**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the matter of                 | *  | EB Docket No. 01-39          |
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| FAMILY BROADCASTING, INC.        | ** |                              |
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| Order to Show Cause Why The      | *  |                              |
| Licenses For                     | *) |                              |
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| Stations WSTX(AM) and WSTX-FM,   |    |                              |
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| Christiansted, U.S. Virgin       | *) |                              |
| Islands                          | ** |                              |
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| Should Not Be Revoked            | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**Adopted:** September 30, 2002 **Released:** October 2, 2002

By the Commission:

# 

1.  This Memorandum Opinion and Order denies the Appeal from Refusal of
    Presiding Officer To Disqualify Himself, filed May 21, 2002 by
    Family Broadcasting, but grants Family's Request for Waiver of Page
    Limit. For the reasons set forth below we do not find the requisite
    showing of bias to warrant the ALJ's disqualification from this
    adjudicatory proceeding.

2.  Family is the licensee of Stations WSTX(AM) and WSTX-FM in
    Christiansted, U.S. Virgin Islands. This revocation proceeding was
    initiated in February 2001, when the Commission directed the
    licensee to show cause why the licenses for these stations should
    not be revoked for misrepresentation and/or lack of candor and for
    repeated and/or willful violations of the Commission's Rules.[^1]
    Thereafter, Family filed an application seeking Commission
    authorization to transfer control of Family from Gerard and Asta Luz
    James to their four adult children. Barbara James-Petersen replaced
    her father as president of Family as of March 14, 2001.

3.  Before any hearings were held, the licensee and Enforcement Bureau
    filed motions for summary decision. The ALJ granted the Bureau's
    motion and revoked Family's licenses.[^2] He did so without regard
    to the transfer of control applications. These applications had not
    been consolidated into the revocation proceeding and, at the time of
    the ALJ's Summary Decision, were awaiting processing by the Mass
    Media Bureau (now the Media Bureau).

4.  Family filed exceptions and the Commission set aside in part the
    ALJ's Summary Decision.[^3] It agreed with the ALJ that revocation
    would be warranted if conceded wrongdoer and former president,
    Gerard Luz James, remained in control of the licensee. But it
    determined that the proposed transfer of control applications raised
    genuine issues of material fact as to whether the revocation
    proceeding should be resolved in the licensee's favor in order to
    permit the transfer. The Commission, concluding that these issues
    warranted consideration at a hearing, designated the transfer of
    control applications involving Stations WSTX(AM) and WSTX-FM for
    consolidated hearing before the ALJ in this revocation proceeding.

5.  In the Consolidation Order, the Commission directed the ALJ to make
    findings of fact and conclusions of law on ten issues relating to
    the proposed transfer of control of the stations from Asta and
    Gerard Luz James to their four children. In particular, the ALJ was
    to determine whether proposed transferee Barbara James-Petersen will
    operate the stations independently of any control or influence from
    her parents and in a manner that does not financially benefit either
    parent; to determine whether she was involved in any misconduct that
    had occurred during her tenure as general manager since at least
    July 1998; to determine whether she will have sufficient financial
    and managerial capacity to ensure the stations' future operation in
    accordance with all statutory and regulatory requirements; and to
    determine whether approval of the transfer of control applications
    will serve the public interest.

6.  On May 6, 2001, Family Broadcasting filed a Motion To Disqualify the
    Presiding Judge, pursuant to 47 C.F.R. § 1.245, requesting that the
    presiding judge withdraw from this proceeding on grounds of personal
    bias. The ALJ denied Family's Motion to Disqualify that had alleged
    bias based on statements in the ALJ's original Summary Decision and
    his remarks during the April 23, 2002 pre-hearing conference. Noting
    that Family had not alleged any extrajudicial source of bias and
    that his allegedly biased remarks merely reflected an effort to
    gauge the scope and extent of discovery for scheduling purposes, the
    ALJ held that Family had not established the requisite showing of
    bias to warrant disqualification.[^4] Family has appealed the ALJ's
    refusal to disqualify himself and the ALJ has certified Family's
    Appeal to the Commission.[^5]

