**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Application of )

)

**THE CURATORS OF THE** ) File No. BRED-960930WI

**UNIVERSITY OF MISSOURI** )

)

For Renewal of License for )

Station KWMU-FM, )

St. Louis, Missouri )

**MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY**

**Adopted:** December 20, 2000; **Released:** January 17, 2001

By the Commission:

**I. INTRODUCTION**

Number range level0Number range level1Number range level2Number range
level3Number range level4Number range level5Number range level6Number
range level71. The Commission has before it for consideration: (i) the
above-captioned license renewal application filed by The Curators of the
University of Missouri (\"the University\" or \"licensee\") for Station
KWMU-FM, St. Louis, Missouri, a noncommercial educational radio station;
(ii) a Petition to Deny filed by the Rainbow-PUSH Coalition
(\"Rainbow\"); (iii) the licensee\'s opposition to Rainbow\'s petition;
(iv) Rainbow\'s reply to the opposition; (v) the licensee\'s response to
a staff letter of inquiry; (vi) Rainbow\'s reply to the licensee\'s
inquiry response; (vii) and other pleadings.

2\. Rainbow alleges that Station KWMU-FM violated the Commission\'s
Equal Employment Opportunity (\"EEO\") Rule, 47 C.F.R. § 73.2080, and
policies. Accordingly, Rainbow requests that we conduct an investigation
of the station\'s employment practices, including instances of alleged
discrimination, pursuant to [Bilingual Bicultural Coalition on Mass
Media, Inc. v. FCC]{.underline}, 595 F.2d 621 (D.C. Cir. 1978), and
designate the renewal application for hearing with a view towards denial
of the application. In response, the licensee denies Rainbow\'s
allegations, contends that the station is in compliance with the
Commission\'s Rules, and requests unconditional renewal of the
station\'s license.

3\. By way of background, in [Lutheran Church -- Missouri Synod v.
FCC]{.underline}, 141 F.3d 344, [pet. for reh'g denied]{.underline}, 154
F.3d 487, [pet for reh'g en banc denied]{.underline}, 154 F.3d 494 (D.C.
Cir. 1998) ("[Lutheran Church]{.underline}"), the United States Court of
Appeals for the District of Columbia Circuit held that the EEO program
requirements of the EEO Rule were unconstitutional. With respect to the
non-discrimination provision of the EEO Rule, the court remanded to the
Commission to determine whether it has authority to enforce a
non-discrimination rule. [Lutheran Church]{.underline}, 141 F.3d at
356-57. The Commission thereafter proposed and requested comment
concerning a new broadcast EEO rule and policies. [Review of the
Commission's Broadcast and Cable Equal Employment Opportunity Rules and
Policies and Termination of the EEO Streamlining
Proceeding]{.underline}, 13 FCC Rcd 23004 (1998) ("[NPRM]{.underline}").
The Commission then issued a Report and Order adopting new and revised
EEO rules and concluding that it has jurisdiction to enforce
anti-discrimination requirements. [Review of the Commission's Broadcast
and Cable Equal Employment Opportunity Rules and Policies and
Termination of the EEO Streamlining Proceeding]{.underline}, 15 FCC Rcd
2329 (2000) ("[Report and Order]{.underline}"). Accordingly,
consideration of the instant allegations of employment discrimination is
now appropriate. This is because the court in [Lutheran
Church]{.underline} did not invalidate the anti-discrimination provision
of the EEO Rule that was in effect at the time of the alleged acts of
discrimination, and the Commission has now determined that a requirement
prohibiting discrimination is within its jurisdiction. However, the
rules and policies adopted by the [Report and Order]{.underline} are
prospective in nature. [Washington Broadcasting Company]{.underline}, 14
FCC Rcd 16999, 17000 n. 1 (1999). Therefore, we will assess the
allegations in light of the Rule and related precedent applicable at the
time the acts of discrimination allegedly occurred.

