Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Liability of ) ) CRC Broadcasting Company, Inc. ) Licensee of Station KFNN(AM), ) Mesa, Arizona ) ) For a Forfeiture ) MEMORANDUM OPINION AND ORDER AND FORFEITURE ORDER Adopted: August 25, 1999 Released: August 26, 1999 By the Chief, Mass Media Bureau: 1. The Commission, by the Chief, Mass Media Bureau, pursuant to delegated authority, has before it for consideration: (i) the Memorandum Opinion and Order and Notice of Apparent Liability in CRC Broadcasting Company, Inc., 14 FCC Rcd 1038 (MMB 1999) ("MO&O"), which granted the license renewal application of CRC Broadcasting Company, Inc. ("CRC" or "licensee") for Station KFNN(AM), Mesa, Arizona subject to a Notice of Apparent Liability ("NAL") for an $8,000 forfeiture; and (ii) CRC's response to the NAL, which seeks rescission or reduction of the forfeiture. 2. In the MO&O, we found that the licensee had violated Section 73.1015 of the Commission's Rules by willfully omitting material facts in the FCC Form 396 (Broadcast EEO Program Report) filed with its license renewal application on May 30, 1997. In Section VII of the Form 396, which states "[y]ou must provide here a brief description of any complaint which has been filed before any body having competent jurisdiction under Federal, State, territorial or local law, alleging unlawful discrimination in the employment practices of the station including the persons involved, the date of filing, the court or agency, the file number (if any), and the disposition or current status of the matter," the licensee stated that "No Complaints Have Been Filed." However, in August 1997, a former employee of KFNN(AM) informed Commission staff that she had filed a discrimination complaint against KFNN(AM) and CRC with the Civil Rights Division of the Arizona Attorney General's Office ("CRD") and the U.S. Equal Employment Opportunity Commission ("EEOC") on January 7, 1997. 3. In an October 31, 1997, response to a staff letter of inquiry, Ronald Cohen ("Cohen"), President and General Manager of CRC, stated that before filing the renewal application, he talked to a representative of the CRD, who told him that the discrimination complaint had not yet been assigned to an investigator and had not been filed with the EEOC. Cohen asserted that, because the complaint had not yet been investigated or referred to the EEOC at the time the licensee filed the renewal application, he did not believe that it had to be reported on Form 396. However, in a subsequent filing dated April 7, 1998, Cohen reported that his previous statement -- that an official at the CRD told him that the discrimination charge had not been filed with the EEOC -- was incorrect. Instead, he recalled the official telling him "that the charge would not be considered by the EEOC until the CRD completed its review and only if the CRD determined the charge stated a possible cause of action for discrimination." Therefore, it was his "impression that the matter was not before the EEOC for consideration and that it was premature to report this matter to the FCC in the renewal application." Cohen claimed that the inaccurate statement in the October 31, 1997, inquiry response was based on his memory and recollection of his conversation with the CRD official and that he failed to review a January 1997 letter from the CRD informing him that the complaint had been filed with the EEOC prior to filing the October 31, 1997, response. 4. We found no evidence in the MO&O that the licensee's failure to report the discrimination complaint resulted from an intent to deceive. However, we concluded that the licensee had omitted material facts from its Form 396. We further concluded that this action was willful inasmuch as Cohen certified that the information contained in Form 396, including the statement that no complaints had been filed, was true and correct to the best of his knowledge. Accordingly, we issued the licensee an NAL for an $8,000 forfeiture for willfully omitting material facts from its Form 396 in violation of Section 73.1015 of the Commission's Rules. 5. In the licensee's response to the NAL, Cohen asserts that he has "never been in trouble before with the Commission or previously been party to an employee rights action." Cohen states that this is the very reason he "got into trouble" in this instance. In this regard, Cohen asserts that he failed to understand what was required to accurately report the status of a pending complaint on the Form 396. Cohen also states that the complaint in question was dismissed shortly after the Commission discovered the omission. 6. We conclude that the licensee has provided no basis for rescission or reduction of the forfeiture. As we stated in the MO&O, Cohen's misunderstanding of the status of the complaint, or the point at which he was required to report it to the Commission, does not mitigate the licensee's violation of Section 73.1015. MO&O at 1040. Regarding the licensee's assertion that it has never been in trouble before with the Commission, we do not believe that the licensee's overall history of compliance with the Commission's Rules necessitates or justifies a reduction of the specified forfeiture amount. While Section 503(b)(2) of the Communications Act, as amended, 47 U.S.C.  503(b)(2), requires us to consider a licensee's history of prior offenses in determining a forfeiture amount, it does not mandate that we mitigate a forfeiture amount should a licensee have no history of prior offenses. Rather, a licensee's compliance history must be considered along with the other factors set forth in Section 503(b)(2), including the nature, circumstances, extent, and gravity of the violation. In the instant case, the licensee's initial omission, a serious violation in itself, was compounded by Cohen's failure to accurately report his reasons for the omission when initially questioned by the Commission. MO&O at 1040. Therefore, based on the facts and circumstances of this case, we do not believe that the licensee's history of compliance with the Commission's Rules warrants a reduction in the amount of the forfeiture. Finally, we think it is wholly irrelevant that the complaint in question was ultimately dismissed. It was not the existence of the complaint itself, but rather the licensee's failure to report it on its Form 396 and its initial inaccurate explanation for that failure that led to the forfeiture. 7. ACCORDINGLY, IT IS ORDERED that the response to the Notice of Apparent Liability filed by CRC Broadcasting Company, Inc. IS DENIED. 8. IT IS FURTHER ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C.  503(b), that CRC Broadcasting Company, Inc. FORFEIT to the United States the sum of eight thousand dollars ($8,000) for willfully omitting material facts in violation of Section 73.1015 of the Commission's Rules, 47 C.F.R.  73.1015. Full payment of the forfeiture may be made by mailing to the Commission a check or similar instrument payable to the Federal Communications Commission within 30 days of the release of this Order. In regard to this forfeiture proceeding, the licensee may take appropriate action as set forth in Section 1.80 of the Commission's Rules, 47 C.F.R.  1.80, and Section 504(a) of the Communications Act of 1934, as amended, 47 U.S.C.  504(a), as summarized in the attachment to this Memorandum Opinion and Order and Forfeiture Order. 9. IT IS FURTHER ORDERED that copies of this Memorandum Opinion and Order and Forfeiture Order be sent by Certified Mail -- Return Receipt Requested -- to CRC Broadcasting Company, Inc. 10. This action is taken pursuant to delegated authority. FEDERAL COMMUNICATIONS COMMISSION Roy J. Stewart Chief, Mass Media Bureau