Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                      | * | MM Docket No. 99-153      |
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| READING BROADCASTING, INC.            | ) | File No. BPCT-940407KF    |
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| For Renewal of License of             | * | File No. BPCT-940630KG    |
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| Station WTVE(TV), Channel 51          | * |                           |
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| Reading, Pennsylvania                 | ) |                           |
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| ADAMS COMMUNICATIONS CORPORATION      | * |                           |
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| For Construction Permit for a New     | ) |                           |
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| Television Station to Operate on      | * |                           |
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| Channel 51, Reading, Pennsylvania     | * |                           |
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+---------------------------------------+---+---------------------------+

**INITIAL DECISION**

**OF**

ADMINISTRATIVE LAW JUDGE RICHARD L. SIPPEL

**Adopted:** April 2, 2001 **Released:** April 5, 2001

# Appearances

*Thomas J. Hutton, Esquire* and *C. Dennis Southard, IV, Esquire* on
behalf of Reading Broadcasting, Inc.; *Gene Bechtel, Esquire* and *Harry
F. Cole, Esquire* on behalf of Adams Communications Corporation; and
*James W. Shook, Esquire* on behalf of Enforcement Bureau.

**INTRODUCTION**

1.  Reading Broadcasting, Inc. (\"RBI\") seeks renewal of its license to
    operate Station WTVE(TV), Channel 51, in Reading, Pennsylvania.
    Adams Communications Corporation (\"Adams\") has filed a mutually
    exclusive application for a construction permit for a new facility
    to operate on the same channel presently occupied by WTVE(TV). The
    Enforcement Bureau ("Bureau") participated as a party in all phases
    of the case.

2.  The proceeding was designated for hearing by Mass Media Bureau
    [Order]{.underline} released on May 6, 1999. [Hearing Designation
    Order]{.underline}, DA 99-865 (Vid. Ser. Div., released May 6, 1999)
    ([\"HDO]{.underline}\").

3.  Assignment for the undersigned to hear this case as Presiding Judge
    was pursuant to [Order]{.underline} FCC 99M-32, released May 14,
    1999.

ISSUES

Phase I

4.  The standard comparative renewal issue designated in the
    [HDO]{.underline}, as further explicated in [Memorandum Opinion and
    Order]{.underline} FCC 99M-47, [supra]{.underline}, was heard in
    Phase I. The issue was:

> To determine which of the proposals would, on a comparative basis,
> better serve the public interest; and
>
> To determine, in light of the evidence adduced pursuant to the
> foregoing issue, which, if either, of the applications should be
> granted.

**Phase II**

5.  By [Memorandum Opinion and Order]{.underline} released on October
    15, 1999, a Phase II issue was added as to Reading\'s basic
    qualifications:

> To determine whether Micheal L. Parker engaged in a pattern of
> misrepresentation and/or lack of candor in failing to advise the
> Commission of the actual nature and scope of his previously
> adjudicated misconduct and, if so, the effect of such
> misrepresenta-tion and/or lack of candor on Reading\'s qualifications
> to remain a licensee.

[Memorandum Opinion and Order]{.underline} FCC 99M-61, released October
15, 1999.

**Phase III**

6.  By [Memorandum Opinion and Order]{.underline} released on January
    20, 2000, a Phase III issues was added as to Adams\' basic
    qualifications:

> To determine whether Adams Communications Corporation has abused the
> Commission\'s comparative renewal processes by the filing of a
> broadcast application for speculative and/or other improper purposes.

[Memorandum Opinion and Order]{.underline} FCC 00M-07, released January
20, 2000.

For further clarification, Phase III issues were restated for the
hearing as follows:

A.  To determine whether the principals of Adams Communications
    Corporation (\"Adams\") filed, or caused to be filed, an application
    for construction permit in the hope or expectation of achieving
    through litigation and settlement, a \"precedent\" or other
    recognition that the home shopping television broadcasting format
    does not serve the public interest.

B.  To determine in light of findings and conclusions as to issue A
    above, whether the principals of Adams Communications Corporation
    had, and continue to have, from June 30, 1994, to the present, a
    [bona fide]{.underline} intention to construct and operate a
    television broadcasting station at Reading, Pennsylvania.

C.  To determine in light of findings and conclusions as to issues A and
    B above, whether Adams Communications Corporation has engaged and/or
    is engaging in an abuse of process, [i.e.]{.underline}, an abuse of
    the Commission\'s comparative renewal litigation and settlement
    process.

D.  If issues A and/or B and/or C are true, to determine whether Adams
    Communications Corporation is qualified to receive a Commission
    license, even if Adams would be willing to accept a settlement
    payment that is limited to legitimate and prudent expenses in return
    for dismissing its application.

[Memorandum Opinion and Order]{.underline} FCC 00M-19, released March 6,
2000, [modifying]{.underline} [Memorandum Opinion and Order]{.underline}
FCC 00M-07, released January 20, 2000. The ultimate issue of fact and
law is whether Adams filed for the purpose of settlement.

###### 

Hearing Sessions

7.  Hearing sessions on the Phase I standard and renewal comparative
    issues were held on January 6, 7, 10-13, 2000. Hearing sessions on
    the qualifying issues in Phase II and Phase III were held on June
    12-13, 2000 and July 25, 2000.

**FINDINGS OF FACT**

**Phase I**

**Comparative Renewal Issue**

8.  Factors to be adjudicated under the standard comparative issue
    are (a) diversifica- tion of media ownership; (b) efficient use of
    the assigned frequency or the comparative signal coverage; and (c)
    local residence and related civic involvement of ownership and any
    broadcast experience. [Memorandum Opinion and Order]{.underline} FCC
    99M-47, released August 9, 1999. It also must be determined whether
    RBI qualifies for a renewal preference. [Id.]{.underline}

**Renewal Period**

9.  The relevant renewal period was determined to be August 1, 1989, to
    August 1, 1994. [Memorandum Opinion and Order]{.underline} FCC
    99M-47, released August 9, 1999.[^1] At the beginning of the renewal
    period, RBI was in bankruptcy and held the license for Station
    WTVE(TV) as a debtor-in-possession. (RBI Exhs. 5 and 11.)

