$//Center for Study and Application of Black Economic Development, Des
    Moines, IA., MM 91-204, DEC, 95R-01//$
$/500.3125 Misrepresentation and Lack of Candor/$
$/500.3170 Financial Qualifications/$
///newjob///
$///FCC 95R-1,3/3/95///$
                                Before the
           FEDERAL COMMUNICATIONS COMMISSION    FCC 95R-01
                          Washington, D. C. 20554
                           MM Docket No. 91-204
In re Applications of
CENTER FOR STUDY AND        File No. BRED-900131UA
APPLICATION OF BLACK
ECONOMIC DEVELOPMENT
For Renewal of License of
Station KUCB-FM
Des Moines, Iowa
and
IOWA ACORN BROADCASTING     File No. BPED-900102MB
CORPORATION
MINORITY COMMUNICATIONS, INC.    File No. BPED-900116MA
For a Construction Permit
for a New FM Station
Des Moines, Iowa
                                Appearances
Alfredo Parrish, Esq., and Elizabeth Kruidenier, Esq., for Center for Study and
Application of Black Economic Development; Steve Bachmann, Esq., for Iowa Acorn
Broadcasting Corporation; Mark E. Fields, Esq., for Minority Communications, Inc.;
Charles E. Dziedzic, Esq., Y. Paulette Laden, Esq., and Gary P. Schonman, Esq., for
the Chief, Mass Media Bureau.
                                 DECISION
    Adopted:  February 27, 1995; Released:  March 8, 1995
By the Review Board:    MARINO (Chairman) and GREENE.  Board Member
    GREENE issuing a Statement.
Board Chairman MARINO:
    1.   Following a trial-type hearing, Administrative Law Judge Richard L. Sippel
(ALJ)  granted the construction permit application of Minority Communications, Inc.
(Minority) for a new noncommercial educational FM station at Des Moines, Iowa. See
Initial Decision, 8 FCC Rcd 2116 (1993).  The renewal application of Center for Study
and Application of Black Economic Development (Center), licensee of noncommercial
educational Station KUCB-FM, Des Moines, Iowa, and the application of Iowa Acorn
Broadcasting Corporation (Acorn) were denied by the ALJ.  Center was disqualified
for "intentional misrepresentation" of  material facts in its renewal application, false
testimony "given in open court" at the hearing, and taking Station KUCB-FM off the
air for two years without Commission knowledge or authorization. Acorn was
disqualified  for being financially unqualified.  Exceptions to the Initial Decision (I.D.)
have been filed by Center and Acorn challenging their respective disqualifications, and
by Minority and the Mass Media Bureau urging additional grounds for Center's
disqualification.  Oral argument was not requested by any of the parties. The
decisional issues presented on appeal are:  (a) whether Center lacks the requisite
character qualifications because it did not satisfy the high standard of candor required
of a broadcast licensee, see, e.g., Swan Creek Communications, Inc. v. FCC, 39 F.3d
1217, 1221-1223 (D.C. Cir. 1994); and, (b) whether Acorn has failed to establish that
it is financially qualified to construct and operate a new FM station, see CHM
Broadcasting Ltd. v. FCC, 24 F.3d 1453, 1455, 1457 (D.C. Cir. 1994).  Based on our
own review of the factual record, in the light shed by the written arguments of the
adversaries, we affirm the ALJ's denial of Center's license renewal and Acorn's
application, and his grant of Minority's application for a new station.
                              CENTER'S CANDOR
    2.   Background:  Center's renewal application and related ownership report
were filed with the Commission on January 31, 1990.  These documents appeared
to the Commission to have been completed, signed, and filed by Jamal Long, who
was listed as "Vice-President."  Hearing Designation Order (HDO), 6 FCC Rcd 4622,
4623  12 (1991).  Question 6 of Center's renewal application asked whether any
adverse finding had been made against "the applicant or any of its parties" in any
"criminal proceeding" involving "any felony" since the filing of its last major
application.  Despite the "no" response in Center's renewal application, the
Commission recited, in its HDO at  12,  that information had come to its attention
that:
         Charles Knox, who is listed in the renewal application as
         the Center's 'President,' was convicted in 1987 in the
         United States District Court for the Western District of
         Texas of two felony counts... . Also, Knox was convicted
         in 198[9] in the United States District Court for the
         Northern District of Illinois of three felony counts... . None
         of these convictions was disclosed by the Center to the
         Commission.
Therefore, the Commission  specified a  basic  qualifying issue:
         To determine whether [Center] misrepresented material
         facts to, and/or concealed material facts from, the
         Commission in connection with its answer to Question 6 of
         its instant license renewal application.
Id. at  16.  After he had heard the evidence on this issue, the ALJ held first, that
Center intentionally misrepresented when it responded to Question 6 in the renewal
application, I.D.,  98; and, second, that this misconduct was aggravated when at the
hearing Center's Vice-President and board member Jamal Long, and other witnesses,
attempted to cover up incriminating circumstances.  Id. at  53 and 103.
    3.   On the first point, the ALJ found it was undisputed that, before the
renewal application was filed, Charles Knox had been convicted of several felonies in
1987 and 1989; that Charles Knox was identified as Center's President in the 1987,
1988, and 1990 ownership reports; that Knox prepared the 1990 renewal application,
and the accompanying ownership report; and that Knox signed Jamal Long's name to
those documents and mailed them to the FCC.  I.D., at  49-50, 55.  From "the
totality of the circumstantial evidence," the ALJ concluded that: "certainly Knox
knew... he had multiple felony convictions that were required to be disclosed in
Question 6" of the renewal application; and that "Long knew that Knox had the two
felony convictions when Center prepared and filed its renewal application in January
of 1990."  I.D.,  98.
    4.   In his second major conclusion, the ALJ held that the "candorless
testimony in open court" at the evidentiary hearing, taken together with Knox's
misrepresentation in Question 6 of Center's renewal application, made this an even
stronger case for denying license renewal. Id. at  103.  He found: (a)  "Long [a
Center director and vice-president] had misrepresented that he had prepared the
renewal application and that he had signed his name"; (b) "Long also attempted by his
false testimony to create an appearance that Knox had withdrawn from his position
as director and officer of Center" at the time of the 1990 renewal filings, and of the
ownership reports of May 1987 and April 1988; (c) Knox "misrepresented in his
testimony the status of his resignation in order to avoid an adverse finding against
Center with respect to Knox's convictions"; (d) "Samad [a Center director and station
manager] also testified falsely that the board of directors decided in 1989 to remove
Knox"; and (e) "Long and Samad ... testified falsely that they had no knowledge of
Knox's convictions until after January 1990." Id. at  101- 102.  Accordingly, the
ALJ held that (id. at  103):
         The fact that the misrepresentation in Question 6 was
         intentional rather than a rushed mistake is further
         established by the continuing misrepresentations in the
         testimony of Long and Knox.... An applicant may be
         disqualified on the basis of its principals' candorless
         testimony in open court and the issue need not be
         specifically designated as a hearing issue because "truth
         and candor are always in issue." Old Time Religion Hour,
         Inc., 95 F.C.C. 2d 713, 719 (Rev. Bd. 1983), citing RKO
         General, Inc. v. F.C.C., 670 F.2d 215, 234 (D.C. Cir.
