FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 14
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Federal Communications Commission Record
and it calls such a finding "erroneous." We have reviewed
the transcript testimony of Poyal Stewart on this point
and find that the subject testimony totally supports the
ALJ's description, 4' but is squarely contradicted by the
clear and plain reading of the PPM. Doyal Stewart's
circumambient hearing testimony on this point is, both
literally and figuratively, not to be believed. See Tr.
532-533. When confronted with that same PPM language,
Doyal Stewart's brother, Noel, could only assert that he
"had no recollection of the 'Pre-Build Order"' mentioned
in that seminal T/S document. See supra para. 17. Noel
Stewart did not, however, deny that the PPM explicitly
called for written pre-construction authority "from the
FCC"; indeed, he expressly agreed that the PPM clearly
described "a two-step FCC approval process involving an
FCC Pre-Build Order."' Id. He averred, rather lamely,
that he had no recollection "now" of the "two-step"
process quite deliberately described in the PPM. Id.
26. In a recent case, Stearns County Broadcasting, Co.,
104 FCC 2d 688 (Rev. Bd. 1986), the Board was similarly
confronted with an applicant pleading ignorance of law.
There we stated (id., at 696) that:
"for reasons manifested in the timeless legal precept
that 'ignorance of the law is no excuse,' it is usually
impossible to objectively prove that an offender had
a perfect knowledge of the law being violated."
Though the T/S PPM does not recite the Commission's
regulatory requirements in haec verba, it does clearly
reflect a conceptual comprehension of the need for a
direct, written authorization "from the FCC" to commence
construction that meets the formidable Stearns
County test: "perfect." See supra paras. 11, 17. Furthermore,
in the course of his 1985 investigation, T/S attorney
J. Craig Carman reviewed the PPM and discussed this
matter extensively with the Stewarts. We repeat his stated
"At the time the private offering memorandum was
prepared, the officers of TeleSTAR were aware that
some type of approval was required from the FCC
before construction could begin on microwave
The documentary evidence and the testimony also convinced
the Common Carrier Bureau "that at the time of
the PPM, at least Doyal Stewart had acquired a correct, if
rough comprehension of the Commission's licensing procedure."
43 The AL was likewise convinced, I.D., paras.
10-13, and so too are we.
27. As indicated previously, both J. Craig Carman and
the Common Carrier Bureau, after reviewing the matter,
believed that the Stewarts were contending that they correctly
understood FCC pre-construction requirements at
the time the PPM was prepared, but became confused by
virtue of their discussions with Spectrum Planning, Inc.
in March or April 1984. See supra para. 18; see also Tr.
273-277. As also indicated previously, it is not clear that
T/S itself has fully embraced this scenario (see supra para.
18), but we find little in the evidence to support this
thesis, even if T/S is now so urging. The T/S exceptions
here note that Noel Stewart's April 17, 1984 letter (see
supra para. 12) uses "the correct terms of art
'Construction Permit' and 'CP' ... for the first time." 44
T/S also argues that the April 17 letter evinced its contemporaneous
belief that "low cost site construction could
proceed" when the freqency clearance process had been
completed. 45 However, that same April 17 letter is entirely
consistent with both the PPM and Part 21 of the
Rules; it makes plain the T/S understanding that an FCC
Construction Permit is granted if there are no objections
following the frequency notification and coordination
process and that "lajfter the 30-day user notification is
coordinated an FCC 435 form is filed for the 30-day
public notice." It should be here borne in mind that,
even by the time of the July 14, 1984 letter to T/S
shareholders (see supra para. 14), Noel Stewart reflected
that "the NET I System has been on User Notification or
prior coordination for approximately a week and a half';
that priorir coordination, provided all goes well, should
end August 7-11 1984"; that imminently thereafter "a 435
Form will be filed with the FCC for an FCC Construction
Permit (CP). The FCC CP will usually be granted after an
additional 30-day public notice by the FCC"; and that T/S
expected that it would have the FCC CPs by, or before,
September 1984. See supra para. 14. Nothing in the T/S
letters following the PPM suggests any confusion at all;
indeed, the documentary evidence plainly reveals that T/S,
throughout, recognized the frequency notification and
coordination process as one discrete function and the
FCC pre-construction authorization process as entirely
another. Nor does the demonstrative evidence support
that T/S became confused in April, 1984 after discussions
with its contractor(s). T/S has here pointed to nothing
whatever that was done or said to create any such confusion,
see Tr. 276; and representatives of both Spectrum
Planning, Inc. and Compucon, Inc.
familiar with FCC processes
denied categorically that
they would have ever hinted that construction was permissible
without an FCC Construction Permit. See supra
para. 18. Finally, it is clear that the frequency clearance
process had not been completed when T/S commenced its
major construction in August or September 1985. In the
words of Noel Stewart: "We anticipated the coordination
was going to be over before it was. As you see in subsequent
letters, it dragged until August and even further."
Tr. 380. In fact, the clearance process continued, at least,
until the end of November 1984. Tr. 497. Thus, construction
was commenced prior to completion of the frequency
coordination process, even if we believed that T/S considered
the frequency notification and clearance process and
official FCC pre-construction authorization to be oneand-the-same
28. This leaves us with the contention that T/S principals
thought an FCC Construction Permit necessary only
for "the installation and initial operation of radio transmitters."
See supra paras. 16, 18. However, T/S principals
again could point to absolutely nothing responsible for
this alleged misimpression. The best Noel Stewart could
offer is that his impression was "formed without benefit
of any legal or other advice." See supra para. 16. Doyal
Stewart at hearing claimed (Tr. 528; emphasis added):
"Basically, my understanding, and I'm sure this is
somewhat influenced by my previous experience as
a pilot, I felt that the FCC actually owned the airwaves
and actually -
I call them here National Data
Base Clearinghouse. I felt that these private clearing
companies, when you contacted them, actually re-
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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/m1/21/: accessed February 25, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.