FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 17
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Federal Communications Commission Record
be a profitable business," 5s T/S here seeks to exert on the
Commission precisely the pressure Congress sought to
forefend with Section 319(a) of the Communications Act.
32. We also reject the T/S argument that its violations
were not "willful." For as we observed in Stearns County
Broadcasting, supra, 104 FCC 2d at 693 n. 6, Section
312(f)(1) of the Communications Act, as amended (1982)
"The term 'willful', when used with reference to the
commission or omission of any act, means the conscious
and deliberate commission or omission of
such act, irrespective of any intent to violate any
provision of this Act or any rule or regulation of
the Commission authorized by this Act or by a
treaty ratified by the United States."
In amending the Communications Act as above, Congress
was making no new law; it merely intended to
codify the Commission's definition of "willful" in Midwest
Radio-Television, Inc., 45 FCC 1137 (1963). H.R.
Rep. No. 97-765, 97th Cong., 2d Sess. 51 (1982)
(Conference Report). Again, it was precisely to negate
claims of "ignorance of law" that the Commission sought
express Congressional emendation of 47 USC 312(f)(1).
33. Furthermore, as discussed supra para. 23, Commission
precedent firmly requires that the credibility findings
of an ALJ be given decisional deference, unless those
findings are in irreconcilable conflict with the record
evidence. E.g., Winter Park Communications, supra. This
Board, of course, has followed closely that instruction.
E.g., Signal Ministries, Inc., supra. Where it has appeared
that the Board has strayed, perhaps, from this venerable
principle, the Commission has interceded. Broadcast Assoc.
of Colorado, 104 FCC 2d 16, 19-20 (1986) (modifying
100 FCC 2d 616 (Rev. Bd. 1985)). When it has appeared
that this agency has not accorded the proper deference to
an AL's credibility findings, the court itself has interceded.
WHW Enterprises, Inc. v. FCC, 753 F.2d 1132 (D.C.
Cir. 1985). In this case, we find no significant conflict
between the primary credibility findings of the AL and
the record in this proceeding. Moreover, even had there
been no such prior findings and no initial decision of an
ALJ, our independent review of the entire record convinces
us that T/S misrepresented facts in its Construction
Permit applications by first certifying familiarity with Part
21 of the Rules, and then averring unfamiliarity. One of
those two oaths was false. The Construction Permit applications
also misrepresented the status of the T/S system
by stating that it "proposed to construct" its microwave
radio system. The T/S principals also submitted affidavits
attesting to facts in pleadings they later disavowed. See Tr.
346-347. Were we to ignore these actions, we would
render the certification and attestation requirements of
the Commission a virtual nullity. We also find that the
great preponderance of the evidence demonstrates that
T/S principals were aware of the requirement for direct
"pre-build" authority from the FCC prior to constructing
the major aspects of its system, and that T/S principals
displayed an egregious lack of candor by asserting at
hearing that they perceived the frequency notification and
clearance process to be identical to official FCC construction
authorization. Every scrap of documentary evidence
in this case belies that naked claim. See supra paras.
11-15. Nor does anything in the record support the
Stewarts' self-serving claim that they believed an FCC
Construction Permit necessary only for installation of
radio equipment. They do not claim to have been so
apprised by counsel or expert consultants/contractors; instead.
they claim that their alleged belief in this regard
was generated solely by vague "impressions." See supra
paras. 16-18. In fact, T/S did install much radio equipment
(See supra para. 7 (HDO)), even if this defense claim
had any truth. All in all, we find these wholly unsubstantiated
defense claims to be "at best highly implausible and
at worst utterly ridiculous." WHW Enterprises, supra, 753
F.2d at 1141. Or, to phrase it as we did just last month in
finding an applicant disqualified for a lack of truthfulness
before this agency, we find that T/S's "continuing stout
denials are either self-deluding, disingenuous or both."
Christian Childrens Network, Inc.. FCC 86R-78, released
December 3, 1986, at para. 7. 5'
34. All that remains is the question of remedy. The ALJ
found the T/S conduct so aggravated as to warrant disqualification.
In its recent Character Qualifications Policy
Statement, 102 FCC 2d 1179 (1985), clarified, FCC86-455,
released November 6, 1986, the Commission once again
reiterated that truthfulness before the Commission is the
most basic, most important index in licensing decisions.
See, e.g., id., at 1195-1196, 1210-1211. We recognize that
the Character Qualifications policy espoused therein relates
to applicants for broadcast licenses, and not
to point-to-point common carrier microwave radio station
applicants, as well as the fact that the latter differ
from broadcast licensees in that they are not considered
holders of a "great public trust" as fiduciaries for their
local communities. Compare RKO General, Inc. v. FCC,
670 F.2d 215, cert. denied, 456 U.S. 927 (1982). Still, as
indicated in the HDO in this proceeding, candor is vital
even in the Part 21 Radio Service, as is respect for, and
compliance with, Part 21 processes. We find in T/S a gross
lack of respect for candor and a flagrant disrespect for the
FCC's rules and processes. 52
35. ACCORDINGLY, IT IS ORDERED, That the applications
of TeleSTAR, Inc. (File Nos. 1743 CF-P-85
through 1757 CF-P-85) for Construction Permits for the
fifteen new Common Carrier Point-to-Point Microwave
Radio Stations between Salt Lake City, Utah and Denver,
Colorado ARE DENIED;
36. IT IS FURTHER ORDERED, That the Petition to
Reopen Record to Receive Affidavit Clarifying Testimony,
filed September 3, 1986, by TeleSTAR, Inc. IS DENIED;
that the motion to strike unauthorized pleading filed
December 1, 1986 by MCI Telecommunications Corp IS
GRANTED; and that the Petition for Special Permission
to Exceed Page Limitation of Section 1.277(c) of the
Rules IS DISMISSED as moot.
FEDERAL COMMUNICATIONS COMMISSION
Norman B. Blumenthal
Member, Review Board
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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/m1/24/: accessed June 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.