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 Federal  Communications  Commission  FCC  06D-  01 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  The  Matter  of 
 San  Francisco  Unified  School  District 
 For  Renewal  of  License  for  Station  KALW(  FM),  San  Francisco,  California 


 )  ) 
 )  ) 
 )  ) 
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 MB  Docket  No.  04-  191 
 Facility  ID  No.  58830  File  No.  BRED-  19970801YA 


 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 
 1  The  HDO  was  issued  incident  to  allegations  of  a  petition  to  deny  renewal  filed  on  November  3,  1997. 
 HDO  at  Paras.  1-  5. 
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 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  Commissions  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  SFUSDs  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  Commissions  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  SFUSDs 
 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 
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 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  Commissions  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.) 


 2  Hereafter,  each  of  SFUSDs  exhibits  will  be  referred  to  as  (SFUSD  Exh.  __)  and  each  of  the  Bureaus 
 exhibits  will  be  referred  to  as  (EB  Exh.  __).  Hearing  transcript  pages  will  be  referred  to  as  (Tr.  __). 
 3  SFUSD  Exh.  T-  6  at  2. 
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 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  SFUSDs  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  Stations  day-  to-  day  management.  The  Stations  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.  SFUSDs  support  of  the  Station  is  limited  to  in-  kind  services  such  as  the  sites  of  the  stations  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  Superintendents  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  Superintendents  level  was  an  act  taken  in  the  course  of  SFUSDs  business.  The 
 Superintendents  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,  SFUSDs  management  must  have  known  that  a  petition  to  deny  renewal  had  been  filed  on  November  3,  1997,  and  was  aware  of  the  Bureaus  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 
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 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  stations  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  Stations  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  Stations  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  Stations  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  Stations  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.) 


 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. 
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 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  Stations  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  Stations  Chief  Engineer: 


 [I]  n  August  1996,  -  -  -  I  told  Mr.  Ramirez  that  Ownership  Reports  and  quarterly  issues  reports  hadnt  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.) 
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 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  SFUSDs  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.  Hechts  report,  and  there  was  no  evidence  of  Mr.  Ramirez  questioning  her  on  the  contents  of  her  report.  He 
 testified:  .  I  never  read  Susen  Hechts  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 
 -  -  - 
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 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  Stations  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.  Evans  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  SFUSDs  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  applicants  Ownership  Report  (FCC  Form  323  or  323-  E),  as  required  by  47  C.  F.  R.  Section  73.3615? 
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 (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. 
 SFUSDs  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  Commissions  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 


 7  Official  notice  is  taken  of  the  fact  that  the  Stations  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. 
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 quarter  describing  the  programs  that  represent  the  stations  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  stations  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  stations 
 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  Managers  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 


 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). 
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 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  Stations  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.  Hechts  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  Commissions  application  reporting  rules,  but  he  failed. 


 Ownership  Reports 
 34.  Question  1(  b)  of  the  renewal  application  asks  whether  the  applicants  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.)  SFUSDs  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.) 
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 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  stations  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.  Ramirezs  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.  Ramirezs  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  Stations  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  NABs  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. 
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 40.  Mr.  John  Covell  was  producer  of  a  popular  program  entitled  City  Visions  covering  local  news,  elections,  and  the  citys  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  Stations  renewal  application  was  filed,  Mr.  Ramirez 
 believed  that  Mr.  Covells  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.  Ramirezs  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  Visions  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  Superintendents  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.) 
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 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 
 stations  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.  Ramirezs 
 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.)  GGPRs  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  Stations  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.) 


 10  Mr.  Sanchezs  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.  Ramirezs  preparation  of  the  renewal  application  and  the  answers  certified  therein  were  related  to  billed  legal  advice. 
 (Tr.  533) 
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 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  Stations  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  GGPRs  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.  SFUSDs  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.  Hechts  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.  Hechts  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. 


