**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In re Application of )

)

WRKL Rockland Radio, L.L.C.[^1] ) File No. BR-980202K7

)

For Renewal of License for )

Station WRKL(AM), )

New City, New York )

**MEMORANDUM OPINION AND ORDER**

**AND NOTICE OF APPARENT LIABILITY**

**Adopted: January 20, 1999; Released: January 20, 1999**

By the Chief, Mass Media Bureau:

**I. INTRODUCTION**

1\. The Commission, by the Chief, Mass Media Bureau, pursuant to
delegated authority, has before it for consideration: (i) the license
renewal application of WRKL Rockland Radio, L.L.C. (\"WRKL Radio\" or
\"licensee\") for Station WRKL(AM), New City, New York;[^2] (ii) an
informal objection to the renewal application filed by Steven Possell
(\"Possell\"), a former employee of WRKL(AM); (iii) an informal
objection to the renewal application filed by Florence Teich
(\"Teich\"), a former employee of WRKL(AM); (iv) a request by Possell to
withdraw his informal objection; and (v) the licensee\'s response to a
staff letter of inquiry.

2\. The licensee filed its license renewal application and accompanying
FCC Form 396 for WRKL(AM) on February 2, 1998. Michael Kakoyiannis
(\"Kakoyiannis\"), President and Chief Executive Officer of Big City
Radio, Inc. (\"Big City Radio\"), the sole member manager of WRKL Radio,
certified that the statements contained in the Form 396 were true and
correct to the best of his knowledge, information and belief. In Section
VII of its Form 396, which states \"\[y\]ou must provide here a brief
description of any complaint which has been filed before any body having
competent jurisdiction under Federal, State, territorial or local law,
alleging unlawful discrimination in the employment practices of the
station including the persons involved, the date of filing, the court or
agency, the file number (if any), and the disposition or current status
of the matter,\" the licensee stated \"None.\" However, Possell
indicated in his February 28, 1998, informal objection that he had filed
a discrimination complaint against Big City Radio with the New York
State Division of Human Rights in March 1997. Further, Teich indicated
in her April 20, 1998, informal objection that she had filed
discrimination complaints against Big City Radio with the United States
District Court for the Southern District of New York and the New York
State Division of Human Rights in July 1997. In an amendment to its
renewal application filed on May 27, 1998, the licensee reported the
discrimination complaints filed by Possell and Teich, and also reported
that a discrimination complaint was filed by Renee Dawson-Harel
(\"Dawson-Harel\"), another former WRKL(AM) employee, with the New York
State Division of Human Rights in December 1997. The amendment did not
include any explanation regarding the licensee\'s initial failure to
report the discrimination complaints in its Form 396.

3\. On November 9, 1998, Commission staff sent the licensee a letter of
inquiry which sought an explanation as to why the licensee indicated in
its Form 396 that no discrimination complaints had been filed against
the station. In the licensee\'s November 23, 1998, response, Kakoyiannis
stated that, consistent with his customary practice, he delegated the
preparation of the Form 396 to WRKL(AM)\'s business manager and
instructed her to work on the form with the licensee\'s communications
counsel. According to the licensee\'s counsel, the drafts of the Form
396 provided by the business manager did not include page five, which
includes Section VII, and the associate attorney who prepared the final
version of the form inserted \"None\" in response to Section VII without
any knowledge of the facts and without having asked the business manager
or Kakoyiannis if that answer was correct. Kakoyiannis asserted that
when he received the final Form 396 for his signature, he was not aware
that the business manager had neither provided nor reviewed the response
to Section VII. Kakoyiannis further asserted that since he knew that the
business manager and counsel prepared the form together, he trusted that
the answers were correct and signed the Form 396 without noticing the
error in Section VII. The licensee\'s counsel states that she
subsequently discovered the error while conducting due diligence in
connection with negotiations for the sale of WRKL(AM), and the licensee
amended the renewal application at that time to report the pending
discrimination complaints.

