FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 13
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Federal Communications Commission Record
swers to questions may be clear, concise and audible,
and given without hesitation; his coloration
may be normal
neither pale nor flushed. In short,
he may appear to be the trial lawyer's ideal witness.
He may also be a consummate liar."
Id., 565 F.2d at 1084-1085. 3R
23. The T/S exceptions complain that the demeanor
findings in the instant case contain "no specifics of demeanor
or analysis" of its principal witnesses. 39 We have
reviewed those findings and generally agree with T/S. We
also note that Sahm's Demeanor Evidence article, supra
para. 22. relates that the NLRB requires (at least at that
time) that its ALJs "spell out in detail" the indicia by
which they credit or discredit a witness on the basis of
demeanor. 47 A.B.A.J. at 582 (citing Allied Chain Link
Fence Co., 126 NLRB No. 144 and Buckley Development
Co., 126 NLRB No. 147). Still, the law is equally clear
"Credibility involves more than demeanor. It apprehends
the over-all evaluation of testimony in the
light of its rationality or internal consistency and
the manner in which it hangs together with other
Carbo v. U.S.. 314 F.2d 718, 749 (9th Cir. 1963). The
Penasquitos Village, supra, court attempted to differentiate
between demeanor findings and ultimate credibility findings
in this way: It describes credibility findings based on
demeanor as "testimonial inferences" and those drawn
from the record as a whole as "derivative inferences." 565
F.2d at 1078. Stating that "a reviewing body has little or
no basis for disputing an administrative law judge's testimonial
inferences," id., at 1079, the court opined (id.):
"We simply observe that the special deference deservedly
afforded the administrative law judge's
factual determinations based on testimonial inferences
will weigh heavily in our review of a contrary
finding by the Board."
Without applying the degree of legal acuity suggested in
Penasquitos Village, both the Commission and this Board
have given due deference to the "testimonial inferences"
of Commission ALJs, as one component of their overall
credibility findings. These are then compared (and/or
contrasted) with all other aspects of the hearing record.
Rarely, if ever, do specific demeanor findings
play a decisional role in our experience, at least in
the sense of specifically described character traits or the
physical appearance of a witness. While both the Board
and the Commission recognize their authority to overturn
the credibility findings of an AL, see, e.g., U.S. v. Raddatz,
447 U.S. 667, 680 (1980); Moore v. Ross, 687 F.2d
604 (2d Cir. 1982), the Commission has recently advised
the Court of Appeals "of the Commission's general reluctance
to overturn the credibility determinations of an ALJ
unless his findings are patently in conflict with the record
evidence." Brief of FCC at 26, Winter Park Communications
v. FCC, Nos. 85-1755, 85-1756 (D.C. Cir). See also
Broadcast Assoc. of Colorado, 104 FCC 2d 1619 (1986)
(modifying 100 FCC 2d 616 (Rev. Bd. 1985)) ("[a]bsent
extrinsic evidence to the contrary, we believe that [an]
ALJ's judgment ... is entitled to great weight"); Signal
Ministries, Inc., 104 FCC 2d 1481, 1486 (Rev. Bd. 1986)
("ji]n the absence of patent conflicts with the record
evidence, the Commission accords special deference to a
presiding officer's credibility findings since the trier of
fact has had a superior opportunity to observe and evaluate
a witness's demeanor and to judge his/her credibility").
Despite the mass of variegated verbiage, we believe
that the authorities are in consensus in holding that some
real and legally recognizable deference is to be accorded
to the credibility findings of a federal AUJ, unless
"reversal is supported by substantial record evidence."
WHW Enterprises, Inc. v. FCC, 753 F.2d 1132, 1141 (D.C.
Cir. 1985). Whether agency credibility findings may be
finely parsed into "testimonial inferences" and "derivative
inferences" is a dispute we respectfully leave between
Judge Duniway and his Penasquitos Village majority.
24. We ourselves conclude that the overwhelming
weight of demonstrative evidence, McCORMICK ON
EVIDENCE 179 (1954), supports the ultimate conclusion
of the instant I.D.that T/S and its principals made
serious and numerous misrepresentations to the FCC, and
displayed an egregious lack of candor in this proceeding.
We further conclude that the record evidence supports
the ALJ's determination that T/S denials of knowledge of
the need for direct FCC authority to construct its radio
system are incredible. We need not find such denials
"inherently incredible," despite the fact that some would
deem it virtually impossible that T/S might initiate such a
costly, complex enterprise, or display the extraordinary
knowledge of FCC rules and policies exhibited in the T/S
Private Placement Memorandum ("PPM"), without ever
consulting the basic blueprint for point-to-point microwave
common carrier radio service, viz., Part 21 of the
FCC Rules. What we do find, "inherent incredibility"
aside, is that the record evidence, both documentary and
testimonial, demonstrate that the ultimate conclusions of
the ID. are correct and that the stories and the denials of
the T/S principals do not "hang together with other
evidence." Carbo v. U.S., supra, 314 F.2d at 749. Whatever
might have been said of the original T/S defense of an
innocent misconstruction of Section 21.3(b), or the elasticity
of 47 U.S.C. 319(a), it is clear to us that their
"second" line of defense is a ragged tissue of pseudologia,
penetrated often and decisively by the other record evidence,
some of it wrought by T/S itself.
25. Thus, in the face of the T/S denials of all knowledge
of Section 21.3(b) prior to the premature construction of
its radio system, and its contentions (1) that it mistakenly
equated the frequency notification and coordination process
with official FCC authority to commence construction
(see supra para. 18) and (2) that it believed that an
FCC Construction Permit was necessary only for "the
installation and operation of radio equipment" (see id.),
we have its 1983-1984 PPM. Although the PPM uses what
the T/S exceptions call "several different 'homespun'
terms," 40 the PPM is plain beyond a reasonable doubt
that "frequency clearance is obtained from a national
frequency data base clearinghouse" (see supra para. 11)
while "a preclearance build order is granted from the
FCC" (see id.). Nowhere does the PPM suggest in the
slightest sense that the two are, in any conception, a
singular process. T/S here takes exception to the ALJ's
description of Doyal Stewart's testimony that the PPM
phrase "build order from the FCC" did not mean to
Doyal Stewart a "written" authorization, I.D., para. 13,
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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/m1/20/: accessed July 21, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.