         1981).  Certainly the affirmative misrepresentation in the
         renewal application when considered with the additional
         misrepresentations of the principals at the hearing makes an
         even stronger case for denying Center's renewal.
    5.   Center's Exceptions.   Center contends that the ALJ "improperly"
resolved the misrepresentation issue because "there was nothing in the evidence
presented which would indicate that [it] misrepresented material facts, and/or
concealed material facts from the Commission." Center's Br. at 19.  It disputes the
ALJ's finding that its board members had knowledge of Knox's felony convictions
when preparing the renewal application and argues that the ALJ misunderstood the
record testimony concerning Knox's signing of Jamal Long's name on the renewal
application. Id. at 19-20.  Center asserts there was "absolutely nothing to be gained
by including Dr. Knox's name on the application" and that the evidence shows "once
the knowledge of the convictions of Dr. Knox became known [after his renewal
application was filed in January of 1990], a prime objective was to openly accept the
resignation of Knox and to exclude his name from any further actions taken by Center
or KUCB.  It was due to the lack of information regarding his convictions and the
uncertainty of his capacity within the organization by some officers that erroneous
information appeared in Center's application for renewal."  Id. at 21.  Both the Bureau
and Minority support the ALJ's resolution of the misrepresentation and candor issues;
they have filed exceptions urging additional grounds for Center's disqualification.
Thus, the Bureau contends that the ALJ should also have disqualified Center on an
ineptness issue and the effects of Charles Knox's criminal convictions on Center's
basic qualifications. Minority argues that Center should have also been disqualified on
the unauthorized transfer of control issue.  See I.D.,  2 for designated issues. We
need not reach these exceptions because we have concluded that the ALJ's
disqualification of Center on the more critical issue of candor is firmly supported by
the record evidence and decisional.
    6.   Discussion:     In its Policy Regarding Character Qualifications in Broadcast
Licensing, 102 FCC 2d 1179, 1231-32 (1989), the Commission indicated that the
fundamental purpose of the character inquiry about an applicant's qualifications is "to
make a predictive judgment relating to the applicant's propensity to deal honestly with
the Commission and to comply with [its] rules and policies." See California Public
Broadcasting Forum v. FCC, 752 F.2d 670 (D.C. Cir. 1985); KQED, Inc., 3 FCC Rcd
2821, 2826-27 at  24-25 (Rev. Bd. 1988) (denial of non-commercial license
renewal for misrepresentations) (subsequent history omitted). Misrepresentations or
omissions at hearing can, by themselves, result in disqualification. See Swan Creek,
39 F.3d at 1222, quoting from Old Time Religion Hour, Inc., 95 FCC 2d 713, 719
(Rev. Bd. 1983).  Complete candor is essential. "If the Commission cannot believe and
rely on what applicants and licensees tell it, it cannot maintain the integrity of its
processes," Standard Broadcasting, Inc., 7 FCC Rcd 8571, 8573 (Rev. Bd. 1992),
because of the Commission's exceedingly limited budget and staff compared with the
enormous industries and thousands of licensees under its purview. Id. at 8573 n. 7.
    7.   The Board has reviewed the record regarding Center's misrepresentation
and lack of candor "in open court" with special care and due deliberation, as
requested by Center, see Center Br. at 26, and mandated by the Commission. Nancy
Naleszkiewicz, FCC 95-33, at  4, released February 3, 1995.  Our review was based
primarily on Center's exceptions, its proposed findings of fact, its contemporaneous
documents filed with the Commission during 1987-1990, and the testimony of Jamal
Long, Charles Knox, and Ako Abdul-Samad.  We have reached two separate and
independent conclusions.  First, we hold that substantial record evidence supports the
ALJ's finding that Center's "no" response to Question 6 of the renewal application
denying Knox's felony convictions was a misrepresentation.  Second, and even more
serious, is our conclusion that the record fully supports the ALJ's findings about a
"cover up" and the giving of candorless testimony by Center's witnesses at the
hearing.  Thus, Center has breached the fundamental requirement that complete
candor is demanded of "Commission licensees as to matters under investigation."
Grenco, Inc., 39 FCC 2d 732, 736 (1973), cited with approval by the Commission and
the court in Richardson Broadcast Group, 7 FCC Rcd 1583, 1585 (1992),  aff'd by
judgement, 995 F.2d 306 (D.C. 1993); Swan Creek, 39 F.3d at 1222-1223
(applicant in testimony "acted less than honestly").
    8.   There is no dispute among the parties that Knox was convicted in 1987
in a Texas Federal District Court on two felony counts of impersonating an attorney
in violation of Federal Law, and in 1989 in an Illinois Federal Court on three counts of
conspiracy, racketeering, and embezzlement. Bureau Exhs. 15-18.  The embezzlement
count involved funds from the National Telecommunications and Information
Administration intended for Station KUCB-FM. Bureau Exh. 17 at 4-5.  Defendant
Knox's Plea Agreement recited that:
         the defendant on behalf of KUCB in Des Moines, Iowa
         received $72,484 from the Department of Commerce
         pursuant to a grant from the National Telecommunications
         and Information Administration (NTIA).  As defendant knew
         and understood, the grant money was supposed to be used
         to purchase radio equipment to operate a minority-run radio
         station.  Instead the defendant knowingly diverted at least
         $31,181.15 to a company called Burns Associates, South
         Chicago Auto Sales, for purposes other than radio
         equipment.  The defendant completed this conversion of
         government funds by causing the $31,181.15 to be
         delivered to Burns and Associates in Chicago, Illinois.  The
         money was delivered in the form of six checks signed by
         the defendant during the period from February, 1985 to
         March, 1986.  Although quarterly reports of how the
         money was spent are required by NTIA, Knox never filed
         any such reports.
    9.   Center's ownership report dated January 22, 1990, which accompanied
the renewal application, listed Charles Knox as Center's President. Bureau Exh. 12,
at 4-5. Knox prepared this report, albeit signing Jamal Long's name and certification,
and revised his address from earlier ownership reports, dated May 23, 1987, and April
12, 1988, which had also identified him as Center's President. Bureau Exh. 1 at 87-
90.  Knox testified that he had tendered a resignation by telephone in 1987, by letter
in 1989, and had been asked to resign in 1989, when Wayne Ford was elected
President of the board of directors, allegedly in the winter of 1989. Tr. 1397-1398,
1416-1418. We agree with the ALJ that this testimony is not credible in light of
Center's ownership documents filed with the Commission and Knox's admission on
cross-examination that he had filled in the ownership form listing the names and
addresses of the officers including his own. Tr. 1415-16.  The alleged 1989 written
resignation was never produced by Center, which was permitted by the ALJ to adduce
all mitigating evidence, nor was Wayne Ford called to corroborate testimony that he
was elected president in 1989 and then asked Knox to resign before the renewal
filings.  On March 15, 1990, Ford did file a fourth ownership report with the
Commission which, for the first time, replaced Knox's name with Ford as President.
Bureau Exh. 1 at 91-92.  That report was certified by Ford on the 9th of March 1990,
and further recited that: "All of the information furnished is reported as of February
10, 1990." Id.  Late in his cross-examination, Knox conceded that: "It could have
been 1990" [that the new Board was elected and he was asked to resign], "I am not
sure," see Tr. 1417, and that, after the filing of Center's renewal application and his
"resignation," he has travelled to Des Moines "a couple of times" and "was at the
station" and that the KUCB Board continues to seek his advice "not necessarily on the
operations, but on the technical portion." Tr. 1418.