**II. DISCUSSION**

4\. On October 6, 1998, Possell filed a request to withdraw his informal
objection to the renewal application for WRKL(AM), along with a copy of
a settlement agreement between Possell and Big City Radio relating to
Possell\'s discrimination complaint. The withdrawal request includes a
statement by Possell that he has not and will not receive any money or
other consideration from the licensee in exchange for the withdrawal of
his informal objection and that there are no oral agreements between the
parties. However, review of the settlement agreement reveals that
Possell did receive consideration from Big City Radio in excess of his
legitimate and prudent expenses in settlement of his discrimination
complaint against Big City Radio and that Possell\'s withdrawal of the
informal objection was an express condition of the settlement agreement.
Accordingly, we find that Possell\'s request to withdraw the informal
objection does not comply with Section 73.3588 of the Commission\'s
Rules, 47 C.F.R. § 73.3588, and we deny the request.

5\. Possell alleges in his informal objection that Big City Radio
discriminated against him based on his physical disability, blindness.
In her informal objection, Teich charges Big City Radio with sexual
discrimination. The United States Court of Appeals for the District of
Columbia Circuit recently held that the outreach portions of the
broadcast equal employment opportunity (\"EEO\") Rule were
unconstitutional. [Lutheran Church-Missouri Synod v. FCC]{.underline},
141 F.3d 344 (D.C. Cir. 1998), [petition for reh\'g denied]{.underline},
154 F.3d 487, [petition for reh\'g en banc denied]{.underline}, 154 F.3d
494 (D.C. Cir. 1998). With respect to the provision against unlawful
discrimination in the EEO Rule, the Court remanded to the Commission to
determine whether it has authority to enforce a non-discrimination rule.
141 F.3d at 356-357. Although the Commission has not yet made a final
determination regarding the non-discrimination provision consistent with
the Court\'s remand,[^3] the provision remains in effect. In any event,
such a determination is not necessary to resolve the informal objections
to the renewal application for WRKL(AM). Possell\'s allegations, even if
true, would not constitute a violation of our broadcast
non-discrimination provision because that provision does not encompass
discrimination based on physical disability.[^4]

6\. Although Teich\'s allegations of sexual discrimination would fall
within the scope of the non-discrimination provision, her discrimination
complaints are still pending. It is the Commission\'s long-standing
policy generally to defer action on individual complaints of employment
discrimination until acted upon by the Equal Employment Opportunity
Commission or other government agency and/or court established to
enforce non-discrimination laws. The Commission generally will take
cognizance of only a final determination of employment discrimination.
[See]{.underline} [Memorandum of Understanding Between the Federal
Communications Commission and the Equal Employment Opportunity
Commission]{.underline}, 51 Fed. Reg. 21,798 (1986). Consistent with
this policy, we will defer action on Teich\'s allegations pending any
final determination regarding employment discrimination. We will expect
the licensee to update the Commission periodically on the status of the
pending complaints filed by Teich and Dawson-Harel.

7\. We are, however, troubled by the licensee\'s initial failure to
report the discrimination complaints in its Form 396. We find no
evidence of an intent to deceive which is necessary to support a finding
of misrepresentation or lack of candor. [Swan Creek Communications v.
FCC]{.underline}, 39 F.3d 1217, 1222 (D.C. Cir. 1994); [Fox Television
Stations, Inc.]{.underline}, 10 FCC Rcd 8452, 8487 (1995); [Fox River
Broadcasting, Inc.]{.underline}, 93 FCC 2d 127, 129 (1983). In this
regard, we are unable to discern any motive for the licensee to conceal
the pending discrimination complaints. The pending discrimination
complaints would not, by themselves, delay grant of the licensee\'s
renewal application because, as noted above, the Commission\'s general
policy is to defer action on individual discrimination complaints until
acted upon by a government agency and/or court established to enforce
non-discrimination laws. Nonetheless, we believe that the licensee\'s
factual omissions cannot be ignored. Full and clear disclosure of all
material facts is essential to the efficient administration of the
Commission\'s license renewal process. Proper analysis of a licensee\'s
renewal application is critically dependent upon the accuracy and
completeness of information and data which only the licensee can
provide. Section 73.1015 of the Commission\'s Rules, 47 C.F.R. §
73.1015, states in pertinent part that \"No applicant \... shall \... in
any application, pleading, or report or any other written statement
submitted to the Commission, make any \... willful material omission
bearing on any matter within the jurisdiction of the Commission.\" A
\"willful material omission\" need not be accompanied by an intent to
deceive. It is sufficient that the omission be conscious and deliberate,
irrespective of intent. [Abacus Broadcasting Corp.]{.underline}, 8 FCC
Rcd 5110, 5115 (Rev. Bd. 1993) (\"[Abacus
Broadcasting]{.underline}\").[^5]