#########  II. PROCEDURAL MATTERS

4\. In challenging an application pursuant to Section 309(d) of the
Communications Act of 1934, as amended, a petitioner must, as a
threshold matter, submit \"specific allegations of fact sufficient to
show that the petitioner is a party in interest and that a grant of the
application would be prima facie inconsistent with \[the public
interest, convenience, and necessity\].\" 47 U.S.C. § 309(d)(1);
[Astroline Communications Co. v. FCC]{.underline}, 857 F.2d 1556 (D.C.
Cir. 1988) (\"[Astroline]{.underline}\"); [Dubuque T.V. Limited
Partnership]{.underline}, 4 FCC Rcd 1999 (1989). The allegations, except
for those of which official notice may be taken, must be supported by an
affidavit of a person with personal knowledge of the facts alleged. 47
U.S.C. § 309(d)(1).

5\. *[Standing]{.underline}*. In order to qualify as a party in
interest, petitioners to deny seeking to represent the interests of
their members must show that one or more of their members resides within
the station\'s service area or regularly listens to or views a station
and that such listening or viewing is not the result of transient
contacts with the station. [CHET-5 Broadcasting]{.underline}, L.P., 14
FCC Rcd 13041 (1999). Submitted with Rainbow\'s petition is a
declaration under penalty of perjury from a Rainbow member, who states
that he has been a resident of the St. Louis metropolitan area for over
ten years, that he is a regular listener of Station KWMU-FM, and that he
would be seriously aggrieved if the petition is not granted. In its
Opposition, the licensee contends that Rainbow\'s petition should be
dismissed because Rainbow failed to establish \"party-in-interest\"
status. The licensee asserts that the petition does not state that
Rainbow represents St. Louis residents and that the petition is filed on
their behalf. The licensee also argues that Rainbow failed to establish
proof that \"a real and tangible injury\" would occur to such local
residents. Because there is no dispute that the declarant resides in the
station\'s service area and is a regular listener of the station and
that he is a member of Rainbow, we find that the declarant\'s statement
meets the requirements for standing. Accordingly, we hold that Rainbow
has established that it is a party in interest with respect to Station
KWMU-FM\'s renewal application.

6\. *[Prima Facie Case]{.underline}*. In its petition, Rainbow states
that \"KWMU-FM\'s Program appears to comply with the EEO Rule.\" It
nonetheless urges that, in practice, the licensee\'s EEO program is a
\"sham.\" Rainbow\'s petition is premised primarily on a civil lawsuit
alleging employment discrimination on the basis of race that was brought
in 1991 by Winifred Sullivan, a former part-time employee of the
station, and on the declaration submitted by Arthur Solomon, Sullivan\'s
friend.[^1] After a court trial, the district court judge concluded that
there was no racial discrimination proven by Sullivan and entered
judgment in favor of the University. Sullivan did not appeal the
court\'s judgment. Rainbow also alleges that the station discriminated
against other former station employees and applicants on the basis of
race. For the reasons set forth below, we find that Rainbow has not
established a [prima facie]{.underline} case under Section 309(d)(1) of
the Communications Act of 1934, as amended, 47 U.S.C. § 309(d)(1).

#########  III. DISCUSSION

**A. Discrimination Allegations**

7\. In its petition, Rainbow alleges that Station KWMU-FM engaged in
employment discrimination against several applicants and former
employees. The record indicates that, in 1991, Winifred Sullivan, a
former part-time employee of Station KWMU-FM, filed an employment
discrimination suit against The Curators of the University of Missouri
on the basis of race. In her suit, Sullivan, who is Black, alleged that
she was unlawfully terminated by the licensee.[^2] She further alleged
that the licensee refused to hire her on the basis of race when she
reapplied for two positions that later became available at the station.
She claimed that the positions were offered to less qualified White
applicants. After a court trial, the district court judge concluded that
there was no racial discrimination proven by Sullivan and entered
judgment in favor of the University. [See]{.underline} [Winifred
Sullivan v. Curators of the University of Missouri]{.underline}, No.
91-1190(C)(7) (E.D. Mo. Dec. 23, 1992) (\"[Sullivan
case]{.underline}\"). In its findings, the court stated: \"I think in
the end there has been substantial evidence put on by the defense that a
legitimate nondiscriminatory reason for any termination or failure to
rehire has been presented.\" The court found that the termination of
Sullivan and 18 other employees (all 18 of whom were White) \"came as
part of the larger restructuring occasioned by financial problems and an
effort to improve the programming and the all over \[*sic*\] quality of
the station\'s operation.\" It is undisputed that Sullivan\'s motion for
a new trial was denied by the district court judge and that Sullivan did
not appeal the court\'s decision.