**Diversification**

10. The preponderance of the evidence shows that Adams is the more
    diversified of the two applicants.

Adams

11. Adams is a Massachusetts for profit corporation that neither holds
    nor plans to hold any interest in any medium of mass communications
    other than the license to operate a new TV station on Channel 51 in
    Reading, PA. (Adams Exh. 1.) There is no dispute as to this fact,
    except for RBI's contention that Adams filed for settlement, a
    purpose other than owning a station and broadcasting on Channel 51.

12. Adams has eleven principals, none of whom resides or has a business
    or investment interest in Pennsylvania. Its officers and directors
    are Robert L. Haag, president and director; Howard N. Gilbert, vice
    president, secretary and director; Wayne J. Fickinger, vice
    president, treasurer and director; Manfred Steinfeld, director;
    and A. R. Umans, vice president and director. (Adams Exh. 1.)

13. Mr. Umans, an 8.7% shareholder of Adams, holds a 4.04% interest in
    JMP Media, L.L.C., licensee of Stations WPBG -- FM and WMBD, Peoria,
    Illinois. Mr. Umans has committed to divest that media interest at
    or before commencement of broadcast operations by Adams on
    Channel 51. (Adams Exh. 1.)

RBI

14. RBI is the current licensee of Station WTVE(TV), a UHF television
    facility that is located on the fringe of the Philadelphia
    television market, broadcasting on Channel 51. RBI holds auxiliary
    radio authorizations in connection with the operation of the
    Station. (RBI Exh. 4.) RBI also holds an authorization to operate
    paging and radiotelephone service on a subcarrier of Channel 51.
    ([Id]{.underline}.)

15. RBI has thirty five shareholders. (RBI Exh. 2.) RBI's officers and
    directors are Micheal L. Parker, president, director and
    shareholder; Jack A. Linton, director and shareholder; and Frank D.
    McCracken, executive vice president, director and shareholder. (RBI
    Exh. 3.)

16. None of RBI's officers, directors or shareholders has any interest
    in a broadcast or radio common carrier license or applications, or
    newspaper, magazine, periodical, cable television system, or other
    media of mass communications, with the exception of Mr. Parker.

17. Mr. Parker's other media interests consist of his ownership of
    multiple broadcast outlets that include Two If By Sea Broadcasting
    Corporation ("TIBS"), licensee of International Broadcast Station
    KAIJ, Dallas, TX; translator station on Channel 221 at Upland, CA;
    Desert 31 Television, Inc., licensee of Station KVMD(TV) at Twenty
    Nine Palms, CA, and the one-time

intended assignee of and time-brokerage operator of Station WHCT(TV), at
Hartford, CN.[^2] ([Id]{.underline}.), Mr. Parker has made no pledge to
divest these other broadcast interests.

**Comparative Coverage**

18. Station WTVE(TV) operates on Channel 51 with an effective radiated
    power of 1450 kilowatts from an antenna height above average terrain
    of 229 meters. The predicted Grade B contour of WTVE's signal covers
    a land area of 14,128 square kilometers with a population of
    3,119,889 persons. (RBI Exh. 48, Jt. Engineering.) The Station has
    received a construction permit to move its site which would permit
    an increase in its power to 5,000 kilowatts, increase antenna height
    to 229 meters above average terrain, and increase population
    coverage to 21,602 square kilometers serving 7,362,938 people.
    ([Id]{.underline}.) However, RBI has shown no reasonable assurance
    of moving to the new site.

19. Adams proposes to operate under a construction permit that allows
    for an effective radiated power of 5,000 kilowatts and an antenna
    height of 153 meters above average terrain. Adams' predicted Grade B
    contour for its proposed signal would cover a land area of 14,942
    square kilometers with a population of 4,260,920 persons.
    ([Id.]{.underline})

20. There are six other authorized broadcast TV services within the
    Grade B contours of WTVE(TV)'s current and proposed operations. The
    same finding applies to Adams. ([Id]{.underline}. at 4-5.) The areas
    and populations contained in each of these two Grade B service areas
    are neither unserved nor underserved inasmuch as all of the areas
    and populations to be served by whoever wins already receive more
    than five services. ([Id]{.underline}.)

21. The weight of the evidence shows that Adams has reasonable assurance
    of the stronger signal as well as the greater signal coverage in
    terms of population.

> [Population]{.underline} [Land Area]{.underline}
>
> RBI 3,119, 889 14,128 sq. km.
>
> Adams 4,260,920 14,942 sq. mi.

(Jt. Engineering RBI Exh. 48 at 3.) Adams proposes to serve 33% more
people than RBI presently serves.

**RBI's Proposed Site**

22. RBI received a construction permit in 1990, authorizing a move to
    another site. But RBI never moved. In 1995, RBI received another
    authorization to move to yet a different site and to construct a new
    tower that would increase its power so that the predicted Grade B
    coverage would serve 75% more people than could Adams. However,
    under Commission policy, RBI could not construct on its designated
    site because of the lapse of more than three years since the grant
    of the license. [Streamlining of Applications, Rules and
    Procedures]{.underline}, 13 F.C.C. Rcd 23056, 23090 (1998). The
    Commission has not responded to a request from RBI for an exception
    from that policy. (RBI Exh. 12, Tab B.) RBI has failed to show a
    reasonable likelihood that it will increase its signal coverage
    within the foreseeable future. Therefore, RBI's

proffered engineering (RBI Exh. 48) that would increase its signal
coverage beyond Adams' coverage is rejected for failing to meet the
burdens of persuasion and proof of reliability by a preponderance of the
evidence.

23. There are reliable facts in the record that support this negative
    finding. Mr. Parker testified that the permit to construct was last
    extended in 1995, and that an ongoing zoning dispute was delaying
    construction. (Tr. 816 --822, 854-873.) RBI correspondence with a
    township was not probative because it was shown to relate to a
    cellular telephone tower. (Adams Exh. 41.) RBI could only "hope"
    that construction would proceed. But a local court issued an adverse
    decision on January 27, 2000, and the question was assigned for
    mediation. (Tr. 1905.) As of the closure of this record, there has
    been no report received on the status of that mediation that would
    be responsive to an instruction to be kept informed of
    developments.[^3] (Tr. 1907.) RBI offered nothing further on the
    status of its tower relocation in its Reply pleading. Therefore,
    there is no reliable predictive evidence in this record to support a
    conclusion that RBI has a reasonable assurance that it will be able
    to increase its signal coverage.