 11  GGPRs  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. 
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 51.  Mr.  Ramirez  rejected  Ms.  Hechts  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.  Lopezs  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  SFUSDs  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 
 stations  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:  Im  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.) 
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 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  KALWs  Public  File.  ---. 


 (EB  Exh.  10.)  Mr.  Ramirez  was  asked  whether  he  understood  the  reference  to  clean  up  the  PIF,  and  he  testified:  No,  I  dont.  (Tr.  484.)  He  was  asked  whether  new  documents  were 
 being  added  to  the  PIF  in  January  1998,  and  he  answered,  I  dont  remember.  (Tr.  484.)  This  one  page  document  was  fact-  specific  about  a  cleanup-  list  that  if  it  existed  would  have 
 significance  in  corroborating  Mr.  Ramirezs  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  BOEs  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  GGPRs  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 
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 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  GGPRs  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  Nos  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.) 


 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. 
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 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.) 
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 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.  KALWs  reports  were  spottily  corrected  during  the  late  1990s.  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.) 


 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. 
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 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  KALWs  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.  SFUSDs  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  KALWs  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  PIFs  contents  as  of  August  1,  1997.  Therefore,  he  did  not  have  a  factual  basis  for  affirming  or  ratifying  Mr.  Ramirezs  input  on  SFUSDs  erroneous 
 certification.  He  merely  assumed  that  Mr.  Ramirez  was  accurate  and  truthful.  And  he  was  not  in  control  of  counsels  strategy  in  replying  to  the  LOI. 
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 SFUSDs  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  Stations  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  Districts  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.  SFUSDs  Budget  Outlook  reports  that  the  Districts  deficit  for  Fiscal  Year  2004-  2005  is  expected  to  be  $4.9  million  and  that  the  Districts  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. 


 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. 
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 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  Stations  PIF.  That  admittedly  untruthful  certification,  recklessly  solicited  of  SFUSDs  top  manager  by  Mr.  Ramirez,  will  be  considered  in  the  context  of  declarations  in  support  of 
 SFUSDs  opposition  to  a  petition  to  deny,  declarations  in  support  of  its  counsels  response  to  the  LOI,  and  related  depositions,  hearing  testimony,  and  cross-  examination. 


 Ownership 
 68.  Question  1(  b)  asked  if  the  applicants  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  Stations  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  files  deficiencies.  Mr.  Ramirez  looked  at  the  information  with  editorial  criticism,  testifying  that  he  had  found  Ms.  Hechts  document  to  not 
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 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.  Hechts  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  PIFs  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  dont  remember  ---  [but]  I  can  think  through  how  I  think  I  came  to  that  decision.  (Tr.  442.)  A  list  of  delicts  regarding  renewal  prepared  by  GGPRs  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  Superintendents  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:  Theres  a  lot  that  I  dont  remember.  I 
 dont  know  why.  (Tr.  446.) 


 15  Much  of  Mr.  Ramirezs  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.) 
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 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  Superintendents 
 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  Stations  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 
 dont  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 


 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.) 
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 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  producers  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  dont  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  dont  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  dont  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.  SFUSDs  attorneys  relied  on  Mr.  Ramirezs  declaration  of  January  1998,  and  on  Mr.  Helgesons  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  SFUSDs  opposition  papers,  including  the  Ramirez  and  Helgeson  declarations,  were  prepared  and  advocated  by  counsel,  and  SFUSD  followed  its 
 counsels  legal  advice.  It  would  be  unreasonable  for  Mr.  Ramirez  and  Mr.  Helgeson  to  reject  counsels  advice  when  that  could  have  delayed  the  filing  of  an  opposition,  or  otherwise  might 
 have  prejudiced  SFUSDs  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.  Helgesons  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  counsels  involvement  in  preparing  the  declaration,  Mr.  Helgesons  questionable  and 
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 misleading  declaration  does  not  establish  that  Mr.  Helgeson  had  intentionally  misrepresented  to  the  Commission.  Mr.  Helgesons  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  letters  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  LOIs  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.  Counsels  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.  Sawayas  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  counsels  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  counsels  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  counsels  letter. 
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 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  LOIs  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  SFUSDs  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  KALWs  Public  File. 