    10.  Since Knox's ultimately admitted that he prepared Center's  renewal
application and ownership report, signed Long's name, and mailed them to the
Commission from Chicago, we do not rely on the ALJ's finding, para. 4(e) above, that
Long and Samad knew of the convictions when the renewal application was filed,
inasmuch as Long was not the individual who prepared or signed the application, and
our Decision does not rest on that finding.  Nevertheless, based upon Center's own
documents, which were not adequately explained by Center's contradictory oral
testimony, we conclude, as did the ALJ, that Knox was a party to the renewal
application and ownership reports that he prepared and filed in January of 1990, and
that Knox was aware of his own prior felony convictions.  Thus, we will affirm the
ALJ's initial conclusion that:  "Knox, while acting as agent for Center, knowingly
misrepresented when he checked ... a  'No' response to Question 6 ... .  The motive
to so misrepresent was in order to knowingly conceal the fact of criminal convictions
from the Commission which, if disclosed, would adversely reflect on Center's
character." I.D.,  98.
    11.  Second, and fatal to Center's renewal application, is our affirmance of
the ALJ's finding about the "cover up" by Center's witnesses, especially Long's failure
to disclose Knox's role in the preparation of Center's  renewal application and
ownership report, and the other evasive and candorless testimony by the Center
witnesses regarding  the claim that Knox resigned or was asked to resign prior to the
filing of the renewal application.  Initially, we focus on Center's argument that the
ALJ:
         misunderstood the testimony concerning who signed Jamal
         Long's name on Center's renewal application....  Jamal
         Long testified that the signature was his.  However, he did
         not testify that he had personally signed his signature; in
         fact, both he and Charles Knox consistently testified that
         Charles Knox signed Long's name on the renewal
         application for 1990.
Center's Br. at 20-21.
    12.  The record contradicts Center's contention, and supports the ALJ's
findings.  Our review of Long's testimony indicates that Long: (a) never revealed that
Knox had prepared the renewal application, and related ownership report; (b) never
indicated that Knox had signed Long's name; and (c) never indicated that Knox had
mailed those documents to the Commission.  On the contrary, in response to
questions from Center's own counsel, Long testified "I filled out the application," Tr.
954, and answered "no" when asked if he had any significant contacts with Knox at
the time the renewal application was prepared. Tr. 955.  Long also testified that he
"was trying to rush" because he "knew that the deadline was close" and that he made
sure that the application was filed on time. See Tr. 956-957, reproduced below
(emphases added):
         Q.  Mr. Long, on that date [when the renewal application
         was signed], were you aware that Mr. Knox had a
         conviction of a felony crime, to your best recollection?
         A.  No, I did not.
         Q.  Had you been in significant contact with Mr. Knox at
         that point at the time you filled out your application for
         renewal?
         A.  No.
         Q.  Tell us how did you know even to file a renewal of your
         license?
         A.  We had got a reply about the deadline and I was trying
         to rush to really get that in because I knew the deadline
         was coming close upon us.  And that was my concern, to
         make sure we got that in on time.
         Q.  And did you do that?
         A.  Yes.
         [CENTER'S COUNSEL]:  Your Honor, I don't think I have
         any further questions at this time of this Witness.
    13.  On cross-examination, Long continued to deny that Knox had any
involvement with Center at renewal time and did not disclose that Knox had prepared
the renewal application and ownership report, signed Long's name, and filed them
with the Commission.  In his testimony, Long repeated over and over: "I sent the
ownership report in"; "I sent it in"; "I got it in on time"; "I sent the form in"; "I didn't
remove people"; "I didn't remove their names"; "I didn't take any names off"; "I didn't
take any names off at that time"; "there was names I didn't take off."  And, finally,
when shown the signature on the report and asked if it was his, he replied "Yes," but
failed to indicate that, in fact, Knox had signed his name. See Tr. 995-996 and 997,
998, 999 reproduced below (emphases added):
         Q.  Yes.  Was Mr. Knox involved in Center as recently as
         January 1990?
         A.  No.
         Q.  Can you explain why this ownership report shows that
         Mr. Knox is President of Center in January 1990?
         A.  Lots of times when we sent -- when I sent the
         ownership report in, we -- in the times I sent it in, we didn't
         remove -- I didn't remove people that had been -- was no
         longer with the Center.  I didn't remove their names,
         because when you do the ownership report, to add some
         people in, you always remove some people.
         So these times I did not take any names off.  That was
         because I was in a hurry to make sure that I got them in on
         time.  And so I didn't take any names off at that time.
         They have a list, a column where you add names and you
         take names off.
                                   * * *
Tr. 995-96.
         Q.  In other words, Mr. Knox was President of Center in
         1990.
         A.  I said when I sent the form in, there was names that I
         didn't remove.
         Q.  Mr. Long, this ownership report that was signed on
         January 22, 1990, on the second page of that ownership
         report, it shows that Charles Knox is President of Center.
         My question to you is was Charles Knox President of
         Center on that date?
         A.  No.
         Q.  Mr. Long, is that your signature on the second page of
         the ownership report?
         A.  Yes.
                                   * * *
Tr. 997.
         Q. Is that your signature on the second page of the
         ownership report [dated April 12, 1988], which is labeled
         Page 88?
         A.   Yes.
         Q.  Was Mr. Knox President of Center in April -- on April
         12, 1988?
         A.   No.
                                   * * *
Tr. 998.
         Q.  Would you let me know when you're finished looking at
         that ownership report [dated May 23, 1987]?
         A.   Yes, I'm through.
         Q. Mr. Long, on May 23, 1987, was Charles Knox
         President of the Center?
         A.  No.
Tr. 999.
    14.  In his testimony quoted above, Long misrepresented and lacked candor
when he failed to disclose Knox's role in the preparation of Center's renewal
application and ownership report.  Long's attempt to "cover up incriminating
information" about Knox's significant role in the renewal filings, as the ALJ correctly
found, see I.D.,  53, was only a part of Center's attempt to create the false
impression that Knox had withdrawn from his position as Center's President before
the renewal filing, and that Center's board of directors had also decided late in 1989
to remove Knox. Id. at  98.  Center responds that "there was some confusion as to
exactly when Charles Knox ceased his participation with KUCB." Br. at 19-20.  Center
essentially urges that "lack of information" about Knox's convictions, and "uncertainty
about his capacity within the organization by some officers" explains why "erroneous
information appeared in Center's application for renewal." Id. p. 21.
    15.  Center's contention is contradicted by the record and especially Knox's
reluctant  admission that he prepared the renewal application and ownership report.
Moreover, Center's own contemporaneous documents, see para. 9 above, and the
inconsistent and contradictory testimony of Long, Knox, and Samad demonstrate that
the ALJ was completely justified in finding that Center's witnesses attempted to
conceal Knox's significant role in the preparation of the  renewal filings, and attempted
to create the false appearance that Knox had withdrawn from his position as Center's
President prior to the filing of the renewal application in January of 1990.