Local Residence, Civic Involvement And Broadcast Experience

**Adams**

24. There are no Adams principals who reside in the Reading area, none
    have been active in local civic affairs in the Reading area, and
    none have qualifying broadcast experience. The evidence presented by
    Adams does reflect that there are five principals who have
    demonstrated civic interests and activities primarily in and around
    Chicago, Illinois. While there is no credit awarded from their
    recorded past civic involvements in Chicago, it is reasonable to
    assume that principals of Adams would become sufficiently interested
    in Reading's civic affairs for making good faith ascertainment
    should Adams ultimately receive and accept an award of

the license. (Adams Exh. 1.) However, Adams claims no credit for local
residence, civic involvement or past broadcast experience, and none is
awarded.

**RBI**

25. RBI identifies thirty five shareholders who have resided and who
    presently reside within WTVE(TV)'s predicted Grade B contour. (RBI
    Exh. 2.) However, it appears from ownership reports that during the
    renewal period eight of the thirty five were not RBI

shareholders. (RBI Exh. 11.)[^4] Therefore, RBI is credited with local
residence for only twenty seven of its thirty five shareholders, which
still reflects a significant local presence.

26. There are eleven shareholders of RBI identified as having
    significant civic involvement. (RBI Exh. 2.)

27. Because of a failure of proof, there will be credit awarded for the
    civic activities of only three RBI shareholders: Mr. Jack Linton
    ("Linton") for his activities as treasurer and section chair of a
    local bar association, for his service as president and member of
    the board of directors of the Reading Jewish Community Center,
    treasurer of Reading Soccer, president of an Estate Planning
    Council, membership on the Berks County Mental Health Retardation
    Board, and president and a member of the board of directors of the
    Berks County Chamber of Commerce; Dr. Paul H. Tietbohl for his
    activities as organizer of a group of physicians called "Choice" who
    provide weekend and holiday coverage for emergencies in the Reading
    area; and Mr. Parker for being a member of the Reading Chamber of
    Commerce. (RBI Exh. 2.)

28. Two RBI shareholders had recognizable broadcast experience during
    the relevant period: Mr. Parker and Mr. Linton.

29. Mr. Parker became executive vice president and a director of RBI
    in 1989. He became a shareholder and was voted RBI's president in
    1991, under stormy and highly questionable circumstances. (See
    discussion below at Paras. 39-44.) He served in the capacity of
    RBI's president to August 1997, and from November 1997, to the
    present. He was the general manager of Station WTVE(TV) from 1991
    to 1996. He played a key role in bringing RBI out of bankruptcy.
    (RBI Exh. 3.)

30. Mr. Parker also was a principal of licensees of the following
    additional broadcast stations:

> **Station City Dates of Involvement**

KYBY(TV) Anchorage, AK 1982 -- 1984

KWBB(TV) San Francisco CA 1986 -- 1993

WHRC(TV) Norwell, MA 1992 -- 1997

KVMD(TV) Twentynine Palms, CA 1992 -- Present

KAIJ Dallas, TX 1992 -- Present

(RBI Exh. 3.) He was involved with these stations during their
construction and initial operation.

But the record is silent with respect to Mr. Parker's activities with
each station for which credit for broadcast experience is claimed. And
there is no credit claimed for his related broadcast activities with
respect to periods after the stations went on the air. Based on this
record, RBI is entitled to some credit for Mr. Parker's past broadcast
experience.

31. Mr. Linton was house counsel for a television production company in
    New York City from 1963 to 1966. He served as a part-time sports
    announcer for RBI in 1980. (RBI Exh. 3.) Mr. Linton served as
    officer, director and corporate counsel for RBI for over ten years
    and he is credited with related broadcast experience.

32. Mr. McCracken is responsible for the day to day broadcast activities
    of RBI. He has had full-time management responsibilities since 1996.
    He has been producer of the program "Air Gospel" which, since 1996,
    has broadcast weekly from Station WTVE(TV). (RBI Exh. 3.) However,
    he was not an RBI shareholder during the renewal period and
    therefore no credit is awarded for his broadcast experience.

**Corporate Control**

33. RBI's 1988 Ownership Report reflected that there were 50,000 shares
    of stock issued and outstanding, divided among 18 shareholders. Dr.
    Henry Aurandt and his wife held 18,000 shares representing the
    largest portion. The Report also identified RBI\'s officers as Dr.
    Aurandt (president), Dr. Robert Denby (vice resident/treasurer), Dr.
    Sergio Proserpi (vice president) and Mr. Jack Linton (secretary).
    (RBI Exh. 11.) The report did not identify directors.

34. In a corporate business judgment, RBI decided to hire the
    experienced Mr. Parker and his controlled company, Partel Inc.
    ("Partel"), to remove RBI from bankruptcy and run the Station's
    business. On May 28, 1989, RBI and Parker/Partel entered into and
    executed a Management Services Agreement ("MSA"). (Adams Exh. 13 at
    3; Adams Exh. 19; Tr. 632.) On August 1, 1989, RBI shareholders met
    and elected a new slate of directors. The five directors included
    Dr. Aurandt and Mr. Linton as well as Mr. Parker, Dr. Clymer and Dr.
    Fischer. At the board of directors meeting which immediately
    followed, two officers were elected: Mr. Parker, president[^5] and
    Mr. Linton, secretary. (Adams Exhs. 13, 14.)

35. The minutes reflect shareholders approval of the MSA which gave
    Partel and Parker full authority to conduct the operations of
    WTVE(TV). (RBI Exh. 18 at 2.) The MSA also provided for Partel to
    receive an equity interest in RBI and a certain percentage of its
    monthly net revenues. ([Id]{.underline}.) On September 13, 1989,
    RBI\'s directors \"ratified\" the MSA and directed bankruptcy
    counsel to submit it to the bankruptcy court for approval. (Adams
    Exh. 14 at

10.) Bankruptcy counsel did so on June 19, 1990, and court approval
followed on August 28, 1990. (RBI Exh. 18 at 5; Tr. 626.) RBI did not
file the MSA with the Commission or list it on an ownership report until
1997. (RBI Exhs. 11, 14.)