8\. According to Rainbow, however, Sullivan has a credible belief that
\"KWMU prevailed in that case only because of KWMU-FM\'s use of
falsified documents and perjured testimony, and the presence of a judge
predisposed against her.\" Rainbow argues that irrespective of how the
Commission treats the matters which were before the court in the
[Sullivan case]{.underline}, \"the evidence not before the Court,
including evidence of events occurring well after the Court\'s ruling,
overwhelmingly shows that KWMU-FM\'s policy was and continued to be one
of deliberate and unlawful discrimination.\" Rainbow alleges that the
station discriminated not only against Sullivan, but several other Black
applicants and former station employees. This allegation is based on
four declarations under penalty of perjury by two former station
employees and two interviewees who claim to have been discriminated
against on the basis of their race.

9\. The first declarant, Bernard Hayes, who is Black, states that he
served as news director for the station from 1987 till 1993, but later
resigned to assume a position at another station. Hayes alleges that the
station discriminated against him on the basis of race. He acknowledges
that he testified during the Sullivan trial that the station had not
discriminated against him, but that he later formed the belief that he
must have been discriminated against because his position was offered to
a White female after he voluntarily resigned from his position at the
station. Rainbow concedes that Hayes did not file a discrimination
complaint with the Equal Employment Opportunity Commission (\"EEOC\")
and would now be barred from doing so by the applicable statute of
limitations.

10\. In his declaration, Chris Roberson, who is Black, alleges that the
station discriminated against him on the basis of race. Roberson states
that the station hired him in December 1991 for a temporary part-time
position while he was still a student at the University of Missouri.
After he worked at the station for about a year, he was informed that
\"\[his\] services were no longer needed.\" He states that, upon
learning of the Sullivan trial, he \"formed the belief that \[the
station general manager, Patricia Wente,\] had hired \[him\] and other
African American students shortly before \[the Sullivan\] trial as a
ploy, so that she could say in court that she had shown an interest in
hiring African Americans.\"

11\. In his declaration, Leo Chears, who is Black, states that he
applied, and was interviewed in August 1990, for a full-time position as
a jazz announcer at the station. Chears believes that the station
discriminated against him on the basis of race by hiring a less
qualified White applicant, who, at that time, was working as a part-time
station employee. Chears acknowledges that the station had offered him a
part-time announcer position which he declined because he wanted a
full-time position.

12\. In her declaration, Tessa Abrams Marshall, who is Black, states
that \"it is \[her\] belief\" that the station discriminated against her
on the basis of race when she applied for a position as development
director at the station in March 1990. Although she was interviewed for
the position by several of the station\'s staff, she believed that her
interview was a mere \"formality,\" and that the station refused to hire
her because it had already decided to hire another applicant, who
Marshall points out was White. After the interview, she asserts that she
felt \"hurt and humiliated\" and, consequently, decided to file a racial
discrimination complaint against the station with the St. Louis office
of the EEOC. She states that she did not pursue her EEOC complaint
further after she was hired at a station in California.[^3]

