**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of Liability of )

)

CRC Broadcasting Company, Inc. )

Licensee of Station KFNN(AM), )

Mesa, Arizona )

)

For a Forfeiture )

**MEMORANDUM OPINION AND ORDER\
AND FORFEITURE ORDER**

**Adopted: August 25, 1999 Released: August 26, 1999**

By the Chief, Mass Media Bureau:

1.  The Commission, by the Chief, Mass Media Bureau, pursuant to
    delegated authority, has before it for consideration: (i) the
    *Memorandum Opinion and Order and Notice of Apparent Liability* in
    *CRC Broadcasting Company, Inc.*, 14 FCC Rcd 1038 (MMB 1999)
    ("*MO&O*"), which granted the license renewal application of CRC
    Broadcasting Company, Inc. ("CRC" or "licensee") for Station
    KFNN(AM), Mesa, Arizona subject to a Notice of Apparent Liability
    ("NAL") for an \$8,000 forfeiture; and (ii) CRC's response to the
    NAL, which seeks rescission or reduction of the forfeiture.

2.  In the *MO&O*, we found that the licensee had violated Section
    73.1015 of the Commission's Rules by willfully omitting material
    facts in the FCC Form 396 (Broadcast EEO Program Report) filed with
    its license renewal application on May 30, 1997. In Section VII of
    the Form 396, which states "\[y\]ou must provide here a brief
    description of any complaint which has been filed before any body
    having competent jurisdiction under Federal, State, territorial or
    local law, alleging unlawful discrimination in the employment
    practices of the station including the persons involved, the date of
    filing, the court or agency, the file number (if any), and the
    disposition or current status of the matter," the licensee stated
    that "No Complaints Have Been Filed." However, in August 1997, a
    former employee of KFNN(AM) informed Commission staff that she had
    filed a discrimination complaint against KFNN(AM) and CRC with the
    Civil Rights Division of the Arizona Attorney General\'s Office
    ("CRD") and the U.S. Equal Employment Opportunity Commission
    ("EEOC") on January 7, 1997.

3.  In an October 31, 1997, response to a staff letter of inquiry,
    Ronald Cohen ("Cohen"), President and General Manager of CRC, stated
    that before filing the renewal application, he talked to a
    representative of the CRD, who told him that the discrimination
    complaint had not yet been assigned to an investigator and had not
    been filed with the EEOC. Cohen asserted that, because the complaint
    had not yet been investigated or referred to the EEOC at the time
    the licensee filed the renewal application, he did not believe that
    it had to be reported on Form 396. However, in a subsequent filing
    dated April 7, 1998, Cohen reported that his previous statement \--
    that an official at the CRD told him that the discrimination charge
    had not been filed with the EEOC \-- was incorrect. Instead, he
    recalled the official telling him "that the charge would not be
    considered by the EEOC until the CRD completed its review and only
    if the CRD determined the charge stated a possible cause of action
    for discrimination." Therefore, it was his "impression that the
    matter was not before the EEOC for consideration and that it was
    premature to report this matter to the FCC in the renewal
    application." Cohen claimed that the inaccurate statement in the
    October 31, 1997, inquiry response was based on his memory and
    recollection of his conversation with the CRD official and that he
    failed to review a January 1997 letter from the CRD informing him
    that the complaint had been filed with the EEOC prior to filing the
    October 31, 1997, response.

4.  We found no evidence in the *MO&O* that the licensee's failure to
    report the discrimination complaint resulted from an intent to
    deceive. However, we concluded that the licensee had omitted
    material facts from its Form 396. We further concluded that this
    action was willful inasmuch as Cohen certified that the information
    contained in Form 396, including the statement that no complaints
    had been filed, was true and correct to the best of his knowledge.
    Accordingly, we issued the licensee an NAL for an \$8,000 forfeiture
    for willfully omitting material facts from its Form 396 in violation
    of Section 73.1015 of the Commission's Rules.