36. On January 20, 1991, RBI\'s reorganization plan became final and
    nonappealable. (Adams Exh. 20 at 2; Tr. 786-87.) The plan was to
    become effective on September 17, 1991, thereby effectively
    canceling outstanding stock. (Tr. 796.) (Adams Exh. 20 at 2; Tr.
    641, 796-97.) In anticipation, on August 14, 1991, RBI filed a short
    form application seeking Commission approval to assign WTVE(TV)\'s
    license from RBI, as debtor-in-possession, to RBI. (Adams Exh. 21.)
    RBI used Form 316 because new shareholders were to be added and
    shareholders\' interests were going to change in conjunction with
    RBI\'s emergence from bankruptcy. The short form was used because it
    was thought that RBI\'s former shareholders would still hold more
    than 50% of RBI\'s stock following consummation. Mr. Parker signed
    the application as RBI\'s president, both as transferor and as
    transferee. Commission approval occurred on August 27, 1991. (Adams
    Exhs. 21, 22; Tr. 789-791.)

37. The shareholder and director disclosure that was reported in the
    August 1991 short form application was consistent with the
    information that was reported in RBI\'s Ownership Report dated and
    executed by Mr. Parker on March 28, 1991. (Adams Exh. 21 and RBI
    Exh. 11.) Mr. Parker was president and a director while executing
    both filings. The other directors were Dr. Aurandt, Mr. Linton, Dr.
    Clymer and Dr. Fischer. RBI was still capitalized with 50,000 shares
    of common stock that was held by 18 shareholders, with Dr. Aurandt
    and his wife owning 18,000 shares. As of August 1991, Mr. Parker and
    Partel legally owned no shares of RBI stock. Partel was to receive
    118,467 shares out of 399,044 to be issued which would make Partel
    the largest RBI shareholder. (Adams Exhs. 11, 21.) This set the
    stage for a struggle for control of RBI.

Parker's Taking Of Control

38. That struggle began in earnest one month later when on September 14,
    1991,

three days before the reorganization plan became final, Dr. Aurandt
called shareholders' and directors' meetings to recommend his wife
replacing Dr. Fischer who had resigned as a director. Mr. Parker
testified that " a very volatile dispute \[was\] going on between
shareholders."

(Tr. 669).) Mr. Parker attended and contested the legality of actions
taken at the meeting.

(Tr. 668-69, 677, 679, 791-93.) The shareholders and the directors
terminated the MSA based

on alleged \"malfeasance\" by Mr. Parker, removed Mr. Parker as a board
member, and replaced him with Mrs. Aurandt.[^6] (Adams Exh. 13 at 39-40,
53, 71-72; Tr. 669-70, 677.) After effectively overriding the board
actions taken on September 14, Mr. Parker issued new RBI

shares to its former and new shareholders on October 15, 1991.[^7]
(Adams Exh. 24; Tr. 797.)

Mr. Parker signed the certificates himself that had been prepared by
Marvin Mercer, RBI\'s bankruptcy counsel. (Adams Exh. 24; Tr. 797-800,
810.) Mr. Parker contends that this action was in accord with the
Commission\'s prior grant of the short-form application which occurred
on August 27, 1991. (Tr. 672, 795-97.)

39. In at least two instances, the number of shares issued by Parker did
    not match the number approved by the Commission. First, the
    Commission had approved issuance of 118,467 shares to Partel, but
    the number actually issued was 124,401. (Adams Exh. 24.) According
    to Mr. Parker, the nearly 6,000 extra shares were issued with an
    option to Meridian Bank, an RBI lender, that allowed the bank to
    purchase shares for \$1 (one dollar), in exchange for forgiving a
    \$500,000 overdue payment. (Tr. 800-01.) Second, the Commission had
    approved issuance of 74,678 shares to Dr. Aurandt, but Parker
    actually issued only 23,868 shares for Dr. Aurandt.

(Tr. 799, 803; Adams Exh. 13 at 84-86.) Mr. Parker explained that RBI
chose not to issue the additional shares to Dr. Aurandt because of
questions concerning a court judgment and garnishment proceedings which
Mr. Parker may not have known about while the short form application was
pending. (Adams Exh. 13 at 83-84; Tr. 701-02, 803-04, 810.) Mr. Parker
testified that he received a writ of execution incident to the Aurandt
garnishment on October 11, 1991. (Tr. 888-89, 916.) Mr. Parker
understood that if garnishment should occur, the RBI shares destined for
Dr. Aurandt ultimately would go to the judgment holders and that would
result in a greater than 50% transfer of stock control of RBI. (Adams
Exh. 28; Tr. 685, 701.)

40. Mr. Parker showed that he had the power to withhold shares from Dr.
    Aurandt while causing the issuance of 17,674 shares to an entity
    called STV Reading, Inc. (\"STVR"). (Adams Exh. 24; Tr. 809-10,
    975.) Dr. Aurandt was the holder of record of some 90% of STVR
    voting shares.[^8] But Mr. Parker did not transmit the RBI shares
    reserved for STVR to

Dr. Aurandt. Rather, Mr. Parker issued the RBI stock destined for STVR
to himself. Mr. Parker justified this self-help action on proxies that
he had previously received and which he used for his election as STVR's
president. (Tr. 970, 977.) But all of the STVR proxies relied upon by
Mr. Parker came from four persons who had not previously held an
ownership interest in RBI. In fact, they were the same four individuals
who had secured the Aurandt garnishment. (Adams Exh. 28; Tr. 972,
975-76.) The RBI shareholders who opposed Mr. Parker found that the new
shares \"were allocated by Mr. Parker in a fashion to skew the voting
power of the shareholders of \[RBI\] in favor of Partel, Inc. and
against the former shareholders of \[RBI\].\" (Adams Exh. 13 at 72-73.)
On cross examination, Adams counsel confronted Parker with the list of
shareholders who had received stock certificates including Partel, and
Mr. Parker admitted that those certificates were issued by him before he
had filed the application. (Tr. 703-904.)