13\. In its petition, Rainbow also alleges that Loren Madden, Rita Pope,
Doug Lane, and an individual simply identified as \"Rosemary\" were
victims of discrimination, but Rainbow did not supply affidavits from
these individuals. Further, Rainbow asserts that the station took into
account \"customer preferences\" in electing not to hire a black
applicant \-- whom Rainbow identifies as Rita Pope \-- for the position
of station business manager. Rainbow also did not submit an affidavit
from Rita Pope. Rainbow further asserts that the station \"hired and
retained Blacks based on litigation strategy rather than merit.\" In
addition, Rainbow claims that the station used the employment of one
minority as an \"internal quota\" during periods of the license term,
which, once attained, \"cut off further efforts to recruit or employ
minorities.\" Rainbow acknowledges that the matters raised in its
petition ordinarily are referred to the EEOC, pursuant to the Memorandum
of Understanding between the FCC and the EEOC, [see]{.underline}
[Memorandum of Understanding Between the Federal Communications
Commission and the Equal Employment Opportunity Commission]{.underline},
70 FCC 2d 2320 (1978) (\"[Memorandum of Understanding]{.underline}\"),
and it concedes that \"all of the allegations discussed \[in its
petition\] are out of time for Title VII purposes.\" Despite this
acknowledgment, Rainbow urges the Commission to address the
discrimination allegations in its petition.

14\. On January 20, 1998, Rainbow filed an additional declaration from
Hayes, dated November 20, 1997, attesting that he believed the station's
general manager had discriminated against a minority employee under his
supervision while he was employed as a news director at the station. On
January 27, 1998, the licensee filed a response, requesting that the
Commission reject the filing as untimely and arguing that, in any event,
the statements are hearsay, speculative, and immaterial. On August 25,
1998, Rainbow filed an additional declaration from Chears, dated August
10, 1998, and from Sullivan and Solomon, dated August 12, 1998. The
Chears' declaration essentially repeats the allegations as described in
¶ 11, [supra]{.underline}, and sets forth Chears' qualifications for the
applied for position. The Sullivan and Solomon declaration sets forth
new "evidence" and additional issues not presented in the [Sullivan
case]{.underline}, including allegations regarding discriminatory
conduct by the University toward Chears. [See]{.underline} ¶ 11,
[supra]{.underline}. On November 6, 1998, the licensee filed a
supplemental response, claiming that "Rainbow has further abused the
Commission's processes by repeatedly filing untimely and unauthorized
filings," and that the additional declarations consist of "vague,
unsubstantiated allegations" which lack any merit. On November 14, 1999,
Sullivan and Solomon directly filed with the Commission additional
declarations dated June 20, 1999, and May 29, 1999, respectively. The
Sullivan declaration sets forth additional "evidence" to bolster
Sullivan's claim of discrimination by the University and urges the
Commission to continue investigating broadcast discrimination
complaints. The Solomon declaration raises a wide range of
misrepresentation and discrimination based allegations against the
licensee and Patricia Bennett, KWMU-FM's general manager. By letter
dated December 7, 1999, the licensee requested that the Commission
strike the filing as untimely and an ex parte communication. In
response, by letter dated December 17, 1999, Rainbow requested that the
Commission accept the filing as though Rainbow had filed it.[^4]

15\. We find that the additional filings are insufficient to support the
requested issue since they do not provide any specific and substantiated
facts that justify consideration. Further, by letter dated October 15,
1997, the Commission's Mass Media Bureau informed the parties that "no
further pleadings from the parties will be accepted" in this case.[^5]
Moreover, the pleadings are not contemplated in our rules for the filing
of petitions to deny. [See]{.underline} 47 C.F.R. § 73.3584(b).
Therefore, we will not consider these additional declarations or the
replies thereto.

16\. In general, individual complaints of employment discrimination do
not suffice to make a [prima facie]{.underline} case that grant of a
renewal application would be inconsistent with the public interest.
[See]{.underline} [Pacific and Southern Company, Inc.]{.underline}, 11
FCC Rcd 8503, 8505-506 (1996) (\"[Pacific]{.underline}\"). This is based
on the Commission\'s policy that, ordinarily, such complaints should be
resolved in the first instance by the EEOC or other government agency
and/or court established to enforce non-discrimination laws. Congress
intended the EEOC to be principally responsible for the resolution of
individual employment discrimination disputes, and attempts on our part
to resolve such disputes separately would result in duplication of
efforts. [Id.]{.underline} at 8505; [CBS, Inc.]{.underline}, 59 FCC 2d
1127, 1132 (1976). In [Pacific]{.underline}, we indicated that the
general policy does not preclude consideration of facts relating to
specific instances of discrimination where surrounding circumstances
raise questions about a licensee\'s basic qualifications.
[See]{.underline} [Pacific]{.underline}, 11 FCC Rcd at 8505. Rainbow, in
its petition, however, has not raised facts that would warrant a
departure from our general policy as stated in [Pacific]{.underline}.
With respect to Rainbow\'s allegation that the number of minorities
employed by the station indicates that the licensee violated our EEO
program requirements, we need not reach this contention because we
cannot in any event consider allegations insofar as they relate to the
EEO program requirements held unconstitutional in [Lutheran
Church]{.underline}.

