FCC Record, Volume 5, No. 3, Pages 556 to 796, January 29 - February 9, 1990 Page: 582
xiv, 556-796 p. ; 28 cm.View a full description of this book.
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Federal Communications Commission Record
5 FCC Red No. 3
7. Nor is Miracle Strip correct that the Commission's
June 23, 1989 Memorandum Opinion and Order is procedurally
deficient because the case was never briefed and
argued before the full Commission. Miracle Strip's 1984
Application for Review was filed under a previous version
of 47 C.F.R. 1.115(b)(5), which contained a "note"
stating that the Commission "will generally permit the
parties to file briefs and present oral argument."2 Miracle
Strip explains that, given the ten-page limitation on applications
for review, it concentrated on issues relating to
the Board's selected winner, Vacationland (which subsequently
dismissed its application) rather than on issues
relating to the other applicants. Thus, Miracle Strip decided
not to raise other matters in its Application for
Review such as its claimed preference for proposing a
classical music format. Miracle Strip believed that it
would have a chance to raise this issue when the Commission
requested briefs and oral argument.
8. The Court of Appeals, however, rejected this argument
in Ventura Broadcasting Company v. FCC, 765
F.2d 184 (D.C. Cir. 1984). It determined that such
briefing and oral argument was not required where the
Commission's decision turned on an issue not decisionally
significant to the Review Board's Decision (and therefore
not fully addressed in the parties' applications for review).
In doing so, the court held, first, that the Commission
had not violated section 1.115(b), which "d[id] not mandate
argument and briefing in every case." Id. at 194. See
also American International Development, Inc., 50 RR 2d
370, 371-72 4 (1981). Second, the court found that
procedural fairness did not require such briefing and
argument since the Appellant had filed exceptions in
support of its appeal from the ALJ's initial decision,
which were part of the record and therefore available to
the Commission when it reviewed the Board's decision.
Thus, the court reasoned that "[Appellant's] arguments
were fully presented to the Commission," and that the
Commission had not "acted without adequate opportunity
for comment on the part of [Appellant]." Id.
9. Neither the Commission's rules nor procedural due
process required briefs and oral argument in this case.
Even if the Board's selected winner (Vacationland) had
dismissed its application before the Commission deleted
the rule permitting briefs and oral argument, the Commission
could have reviewed the record and determined
which of the remaining applicants would best serve the
public interest without permitting briefs and oral argument.
Neither the subsequent deletion of the "note" from
section 1.115(b)(5) nor the lapse of time since the filing of
Applications for Review in 1984 requires that the Commission
give Pinnacle a chance to raise arguments that it
chose not to include in its 1984 Application for Review. 3
10. In this regard, Pinnacle's arguments have been adequately
considered in the record before the Commission.
It filed exceptions to the initial decision that were part of
the record and available to the Commission when it
granted Juanina's application on June 23, 1989. To the
extent that Pinnacle requests that we permit briefs and
oral argument so that it can now argue matters not included
in its Application for Review, Pinnacle would be
precluded from raising in its brief any matter that has not
been raised in its exceptions. See 47 C.F.R. 1.277(a)
(arguments not raised in exceptions to an initial decision
are waived). Thus, even if Pinnacle was misled by the
now-deleted "note" into omitting certain arguments fromits 1984 Application for Review, Pinnacle's arguments
have been adequately presented to and reviewed by the
Commission.4 Therefore, we find that no purpose is
served by permitting briefs and oral argument at this
time.
11. Having determined that we need not remand this
case for further hearings or schedule it for briefing and
oral argument, we turn to the merits of the pending
petitions for reconsideration. Pinnacle and Miracle Strip
assert that the integration proposals of Juanina's 90
percent owner, John Matkowski, and 10 percent owner,
Katherine Shea, are not credible. However, questions concerning
Matkowski's health and his promise to give up
his lucrative dental practice have been raised, and rejected,
at various stages of this proceeding.5 It is well
established that the Commission does not grant reconsideration
to permit reargument of matters that it fully
addressed in its decision. WWIZ, Inc., 37 FCC 685 (1964),
aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824
(D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1965).
12. To the extent that petitioners rely on the current
state of Matkowski's health, they offer nothing more than
concerns about Matkowski's ulcers and bad back, which
were explored at the hearing, to support their claim that
he could be physically unable to fulfill his integration
proposal. In light of record evidence that these are
Matkowski's only health problems and that neither problem
is serious enough to prevent him from operating or
managing the station, petitioners' allegations that, given
the lapse of seven years since the hearing record was
compiled, Matkowski and Shea are now incapable of effectuating
their integration proposals are purely speculative
and do not warrant reconsideration.
13. Although Miracle Strip characterizes Matkowski as
an "aging, white male" whose current health is "unknown,"
broadcast applicants have an affirmative obligation
under section 1.65 of the Commission's rules, 47
C.F.R. 1.65, to report substantial changes in any matter
of decisional significance to the Commission. However,
Juanina has not reported any change in the health or
commitment of either Matkowski or Shea.6 Miracle Strip
alleges that information which is critical in evaluating the
credibility of Matkowski's integration proposal is missing
from the record, but it does not specify exactly what is
missing. Under these circumstances, we cannot assume,
based either on the owners' ages or the lapse of more
than seven years since the hearing, that Matkowski and
Shea will be unwilling or unable to fulfill their commitments
to be integrated full time at the proposed station.
The integration proposals of Juanina's two owners,
Matkowski and Shea, therefore merit 100 percent quantitative
integration credit.7
14. In its petition for reconsideration, Da-Gon challenges
the Commission's determination that its integration
proposal is quantitatively and qualitatively inferior to the
integration proposals oi Miracle Strip and Juanina. DaGon
specifically objects to the Commission's finding (4
FCC Rcd at 5067 n.2) that arguments concerning DaGon's
quantitative integration credit are not properly before
the Commission because Da-Gon's exceptions to the
initial decision did not raise these matters. However, it is
immaterial whether Da-Gon waived the argument that its
integration proposal is quantitatively equal to the proposals
of Juanina and Miracle Strip because "control is control
whether it be 100% or 51%." Despite its finding that
Da-Gon had not filed exceptions on this point, the Commission
specifically addressed Da-Gon's control argument
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United States. Federal Communications Commission. FCC Record, Volume 5, No. 3, Pages 556 to 796, January 29 - February 9, 1990, book, February 1990; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc1659/m1/44/: accessed April 24, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.