    16.  With respect to the contradictory testimony, Long answered in response
to another direct question from Center's counsel about the last time that Dr. Knox was
involved with the station: "I think it was around the early 80's."  Tr. 889.  On cross-
examination, Long responded on three different occasions that he was: "not sure
about the date."  Tr. 994.  However, after being shown the three ownership reports
dated January 22, 1990, April 12, 1988, and May 23, 1987, which listed Charles
Knox as Center's President, Long gave a flat "no" each time when asked if Knox was
President at those times.  See Tr. 997-999, reproduced at 13, above.  Long's claim
that Knox was not an officer at the time of the 1987 and 1988 ownership reports was
impeached by Knox's own testimony that he was on the board from "1985, to
resignation, in 1989," (Tr. 1397-1399) and Samad's testimony that, in late 1989,
Knox was asked by the newly elected board to resign (Tr. 1119-1120; tr. 1150); see
also Tr. 1135-1136.
    17.  The record supports the ALJ's additional finding that Knox
"misrepresented the status of his resignation in order to avoid an adverse finding
against Center with respect to Knox's conviction." I.D.,  98.  The 1987, 1988, and
1990 ownership reports all listed Knox as Center's President, see para. 9 above.  In
his testimony, Knox first attempted to create the impression that it was Long who had
listed his name in the January 1990 ownership report (see Tr. 1394-1395 and 1413-
1414).  However, he was finally forced to admit near the end of his cross-examination
that the handwriting on the ownership form was his, and that he filled in the part of
the ownership form listing the names and addresses of the officers including his own
name. Tr. 1415-1416.  Like the ALJ, we find an irreconcilable conflict between
Knox's testimony that he attempted to resign and had been asked to resign prior to
the filing of the renewal application, and the Commission records, especially the
January 1990 ownership report where Knox in his own handwriting identified himself
as Center's President and revised his own address. See Swan Creek, 39 Fd. 3d at
1222-1223 ("Board could properly make a lack of candor determination ... where, as
here, an irremediable conflict appears between records submitted to the Commission
and testimony").
    18.  In sum, reliable documentary evidence and other substantial evidence
firmly undergird the ALJ's findings summarized in para. 4 (a) - (d), above, and his
conclusion that Center's false testimony establishes that "it does not have a
propensity to deal honestly with the Commission.  Rather, it has a propensity to deal
falsely with the Commission, even under oath." I.D.,  103.  Disposition of Center's
renewal application is controlled by the Commission's holding in Grenco, 39 FCC 2d
at 736-37 that:
         Complete candor from Commission licensees as to matters
         under investigation may be demanded and is expected. ...
         While issues are designated to place the licensee on notice
         of the charges which he will be required to meet at the
         hearing, notice to a renewal applicant that he must testify
         truthfully and not conceal material information is
         superfluous. Taking the oath serves the purpose and no
         unfairness results in holding a renewal applicant to have
         knowingly assumed the risk of an adverse determination as
         to its character qualifications when a principal testifies
         falsely at the hearing.  ... [W]e cannot temporize with
         deliberate deception of the Commission. No matter how
         unblemished the reputation of the principal in the
         community, no one is allowed "one bite" at the apple of
         deceit. (citation omitted).
    19.  Center faults the ALJ in its exceptions for failing to consider the
Commission's public policies supporting minority-owned educational stations, see Br.
at 17-19; but the Bureau correctly notes in reply, at 9-10, that the Commission's
policies of fostering minority ownership have never "suggested that th[ese] polic[ies]
excuse[] a licensee's misconduct."  Moreover, it is now well-established that a
noncommercial broadcast applicant's "proclivity to deal truthfully with the Commission
is a bedrock prerequisite to a finding of basic character qualification to hold a license."
KQED, Inc., 3 FCC Rcd at 2826  24; see also Trustees of the University of
Pennsylvania, 69 FCC 2d 1394, 1399, 1429-30 (1978), (Accountability of
noncommercial broadcast licensees).
    20.  A meritorious past broadcast record can not  mitigate or offset Center's
lack of candor, which is a serious breach of trust undermining the integrity of the
Commission's processes. See KQED, 3 FCC Rcd at 2827 at  27; Standard
Broadcasting Inc., 7 FCC Rcd at 8577 n. 29.  In any event,  Center's past broadcast
record includes a serious violation of Section 73.561(a), and (f), which requires that
its noncommercial station "operate at least 36 hours per week, consisting of at least
5 hours per day on at least 6 days per week" and if the licensee cannot adhere to its
operating schedule, notification must be sent to the Commission.  Here, the ALJ found
that resolution of a Section 73.3561 issue designated in this proceeding by the
Commission provided another ground for denial of Center's renewal since for some
two years Station KUCB-FM remained silent without Commission knowledge or
authorization in violation of 47 CFR  73.561. I.D. at   104-107.  Such a violation,
on its face, is inconsistent with the general public interest, and the special needs of
KUCB-FM's listening audience.  The Bureau correctly notes at 12 n.7 of its reply that
"Center's exceptions do not specifically dispute Center's violation of Section 73.561
of the Commission's Rules" and that "any objection thereto is waived. Section
1.277(a) of the Commission's Rules."  Nevertheless, in light of Center's
disqualification on the misrepresentation and lack of candor issue, we do not reach the
question whether the Section 73.561 violation is sufficient, standing alone, to also
warrant Center's disqualification.
    21.  Finally, at an earlier stage in this proceeding, Center requested that we
find that the ALJ's prehearing procedural rulings indicated bias towards Center, mainly
due to their harshness to that applicant.  After reviewing Center's showing in light of
the legal standards set forth in United States v. Grinnell Corp., 384 U.S. 563 (1966)
and other legal authorities, we denied Center's motions. Center for Study and
Application of Black Economic Development, 7 FCC Rcd 3101 (Rev. Bd. 1992).  In its
exceptions, at 14-17, 23-26, Center renews its bias claims against the ALJ and
Bureau Counsel. The exceptions are without merit.  Initially, as a matter of law, we
note that since our prior ruling on this matter, the United States Supreme Court, in
Liteky v. U.S., 114 S. Ct. 1147, 1157  (1994), reinforced the controlling legal
principle of Grinnell that "judicial rulings alone almost never constitute valid basis for
a bias or partiality motion."  The Court observed that: "A judge's ordinary efforts at
courtroom administration -- even a stern and short-tempered judge's ordinary efforts
at courtroom administration -- remain immune." Id.  Similarly, the United States Court
of Appeals for the D.C. Circuit recently held that: "In an adjudicatory proceeding,
recusal is required only where 'a disinterested observer may conclude that [the
decisionmaker] has in some measure adjudged the facts as well as the law of the
particular case in advance of hearing it.'" Metropolitan Council of NAACP Branches
v. FCC, No 93-1471, Slip Op. p. 18 (D.C. Cir. January 27, 1995).  Center has not
made the required showing of prejudgment.
    22.  Now that we have had an opportunity to review the factual record, we
find that Center was not materially prejudiced by the ALJ's ruling of default, the
primary gravamen underlying Center's claim of bias, which ruling technically precluded
Center from presenting a direct case at the comparative hearing.  We agree with the
Bureau that Center did have an opportunity to present its case on the decisional
misrepresentation issue. "Center offered all of the exhibits which it had exchanged
before the Admissions Session and was not precluded from calling any witness on its
list of witnesses because of the default ruling." Bureau Reply at 6.  Our review of the
record also confirms that the ALJ made a reasonable effort to accommodate the
schedule of all counsel in this multi-party proceeding, see Faith Center, Inc., 92 FCC
2d 1255  15-16 (Rev. Bd. 1983), and that contrary to a contention by Center, Br.
at 2, its chief counsel, Alfredo Parrish, had an opportunity to fully cross-examine Larry
Nevilles, a former Station KUCB-FM employee and now a principal of Minority. See Tr.
