FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 224

                                
Federal Communications Commission Record

62. Sadowsky became curious as to the identity of
"Berton Mowers" after an affidavit of Berton F. Mowers
was submitted as part of a "Statement, Clarification and
Motion To Approve Agreement," filed by Ashley in October
1986 in the Longview, Texas proceeding 24 (Tr. 1204).
She contacted Thomas Root (Root), a Washington, D.C.
attorney whom she knew had had dealings with Boozer
(Tr. 1206-07, 1209). She went to Root's office where she
was shown a copy of a picture of Boozer (Powley Ex. 6).
she immediately recognized the person as "Berton Mowers."
This confirmed in her mind her belief that "Berton
Mowers" and Boozer were the same person (Tr. 1208-09).
During the hearing, Sadowsky was shown the photograph
of Boozer (Powley Ex. 6A). She identified the person in
the photograph as the individual who had represented to
her that he was "Berton Mowers" (Tr. 1208-09).
63. Cole recounted that Sadowsky showed him a picture
of an individual, which picture is in evidence as
Powley Exhibit 6. 25 Sadowsky told Cole that she thought
the man in the picture was the man who represented
himself to them as "Berton Mowers" on March 10, 1986.
Cole expressed the belief during this hearing that the man
depicted in the picture and the man who had identified
himself as "Berton Mowers" could have been one and the
same. However, he could not be certain, since the last
time he saw Mowers was approximately six months ago
(Tr. 1230). Cole was then shown the actual photograph
from which the picture in Powley Exhibit 6 was copied.
He was more convinced that the man in the photograph
was the man representing himself to be "Berton Mowers"
(Tr. 1231).
ULTIMATE FINDINGS AND CONCLUSIONS
1. The issues remaining for resolution are whether
Powley had reasonable assurance that the antenna site for
his Newton, New Jersey proposal was available and
whether he engaged in misrepresentation to the Commission
by proposing a Newton, New Jersey antenna site
without having received reasonable assurance of the availability
of the site.
2. The Presiding Judge agrees with Powley and the
Bureau that the question of reasonable assurance of the
Newton, New Jersey site does not relate to any technical
proposal now before the Commission or involved in this
proceeding and that, therefore, while Powley did not have
reasonable assurance of the availability of his Newton,
New Jersey site, this failure does not require disqualification
as it relates to his proposal for a new television
station at Presque Isle, Maine. 6
3. Turning to the question of whether Powley misrepresented
facts with respect to the availability of the Newton,
New Jersey site, the Presiding Judge agrees with Powley
that an adverse finding on the issue would call into
question Powley's fitness to be a Commission licensee at
Presque Isle. Maine or anywhere else. However, as urged
by Powley and the Bureau, it is concluded that the record
evidence establishes that Powley did have conversations
concerning the availability of his site with an individual
who represented himself to be "Newton Hopkins" and
that, based on these conversations, Powley believed that
he had reasonable assurance that the Newton, New Jersey
site would be available to him for his proposed television
station. Powley's version of what happened, as detailed in
the findings, is fully credited, and it is concluded that
Powley did not intend to mislead or deceive the Commission
concerning the availability of the Newton, New Jersey
antenna site. It is further ruled that the testimony of
Dr. Bernard Boozer cannot be credited and is rejected.
4. The Presiding Judge carefully observed the demeanor
of both Powley and Boozer and finds that Powley made a
sincere effort to give accurate and truthful testimony in
this proceeding. He was both forthright and candid in
recollecting and relating his numerous conversations with
the individual who had identified himself to him as
"Newton Hopkins." Boozer, on the other hand, was recalcitrant,
obdurate, evasive and uncooperative as a witness
in this proceeding. He specifically misrepresented that he
had never masqueraded as David Thomas. The testimony
of James Warner, a dairy farmer, establishes that Boozer
had masqueraded as Thomas. Additionally, the record
establishes Boozer's propensity to masquerade as someone
other than himself and, more specifically, as "Newton
Hopkins" and "Berton Mowers." Boozer misled Bureau
Counsel on at least a half dozen occasions into believing
that he, Bureau Counsel, was communicating with
"Newton Hopkins" when, in fact, it was Boozer who was
holding these telephone conversations. Boozer also misled
Edwin Risdon, the Newton, New Jersey site owner, on
several occasions into believing that he, Risdon, was dealing
with "Newton Hopkins." Boozer's explanations for his
unusual behavior are totally unpersuasive and are summarily
rejected. Boozer also masqueraded as "Berton
Mowers" and misled two communications attorneys into
believing that they were negotiating with "Berton Mowers."
The record developed in this proceeding fully establishes
that Boozer will not hesitate to mislead and
misrepresent when it serves what he considers to be his
best interests. For this reason, it is ruled that Powley's
explanation that he honestly believed that he was negotiating
with "Newton Hopkins," an authorized agent of
the Newton, New Jersey site owner, is accepted, and
Boozer's testimony that he never discussed the availability
of the Newton, New Jersey site with Powley is rejected as
contrary to the weight of the evidence.
5. In summary, it is concluded that, while Powley did
not have reasonable assurance of the Newton, New Jersey
site because the individual with whom he had negotiated,
so-called "Newton Hopkins," lacked any actual authority
to make the property available, this fact does not require
disqualification of Powley in this proceeding. It is further
concluded that Powley reasonably believed that he was
negotiating with an authorized agent for the Newton, New
Jersey site and did not intend to misrepresent to the
Commission when he represented that the site was available.
Accordingly, IT IS ORDERED that the "Motion For
Summary Decision," filed December 5, 1986 by John R.
Powley, IS GRANTED and the application of John R.
Powley for a construction permit for a new television
station at Presque Isle, Maine IS GRANTED. 27
FEDERAL COMMUNICATIONS COMMISSION
Thomas B. Fitzpatrick
Chief Administrative Law Judge

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