FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 5
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Federal Communications Commission Record
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
CC Docket No. 85-202
In the Matter of
File Nos. 1743 CF-P-85
through 1757 CF-P-85
For Authority to Construct New
Common Carrier Point-to-Point
Microwave Radio Stations
Anne P. Jones and Frank J. Martin, Jr., on behalf of
TeleSTAR, Inc.: Richard H. Strodel and Steven A Lancellotta,
on behalf of Western Tele-Communications, Inc.;
John Wells King and James E. Dunstan, on behalf of MCI
Telecommunications Corporation; and Frederick F. Fitzgerald,
on behalf of the Chief, Common Carrier Bureau,
Federal Communications Commission.
Adopted: December 15, 1986 Released: January 7, 1987
By the Review Board: MARINO
BLUMENTHAL, and ESBENSEN.
Board Member BLUMENTHAL:
1. This proceeding involves the applications of
TeleSTAR, Inc. (T/S) for authority to construct 15 common
carrier microwave radio stations that will form a
microwave transmission system between Salt Lake City,
Utah and Denver, Colorado. Predicated on a Petition to
Dismiss filed by Western Tele-Communications, Inc.
(WTCI), and informal protests by WTCI, Mountain Bell,
Inc. (Mountain Bell), and MCI Telecommunications
Corp. (MCI), alleging that T/S had engaged in substantial
premature construction in contravention of Section 21.3
of the Commission's Rules, 47 CFR 21.3, and lacked
candor in failing to inform the Commission of such
construction, the Chief, Common Carrier Bureau, set the
applications for an evidentiary hearing to explore these
matters by a hearing designation order ("HDO") styled
Notice of Apparent Liability and Order Designating Applications
for Hearing, 50 Fed. Reg. 27055 (1985). WTCI,
Mountain Bell and MCI were made parties to the proceeding.
HDO, para. 18. Thereafter, by an Initial Decision,
("I.D."), FCC 86D-30, released April 18, 1986, presiding
Administrative Law Judge ("ALJ") Walter C. Miller denied
the applications, concluding that T/S had engaged in
substantial premature construction of the fifteen micro-'
wave radio stations in wilful violation of 47 CFR 21.3(b)
and had "lacked candor with their own shareholders,
openly lied to the Bureau of Land Management, and
intentionally misrepresented material facts to the Commission."
I.D., at para. 91. The proceeding is now before
the Review Board on exceptions filed by T/S and replies
by WTCI, MCI. and the Common Carrier Bureau. We
have reviewed the I.D. in light of these pleadings, the oral
argument held October 24, 1986, and our independent
review of the record. We adopt the ALJ's findings of fact
and conclusions of law. except as modified herein, and
affirm his ultimate conclusion that the public interest,
convenience, and necessity is best served by denying this
2. The voluminous (78-page) T/S exceptions attack the
AL's findings of fact, paragraph-by-paragraph, footnoteby-footnote
in a manner so captious as to suggest that not
a single sentence of the I.D. can be accepted as accurate. '
Further, T/S contends that, insofar as the misrepresentation
and lack of candor issues designated, the HDO was
based "on the Bureau Chiefs erroneous belief, based on
certain arguments contained in TeleSTAR's predesignation
pleadings," 2 which prior pleading arguments
contained "omissions and inaccuracies" caused by the
malfeasance of former communications counsel 3; that
Bureau counsel believed the T/S hearing witnesses to be
"forthcoming," "sincere," and "credible" 4; and, finally,
that the AL "lackledl judicial temperament" 5 and either
"rejected" or "ignored ... all evidence tending to disprove
his prejudgment of the principal issue." 6
3. Perhaps, in part, because of the substantial monetary
stakes here involved, as well as the unusual vehemence of
the T/S exceptions. we have conducted a minute review of
this entire record, exhibit-by-exhibit, transcript pageby-page,
and compared the T/S exceptions to the record
and the I.D. in complete detail. "And the end of all our
exploring, [has been] to arrive where we started, And
know the place for the first time." 7 For the preponderance
of record evidence corroborates the AL's findings
and conclusions for the proposition that T/S has misrepresented
material facts to the Commission and that its
principals have demonstrated an egregious lack of candor
with this agency in this proceeding. Our decision rests not
only upon the direct and circumstantial evidence adverted
to specifically in the I.D., but also upon other evidence in
the record which, although not necessary, provides additional
support for the AJ's ultimate findings and conclusions.
The record evidence, to the extent decisional, is
The Record Evidence
4. The HDO adequately sets forth the backdrop against
which this proceeding was commenced. The T/S Construction
Permit applications proposing to build 15 common
carrier microwave radio stations between Salt Lake
City, Utah and Denver, Colorado were filed on January
23, 1985, along with a petition for expedited processing.
Accompanying the T/S applications were several representations
that T/S "proposes to construct" the subject
microwave network. See I.D., paras. 38, 39. On January
31, however, the Commission received a communication
from WTCI informing the Commission that T/S had violated
Section 319(a) of the Communications Act, 47
U.S.C. 319(a), and Section 21.3(b) of the Commission's
Rules, 47 CFR 21.3(b), 8 by undertaking premature
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United States. Federal Communications Commission. FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987, book, January 1987; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc1597/m1/12/: accessed January 16, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.