8\. We find that the licensee\'s Form 396 omitted material facts, as
described above. Further, we find that this action was willful inasmuch
as Kakoyiannis certified that the information contained in the Form 396,
including the \"None\" response in Section VII, was true and correct to
the best of his knowledge, information and belief. It is undisputed that
Kakoyiannis was aware of the pending discrimination complaints when the
station\'s renewal application was filed. Thus, the omitted facts were
clearly within his personal knowledge. Moreover, the fact that
Kakoyiannis delegated responsibility for preparation of the Form 396 to
the licensee\'s business manager and communications counsel did not
relieve him of his responsibility to review the form and ensure the
accuracy of the information contained therein before signing the
certification. His failure to do so reflects an apparent lack of concern
for the accuracy of information provided to the Commission.

9\. Accordingly, while we conclude that the informal objections fail to
raise a substantial and material question of fact warranting further
inquiry and that grant of the renewal application for WRKL(AM) would be
consistent with Section 309(k) of the Communications Act of 1934, as
amended, we find that a forfeiture should be assessed against the
licensee of WRKL(AM) for willfully omitting material facts in its Form
396 in violation of Section 73.1015 of the Commission\'s Rules. In [The
Commission\'s Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines]{.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 \$5,000. [Cf.]{.underline} [Abacus
Broadcasting]{.underline}.

**III. ORDERING CLAUSES**

10\. **ACCORDINGLY, IT IS ORDERED** that Steven Possell\'s request to
withdraw his informal objection to the license renewal application for
Station WRKL(AM) **IS DENIED**.

11\. **IT IS FURTHER ORDERED** that the informal objections filed by
Steven Possell and Florence Teich to the license renewal application for
Station WRKL(AM) **ARE DENIED**.

12\. **IT IS FURTHER ORDERED** that, pursuant to Section 503 of the
Communications Act of 1934, as amended, 47 U.S.C. § 503, the license
renewal application filed by WRKL Rockland Radio, L.L.C. for Station
WRKL(AM) **IS GRANTED** subject to a **NOTICE OF APPARENT LIABILITY FOR
FORFEITURE** in the amount of \$5,000.

13\. **IT IS FURTHER ORDERED** that the licensee of WRKL(AM) update the
Commission on any change in the status of the pending discrimination
complaints within 30 days of such change.

14\. **IT IS FURTHER ORDERED** that copies of this [Memorandum Opinion
and Order and Notice of Apparent Liability]{.underline} be sent by
Certified Mail \-- Return Receipt Requested \-- to WRKL Rockland Radio,
L.L.C., Steven Possell and Florence Teich.

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

16\. This action is taken under delegated authority pursuant to Section
0.283 of the Commission\'s Rules, 47 C.F.R. § 0.283.

FEDERAL COMMUNICATIONS COMMISSION

Roy J. Stewart

Chief, Mass Media Bureau

[^1]: ^?^ An application to assign the license for WRKL(AM) from WRKL
    Rockland Radio, L.L.C. to Polnet Communications, Ltd. is currently
    pending (File No. BAL-980903EH).

[^2]: ^?^ The license term under review expired on June 1, 1998.

[^3]: ^?^ In a rulemaking proceeding initiated to propose broadcast EEO
    rules and policies consistent with the D.C. Circuit\'s decision in
    [Lutheran Church]{.underline}, the Commission has tentatively
    concluded that it has ample statutory authority to retain the
    non-discrimination rule and proposes to do so. [Review of the
    Commission\'s Broadcast and Cable Equal Employment Opportunity Rules
    and Policies and Termination of the EEO Streamlining
    Proceeding]{.underline}, FCC 98-305, released November 20, 1998.

[^4]: ^?^ Section 73.2080(a) of the Commission\'s Rules provides, in
    pertinent part, that \"no person shall be discriminated against in
    employment because of race, color, religion, national origin, or
    sex.\"

[^5]: ^?^ 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.