5.  In the licensee's response to the NAL, Cohen asserts that he has
    "never been in trouble before with the Commission or previously been
    party to an employee rights action." Cohen states that this is the
    very reason he "got into trouble" in this instance. In this regard,
    Cohen asserts that he failed to understand what was required to
    accurately report the status of a pending complaint on the Form 396.
    Cohen also states that the complaint in question was dismissed
    shortly after the Commission discovered the omission.[^1]

6.  We conclude that the licensee has provided no basis for rescission
    or reduction of the forfeiture. As we stated in the *MO&O*, Cohen's
    misunderstanding of the status of the complaint, or the point at
    which he was required to report it to the Commission, does not
    mitigate the licensee's violation of Section 73.1015.[^2] *MO&O*
    at 1040. Regarding the licensee's assertion that it has never been
    in trouble before with the Commission, we do not believe that the
    licensee's overall history of compliance with the Commission's Rules
    necessitates or justifies a reduction of the specified forfeiture
    amount. While Section 503(b)(2) of the Communications Act, as
    amended, 47 U.S.C. § 503(b)(2), requires us to consider a licensee's
    history of prior offenses in determining a forfeiture amount, it
    does not mandate that we mitigate a forfeiture amount should a
    licensee have no history of prior offenses. Rather, a licensee's
    compliance history must be considered along with the other factors
    set forth in Section 503(b)(2), including the nature, circumstances,
    extent, and gravity of the violation. In the instant case, the
    licensee's initial omission, a serious violation in itself, was
    compounded by Cohen's failure to accurately report his reasons for
    the omission when initially questioned by the Commission. *MO&O*
    at 1040. Therefore, based on the facts and circumstances of this
    case, we do not believe that the licensee's history of compliance
    with the Commission's Rules warrants a reduction in the amount of
    the forfeiture. Finally, we think it is wholly irrelevant that the
    complaint in question was ultimately dismissed. It was not the
    existence of the complaint itself, but rather the licensee's failure
    to report it on its Form 396 and its initial inaccurate explanation
    for that failure that led to the forfeiture.

7.  **ACCORDINGLY, IT IS ORDERED** that the response to the Notice of
    Apparent Liability filed by CRC Broadcasting Company, Inc. **IS
    DENIED**.

8.  **IT IS FURTHER ORDERED**, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 503(b), that CRC
    Broadcasting Company, Inc. **FORFEIT** to the United States the sum
    of eight thousand dollars (\$8,000) for willfully omitting material
    facts in violation of Section 73.1015 of the Commission's Rules, 47
    C.F.R. § 73.1015. Full payment of the forfeiture may be made by
    mailing to the Commission a check or similar instrument payable to
    the Federal Communications Commission within 30 days of the release
    of this Order. In regard to this forfeiture proceeding, the licensee
    may take appropriate action as set forth in Section 1.80 of the
    Commission's Rules, 47 C.F.R. § 1.80, and Section 504(a) of the
    Communications Act of 1934, as amended, 47 U.S.C. § 504(a), as
    summarized in the attachment to this *Memorandum Opinion and Order
    and Forfeiture Order*.

9.  **IT IS FURTHER ORDERED** that copies of this *Memorandum Opinion
    and Order and Forfeiture Order* be sent by Certified Mail \-- Return
    Receipt Requested \-- to CRC Broadcasting Company, Inc.

10. This action is taken pursuant to delegated authority.

FEDERAL COMMUNICATIONS COMMISSION

Roy J. Stewart

Chief, Mass Media Bureau

[^1]: ^?^ The discrimination complaint was dismissed pursuant to a
    settlement agreement between the licensee and the complainant on
    December 31, 1997.

[^2]: ^?^ As we pointed out in the *MO&O*, even if what Cohen initially
    recalled was true \-- that the complaint had not yet been assigned
    to an investigator or filed with the EEOC \-- the licensee was still
    required to report the complaint. Form 396 requests that a licensee
    provide a "description of any complaint which has been *filed*
    before *any body* having competent jurisdiction under Federal,
    State, territorial or local law, alleging unlawful discrimination in
    the employment practices of the station ..." (emphasis added). Thus,
    even if the complaint had been filed only with the CRD at the time
    of the filing of the station's renewal application, it still should
    have been reported on the Form 396. *MO&O* at 1040, n. 4.