FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 18
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Federal Communications Commission Record
T/S seeks from the Board permission to exceed the usual
50-page limit, see 47 CFR 1.277(c), on the length of exceptions.
But its filed exceptions, in style and substance, are of the very
form the Commission sought to eliminate in its Adjudicatory
Re-Regulation, 58 FCC 2d 865, 867 (1976), wherein the Commission
"Section IX, Exceptions -
The method of filing exceptions
to Initial Decisions has been streamlined to
discourage attempts to litigate every aspect of a case,
irrespective of its materiality or immateriality to an ultimate
decision. This will help facilitate staff review and
preparation of decisions."
But for the fact that oral argument on the exceptions
has already been held, we would reject those
exceptions, for we find a great proportion of the T/S
exceptions to be either quibbling, sophistical, or specious.
In short, we agree with the Common Carrier
Bureau's characterization of the T/S Exceptions in its
Reply Br. at 2-3:
"T/S, in its Exceptions reargues its case, often at excruciating
length, points to some negligent errors, and at
times does find evidentiary mistakes in the ID.
* * *c
None of these is of decisional significance. We do not
think that there is any evidence of prejudgment by the
AL, or any preference for the testimony of lawyers, or
circular reasoning as alleged by T/S."
2 T/S Exceptions at 3.
3 Id., at 4.
4 Id., at 6. While not accepting all of the AL's findings and
conclusions, the Common Carrier Bureau did not file exceptions
to the I.D.; rather, upon consideration of the I.D., it
asserts "that there is ample unrebutted evidence in this record
to justify a reasonable ALK Isic] in finding the principals of T/S
were not to be trusted," Bureau Reply at 9, and it here urgesl]
affirmance" of the I.D. Id., at 10. But cf. Letter of Gregory J.
Vogt, Chief, Enforcement Division to the Review Board, filed
November 21, 1986.
5 T/S Exceptions at 9. We have given this hearing record a
most thoroughgoing review, but can find no evidence whatever
to support the T/S complaint of prejudgment or intemperate
conduct in this proceeding. The conduct here, so far as the
record shows, was both fair and decorous. That is also the view
of the Common Carrier Bureau see supra note 1.
6 T/S Exceptions at 7.
7 T/S Eliot, Four Quartets (Little Gidding V).
8 Part 21 of the Commission's Rules covers the common
carrier microwave radio stations which T/S seeks authority to
"construct" and operate. See 47 CFR Part 21.
9 T/S Opposition to Petition to Dismiss, filed March 21, 1985,
10 Id., at 11-25. Therein T/S reviewed the legislative history of
47 U.S.C. 319(a). and various Commission interpretations of
that statutory section.
1 Id., at 27.
12 Id., at 28.
13 T/S Motion for Summary Decision, filed September 20,
1986, at 2.
14 Id., Exhibit 1 at 12.
15 Id. This contention is palpably untrue: the T/S Opposition,
supra note 9, repeatedly refers to T/S's "understanding" of
Section 21.3. Eg., "Telestar understood Section 21.3 of the rules
to prohibit the installation and connection of hertzian wave
16 It was later claimed that not only had Noel Stewart not
read Section 21.3 of the Rules, but that neither had he read the
March 21, 1985 pleading to which he had attested. I.D., para. 46.
17 T/S Motion, supra note 13, at 12.
18 T/S Exceptions at 6.
19 The PPM is appended to the written Direct Testimony of
T/S, filed September 27, 1985, as Attachment E, Exhibit 1.
20 Id, at p. 25 (emphasis added).
21 ld., at p. 26 (emphasis added).
22 Id., at p. 64.
23 T/S Motion, supra note 13, Exhibit 1, Attachment 5 at p. 3
24 Id., Attachment 6 at p. 7 (emphasis added).
25 Id., Attachment 7 at p. 4 (emphasis added).
26 See Id., Attachment 8 at p. 1.
27 Id., Exhibit 1 at pp. 5-6. To like effect is the testimony of
Doyal Stewart. Tr 529-536.
28 See also Affidavit of Edsel Davis (Spectrum Planning, Inc.),
T/S Motion, supra note 13, Exhibit 7, in which Davis does
recall meeting with T/S officials in March, 1984, but "doles] not
recall anything that was specifically discussed."
29 Direct Testimony of T/S, supra note 19, Exhibit 3 at p. 2.
30 Id., Exhibit 1 at p. 6.
31 T/S Motion, supra note 13, Attachment 13 (emphasis added).
32 T/S Exceptions at 15-17 (record citations omitted).
33 T/S Motion, supra note 13, Exhibit 7 (emphasis added).
Also in the record is an alleged transcript of a taped conversation
between Noel Stewart and Randy Oster of Spectrum Planning,
Inc., in which Stewart asked if FCC processes could be
"confused" and Oster replied that, although he did not recall
any specific details of T/S conversations with his colleague
Edsel Davis, "it's very easy to misunderstand the specific dialogue
or the specific vocabulary of the industry because within
frequency coordination we have a lot of unique terms and
phrases that could be confusing ... ." Id., Exhibit 6 at p. 3.
However (1) it seems clear that Oster's reply intends that it
might be easy to misunderstand "frequency coordination" terms
and that Oster was not there referring to the FCC Construction
Permit process; and (2) it does not appear that Noel Stewart
even claims that he became confused about official FCC authorization
requirments by virtue of his discussions with Spectrum
Planning, Inc. He claimed at hearing to have had been
confused all along. See, c.g., Tr. 327-328, 369-372, 377, 463-464,
467-470. So did Doyal Stewart. See, e.g., Tr. 529-533, 542-545.
34 The Board need not rule on the exceptions to several
ancillary findings of fact and conclusions of law made by the
ALJ; these are not decisional here. More specifically, we do not
address the question of whether T/S lied to the Bureau of Land
Management, see I.D., paras. 51-53, 80, or whether T/S or its
former communications counsel lied as to when counsel was
consulted as to premature construction. Id., paras. 41-42
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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/m1/25/: accessed May 24, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.