17\. Additionally, we point out that Sullivan\'s complaint has been
fully and finally litigated in accordance with Title VII of the Civil
Rights Act of 1964, as amended; Sullivan opted not to appeal the
district court\'s judgment. Consistent with our general policy, we have
taken cognizance of the court\'s final adjudication of this matter. We
will not further consider the merits of Sullivan\'s complaint because no
finding was made that the University engaged in employment
discrimination. [See]{.underline} [Town of Deerfield, New
York]{.underline}, 992 F.2d 420, 428 (2d Cir. 1993) (\"Since neither the
legislative branch nor the executive branch has the power to review
judgments of an Article III court, an administrative agency such as the
FCC, which is a creature of the legislative and executive branches,
similarly has no such power. . . . Nor may an administrative agency
choose simply to ignore a federal-court judgment.\"). With respect to
the discrimination allegations made by Hayes, Roberson, Chears, and
Marshall, in addition to other individuals which Rainbow identified but
for which it did not supply affidavits, Rainbow concedes that such
matters are ordinarily referred to the EEOC and that the individual
discrimination complaints are untimely for Title VII purposes. If the
allegations are untimely for Title VII purposes, as Rainbow concedes, it
would be inconsistent with our longstanding general policy, that
discrimination complaints must be pursued initially before the EEOC or
other agency and/or court established to enforce non-discrimination
laws, to accord parties the option to file complaints in the first
instance with this agency after passage of applicable Title VII statute
of limitations provisions. For the Commission to assert jurisdiction to
resolve individual charges of employment discrimination as an
alternative to the EEOC after the expiration of the applicable Title VII
statute of limitations would have the effect of extending that statutory
deadline, which we decline to do.

18\. The FCC acts as a receiving agency for the EEOC for individual
charges of employment discrimination under Title VII. Although Rainbow
acknowledges that the individual allegations are normally referred to
the EEOC and are untimely for Title VII purposes, it is for the EEOC,
not this agency, to determine whether such claims are in fact barred by
relevant statute of limitations provisions and, if not, whether they are
actionable before the EEOC. Accordingly, pursuant to the [Memorandum of
Understanding]{.underline} between the FCC and the EEOC, we are
referring Rainbow\'s Petition to Deny and all other pleadings in this
proceeding to the EEOC and, by copy of this Order, so notifying the
licensee. If the individual allegations of employment discrimination in
Rainbow\'s petition continue to be actionable, the Commission will take
cognizance of any final determination of employment discrimination.
[Memorandum of Understanding]{.underline}, [supra]{.underline}.
[E.g.]{.underline}, [Pacific]{.underline}, 11 FCC Rcd at 8505;
[NBC-TV]{.underline}, 5 FCC Rcd 2049 (1990); [KSDK, Inc.]{.underline},
85 FCC 2d 797 (1981), [recons. den.]{.underline}, 88 FCC 2d 1443 (1992);
[Washington Radio, Inc.]{.underline}, 88 FCC 2d 1200 (1982).

#########  B. Misrepresentation and Lack of Candor Allegations 

19\. Because we find that Rainbow failed to make a [prima
facie]{.underline} case in its petition to deny, further matters raised
in subsequent pleadings ordinarily are not entitled to consideration.
[See]{.underline} [Blue Ridge Public Television]{.underline}, 12 FCC Rcd
4634, 4637 n.5 (1997). In this instance, however, we deemed it
appropriate to review, [sua sponte]{.underline}, Rainbow\'s allegations
of misrepresentation and lack of candor because they go to the
truthfulness of the licensee\'s representations to the Commission.
[See]{.underline} [Pacific]{.underline}, 11 FCC Rcd at 8505.

