04-19144. San Francisco Unified School District

AGENCY:

Federal Communications Commission.

ACTION:

Notice.

SUMMARY:

This document designates the application of the San Francisco Unified School District for renewal of license of KALW(FM), San Francisco, California, for an evidentiary hearing on issues relating to its qualifications to remain a Commission licensee.

DATES:

Petitions by persons desiring to participate as a party in the hearing may be filed not later than September 20, 2004. See SUPPLEMENTARY INFORMATION section for dates that named parties should file appearances.

ADDRESSES:

Please file documents with the Investigations and Hearings Division, Enforcement Bureau, Federal Communications Commission, Room 3-B443, 445 12th Street, SW., Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

James Shook, Special Counsel, Investigations and Hearings Division, Enforcement Bureau at [phone]; Dana E. Leavitt, Assistant Chief, Investigations and Hearings Division, Enforcement Bureau at [phone]; or Michael Wagner, Assistant Chief, Audio Division, Media Bureau at [phone].

SUPPLEMENTARY INFORMATION:

This is a summary of the Hearing Designation Order, FCC04-114, released July 16, 2004. The full text of the Hearing Designation Order is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Alternative formats are available to persons with disabilities by contacting Martha Contee at [phone] or TTY [phone].

Synopsis of the Order

1. The San Francisco Unified School District (“SFUSD”) timely applied for license renewal for its station KALW(FM) on August 1, 1997. Golden Gate Public Radio filed a petition to deny that application on November 3, 1997, alleging both substantive rule violations and misrepresentations. Specifically, Golden Gate PUBLIC Radio alleged that SFUSD failed to adequately maintain its local public inspection file by failing to include in the file supplemental ownership reports and issues/programs lists as required by 47 CFR 73.3527 while knowingly certifying in the license renewal application that all these reports and lists were contained in the file. Similarly, Golden Gate Public Radio allege that the licensee failed to comply with the Commission's Equal Employment Opportunity requirements then in effect, while certifying in its renewal application that it had done so. San Francisco Unified School District, in opposition, argued that (1) Golden Gate Public Radio did not establish a substantial and material question of fact to warrant designation of the KALW(FM) license renewal application for hearing.

2. Intitially, the Commission Bureau has reviewed the Golden Gate Public Radio petition and found several procedural infirmities: the petitioner did not demonstrated standing to challenge the renewal application, and the petition was neither properly served on SFUSD nor properly verified under the Commission's rules. The Commission therefore treated the filing as an informal objection rather than as a formal petition to deny.

3. Upon reviewing of the record in this case—primarily the Golden Gate Public Radio petition and San Francisco Unified School District's response to two staff inquiries—the Commission found that the KALW(FM) public inspection file did not contain all of the requisite supplemental ownership reports and quarterly issues/programs lists when the subject renewal application was filed. Additionally, the Commission stated that it appeared that several staff members advised KALW(FM)'s station management that the public file was incomplete, which advice the station management either disbelieved or disregarded. Thus, the Commission found both that SFUSD made a false certification with respect to the contents of the KALW(FM) public inspection file in the renewal application, and that Golden Gate Public Radio had raised a substantial and material question of fact concerning whether San Francisco Unified School District intended to deceive the Commission in making that false certification. The Commission therefore designated the KALW(FM) license renewal application for evidentiary hearing, specifying the following false certification and misrepresentation 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 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 Commission's 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.

4. Additionally, Golden Gate Public Radio argued that the licensee SFUSD falsely certified that it complied with the Commission Equal Employment Opportunity requirements in effect at the time the renewal application was filed. The Commission Equal Employment Opportunity program requirements at issue in this case were declared unconstitutional by the Court of Appeals for the District of Columbia Circuit in 1998. Nevertheless, those requirements were in effect during the KALW(FM) license term here, as well as when the subject renewal application was filed, and applicants are not excused from accurately representing their compliance with those rules by their subsequent invalidation. The Commission found that there may have been minor deficiencies in the dissemination of San Francisco Unified School District's Equal Employment Opportunity program during the subject license term, and thus its representations in the KALW(FM) renewal application regarding the station's compliance with the Commission's Equal Employment Opportunity rules and policies appeared to be incorrect. The Commission finds, however, that the evidence presented by Golden Gate Public Radio and the record as a whole are insufficient to raise a substantial and material question as to whether San Francisco Unified School District intended to deceive the Commission by making a false certification regarding its compliance with the Commission's then-existing Equal Employment Opportunity rules. The Commission nevertheless cautioned the licensee that it should exercise more care in the future to ensure that the information it submits to the Commission is accurate, because a false statement, even absent an intent to deceive, may constitute a violation of 47 CFR 1.17.

5. Copies of this Order, are to be sent by certified mail, return receipt requested, to the parties and counsel. To avail themselves of the opportunity to be heard, Golden Gate Public Radio and San Francisco Unified School District to 47 CFR 1.221, in person or by their respective attorneys, must within twenty (20) days of the mailing of the Order, file in triplicate a written appearance stating an intention to appear on the date fixed for the hearing and present evidence on the issues specified in this Order. San Francisco Unified School District pursuant to 47 CFR 73.3594, shall give notice of the hearing within the time and in the manner prescribed in 47 CFR 73.3594, and shall advise the Commission of the publication of such notice as required by 47 CFR 73.3594(g).

Federal Communications Commission.

Marlene H. Dortch,

Secretary.