    Sanchez submitted bills for services rendered on May 7, May 14, May
    31, July 2 and July 30, 1997. (EB Exh. 7 at 1-2.) Mr. Ramirez's
    preparation of the renewal application and the answers certified
    therein were related to billed legal advice. (Tr. 533)

[^11]: GGPR's petition to deny was treated as an "informal objection"
    under Section 73.2587. *See HDO* at 3. Since GGPR does not have
    party status, there was no appearance of GGPR in this proceeding,
    and GGPR did not participate in the hearing.

[^12]: SFUSD reported to the Commission Secretary and the Presiding
    Judge by letter dated February 17, 2006, that Ms. Sawaya has
    resigned her position as General Manager, and SFUSD began soliciting
    applicants for a qualified replacement.

[^13]: Ms. Sawaya could not remember how she knew what Mr. Ramirez had
    done with respect to ownership reports, but she presumes that she
    was told by Mr. Helgeson. (SFUSD Exh. T-3 at 11.) In view of the
    short time that she was at the Station before sending her March 8
    memos, Mr. Helgeson probably was a source of information.

[^14]: The Annual Financial Report for the Fiscal Year July 1, 2004 to
    June 30, 2005 had not yet been completed when SFUSD submitted its
    Proposed Findings.

[^15]: Much of Mr. Ramirez's direct testimony was presented in negative
    terms in criticizing and blaming others rather than presenting
    positive, affirmative statements of what he was thinking and doing,
    and who and when he was talking to in reaching critical decisions on
    completing the renewal application. (SFUSD Exh. T-1, *passim.*)

[^16]: The petition to deny included an "Exhibit O" which is an untitled
    three page excerpted document containing pages numbered 5, 6, 7. The
    document listed programming that had been broadcast as "City
    Visions" programming during the period June 5, 1995 to July 7, 1997.
    There were 95 programs identified by "producer" and by "topic." When
    Mr. Sanchez responded to the LOI in April 2001, he attached a
    continuation sheet which showed "City Visions" programming from July
    7, 1997 to October 6, 1997. (EB Exh. 34.)

[^17]: Mr. Helgeson testified in writing:

    > \[As of\] early 2004, \-\-- I am now legally blind. \-\-- When I
    > look directly at a piece of paper with writing on it, I cannot
    > read the words printed. \-\-- Moreover, I cannot see the entire
    > document when I look at the enlarged image. \-\-- I generally do
    > not receive the mental impressions of documents that sometimes
    > help people refresh their memories.

    (SFUSD Exh. T-2 at 17.)

[^18]: It is important that on September 28, 2004, when the Bureau
    deposed Ms. Sawaya, SFUSD had not yet authorized the Sanchez
    attorneys to turn over its files to new counsel. *See* Declaration
    of Nicole Sawaya, executed March 2, 2005, included in support of
    Opposition to Enforcement Bureau's Motion\
    to Enlarge Issues, filed March 2, 2005. SFUSD's in-house counsel did
    not send a written request authorizing the Sanchez law firm to
    transfer files to Hogan & Hartson until January 2005, in connection
    with the Bureau's Second and Third Requests for Documents. Once
    again, SFUSD was "a day late and\
    a dollar short" in giving Station management assistance at a
    critical time of need.

[^19]: Upon issuance of the *HDO*, SFUSD retained new counsel, and filed
    an amended renewal application with "No" certifications to Questions
    1 and 2. (SFUSD Exhs. 48, 76.)

[^20]: The Presiding Judge had opportunity to observe Mr. Helgeson whose
    testimony was given over three days. (Tr. 593-1198.) Mr. Helgeson
    had to use a special magnifying instrument to identify and focus on
    the many documents presented by examining counsel. He gave the
    appearance of trying to cooperate with cross-examination, and there
    was nothing untoward in his demeanor appearance on the stand.

[^21]: The authorized forfeiture amount is \$300,000. *HDO* at Para. 25.
    The Presiding Judge has favorably considered meritorious programming
    identified by SFUSD. (SFUSD Exh. 79.) Consideration also has been
    given to SFUSD's presentation on forfeiture. *See* Paras. 70-72,
    *supra.* Under all circumstances, the forfeiture ordered in the
    amount of \$10,000.00 seems reasonable and appropriate.

[^22]: 47 C.F.R. § 1.80(b) (4), Note to paragraph (b) (4): Section I.
    Base Amounts for Section 503 Forfeitures; *Forfeiture Policy
    Statement*, 12 FCC Rcd at 17113, Appendix A, Section I.

[^23]: The rules provide for requests for installment payments. *See* 47
    C.F.R. § 1.1914.

[^24]: This *Initial Decision* shall become effective and this
    proceeding *shall be terminated* 50 days after its release if
    exceptions are not filed within 30 days thereafter, unless the
    Commission elects to review the case on its own motion. 47 C.F.R. §
    1.276(b).