20\. In its reply to the licensee\'s inquiry response,[^6] Rainbow
charges that the licensee misrepresented to the Commission that there
was no EEO litigation against it during the license term in the original
Form 396 (Broadcast Equal Employment Opportunity Program Report) that
the licensee filed with the Commission. In its inquiry response, the
licensee, through its Assistant Vice President for Management Services,
states that it inadvertently answered \"None\" in response to that
section of Form 396 which asks licensees to provide a description of any
discrimination complaints filed against its stations. Along with its
inquiry response, the licensee submitted an amendment to the Form 396 it
originally filed to reflect the discrimination suit brought by Sullivan,
and stated that \"\[t\]here were no other employment discrimination
complaints filed against KWMU during the license term.\" Rainbow
contends, however, that the licensee\'s representation that no other
complaints were filed against the station is false. According to
Rainbow, based on a joint declaration by Sullivan and Solomon, there are
two additional complaints that the licensee failed to document: (1) a
complaint filed in 1990 with the St. Louis office of the EEOC by John
Schieszer, a former part-time reporter at the station, who claimed that
he was unlawfully terminated by the station on the basis of age; and (2)
the complaint Tessa Abrams Marshall filed in 1990 with the St. Louis
office of the EEOC. Rainbow further alleges that the licensee falsely
claimed in its inquiry response that it used the [St. Louis
American]{.underline}, a minority-oriented paper, to seek job referrals
for its vacancies. Rainbow asserts that, according to Sullivan and
Solomon, the station did not advertise three vacancies in the [St. Louis
American]{.underline}.

21\. In response, the licensee states the EEO litigation concerning the
station consisted of two matters involving part-time employees, as
opposed to full-time employees, that were resolved in favor of KWMU-FM;
the licensee notes that these two matters were the Sullivan lawsuit and
the John Schieszer complaint, which the St. Louis office of the EEOC
dismissed in 1991. The licensee states that \"\[i\]t is not surprising
that these matters were overlooked since they involved part-time
employees, and did not involve any adverse findings.\" The licensee
further argues that it is not at all evident from FCC Form 396 that the
Form even applies to part-time employees. The licensee maintains that it
had \"no motive to hide these matters since they were resolved
favorably\" and that its failure to report these two complaints was
inadvertent.[^7] With respect to the complaint that was allegedly filed
by Tessa Abrams Marshall, the licensee states that it has not been able
to find any record of such a complaint and is not aware of any such
complaint. It also points out that Rainbow has no record from the EEOC
of such a complaint. Furthermore, the licensee disputes Rainbow\'s claim
that the station did not run advertisements in the [St. Louis
American]{.underline} concerning job openings at the station. The
licensee provided bills and advertisements that were run in the [St.
Louis American]{.underline} during the inquiry period. It asserts that
advertisements of job openings were placed in the [St. Louis
American]{.underline}, except for those that were filled by promoting
station employees.

22\. While we acknowledge the licensee\'s explanation for its failures
to report the discrimination complaints in the first instance, we
disagree with its assertion that the Form 396 is unclear as to whether
the information requested with respect to discrimination complaints also
applies to part-time employees. The Broadcast EEO Program Report (Form
396) requires licensees to provide a brief description of
[any]{.underline} complaint which has been filed before any body having
competent jurisdiction under Federal, State, territorial or local law,
alleging unlawful discrimination in the employment practices of the
station including the persons involved, the date of filing, the court or
agency, the file number (if any), and the disposition or current status
of the matter. Form 396 does not distinguish between complaints filed by
part-time and full-time employees and the licensee does not direct us to
any language in the form or the Commission\'s Rules to suggest
otherwise.

