FCC Record, Volume 2, No. 1, Pages 1 to 409, January 5 - January 16, 1987 Page: 19
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Federal Communications Commission Record
35 But see supra note 4 and infra note 51.
36T/S Exceptions at 73.
371d., at 74-75
38 Judge Duniway's skeptical statement in Penasguitos Village
describes several attempts of triers of fact to inject observation
about a witness's demeanor into the decision making process.
The results are various
and humorous. Thus, Judge Duniway
cites this example of a trial judge's effort:
"And now I am going to tell you what I think of the
defendant's testimony. You may have noticed, Mr. Foreman
and gentlemen, that he wiped his hands during his
testimony. It is rather a curious thing, but that is almost
always an indication of lying. Why it should be so we
don't know, but that is the fact. 1 think that every single
word that man said, except when he agreed with the
Government's testimony, was a lie."
565 F.2d at 1085 (quoting Quercia v. U.S., 289 U.S. 466, 468
(1933)). And another's:
"Now you can see this man's manner of testifying in the
courtroom when he was on the witness stand. He had
that hangdog look of a guilty man. He could not talk
hardly above a whisper and he could not talk so the
court could hear him. . . If ever a man by his appearance
and his manner of giving testimony has shown himself to
be a willful, deliberate and outright perjurer as to material
facts in a case, the defendant in this case has been
Id. (quoting People v. Patubo, 71 P.2d 270, 272 (1937)). And
"But that brother in law of Mrs. Lage, Oscar Ellefson; he
looked to me and he seemed to me like an honest man, I
can't see any reason why he, with his responsible position,
with the Wisconsin Telephone Company, why he
should be here telling anything other than the truth. He
is not accustomed to courts. Maybe this was the first time
that he has ever been in a court, and he meticulously
tried to tell the truth; therefore, he was slow in his
testimony; his mind doesn't operate very rapidly, at best;
he works out on construction jobs; he seemed to me like
an honest man...."
Stewart seriously argued as much, see id. at 18-19, and post hoc
rationalization of counsel does not count here. Doyal Stewart
clearly denied at hearing that the PPM term "order" from the
FCC did not entail a "writing" from the FCC. See Tr. 531-533.
42 See supra para. 18 (emphasis added).
44T/S Exceptions at 25.
46 Id., at n. 11.
47 T/S (Exceptions at 27) attacks the ALJ's language to the
effect that Doyal Stewart was concerned about the weather in
the mountains in the Fall of 1984. In fact, Exhibit 5 of the T/S
Motion, supra note 13, chronicles the harrowing experience of a
T/S helicopter pilot in November, 1984 when flying to the
Winter Park site. A storm arose at the T/S construction site, the
helicopter was downed "in some very subfreezing conditions
that were very life threatening," and rescue teams were dispatched.
Id., at p. 4.
48 T/S Motion, supra note 13, Exhibit 1 (Declaration of Walter
Noel Stewart) at p. 6.
49 Id., Exhibit 1, Attachment 14. We are advised that a Utah
state court negated that Delaware civil action. Tr. 549-550.
50 T/S Motion, supra note 13, at 18; see also id., at 2-3
("'mlillions of dollars have been spent on construction").
51 We recognize that the Bureau's proposed findings to the
AL indicated its belief in the candor of T/S witnesses in
certain respects. Notwithstanding, the Bureau here urges affirmance
of the I.D., and has indicated
correctly that its hearing
findings were merely "proposed." See Tr. of Oral Arg., supra, at
1235-1237. Bureau Counsel expressly asserted: "I am supporting
the ALJ's decision." Id., at 1240.
52 While we need not decide the issue, it appears that T/S
could not be licensed under 47 U.S.C. 319(a) in any event. See
Christian Broadcasting of the Midlands, supra para. 31.
Id. (quoting U.S. v. Meltzer, 100 F.2d 739, 742 (7th Cir. 1938)).
And that of an ALJ:
"To credit her, youthful, buxom and attractive as she
was, and to disregard the contradictory testimony of
many less fancy, but more solid people would require the
trier of fact to be completely bewitched, bothered and
Id., at 1086 (quoting Hadely Manufacturing Corp., 108
N.L.R.B. 1641, 1644 (1954)).
39 T/S Exceptions at 7-8 see also id., at 73-75.
40T/S Exceptions at 15.
41 Id., at 18-20. We firmly reject the intimation therein that
the FCC "build order" referred to in the PPM was somehow
in Doyal Stewart's mind
by the written "PCN
reports received from the clearing house." Not even Doyal
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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/m1/26/: accessed May 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.