656-717; 762-764.  Lastly, Center has not made a showing of bias or prejudice on
part of Bureau counsel because the Bureau participates in such hearing as a party, 47
CFR 0.61(d), is not a decisionmaker in this case, 47 CFR 1.1202(c), and was not
shown to have prejudged any of the issues or was "impervious to contrary evidence."
Metropolitan Council of NAACP v. FCC, supra.
                           ACORN'S FINANCES
    23.  Background:  Non-commercial broadcast applicants, such as the
applicants here, may certify that their financial qualifications are contingent upon later
receipt of: (1) a grant from the National Telecommunications and Information
Administration (NTIA); or (2)  grants from charitable, educational, or government
entities. See FCC Form 340, Section III- Financial Qualifications, Questions 1 and 2;
see also KQED, Inc., 5 FCC Rcd 1784, 1785 (1990).  Question 3 of FCC Form 340,
however, requires that applicants not relying upon the grant provisions above to check
the "Yes" or "No" box in response to the following certification:
         The applicant certifies, except as noted above [in Questions
         l and 2] that sufficient liquid assets are on hand or that
         sufficient funds are available from committed sources to
         construct and operate the requested facilities for three
         months without additional funds.
Compare CHM Broadcasting, 24 F.3d at 1455, financial certification by commercial
broadcasters.
    24.  In their applications filed in January of 1990, both Acorn and Minority
failed to certify that they were financially qualified as required by Question 3, above,
both checking the "No" box.  Within the period for amending as of right prior to
designation for hearing, Minority filed an amendment certifying that it was financially
qualified. Minority's certification was based upon its application for a  grant of
$100,000 from NTIA, and  on a $50,000 loan commitment letter from the East Des
Moines National Bank, dated February 21, 1990. See Exhs. C and D to Minority's
Opposition to Motion to Enlarge Issues filed August 27, 1991.  Acorn, however, did
not amend its financial certification prior to designation for hearing.
    25.  On August 29, 1991, Acorn filed an amendment which merely certified
"yes" to Question 3.   A subsequent amendment, filed September 20, 1991, indicated
that:  Acorn had entered into an agreement with Affiliated Media Foundation
Movement (AMFM), whereby the latter agreed to secure Acorn's financing; that on
July 2, 1990, AMFM had received a commitment letter from "U.S. Trust for a loan
for up to $700,000 for construction and initial operation of a radio station in Des
Moines, Iowa"; and that Acorn needed "a total of $155,355" to finance its proposed
station. Petition to Amend at 2, Exh. A.  When the ALJ was notified by the Mass
Media Bureau's pleadings that Acorn had failed to certify its finances prior to
designation for hearing and that Acorn's reliance on the UST loan commitment letter
raised substantial questions of fact,  the ALJ added the following issue against Acorn:
         To determine whether [Acorn] has reasonable assurance of
         funds to construct and operate Channel 207C; whether
         [Acorn] is financially qualified; and whether [Acorn] is
         qualified to receive a Commission [construction] permit for
         the Des Moines community.
Tr. 72-73; see also Order, FCC 91M-3004, released October 3, 1991; I.D.,  4.  Both
the burden of proceeding and the ultimate burden of proof were placed on Acorn. Id.
 4, 76, 121-122.
    26.  At hearing, Acorn submitted a letter from AMFM dated December 27,
1989, which  states in pertinent part:
         This letter will confirm the willingness of [AMFM] to secure
         funding for [Acorn].  We are able to make a commitment of
         $730,000 in the form of unsecured loans.
Id. at  79.  The parties do not dispute the ALJ's finding that AMFM was only acting
as an intermediary.  Acorn ultimately relied  on the UST letter to AMFM dated July 2,
1990, which  recites in part:
         This letter states the conditional commitment of our
         investment management clients to loan up to $700,000 to
         assist AMFM in the financing for construction and initial
         operation of a radio station licensed to Des Moines, Iowa.
         Their willingness to do so is subject to the following
         conditions:...
         (2) All reasonable and ordinary credit criteria of [UST] are
         met at such time as [Acorn] (a) has received the permit to
         construct said station and (b) requests from our client via
         [UST] a formal and unconditional lending commitment; and,
         (3) [UST] receives, once the above conditions have been
         met, the written agreement to the terms of the loan from
         each and all of our investment management clients
         participating in the loan....  The precise terms of security of
         the loan also will be determined at the time of the
         unconditional loan commitment.
Id. at  80.  The letter concludes:
         [UST] is personally and favorably acquainted with [AMFM]
         and we would be relying on your commitment to continued
         participation in the venture and management of the radio
         station as a part of the loan application.
Id. at   82. (Emphasis added).
    27.  Acorn's President Pauline Green, who had signed the financial
certification, on August 29, 1991, did not offer any direct testimony regarding the
financial issue.  On cross-examination, she stated that Acorn had contracted with
AMFM to secure financing for Acorn but did not submit any financial statement to
AMFM. I.D., at  78-79.  Green also testified that Acorn's budget estimate was
based upon AMFM's expertise and experience with other stations AMFM operates. Id.
 86.  After  reviewing the relevant evidence, the ALJ found that "the estimate of
$700,000 was based on raw speculation and lacked any foundation in reasonable
fact," and that the mistake  was attributable to AMFM  because:
         ... Moody and Rathke [UST and AMFM principals] testified
         that in actually the likely amount of the loan would be
         $150,000. (Moody, Tr. 518, Rathke, Tr. 548, 561.)  Mr.
         Rathke surmised that the $700,000 figure was a mistake
         on the part of UST in using another unrelated project as the
         basis for the estimated costs because the $700,000
         estimate clearly was excessive for Acorn's needs. (Rathke,
         Tr. 550, 551).  However, since UST was relying on AMFM
         for the project's management, it is more likely that the
         mistake was AMFM's.  In fact, on December 27, 1989,
         AMFM was committing to secure $730,000 and on July 2,
         1990, UST was referring to a conditional loan commitment
         of $700,000.
Id. at  87.
    28.  Acorn's proposal to finance its station "through a UST commitment letter
to a third party, AMFM," was found  by the ALJ to be deficient as a matter of fact for
several reasons.  Initially, he  pointed to "a fundamental error" that both the AMFM
and the UST letters were based on "an erroneous assumption that Acorn would
require $700,000 to construct and operate" the proposed station, whereas "the true
estimate would have been approximately $150,000." Id. at 123.  The Des Moines
radio proposal had apparently been confused by AMFM with an unrelated and more
expensive TV proposal. Id.  This fatal factual error in UST's letter, the ALJ found,
occurred because Acorn was not consulted by UST, there was no relationship
between Acorn and UST, and therefore, there was no  meeting of the minds on a true
estimate of costs. Id.  Moreover, he found several specific conditions  in the letter
from UST to AMFM that "neutralize any commitment": the UST "conditional
commitment" would  provide funding only so long as AMFM continues to be involved
in the management of Acorn's "radio station" even though AMFM is not a party to the
application; UST must first obtain prior approval from potential investors and there is
no evidence that any investor has seen Acorn's financial statement or a plan of
operations which discloses experience of operating personnel and a feasibility of
performance; and not one of the potential investors has expressed a willingness to
participate.  Accordingly, the ALJ concluded that the UST/AMFM letters were
"meaningless" and "ephemeral" so that no reasonable applicant could rely upon them
to establish reasonable assurance. Id. at  124.