    **DISCUSSION**

7.  We will deny Family's Appeal. In order to justify a request to
    disqualify the Presiding Judge from an adjudicatory proceeding, a
    party must demonstrate personal bias or prejudice impairing the
    Presiding Judge's ability to act in an impartial manner. *WWOR-TV*,
    5 FCC Rcd 2845 ¶ 6 (1990), *citing*, *Berger v. United States,* 255
    U.S. 22, 33-35 (1921) ("\[affidavits\] must give fair support to the
    charge of a bent of mind that may prevent or impede impartiality of
    judgment"). *See also Metropolitan Council of NAACP Branches,* 46
    F.3d 1154, 1164-65 (D.C. Cir. 1995) ("\[i\]n an adjudicatory
    proceeding, recusal is required only where 'a disinterested observer
    may conclude that \[the decisionmaker\] has in some measure adjudged
    the facts as well as the law of a particular case in advance of
    hearing it'") (internal citations omitted). The burden is on the
    party alleging bias, and it is a heavy one that, pursuant to section
    1.245(b)(1), must be corroborated by "an affidavit setting forth in
    detail the facts alleged to constitute grounds for
    disqualification." To support its claim of bias, Family does not
    allege bias stemming from an extrajudicial source, *Grinnell
    Corp. v. United States*, 384 U.S. 563, 584 (1966), but relies
    exclusively on the ALJ's actions in the course of this proceeding,
    including his remarks at the pre-hearing conference and statements
    in his decisions granting Summary Decision and denying the Motion to
    Disqualify.

8.  The Supreme Court has indicated that "opinions formed by the judge
    on the basis of facts introduced or events occurring in the course
    of the current proceedings, or of prior proceedings, do not
    constitute a basis for a bias or partiality motion unless they
    display a deep-seated favoritism or antagonism that would make fair
    judgment impossible." *Liteky v. United States*, 510 U.S. 540, 555
    (1994).[^6] Absent such a showing, matters arising during the
    proceeding, including "judicial rulings, routine trial
    administration efforts, and ordinary admonishments (whether or not
    legally supportable) to counsel" are deemed to be extrajudicial in
    nature and to warrant recusal on that basis, only if they "rel\[y\]
    upon knowledge acquired outside such proceedings." *Id.* at 556.
    Motions to disqualify administrative law judges, filed pursuant to 5
    U.S.C. § 556(b) and 47 C.F.R.§ 1.245, are subject to these
    standards. *See, e.g., James A. Kay,* 12 FCC Rcd 15662 ¶ 4 (1997).

9.  As Family has not alleged that any of the cited remarks show
    reliance upon knowledge acquired outside of this proceeding, the
    pertinent standard is whether they reveal the degree of deep-seated
    favoritism or antagonism required when no extrajudicial source is
    involved. Many of the challenged remarks pertain to Ms.
    James-Petersen's complicity for misconduct predating her becoming
    station manager in July 1998 or president in March 2001, or to the
    pertinence of the FM renewal proceeding terminated by the 1997
    Summary Decision of Administrative Law Judge Edward Luton. There has
    been no showing, however, that these remarks represent anything
    other than preliminary impressions based on knowledge properly
    acquired in this proceeding. The essence of Family's claim,
    moreover, is that the remarks demonstrate bias, because they
    purportedly reflect a view that is unsupported by the record or is
    otherwise erroneous. If the ALJ's allegedly erroneous views result
    in rulings on the merits that are adverse to Family, however, it
    may, pursuant to 47 C.F.R. § 1.276 of the Commission's rules, appeal
    such rulings upon release of the Initial Decision, and any errors of
    fact or law may be corrected through the normal appellate
    process.[^7]

10. We are not persuaded that the remaining matters challenged by Family
    manifest "a deep-seated favoritism or antagonism that would make
    fair judgment impossible." *Liteky*, 510 U.S. at 555. Rather, they
    reflect a fair and open discussion of the designated transfer
    issues, by which the ALJ tried to guide the case through to hearing
    as instructed by the Commission. Thus, the ALJ, responding to the
    Bureau's suggestion that the misrepresentation issue might be
    capable of resolution through a further motion for summary decision,
    observed that "\[b\]eing as how I already tried that and lost any
    way \[sic\], I think we are going to have a hearing." (Transcript
    at 21) From this remark Family infers that the ALJ, having been
    reversed by the Commission, is now determined to revoke the
    licenses. But the remark merely acknowledged the Commission's
    reversal and reflected an entirely proper commitment to implement
    the Commission's ruling that the transfer of control applications
    raised issues warranting resolution at a hearing. There is therefore
    no basis for disqualification. *Webster-Fuller Communications
    Associates*, 4 FCC Rcd 4952 ¶ (1989) (ALJ's strong language to the
    effect that he would not make same mistake as he had made in another
    case in which he was reversed by the Review Board was not evidence
    of bias).