41. Following issuance of the new stock, Mr. Parker retained an attorney
    to seek an extension of time from the Commission in order to allow
    RBI to consummate the transfer authorized by the Commission on
    August 27, 1991. (Tr. 804-06.) By letter dated October 22, 1991,
    Sidley & Austin requested an additional 60 days until December
    27, 1991. (Adams Exh. 22.) The reason cited to the Commission was
    that RBI needed additional time \"to coordinate the transaction,
    including implementing the bankruptcy reorganization plan approved
    by the bankruptcy court in Pennsylvania.\" (Adams Exh. 22; Tr.
    883-84.) Mr. Parker contends that more than just the issuance of
    stock had to occur before RBI could move from the protection of the
    bankruptcy court. It was also necessary to satisfy the Meridian
    Bank. (Tr. 804-06.) The Mass Media Bureau granted an extension to
    December 27,1991. (Adams Exhs. 22, 23.)

Mr. Parker then filed a Form 315 long form application to effect a
"legitimate" transfer of control. (Adams Exh. 28; Tr. 693.)

42. In the meantime, on October 25, 1991, during the period of extension
    granted by the Commission, Mr. Parker sent a notice of special
    meeting of shareholders on only five days notice. (Tr. 806.) The
    meeting\'s purpose was to remove existing directors, elect new ones,
    and resolve disputes concerning Dr. Aurandt. Mr. Parker advised the
    shareholders that they could attend either in person or by proxy.
    (Adams Exh. 25.) On October 30, l991, RBI\'s shareholders met. This
    meeting resulted in the election of a new board of directors
    consisting of Mr. Parker and Dr. Clymer and new board members Irvin
    Cohen, Reverend Frank McCracken and Judge C. Meyer Rose. (Adams Exh.
    13 at 70; Tr. 678-79, 806-07; RBI Exh. 11.) Mr. Parker knew and
    understood at the time that Dr. Fischer was no longer going to be a
    director. (Tr. 807.) The newly constituted board met on October 30,
    1991, and on December 30, 1991. (Adams Exh. 15 at 77, 85; Tr. 682.)

43. On November 13, 1991, RBI filed the long Form 315 that removed RBI
    as debtor-in-possession and transferred control of the license to
    the newly constituted RBI. (Adams Exh. 28; Tr. 693.) The Commission
    was informed that corporate shares would increase from 50,000 to
    419,038 and that the directors would include Dr. Aurandt, Mr. Linton
    and a totally passive

Dr. Fischer. The application showed that the previous short form
assignment would not be consummated because of questions concerning the
ultimate ownership of 13.98% (more than 58,000) of RBI\'s proposed
shares. Notwithstanding the Parker-dictated events of October 15 (the
issuance of RBI stock) and October 30 (the shareholders meeting), Mr.
Parker denied that a transfer of control had occurred prematurely. (Tr.
811.) The Commission approved the long form transfer on February 14,
1992, and Parker believed that a final accounting with creditors

and consummation of new ownership were concluded in March, 1992. (Adams
Exh. 31; Tr. 812-813.) But no stock was issued following the
Commission\'s grant of the long-form transfer application. (Tr. 703-04,
813.) Convinced of his existing authority and control, Mr. Parker had
signed the application on behalf of the transferor and the transferee.
(Adams Exh. 28; Tr. 694, 807-09.) Commission approval was granted on
February 14, 1992. (Adams Exh. 31.) Amidst these mix-ups, corporate
governance of RBI was in full control of Mr. Parker and he knew that to
be the fact.

Erroneous Ownership Reports

44. RBI's November 1991 transfer application was prepared by one of
    Parker's communications counsel (Ms. Friedman) in cooperation with
    RBI's bankruptcy counsel (Mr. Mercer). Mr. Parker denied that he had
    any role in computing the transferee share percentages that appeared
    in the application. (Tr. 807-08.) He also did not recall discussing
    or thinking about whether RBI needed to report that stock as already
    issued. (Tr. 922-23.) He believed the overriding fact was that
    during the pendency of the November 1991 transfer application, RBI
    remained a debtor in possession and would continue as such until
    creditors were satisfied. (Tr. 882-84, 923.) Ms. Friedman compiled
    the information and exhibits and made certain the form was prepared
    correctly. Ms. Friedman normally received filing information from
    the client. (Tr. 2107.) Mr. Parker provided or was responsible for
    the stock ownership data relied on by Ms. Friedman for reporting to
    the Commission.

45. The long form application filed in November 1991, incorrectly listed
    and incorrectly omitted directors. Thereafter, on April 16, 1992,
    RBI filed its 1992 ownership report. (RBI Exh. 11.) RBI listed its
    directors as Mr. Parker, Dr. Aurandt, Mr. Linton, Dr. Clymer and Dr.
    Fischer. RBI reported that it had not issued 50,812 shares to Dr.
    Aurandt because of the garnishment issue. Mr. Parker signed the
    report as RBI\'s president. (RBI Exh. 11; Tr. 814.) RBI failed to
    list the MSA in a contemporaneous ownership report. It merely was
    referenced in a document filed on February 7, 1992, which
    transmitted an amendment to the pending application to transfer
    control of WTVE(TV).

46. RBI acknowledges that its 1992 ownership report repeated the same
    errors relative to directors. (RBI Exh. 14.) In April 1993, Parker
    certified that the 1992 Ownership Report was accurate even though
    the slate of directors selected by Parker in 1991 continued to
    control RBI, a significant fact never reported to the Commission.
    (RBI Exh. 11.) According to Mr. Parker, the errors acknowledged by
    RBI occurred because of unexplained inadvertences on his part. (Tr.
    812, 814-15*.)* The evidence establishes that from 1992 to 1997, the
    Commission was deprived of sufficient information concerning the
    corporate control of RBI. And as indicated above, such confusion in
    corporate control worked to the advantage of Mr. Parker.

Renewal Expectancy

47. A renewal expectancy is awarded only for substantial service
    throughout the renewal period. The relevant time period for
    considering RBI\'s entitlement to a renewal expectancy began August
    1, 1989, and ended August 1, 1994.

Minimal Public Service Programming

48. RBI devoted 2.2% of its air time to issue responsive programming in
    the third quarter of 1989. (RBI Exh. 8, App. A at 2.) By the end of
    the renewal period, that percentage had increased to approximately
    7.6%. ([Id]{.underline}.) RBI\'s exhibit reflects that 35% of such
    programming consisted of PSAs. Using different composite weeks and
    not including PSAs, Adams calculates that WTVE(TV) devoted 1.5% of
    its air time to non-entertainment programming during the 1989-90
    period and 2.2% to such programming during the 1993-94 period.
    (Adams Exhs. 3 at 1; 7 at 2.) These statistics show that RBI's
    quantity of noncommercial programming was minimal.