    29.  Discussion.  A broadcast applicant must have reasonable assurance
"before the applicant certifies its financial qualifications.  In other words, the applicant
may not certify its financial qualifications and then arrange financing." Northampton
Media Associates, 4 FCC Rcd 5517, 5519 (1989).  Whether an applicant has a
reasonable basis to certify turns on "an objective inquiry" rather than the applicant's
subjective intent, and probative evidence must be adduced at the hearing. See Aspen
FM, Inc., 5 FCC Rcd 3196, 3198 (Rev. Bd. 1990), review denied, 6 FCC Rcd 1602
(1991).  Commission precedent also requires that loan commitment letters
demonstrate more than a generalized "interest" to make a loan. Capital City
Community Interests, Inc., 2 FCC Rcd 1984, 1986 (Rev. Bd. 1987).  A valid
commitment letter need not establish "a legally binding commitment", Multi-state
Communications, Inc. v. FCC, 590 F.2d 1117, 1119 (D.C. Cir. 1978), but it must
establish a "present firm intention to make a loan, future conditions permitting."
Merrimack Valley Broadcasting, Inc., 82 FCC 2d 166,167 (1980).
    30.  Here, Acorn's certification that "sufficient funds are available from
committed sources to construct and operate the requested facilities for three months
without additional funds", FCC Form 340, Question 3, was based on the loan
commitment  letter from UST to AMFM.   As the ALJ correctly concluded, however,
it was apparent on the face of the documents before Green when she certified that
Acorn did not have reasonable assurance.  First, Acorn needed approximately
$150,000, but the AMFM/UST continent commitment letters were based on the
erroneous assumption that $700,000 was needed; thus, we agree with the ALJ  that
there was no meeting of the minds on the true estimate of Acorn's financial  need.
Second, and even more fatal to Acorn's financial certification, was the fact that on its
face the UST "conditional commitment" letter was continent upon AMFM's "continued
participation in the venture and management of the radio station as a part of the loan
application." See  26 above.  Green had to know at the time she certified that this
condition was impossible to accomplish because Acorn's application, even as
amended, did not propose AMFM in a management role.  AMFM had been retained to
provide technical assistance regarding engineering, financial, legal, and other matters
relative to Acorn's application. I.D., at  78.  According to its application, Acorn
intends to own, manage, and operate the station.  Finally, UST's letter indicates on
its face that before UST can make a loan the applicant must first obtain the approval
from participating potential investors, and not one such investor has expressed a
willingness to participate.  Reinforcing the obstacle imposed by this condition is the
testimony of an AMFM principal that AMFM had previously never arranged a loan
directly from UST; instead, it had obtained loans from clients that were part of the
portfolio managed by UST. Tr. 551.  An objective review of the documents on which
Green based her certification supports the ALJ conclusion that no reasonable applicant
could have certified based on those documents. CHM Broadcasting, 24 F.2d at 1457-
1458 ("reliance on objective information" for financial certification).
    31.  Acorn's principal contention is that the ALJ failed to recognize that the
traditional lending criteria may not be relevant in the noncommercial context.  It argues
for "an expanded notion of what actually constitutes 'reasonable assurance.'" Br. at
4.  Acorn points out that UST and its clients were responsible for "making socially and
ethically responsible investments" and that "financial information might not be sought
because the investment concern might be 'solely about the social benefit of that
investment.'" Id.  Had the ALJ applied these "criteria," Acorn argues, it would have
been found to have reasonable assurance of financing. Id. at 5.  This argument is of
no avail.  In essence, we agree with the Bureau's reply that only if Acorn had relied
on an NTIA, charitable, educational or other governmental grant would a different
noncommercial standard have been applicable. See  23 above; KQED, supra, 5 FCC
Rcd at 1585.  On the record of this case, the Bureau points out that "it is irrelevant
that the potential investors are interested in socially and ethically responsible
investments, as Acorn insists.  There simply are no investors upon which Acorn could
reasonably rely."  Bureau Reply at 15-16.
    32.  Acorn's final contention regarding finances (Br. 11-12) is that the ALJ
was "arbitrary and capricious" and acted contrary to administrative "due process and
equal protection of the laws" when he added a financial qualifications issue against
Acorn but refused to specify a financial issue against Minority.  Acorn alleges that
Minority's showing contained "comparable contingencies" as those in Acorn's letters.
Id. at 12.  Acorn and Minority were not similarly situated procedurally.  Acorn failed
to financially  certify prior to designation for hearing and the Commission's processing
staff inadvertently did not designate a financial issue against Acorn.  Minority, on the
other hand, amended its application as of right prior to designation for hearing
certifying that it was financially qualified.  Thus, Acorn had to make a prima facie
showing that a financial issue should be designated against Minority, which it failed
to do.   See 47 CFR  l.229, and Bureau Reply at 17. Our review of the documents
before the ALJ, see  24, above, reveals that, as a matter of fact, Acorn and Minority
were not similarly situated.  Minority's financial certification was based upon an NTIA
grant explicitly contemplated by Commission policy, see KQED, supra.  Acorn did not
rely upon  such a grant.  Minority's certification also relied on a bank letter, but a
review of that letter indicates that it did not contain any of the fatal contingencies
present in Acorn's letters.  We therefore affirm the ALJ's conclusion that substantial
evidence in the record establishes that Minority is the only qualified applicant to
receive a construction permit for a noncommercial FM station in Des Moines, Iowa.
I.D., at  132-135.
    33.  ACCORDINGLY, IT IS ORDERED, That the application of Minority
Communications, Inc. for a construction permit for a new FM station (File No. BPED-
900116MA) IS GRANTED; the license renewal application (File No. BRED-900131UA)
of Center for Study and Application of Black Economic Development for Station KUCB-
FM, Des Moines, Iowa IS DENIED; the application of Iowa Acorn Broadcasting
Corporation for a construction permit for a new FM Station (File No. BPED-900102MB)
IS DENIED; and Center for Study and Application of Black Economic Development IS
AUTHORIZED to continue operation of Station KUCB-FM until 12:01 A.M., on the
forty-fifth (45) day from the release date of this Decision to enable the licensee to
conclude the station's affairs, unless an application for review or petition for
reconsideration is filed within 30 days, in which case the effective date will be
suspended pending further order of the Board or Commission.
    FEDERAL COMMUNICATIONS COMMISSION
    Joseph A. Marino
    Chairman, Review Board
                                 STATEMENT
                                    of
                     BOARD MEMBER MARJORIE REED GREENE
When all is said and done, Center's qualifications turn on a question of character:
whether this licensing Commission can trust the information Center's principals
provide.  From this record, the answer is no.
This proceeding began with an issue to determine whether Center had misrepresented
in its renewal application when certifying that no party to the application had any
felony convictions, although Charles Knox, a man Center identified as its president,
had twice been convicted of felonies in federal court.  As the hearing progressed,
Center's candor in responding to the issue came into question.
Charles Knox was a moving force behind Center and KUCB-FM from the station's
inception in 1979 and in 1984 took on the title of president.  See generally Bureau
Exh. 1, p. 15 (December 10, 1984 letter signed by Knox as "President"); tr. 1424.