11. Moreover, the comment was in the context of a broader discussion of
    the nature of proof required on the misrepresentation issue,
    directed solely to scheduling the hearing, in which the ALJ had
    stated that he was "not prejudging the merits of that allegation
    \[that Ms. James-Petersen was guilty of misrepresentation\] ... just
    offering some ideas \[about how counsel might proceed\]." (Tr.
    at 21) The Commission accords its administrative law judges
    discretion in regulating the course of evidentiary hearings,
    *Hillebrand Broadcasting Inc.,* 1 FCC Rcd 419 ¶ 3 (1987), and
    presumes they will discharge their duties in a fair and impartial
    manner, *WWOR-TV*, *Inc*., 5 FCC Rcd 2845 ¶ 6 (1990), *citing,
    Barnes Enterprises, Inc.*, 66 FCC 2d 499, 501-02 ¶ 6 (1977). The
    Supreme Court has recognized that "\[a\] judge's ordinary efforts at
    courtroom administration -- even a stern and short-tempered judge's
    ordinary efforts at court administration -- remain immune" in terms
    of establishing prejudgment of the merits or an improper prejudice
    as to any party. *Liteky*, 510 U.S. at 555. It was in the spirit of
    openness and candor, and in an effort to focus the hearing, that the
    judge at the outset of the pre-hearing conference helpfully
    cautioned counsel against relying solely on Ms. James-Petersen's
    testimony to meet all the specified issues. Read in context, these
    remarks did not reflect an assessment of her credibility in advance
    of hearing her testify but were instead proper efforts to regulate
    the course of the hearing on the designated transfer issues. *See
    Center For Study and Application of Black Economic Development*, 7
    FCC Rcd 3101, 3104 ¶ 9 (Rev. Bd. 1992) (finding that the ALJ's
    efforts to "focus" a pre-hearing conference were consistent with his
    broad discretion to direct the course of the proceeding and did not
    show personal bias).

12. We are persuaded by the ALJ's explanation that remarks to the effect
    that the Bureau could request additional hearing issues and
    re-inspect the stations were intended solely to gauge the scope of
    discovery and evidence for the purpose of deriving a realistic
    hearing schedule. Family does not object to a further inspection of
    the stations or dispute the Bureau's authority to seek additional
    issues under the Commission's Consolidation Order. It instead
    alleges that the ALJ overstepped his role as an impartial
    decision-maker in urging that the Bureau take such actions. Based on
    our review of the transcript, however, we discern only appropriate
    inquiries as to matters directly affecting the extent of discovery
    and, thus, the timing as well as the duration of the hearing. We
    perceive no effort by the ALJ to direct that the Bureau pursue any
    particular course in prosecuting its case. The ALJ's "suggestion"
    that the Bureau seek further issues merely echoed what is set forth
    in the Consolidation Order. By that time, moreover, and without any
    prompting from the ALJ, the Bureau had already sought additional
    information as to the transfer of control applications, pursuant to
    the Commission's suggestion that the Mass Media Bureau (now the
    Media Bureau) "avail itself of the opportunity to have the
    Enforcement Bureau formally request that the ALJ add any further
    issues deemed appropriate by its processing staff."[^8] As to the
    possibility of a further inspection, the ALJ clearly stated that
    "\[he was\] not going to require, or order that there be an
    inspection," (Tr. 24), and, given this unequivocal caveat, the mere
    suggestion that the Bureau consider the possibility of another
    inspection in light of the designated issues would not exceed the
    ALJ's broad authority to regulate the course of the hearing.

13. Also not manifesting the requisite degree of favoritism to require
    recusal are the ALJ's comments pertaining to the financial
    difficulties possibly affecting the Bureau's hearing preparation. It
    was in response to the ALJ's perfectly appropriate inquiry as to the
    Bureau's deposition plans that counsel indicated that budget
    constraints might restrict the Bureau's participation in discovery.
    This provoked a presumably sympathetic reaction from the ALJ. The
    allegation of bias, however, stems from the ALJ's failure to also
    comment on the allegedly greater financial difficulties facing the
    licensee. But the licensee's financial situation was not mentioned
    at the pre-hearing conference. The ALJ plausibly explained,
    moreover, that he was genuinely surprised by the comments of the
    Bureau's counsel and that his concern was not with the Bureau's
    predicament, but with ensuring that a complete hearing record was
    compiled on the designated hearing issues. This concern was entirely
    legitimate given the ALJ's assigned responsibility to make findings
    of fact and conclusions of law on the designated transfer issues and
    his broad discretion to regulate the course of the proceeding for
    that purpose.