Ascertainment

49. George Mattmiller was the Station's general manager from August 1989
    until February 1992. (RBI Exh. 6.) He was previously employed by Mr.
    Parker in Seattle, Washington. (Tr. 542 - 43.) He did not have ties
    with the Reading community when he joined RBI. Mr. Mattmiller was
    responsible for ascertaining community problems, needs and
    interests. The Station's methodology that was in place when Mr.
    Mattmiller arrived, involved receiving reports of staff contacts
    with members of the community. (Tr. 571.) Station personnel also
    used a local newspaper, the [Reading Eagle]{.underline}, and
    WTVE(TV) staff made a review of undefined "material that was sent to
    the station." (Tr. 572.) Newspaper local stories accounted for about
    90% of WTVE(TV)'s ascertainment on a range of topics. (RBI Exh. 6 at
    4.) Another source that Mr. Mattmiller mentioned was a broadcast
    segment entitled "Man on the Street" which provided local input
    while on-the-air. (Tr. 572.)

50. In mid-1992 and through the remainder of the renewal period, RBI
    expanded its ascertainment efforts by sending questionnaires to
    business leaders and schools and by contacting charitable
    organizations such as the United Way, Easter Seals, American Cancer
    Society and the American Red Cross. (RBI Exh. 6 at 5; Tr. 453-55,
    577.) Station staff also questioned guests who appeared for program
    taping at the Station\'s studio and students during classroom
    visits. (Tr. 1698.) Mr. Daniel Bendetti, another station manager
    during the renewal period, testified that they collected these
    ascertainment results quarterly. (Tr. 1732.) Ralph Tobias, another
    station employee responsible for ascertainment, determined which
    issues were significant. He then used such issues to pose questions
    to local residents in conjunction with the taping of \"Streetwise,\"
    a two-minute program that aired twice daily. (RBI Exh. 8, Apps. C at
    17 and D at 14; Tr. 457, 576, 588-89.) Ms. Kimberley Bradley
    collected information for program material and potential guests who
    could discuss community concerns on WTVE's \"In Touch.\" Program.
    (Tr. 460-71, 581-82.)

51. Mr. Bendetti testified that the ascertainment at WTV(TV) did not
    provide input into the Station's \"public service\" programming.
    (Tr. 1666-67, 1732-33.) RBI relied more on material taken from
    satellite feeds which station personnel deemed pertinent to the
    station\'s viewing area. RBI also relied on material supplied by
    eleemosynary organizations such as the March of Dimes. (Tr. 461-65,
    1734.) Mr. Parker served as WTVE(TV)'s general manager throughout
    the renewal period. But he did not tabulate ascertained needs; nor
    did he direct anyone to do so. Mr. Parker could not recall whether
    station personnel ever produced for his

review a document that indicated what were the community\'s significant
problems. (Tr. 830-31.) A comparison of headlines from the [Reading
Eagle]{.underline} *(*Adams Exhs. 3-7) with WTVE(TV)\'s \"Issues and
Programs Report\[s\]\" (RBI Exh. 8, Apps. C through W) shows that RBI
did not focus attention on issues affecting Reading and the surrounding
area. Ascertained community problems either merited a public service
announcement or nothing at all. When asked to identify a programmatic
response to ascertained community problems, Mr. Parker could either not
identify any such program or could point only to public service
announcements. (Tr. 832-47).

Home Shopping

52. The majority of RBI's programming is "home shopping," a format which
    passed the public interest test under a formal assessment. [In re
    Home Shopping Station Issues]{.underline}, 8 F.C.C. Rcd 5321 (1993)
    (home shopping stations serve the public interest, the programming
    does not adversely effect a renewal expectance, and home shopping
    stations are eligible for must carry cable carriage).
    [Id]{.underline}. While not unanimous choices, those were the policy
    determinations made by the Commission. And Section 4 (g)(2) of the
    1992 Cable Act specifically directs that the Commission not use home
    shopping format as a basis to deny a renewal expectancy.

53. The Commission otherwise decided to forego guidelines regarding
    specified quantities of types of various non-entertainment
    programming. [See]{.underline} [Commercial TV Stations]{.underline},
    98 F.C.C. 2d 1076, 1090- 92 (1984). However, the renewal standard
    requires that a licensee address community issues with responsive
    programming. The licensee is free to choose the programming that
    meets the needs. But it must not be a nominal effort that
    effectively defaults on its obligation to contribute to the
    discussion of issues facing the community. [Commercial TV
    Stations]{.underline}, [supra]{.underline}; [Office of
    Communications of the United Church of Christ v.
    F.C.C]{.underline}., 707 F.2d 1414, 1431 (D.C. Cir. 1983). A
    challenger must show that the licensee failed to address community
    issues in overall programming, not just with respect to specific
    issues that are not being addressed.

Must Carry

54. Station WTVE(TV) operated as an affiliate of the Home Shopping
    Network during the 1989-94 license term. (RBI Exh. 8.) It was
    classified by Arbitron, Inc. as a station in the Philadelphia
    Designated Market Area or \"DMA". (RBI Exh. 6 at 2.) Reading is
    geographically situated between the Philadelphia metropolitan area
    and the Harrisburg-Lancaster-Lebanon-York DMA. [Id]{.underline}.
    WTVE(TV) was the only television station licensed to Reading and
    serving Berks, Lebanon, Chester, Lancaster, Schuylkill and Lehigh
    counties. WTVE(TV) was competing with stations from Philadelphia,
    including the major network stations and independent stations. (RBI
    Exh. 13.) In 1992, \"must carry\" was enacted, which significantly
    upgraded WTVE\'s(TV) household reach when cable systems serving the
    western portions of Philadelphia were required to begin carrying
    WTVE(TV)'s signal. (RBI Exh. 6 at 3.) But the advent of "must carry"
    did not provide a total solution for the Station's financial plight.
    WTVE(TV) also shared the Philadelphia DMA with WHSP-TV, Vineland,
    New Jersey, another Home Shopping Network affiliate.
    ([Id]{.underline}. at 2.) Both stations provided the same home
    shopping programming. Cable

systems were required only to carry the signal of the station closest to
their respective headends. As a result, WTVE(TV) lost cable carriage in
the eastern portion of the Philadelphia DMA which is joined with
adjoining portions of New Jersey and Delaware. ([Id]{.underline}.)