Center reported Knox as president in ownership reports dated May 23, 1987, and
April 12, 1988.  Bureau Exh. 1, pp. 87-90.  When Center applied for renewal on
January 22, 1990, it again reported Knox as president in the accompanying ownership
report.  Bureau Exh. 12, p. 5.  It also answered "no" to question 6 on the renewal
application inquiring about felony convictions of parties to the application.  Id., p. 3.
Knox, however, had been convicted in the United States District Court for the Western
District of Texas for two counts of fraudulently representing that he was licensed as
an attorney in the State of Illinois for purposes of attorney-client visits to an inmate
under the jurisdiction of the Department of Justice; he was sentenced on May 29,
1987 to imprisonment for three years and probation for an additional five years.
Bureau Exh. 15.  For the next year and a half he unsuccessfully appealed to the
federal circuit court and the Supreme Court.  Tr. 1439.  He was next convicted
following a guilty plea in the United States District Court for the Northern District of
Illinois for, inter alia, embezzling funds he had received for KUCB-FM from the National
Telecommunications and Information Administration between February 1985 and
March 1986; he was sentenced on September 27, 1989 to imprisonment for three
years and probation for an additional five, the sentence of imprisonment to run
concurrently with and include credit for time served under the Texas conviction.
Bureau Exh. 16; Bureau Exh. 17, pp. 4-5.
According to Center, its board members knew nothing of Knox's convictions until after
the renewal application had been filed, although witnesses certainly admitted to an
awareness that Knox had problems with the law attributed to his activism on behalf
of the African American community, and KUCB-FM had participated in Knox's legal
defense fund in 1987.  See Ako Abdul-Samad, tr. 1134; Kalonji Saadiq, tr. 1132,
1430-31.  Knox testified that during a KUCB talk show he "may have referred" to his
alleged 20-year persecution by the FBI for his community activities but otherwise
"really did not like to discuss his legal problems with anybody."  Tr. 1431-32, see tr.
1436, 1440.  From Knox's point of view, "people are more interested in my technical
ability than whether or not I have a conviction.  There is just not that standard in the
community, there."  Tr. 1440.  Ako Abdul-Samad, a Center vice president at the time
of renewal, described his first awareness of Knox's convictions as an awareness in
"the spring of '90" "that there was a problem, that Charles had gotten into a situation
and he was being persecuted, and we had to do something to help, you know, him
in the community as we would do anyone else."  Tr. 1134.
Also according to Center, Knox was not actively involved in Center activities, so his
felony should not prejudice the applicant, Brief, p. 19; there was confusion within the
Center board about when Knox ceased his participation with KUCB, id.; and
         once the knowledge of the convictions of Dr. Knox became
         known, a prime objective was to openly accept the
         resignation of Knox and exclude his name from any further
         actions taken by Center or KUCB.  It was due to the lack of
         information regarding his convictions and the uncertainty of
         his capacity within the organization by some officers that
         erroneous information appeared in the Center's application
         for renewal.
Brief, p. 21.
The record shows that Knox has been active with Center until KUCB-FM went dark
between 1987 and 1989.  Station personnel sought Knox's help in dealing with the
FCC and relied on him for technical training and legal matters.  Samad, tr. 1079;
Saadiq, tr. 1258, 1289; Long, tr. 1048-50.  His name regularly appeared on
submissions to the Commission as either the signatory or the one to whom
Commission communications should be sent.  See  Bureau Exh. 1, pp. 10, 15, 56;
Bureau Exh. 4, p. 2 item 2; Bureau Exh. 2, p. 1 item 2; Bureau Exh. 3, p. 1; Bureau
Exh. 5, p. 1; Bureau Exh. 6, p. 1; Bureau Exh. 7, p. 1; Bureau Exh. 9; Bureau Exh. 10,
pp. 1, 3.  Knox "was primarily responsible for grantsmanship, and developing the
financial resources," according to Kalonji Saadiq, who was with the station until the
end of 1986.  Tr. 1269, 1274, 1298 (Saadiq returned some time after the renewal
had been filed, probably early 1991, tr. 1275-76).  Knox testified he had "[p]robably
very little involvement" during the period the station was dark, although station
personnel "continued to call me anyway, for consultation," and write to him about
station business.  Tr. 1391-92.  When the station went back on the air in 1989, Knox
was "somewhat involved" in the move to the station's Sixth Avenue quarters, and he
prepared the 1990 renewal.  Knox, tr. 1366, 1395.  Until "about the spring of 1990,"
he "was the one dealing with the technical assistance of the station."  Samad, tr.
1135-36.  Thus, although Knox may have had reduced contact while the station was
dark, Knox again became involved when the station resumed activity.  The test for
party status, however, is not how actively involved a principal is but whether that
person is in the decisionmaking position of governing board member or officer.  See
Ownership Report for Noncommercial Educational Broadcast Station, FCC Form 323-E,
p. 2, item 5 (Sept. 1987).
When Knox left Center's board is far from clear on this record.  Long testified that
Knox had not been involved with Center since the early 1980's, although he was not
sure of the exact date.  Tr. 889, 993-94.  He added that Knox was not president
when Long himself signed Center's 1988 ownership report listing Knox as president,
or at the time of Center's 1987 ownership report listing Knox as president, or on
January 22, 1990 when the renewal application was signed and he was listed as
president in the accompanying ownership report. Tr. 997-99.  According to Samad,
the Center board met to elect new members when KUCB-FM went back on the air in
December 1989; Wayne Ford joined the board and was elected president at that time -
- with the condition that Knox not be involved or consulted further.  Tr. 1119-20,
1150.  But, Samad also said that the board was dealing with Knox' resignation at a
board meeting in the spring of 1990, after Knox's convictions had become known to
the board, and that Knox had been providing technical assistance to the station.  Tr.
1135-36.  Knox testified that he had been trying to resign from the presidency since
1986 or 1987, but the board "did not want to accept a resignation."  Tr. 1397-98.
He said he was on the board from the mid-1980's "to resignation, in 1989, even
though I tried to resign before that time.  I just could not get the board to accept it."
Id.  His resignation had been by telephone, but "in 1989" he submitted a written
resignation at Ford's request.  Tr. 1400, 1416.  If this existed, it was never entered
into evidence.  On cross-examination Knox wavered in his certainty about when he
resigned in writing.  He said he was "pretty sure [his written resignation] was around
1989, and preceded the telephonic piece."  Tr. 1416.  Knox was not sure, however,
when Ford was elected president of the board.  "It could have been in 1990.  I am not
sure."  Tr. 1417.  Knox also was not sure whether Ford was president when he
requested Knox's written resignation.  "He [Ford] was either president of the board,
or ready to be president of the board, or something to that effect, but at the time he
requested the resignation, he needed a letter."  Tr. 1417.  Ford did not appear.  The
only documentary evidence is Center's March 9, 1990 ownership report which, unlike
earlier reports, does not include Knox. Bureau Exh. 1, pp. 91-92.