 Mr.  Helgeson  testified  that  now  he  is  not  sure  what  list  it  refers  to  particularly.  He  went  on  to  testify  Im  not  sure  what  I  meant  at  this  time  [and]  I  cant  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  didnt  know  what  should  and  shouldnt  be  in  a  public  file  ---  I  just 
 assumed  there  was  some  printed  list.  (Tr.  833.)  He  continues:  Im  not  sure  ---  like  I  say  I  dont  know  what  clean  up  was  then.  (Tr.  834.)  When  asked  if  the  public  file  had  been 
 reorganized,  he  answered  I  dont  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  Stations  PIF  in  January  1998.  Disarray  in  testimony  with  regard  to  his  declaration  and  the  PIF  when  he  assumed  the  General  Managers  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. 


 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.) 
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 85.  Mr.  Helgeson  testified  at  hearing  that  he  had  no  intent  of  attesting  to  the  PIFs  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.  Helgesons  reliance  on  counsel,  his  naivet  regarding  Mr.  Ramirezs  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  dont  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  LOIs  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  dont  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  didnt  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  GGPRs  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 
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 issue  at  hand  is  FCC  regulations  around  what  must  be  in  a  stations  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  wasnt  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  technicians  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.  Sawayas  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. 


 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  Bureaus  Motion 


 to  Enlarge  Issues,  filed  March  2,  2005.  SFUSDs  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  Bureaus  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. 
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 CONCLUSIONS  OF  LAW 
 General  Considerations 
 90.  The  Commissions  policy  on  ownership  responsibility  is  applicable  in  assessing  responsibility  of  SFUSD  for  the  actions  of  the  Stations  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.  Ramirezs  conduct  under  this  policy.  The  policy  also  provides  that  mitigating  factors  must  be  considered.  Id. 


 91.  The  Commissions  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  Commissions  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.  Ramirezs  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 


 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.) 
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 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.  Pship,  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.  Ramirezs  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 
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 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.  Ramirezs  misleading  acts  of  misjudgment,  and  SFUSD  should  not  be  denied  renewal  based  on  Mr.  Ramirezs  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  applicants  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  PIFs  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  Superintendents  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  PIFs  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  Stations  violations  were  mainly  caused  by  Mr.  Ramirezs  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  Stations  PIF  was  deficient.  Had  Mr.  Ramirez  acted  with  reasonable  diligence,  it  could  have  been  corrected  by  the  time  the  renewal  application  was  filed.  Making 
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 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  SFUSDs  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  Stations  public  inspection  file.  But  there  are 
 mitigating  circumstances.  When  Mr.  Helgeson  realized  that  SFUSDs  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  stations  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 
 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. 
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 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.  Pship, 
 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  SFUSDs  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  doesnt  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  SFUSDs  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 
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 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  counsels  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  communitys  issues.  And  despite  deficiencies  in  quarterly  issues/  programming  lists,  the  Station  consistently  produced 
 programming  that  was  responsive  to  San  Francisco. 
 107.  Mr.  Sanchezs  preparation  of  an  opposition  to  GGPRs  petition  to  deny  and  response  to  the  Bureaus  LOI  was  the  primary  responsibility  of  SFUSDs  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.  SFUSDs  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  SFUSDs  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  Commissions  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  Stations  PIF,  and  that 
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 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  licensees  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  Commissions  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  stations  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 
 licensees  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  Commissions  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  Commissions  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 
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 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  Commissions  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  SFUSDs 
 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  SFUSDs 
 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  SFUSDs  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). 


 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  SFUSDs  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. 
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 114.  The  Superintendents  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  SFUSDs  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 


 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). 
39