55. It is found that RBI relied on must carry cable carriage to meet
    much of its non-commercial programming responsibilities without
    incurring costs of producing the programming. This permitted some
    non-home shopping programming to be introduced in Station WTVE(TV)'s
    signal area. It was a business decision having no impact on this
    decision. This predominance of "home shopping" on WTVE(TV) was not
    shown to have impeded responsive non-commercial programming. RBI's
    failure to sufficiently identify and address local issues was a
    failure separate and apart from providing a "home shopping" format.

Bankruptcy As Programming Factor

56. RBI was in Chapter 11 from 1986 until March 12, 1992. [Memorandum
    Opinion and Order,]{.underline} FCC 99M-47, [supra]{.underline} at
    ¶¶ 11-13. The condition of bankruptcy is not conducive to the
    operation of a TV broadcast station. But there is no evidence that
    RBI's voluntary bankruptcy so impeded RBI that it should be excused
    from meeting its public interest duties to the Reading community.
    RBI received Commission approval to operate as debtor-in-possession
    in 1988,

and also received Commission approval for a reorganization plan to
emerge from bankruptcy in 1992. ([Id]{.underline}.)

57. Mr. Parker succeeded in bringing RBI out of bankruptcy. But he was
    not able to operate the company in the black during the renewal
    period. Station WTVE(TV) was not operated in a profitable manner at
    any time before and during the renewal period. The Station operated
    at a loss during each year of the 1989-94 license term. A station
    manager testified that RBI's financial condition "was always
    unstable." (Tr. 1711 and RBI Exh. 5.)

58. As a result of its adverse financial condition, the Station's
    equipment became outdated and "antiquated" to such an extent that
    critical equipment, such as the Station transmitter, had repeated
    outages. (Tr. 1153-1172.) Evidence introduced by Adams also shows
    that the Station was understaffed during the renewal term. (Adams
    Exh. 16 at 5; Tr. 562-563.)[^9] The small size of the staff
    adversely effected the Station's ability to produce and broadcast
    public

service programming. (Tr. 1666, 1691.) There is no evidence offered by
RBI to show that funds or resources were diverted from a profitable
operation or from the compensation of Partel and its affiliates in favor
of supporting public service broadcasting.[^10]

59. In written testimony, Mr. Parker promised to "focus more energy and
    resources on the station's public service initiatives." (RBI Exh. 5
    at1.) The evidence indicates to the contrary. Mr. Bendetti, a
    station manager during the renewal period, testified that RBI,
    through Mr. Parker, decided to cut operating costs. He instructed
    the staff to limit efforts to produce public service programming and
    to avoid out-of studio productions and studio productions that would
    require a "crew." (Tr. 1674-1679.) This policy of holding back from
    public service broadcasting prevailed from 1990 to 1993. (Tr. 1680.)
    To meet this decrease in public oriented programming, in 1993, the
    staff at the Station took it upon themselves to increase the
    production of PSAs. (Tr. 1681.) While that was a commendable partial
    stopgap effort, it did not fill the serious programming gap created
    by the Parker initiated cut-backs.

Programming Methodology

60. WTVE(TV) broadcast "home shopping" fare over 53 minutes to 55
    minutes per hour. The remaining five to seven minutes were dedicated
    to a mixture of public service offerings, public service
    announcements, commercials, promotional announcements ("PSAs"), and
    required station identifications. (RBI Exh. 8 at 1.) At times,
    non-entertainment programs were aired that exceeded 15 minutes in
    length. These included religious programs, children\'s programs,
    political programs, and special or seasonal programs.
    ([Id]{.underline}.)

61. WTVE(TV) did not broadcast non-entertainment programming on a
    regularly-scheduled basis. Public service programming usually
    appeared during five to seven minute windows. No particular program
    aired during the same time slots on a daily or weekly basis, and
    each particular program was often repeated fifteen or more times
    during its run. (RBI Exh. 8, App. S at 66-68, 74 (\"News to You\");
    Tr. 471-73.) When WTVE(TV) began to broadcast the program, it did
    not appear at any regular time. (RBI Exh. 8, App. W at 149-50.)
    Therefore, it would be extremely difficult for a member of the
    public to anticipate and plan for RBI's non-commercial fare. Neither
    the [Reading Eagle]{.underline} nor any TV guide publication advised
    viewers when any particular WTVE(TV) program would be broadcast.
    (Adams Exh. 11; Adams Exh. 12; Tr. 591-93, 1795.) Mr. Parker
    acknowledged that the station primarily addressed community problems
    through the airing of PSAs which aired only when time was available
    during the daily schedule. (Tr. 472-73.) Mr. Parker asserted that
    RBI was justified in relying on PSAs because of the demands of home
    shopping and the station\'s negative financial condition. (Tr.
    847-49.) It is concluded from this evidence that throughout the
    renewal period, interested viewers had great difficulty in
    ascertaining the time when a particular non-commercial program would
    appear on WTVE(TV). (Tr. 473, 476, 591-93, 598, 1794.) RBI did not
    meet its duty to make available public issue programming.

Noncommercial Programming

62. In reviewing the expanse of evidence in this case, it was found that
    during the renewal period, WTVE(TV) did broadcast some locally
    produced programs in response to ascertained needs. Such other
    public service \"programs" identified as PSAs in RBI\'s issues and
    programs reports were: \"Streetwise,\" \"In Touch,\" \"News to You
    Healthbeat Elderly Report,\" \"Community Outreach Take 3,\" and
    \"Kids Korner.\" ([See]{.underline} RBI Exh. 8,
    [passim]{.underline}.)

63. \"Streetwise\" was a two-minute interview program produced by RBI in
    which members of the public were asked to expound on local issues.
    (RBI Exh. 8 at 2; 588-89.) The program was aired between August 1,
    1989 and November 27, 1989. (RBI Exh. 8, App. C at 17, App. D at
    14.) In the third quarter of 1989, the questions ranged from flag
    burning to literacy, from the virtue of freedom to prison inmates
    working for their keep. (RBI, Exh. 8, App. C at 16.) In the fourth
    quarter of 1989, the \"questions ranged from hostages in Beirut to
    rights Americans take for granted. (RBI Exh. 8, App. D at 14.)
    \"Streetwise\" aired twice a day, generally around 9:20 in the
    morning and 6:20 in the evening. (RBI Exh. 8, App. C (third
    quarter 1989) at 16, App. D (fourth quarter 1989) at 14.)