What is puzzling is why Long, who had filled out the 1988 ownership report listing
Knox as president and had asked Knox to take care of the renewal in 1990, would
testify that Knox had ceased to be involved in the early 1980's, before the 1987
ownership report listing Knox as president for the first time and the 1988 report
signed by Long.  Nor did he suggest who might have been president in Knox's place
during this period.  Also puzzling is why Samad and Knox would testify that Ford
sought Knox's written resignation in 1989 and Samad would explain that the board
changes were conditioned on no further involvement or consulting by Knox -- before
the board supposedly knew about the convictions and before Long asked Knox to take
care of the renewal.  Previous board elections had seemed fairly informal; Knox had
said he wanted to be replaced; there is no hint in the record of friction between Knox
and either Ford or the board in 1989; and there is no hint of any board effort to seek
other advisors.  In short, the record is devoid of any reason for needing a written
resignation and separation from KCUB in 1989, if Center's argument that it knew
nothing of Knox's convictions until later is to be believed.  Indeed, Saadiq (who
returned to Center some time after the renewal had been filed) described Knox as "an
inspiration to the station," tr. 1304, and Samad "had just a real problem [with Knox's
resignation] till things were explained to me."  Tr. 1136.  This was "in about the
spring of 1990," when the board was dealing with Knox's criminal convictions and
resignation letter.  Tr. 1135 (testimony does not make clear whether resignation letter
had been received or whether decision to request one had been made or was still
under consideration).
Also puzzling is the testimony of Long and Knox about preparation of the 1990
renewal application.  Long tried to create the impression during his testimony before
the ALJ that he, Long, had prepared, signed, and sent in the 1990 renewal
application, even going so far as to explain why he had erroneously included Knox's
name in the accompanying ownership report, although he did not prepare either the
application or the ownership report at all, or sign them, or send them in.  Tr. 996-97,
1000, 1394.  Long also said he was not in substantial contact with Knox when he,
Long, filled out the renewal, although, according to Knox, he had called Knox in
Chicago to ask him to prepare it because no one else would. Tr. 956, 1394-95.
Knox kept up the subterfuge in his testimony.  He testified that, when he received the
renewal application from Long, "it was for the most part, already filled out.  We are
talking about the application and the Equal Opportunity report?"  Tr. 1414.  He said
that the copy he received from Long included the listing of board members on the
ownership report.  Tr. 1413.  He said that, when he learned that an erroneous
ownership report had been filed, he contacted Samad and talked with Long about the
need for a corrected report.  Tr. 1411.  Yet, when shown the application and
ownership report, he admitted the handwriting listing the names and addresses of
board members is his and that he had filled out and signed Long's name to the
ownership report.  Tr. 1415.  He had even corrected his own address, which suggests
more than a mindless copying of an old report, if he even had one at hand.  Compare
Bureau Exh. 12, p. 5 (Center 1/22/90 ownership report), with Bureau Exh. 1, p. 88
(Center 4/12/88 ownership report).  He did not dispute Bureau counsel's assertion that
he had filled in the negative response to question 6 regarding felony convictions on
the renewal application himself, and he admitted to signing Long's name for the
certification.  Tr. 1395-96, 1415, 1416.  Indeed, all of the information on the renewal
and accompanying reports is handwritten, and all of the handwriting on the renewal
application form and on the attached Equal Opportunity Report bears a strong
resemblance to Knox's handwriting on the ownership report and no resemblance to
the handwriting on Center's April 12, 1988 ownership report that Long said he had
prepared.  Tr. 998; compare Bureau Exh. 12 (Center 1/22/90 renewal application,
with attachments) with Bureau Exh. 1, pp. 87-88 (Center 4/12/88 ownership report).
Yet, both Knox and Long had claimed Long participated in preparing the form.  On
January 30, 1990 Center forwarded an additional copy of the renewal application to
the Commission.  Bureau Exh. 13.  The transmittal letter is signed "Jamal Long" in a
handwriting that strongly resembles the signatures reading "Jamal Long" that Knox
wrote on Center's January 20 renewal application, ownership report and transmittal
letter.  Compare Bureau Exh. 13 with Bureau Exh. 12, pp. 1, 3, 5.
So, what conclusions should this Review Board draw from all of this?  Center would
have us believe the misinformation in the renewal application was simply a mistake
resulting from the board's lack of information about Knox's convictions and
uncertainty about his position.  But, there is only Knox's uncorroborated testimony
that he tried to resign in 1986 or 1987.  Center repeatedly reported Knox as its board
president from 1987 until its March 9, 1990 report, which stated that the information
therein was reported as February 10, 1990, several weeks after the renewal had been
filed.  Bureau Exh. 1, p. 91 item 4.  According to Knox, Center continued to seek his
assistance in spite of his protestations that other board members learn to handle
things themselves, and Long, who testified that Knox hadn't been involved since the
early 1980's, turned over the 1990 renewal application to Knox.  Indeed, from the
handwriting in the January 30, 1990 letter transmitting a copy of the renewal to the
Commission, it appears that Knox did even that.  According to Samad, the decision
about Knox's resignation -- in the spring of 1990 -- was a difficult one, and Saadiq
later heard that Knox's resignation had been forced.  From all of this, Knox's
preparation of the renewal application appears to have been business as usual.  There
is much on this record to support the ALJ's conclusion that, at the time of the
renewal, Knox was a party to the application and knowingly misrepresented when
saying no party to the application had been convicted of a felony.
Center clearly has been badly served by Knox.  Center's members trusted him, relied
on him, revered him.  See Saadiq, tr. 1304, 1325.  In return, Knox embezzled funds
Center badly needed, let KUCB and Center members participate in fundraising for his
defense, and may well have avoided disclosing the reasons for his persecution to
Center members.  Had Center been candid about what went on with Knox, it may well
have found sympathy at the Commission.  But, this record does not show candor.
Center argues that, when it learned of Knox's convictions, it took public action.  If it
learned of the problems after the renewal had been filed, as it said it did, why
Samad's repeated testimony that action was taken in 1989 -- before the renewal
application and before competing applications threatened Center's renewal?  Why did
Knox testify to board action in 1989 until pushed on cross-examination?  Why did
Long deny Knox's involvement in Center since the early 1980's -- while turning to
Knox to take care of the renewal and insisting he had done it himself?  Knox's
testimony about this, too, is lacking in candor, changing from what appears to be
Center's story only when pushed on cross-examination.
There is testimony on this record about the lack of legal justice and government
persecution.  See Samad, tr. 1134; Saadiq, tr. 1288, 1304, 1311-12; Knox, tr. 1432
("I feel that the FBI was totally involved with trying to destroy the station and had
influence on those agencies which even regulate the station.").  I want to emphasize
that this Review Board's decision has nothing to do with government persecution or
quashing civil rights activities and everything to do with the Commission's requirement
of truthfulness and reliability from its licensees, an expectation derived from the
Communications Act of 1934, as amended, 47 U.S.C.  308(b), and years of
Commission precedent.  See, e.g., Policy Regarding Character Qualifications in
Broadcast Licensing, 102 FCC 2d 1179, 1183, 1210-11 (1986).  The false statement
in Center's renewal application is transformed from the wrongdoing of one malfeasant
by the candorless testimony of Long, by Samad's participation in the attempt to show
that Center's break with Knox came before it actually occurred, and by presenting as
truthful candorless testimony from Knox.  This alone warrants disqualification.  See
Richardson Broadcasting Group, 7 FCC Rcd 1583, 1583-85 (1992), recon. denied sub
nom. Elizabeth M. Younts, 8 FCC Rcd 1714 (1993), aff'd by judgment, 995 F.2d 306
(D.C. Cir. 1993).