23\. What is more disturbing, however, is that a Commission staff letter
was sent to KWMU-FM which specifically asked the licensee to identify,
in addition to the [Sullivan case]{.underline}, \"[any
other]{.underline} employment discrimination complaint(s) filed against
KWMU-FM during the current license term" (emphasis added). Even with
this unambiguous instruction, the licensee in its response to the staff
letter acknowledged the existence only of the [Sullivan
case]{.underline}. It was not until after Rainbow brought to our
attention the existence of the Schieszer complaint \-- in its reply to
the licensee\'s inquiry response \-- that the licensee finally
acknowledged the existence of that complaint. The licensee consequently
amended its Form 396 for the second time and again asserted that its
failure to report the Schieszer complaint was inadvertent.

24\. We find no evidence of an intent to deceive that would support a
finding of misrepresentation or lack of candor. The two discrimination
complaints were favorably resolved in the licensee's favor. Evidence of
an intent to deceive is necessary to support such a finding. [Fox
Television Stations, Inc.]{.underline}, 10 FCC Rcd 8452, 8487 (1995);
[Fox River Broadcasting, Inc.]{.underline}, 93 FCC 2d 127, 129 (1983).
Nonetheless, KWMU-FM\'s omissions of the two complaints in its Form 396
and in response to the Commission staff letter, cannot be ignored. Full
and clear disclosure of all material facts is essential to the efficient
administration of the Commission\'s license renewal process. Section
73.1015 of the Commission\'s Rules, 47 C.F.R. § 73.1015, states in
pertinent part that \"No applicant \... shall \... in any application,
pleading, or report or any other written statement submitted to the
Commission, make any \... willful material omission bearing on any
matter within the jurisdiction of the Commission.\" A \"willful material
omission\" need not be accompanied by an intent to deceive. [Abacus
Broadcasting Corp.]{.underline}, 8 FCC Rcd 5110, 5115 (Rev. Bd.
1993).[^8]

25\. We find that the licensee's Form 396 and amendment thereto omitted
material facts, as described above. Further, we find that this action
was willful inasmuch as the licensee's Assistant Vice President for
Management Services, Dennis Cesari, certified that the information
contained in the Form 396 was true and correct to the best of his
knowledge, information, and belief. The licensee admits that it twice
failed to report all of its discrimination complaints. Although the
licensee states that the omissions were "inadvertent," the licensee does
not deny that it was aware of the existence of the discrimination
complaints at the time the renewal application was filed. Cesari had a
responsibility to ensure the accuracy of the information contained in
the application before signing the certification. His failure to do so
reflects a lack of concern for the accuracy of information provided to
the Commission. The licensee's acknowledgement of the existence of all
of its discrimination complaints over one year after the station's
renewal application was filed, and only after Rainbow alerted the
Commission to the existence of the complaints, further supports this
conclusion. [See]{.underline} [In Re Application of National
Broadcasting Co., Inc]{.underline}., 14 FCC Rcd 9026 (MMB 1999).

26\. Accordingly, we find that a forfeiture should be assessed against
the licensee for willfully omitting material facts in its Form 396 in
violation of Section 73.1015 of the Commission\'s Rules. In [The
Commission\'s Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines]{.underline}, 12
FCC Rcd 17087 (1997), the Commission adopted guidelines for assessing
forfeitures. However, these guidelines do not enumerate a base
forfeiture amount for a willful material omission. Under these
circumstances, the forfeiture must be assessed taking into account the
relevant statutory factors in Section 503(b)(2) of the Communications
Act of 1934, including \"the nature, circumstances, extent, and gravity
of the violation and, with respect to the violator, the degree of
culpability, any history of prior offenses, ability to pay, and such
other matters as justice may require.\" Based on our assessment of these
factors, we conclude that the licensee\'s violation of Section 73.1015
warrants issuance of a Notice of Apparent Liability for a forfeiture in
the amount of \$8,000. We believe that the record in this case is
similar to, but more egregious than, that of the licensee of WRKL(AM),
New City, New York, in [Application of WRKL Rockland Radio,
L.L.C.]{.underline}, 14 FCC Rcd 1042 (MMB 1999). In that case, the
Commission imposed a \$5,000 Notice of Apparent Liability on the
licensee for willfully omitting the existence of employment
discrimination complaints filed against its station in that station\'s
Form 396, in violation of Section 73.1015. In the case at hand, the
licensee's behavior is more egregious since the licensee omitted its two
complaints both in its Form 396 and in response to the Commission's
staff letter. Accordingly, we will grant renewal subject to a Notice of
Apparent Liability for \$8,000.

