FCC Record, Volume 18, No. 10, Pages 6134 to 6998, March 31 - April 11, 2003 Page: 6,864

                                
I~._~_I II-F         e II         C m Ission          F   03-60

after the December 1995 letter.8 Riley is now deceased. Jauer asserts that she handled all of Riley's
business affairs during the period in question, that Riley had never agreed to any business matter without
first discussing the matter with Jauer, and that Riley had never suggested that the Riley Site might be
available for lease.
5.     North American provided declarations from Kent Myatt ("Myatt"), a licensed Texas real
estate agent; Robert Walker ("Walker"), a consultant for North American; and Carsey, the president and
a director of North American. According to the Myatt declaration, Walker requested that Myatt locate a
suitable tower site and obtain assurane of availability of the tower site. Myatt asserted that he contacted
Riley by telephone in December 1995 and that they discussed the prospect of leasing the Riley Site, her
retention of grazing rights, and a lease payment of $1,000 per year. Myatt reported that Riley stated that
the property was available, that she was interested in leasing the property as proposed, and that her son or
grandson would need to review any formal proposal. Myatt stated that he then informed Walker that
Riley had provided assurance that the property would be available for lease and that she was generally
agreeable to the terms discussed. Walker declared that Myatt informed him that he had spoken to the
land owner and that she assured him that she was willing to lease the Riley Site to North American, and
that they had tentatively discussed lease terms. Walker also stated that he then wrote a formal
introductory letter to "the Rileys" on December 21, 1995, and followed up with a phone call shortly
thereafter during which Riley confirmed her interest in leasing the Riley Site to North American.
Finally, Walker asserted that they discussed the terms of a proposed lease in this conversation and that he
then reported all of this information tto Carsey "to be incorporated into" the Application. Carsey stated
that Walker informed him that Myatt had contacted members of the Riley family and that they had agreed
that the Riley Site would be available to North American for lease. He noted that terms were discussed,
but that the parties did not reach a formal agreement at that time. Finally, Carsey claimed that the
information provided by Walker "allowed me to certify the application, which I did."
6.     We find that the staff correctly concluded that there is no substantial and material
question of fact regarding whether North American intentionally provided a false site certification in the
Application or any amendment thereto. Although Kames City and North American offer conflicting
views about the Riley Site negotiations, the record in this case establishes that Carsey reasonably relied
on the information provided by Walker.9 On this basis, we conclude that Carsey made the site
certification in good faith, even though his belief as to the Riley Site's availability may have been
incorrect.'0
8 A copy of the December 1995 letter and the envelope in which this letter was mailed are attached to Riley's
declaration, indicating that the letter was addressed to Riley and Jauer, dated December 21, 1995, and postmarked
December 29, 1995.
9 See High Country Communications, 4 FCC Rcd 6237, 6238 (1989) ("High Country") ("the 'bare existence of a
mistake' in an application, 'without any indication that the licensee meant to deceive the Commission, does not
elevate such a mistake to the level of an intentional misrepresentation or raise a substantial and material question of
fact,"' quoting Kaye-Smith Enterprises, 71 FCC 2d 1402, 1415 (1979)); see also Garrett, Andrews, & Letizia, Inc.,
86 FCC 2d 1172, 1180 (Rev. Bd. 1981), mod. on other grounds, 88 FCC 2d 620 (1981) (burden on petitioner to
demonstrate motive to deceive or conceal because Commission will not infer improper motive from application
errors, inconsistencies or omissions accompanied by speculation that lacks factual support).
10 See Liberty Productions, 16 FCC Red at 12085 (as a matter of law, a determination that there was not a meeting of
the minds between the applicant and the site owner sufficient to establish reasonable assurance of the original site
does not foreclose a determination that the applicant mistakenly believed that the landowner had agreed to lease the
property and thus made the certification in good faith); see also Harrison County Broadcasting Co., 6 FCC Rcd at
(continued....)

6864

Federal Commrunications Comzmission

FCC 03-60