14. Family's remaining allegations of bias -- the unseemly haste with
    which the ALJ prepared the decision denying the motion, the listing
    in that decision of all ten issues specified in the Consolidation
    Order, the ALJ's purported record in other cases of always ruling in
    favor of the government, the number of disqualification motions
    lodged against this ALJ, and the characterization of this licensee
    as a family business \-- fall far short of establishing the degree
    of deep-seated favoritism or antagonism as to warrant the ALJ's
    disqualification. What may have occurred in other cases is not at
    all probative of the ALJ's attitudes toward these parties or of any
    preconception as to the designated transfer issues. Nor is it
    relevant that his detailed decision refusing recusal was issued
    without delay. And, despite Family's claim, the ALJ's recitation of
    the designated transfer issues does not indicate that he expects
    Family will be unable to meet them. Finally, the pejorative meaning
    Family attributes to the comment that the licensee is a "family"
    business is not apparent from the written transcript, and the ALJ
    has categorically denied that he was intimating any association with
    organized crime. This meaning, Family submits, is evident from the
    tone of voice used by the ALJ. It is, however, the written
    transcript, not the tape recording made solely to facilitate its
    preparation by the stenographer, that is the official record of what
    occurred at the pre-hearing conference.[^9] Furthermore, the family
    relationships among the proposed transferors and transferees are
    clearly pertinent to the designated transfer issues. In these
    circumstances, and based on our review of the written transcript, we
    find no evidence of bias that would warrant the ALJ's
    disqualification. *Center For Study and Application of Black
    Economic Development*, 7 FCC Rcd 3101, 3104 n. 13 (Rev. Bd. 1992)
    (declining to conduct subjective review of the tone of the ALJ's
    voice in evaluating allegations of bias). *See also United States v.
    Edmond*, 52 F.3d 1080, 1103 (D.C. Cir. 1995) (recognizing that
    non-verbal communication, including the judge's tone of voice, may
    be relevant to a claim of bias in a criminal case but finding no
    bias despite the impossibility of being certain from the paper
    record that the judge had never glowered improperly in response to
    the defense's objections, where the paper record reflected the judge
    often had reason to be angry with counsel and where the judge and/or
    prosecutor specifically disagreed with counsel's characterization of
    the judge's demeanor in various instances cited to show bias).

15. ACCORDINGLY, IT IS ORDERED, That the Request for Waiver Of Page
    Limit, filed on May 21, 2002 by Family Broadcasting, Inc. IS GRANTED
    and the attached Appeal IS ACCEPTED for filing.[^10]

16. IT IS FURTHER ORDERED, That the Appeal from Refusal of Presiding
    Officer To Disqualify Himself, filed on May 21, 2002 by Family
    Broadcasting, Inc. IS DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

[^1]: *Family Broadcasting, Inc*., 16 FCC Rcd 4330 (2001), *recon
    dismissed*, 16 FCC Rcd 12801 (2001).

[^2]: *Family Broadcasting, Inc.,* 16 FCC Rcd 15619 (ALJ 2001).

[^3]: *Family Broadcasting, Inc.*, 17 FCC Rcd 6180 (2002). (Hereafter
    the Consolidation Order).

[^4]: *Family Broadcasting, Inc*, FCC 02M-37 (rel. May 16, 2002).

[^5]: *Family Broadcasting, Inc.*, FCC 02M-39 (rel. May 23, 2002).

[^6]: *Liteky* involved a motion to disqualify a federal judge, pursuant
    to 28 U.S.C. §§144 and 455. The standards articulated in *Liteky*,
    however, have been applied widely to encompass administrative
    proceedings. *See generally Bieber v. Dept. of Army*, 287 F.3d 1358,
    1361-62 (Fed, Cir. 2002) (noting applicability of *Liteky* in the
    administrative context and to both due process claims and
    disqualification requests).

[^7]: Procedures providing for the disqualification of a judge on
    grounds of bias were "never intended ... to enable a discontented
    litigant to oust a judge because of adverse rulings made, for
    rulings are reviewable." *Berger v. United States,* 255 U.S. at 31
    (internal citations omitted).

[^8]: *See* Enforcement Bureau's Request for Additional Information
    Concerning Family Broadcasting Inc.'s Transfer of Control
    Applications, filed on April 12, 2002, at ¶ 1, *citing Memorandum
    Opinion and Order and Hearing Designation Order,* 17 FCC Rcd 6180,
    6197 ¶ 34 (2002).

[^9]: Section 1.203 of the Commission's rules, 47 C.F.R. § 1.203,
    specifies that "\[t\]he transcript of testimony and exhibits,
    together with all papers and requests filed in the proceeding, shall
    constitute the exclusive record for decision."

[^10]: Family seeks a waiver of Section 1.301(c)(5) of the Commission's
    Rules, 47 C.F.R. § 1.301(c)(5), specifying that such appeals may not
    exceed 5 double-spaced typewritten pages. To support its claim of
    bias Family relies on a series of incidents allegedly too numerous
    to describe in a 5-page pleading. We take very seriously a
    licensee's right to a fair hearing before an impartial
    administrative law judge. We waive the 5-page limitation and accept
    the Appeal so as to afford an adequate opportunity for Family to
    present its case. Given that Family relies on numerous remarks, many
    set forth in the ALJ's 7-page single-spaced Order denying the
    disqualification request, we do not find that Family's 13-page
    Appeal is excessively long.