27\. Regarding Rainbow\'s allegation that the licensee falsely claimed
in its inquiry response that it used the [St. Louis
American]{.underline}, a minority-oriented newspaper, to seek job
referrals for vacancies that were available at the station during the
inquiry period, we also find that this allegation does not raise a
substantial and material question of fact. The licensee disputes
Rainbow\'s claim and provided copies of invoices and advertisements in
support of its assertion that the [St. Louis American]{.underline} was,
in fact, used as a source of minority recruitment efforts for its
vacancies. It explains that it did not use this source for positions
that were filled internally through promotions.

#########  IV. ORDERING CLAUSES

28\. Accordingly, **IT IS ORDERED** that the petition to deny filed by
the Rainbow-PUSH Coalition concerning the renewal application for
Station KWMU-FM **IS DENIED**.

29\. **IT IS FURTHER ORDERED** that, pursuant to Section 503 of the
Communications Act of 1934, as amended, 47 U.S.C. § 503, the license
renewal application filed by The Curators of the University of Missouri
for Station KWMU-FM **IS GRANTED** subject to a **NOTICE OF APPARENT
LIABILITY FOR FORFEITURE** in the amount of \$8,000.

30\. **IT IS FURTHER ORDERED** that the discrimination allegations made
by Rainbow, and all related pleadings, will be referred to the EEOC, as
described in this [Memorandum Opinion and Order]{.underline}.

31\. **IT IS FURTHER ORDERED** that The Curators of the University of
Missouri submit to the Commission complete details concerning any new
charges or complaints of discrimination filed against the station or
personnel of the station during the current license term, including a
description of the complainant\'s allegations and the status of the
case, within 30 days of such charge or complaint being filed.

32\. **IT IS FURTHER ORDERED** that a copy of this [Memorandum Opinion
and Order]{.underline} be sent to Rainbow and The Curators of the
University of Missouri by Certified Mail \--Return Receipt Requested.

33\. Regarding the forfeiture proceeding, the licensee may take any of
the actions set forth in Section 1.80 of the Commission\'s Rules, 47
C.F.R. § 1.80, as summarized in the attachment to this [Memorandum
Opinion and Order]{.underline}. Any comments concerning ability to pay
should include those financial items set forth in the attachment.

**FEDERAL COMMUNICATIONS COMMISSION**

Magalie Roman Salas

Secretary

[^1]:     ^?^ Arthur Solomon provided a declaration in support of
    Rainbow\'s petition; he does not claim to be a victim of employment
    discrimination at station KWMU-FM.

[^2]:     ^?^ Sullivan submitted a declaration along with Rainbow\'s
    petition.

[^3]:     ^?^ Marshall states that, in preparation for her declaration,
    she contacted the St. Louis office of the EEOC and was told that
    they had no record of her complaint against the station.

[^4]: ^?^ Rainbow states that it "lacks the resources to perform due
    diligence on the November 14 material.\"

[^5]: ^?^ [See]{.underline} letter dated October 15, 1997, from EEO
    Branch, Mass Media Bureau, to attorneys for Rainbow-PUSH Coalition
    and KWMU-FM, St. Louis, Missouri.

[^6]:     ^?^ On May 29, 1997, Commission staff sent the licensee a
    letter of inquiry requesting information about the licensee\'s EEO
    efforts over a three-year period \-- [i.e.]{.underline}, from
    February 1, 1994 to February 1, 1997.

[^7]:     ^?^ Thereafter, the licensee again amended its Form 396 to
    reflect both the [Sullivan case]{.underline} and the Schieszer
    complaint.

[^8]: ^?^ This case concerned Section 1.17 of the Commission\'s Rules,
    47 C.F.R. § 1.17. However, the pertinent language of the provision
    is the same as the pertinent language in Section 73.1015.