64. "In Touch" was a three-minute program that featured a host and a
    guest discussing RBI's selected community topics (health, welfare).
    (RBI Exh. 8 at 2; Tr. 463, 581-83.) Each program focused on one
    topic that was determined to be an issue of public concern based on
    local mail and faxes recommending topics. . (Tr. 458, 582.) The
    topic could appear on more than one segment as part of a series.
    (RBI Exh. 8 at 2.) In 1989, \"In Touch\" was broadcast twice a day
    in the late morning or early afternoon and again in the early
    evening. In 1993, it aired three times during any given day. (RBI
    Exh. 8, App. B, C, D, Q, R.) Topics included local concerns for
    consumer protection (RBI Exh. 8, App. C at 13); foster parenting;
    pet care; drunk driving; speech and hearing ailments and treatments;
    a youth exchange program; making marriage work; AIDS and other
    health-care topics. Participants included a speech therapist, a
    midwife, a dietician, a gastroenterologist, the deputy attorney
    general of Pennsylvania\'s Bureau of Consumer Protection, the
    director of the Berks County Humane Society, a neurologist, a
    laboratory medical director, and a chiropractor. (RBI Exh. 8, App. C
    at 7-8,13-14, App. D at 5, App. Q at 29-30.)

65. \"News to You\" aired in two to three-minute segments. It treated
    issues such as health, family concerns, consumer issues and
    crime/safety - - - .\" (RBI Exh. 8 at 2.) Material for the program
    was downloaded from satellite feeds. RBI inserted \"News to You\"
    segments into available time slots, usually twice a day. (Tr.
    460-64, 472-73.)

66. \"Healthbeat \'or \"Health Report\" began airing in the fourth
    quarter of 1992. (RBI Exh. 8, Apps. C through 0.) It ran for three
    minutes. Station staff obtained \"stock footage" from a newsfeed
    company and localized the features with "wraparound information"
    about socially directed charitable groups and organizations such as
    the American Cancer Society, Community Hospital, Reading Hospital,
    and the American Red Cross. (RBI Exh. 8, App. P at 17.)

67. \"Elderly Report\" also began airing in the fourth quarter of 1992.
    (RBI Exh. 8, Apps. C through P.) It usually ran for three minutes.
    RBI utilized \"stock footage" from a newsfeed company and localized
    the features with "wraparound information" about the area senior
    groups\" such as the Berks County Office of Aging, the Berks County
    Senior Citizens Council, and the Temple Association for Retired
    Persons. (RBI Exh. 8, App. P at 8-9.)

68. \"Community Outreach\" began airing in the second quarter of 1993.
    (RBI Exh. 8, Apps. C through R.) RBI produced this three-minute
    program featuring a host and guests who would discuss a topic of
    local interest. Topics included local volunteer efforts and
    organizations; cooking tips; wedding preparations; taking a cruise;
    reducing driving while under the influence of alcohol; other issues
    related to alcohol; child abuse; recycling/community clean-up; home
    safety; and the importance of dietary calcium. (RBI Exh. 8, App. R,
    S, T, U, V; Tr. 477.)

69. \"Take 3\" was a three-minute program that local youths produced
    with assistance from WTVE(TV). It dealt with issues of interest to
    young viewers. (Tr. 465-66.) \"Take 3\" began airing in the second
    quarter of 1993. Examples of topics include results of driving under
    the influence of alcohol, musical instruments in high school bands,
    selecting a college, keeping food safe while camping, and a
    presentation of the inner workings of the Reading Planetarium. (RBI
    Exh. 8, App. R, S, T at 19.)

70. \"Kids Korner" presented programming that was 90 seconds to three
    and one-half minutes in duration. The program was produced by RBI
    and dealt with issues that were of interest to children. (RBI Exh. 8
    at 3, App. B, App. R, App. V.) WRVE(TV) began broadcasting \"Kids
    Korner" in the second quarter of 1993. (RBI Exh. 8, App. Q, App. R.)
    Examples of issues covered include pet care, dinosaurs, recycling,
    the life of Milton Hershey, and an elementary school science
    curriculum. When \"Kids Korner\" aired, it could appear as many as
    three times per day. RBI\'s \"Children\'s Issues and Program
    Report\" identifies \"Kids Korner\" as a public service segment.
    (RBI Exh. 8, App. X, at 169, 219-22.) From the description provided
    by RBI, it will be counted towards RBI's locally produced
    programming.

71. In the second quarter of 1993, RBI began broadcasting politically
    oriented programs that were produced at the Pennsylvania state
    house. The programs were designed to keep \"viewers apprised of
    various government topics.\" (RBI Exh. 8, App. R at 22.) RBI would
    alternate between programs produced by the Democrats and the
    Republicans. (Tr. 1694.) The programs featured state legislators who
    represented Reading and/or the surrounding area. (RBI Exh. 8 at 7.)
    Programs were approximately 30 minutes in length and were aired on
    Sundays between 9:30 a.m. and 11:30 a.m. On occasion, WTVE(TV) would
    broadcast two programs on the same Sunday. (RBI Exh. 8, App. B at
    6.) But such political programming was not broadcast during election
    campaigns. (Tr. 1694.)

72. \"The Informative Moment\" was a Spanish-language program produced
    by RBI to address issues of interest to the Hispanic community. (RBI
    Exh. 9 at 3; Tr. 470.) It appeared in April 1994 and ran on three
    minute segments. (RBI Exh. 8, App.) In a significant segment, a host
    and guest discussed the latter's struggle to free himself from
    drugs. The program was broadcast at approximately 8:20 in the
    morning and again at 8:20 in the evening. (RBI Exh. 8 at 5, 11.)

73. \"For the People\" was a three-minute program produced by RBI to
    focus on state and local political issues. (RBI Exh. 8 at 3; Tr.
    470.) \"For the People\" appeared at various times during the days
    on which it aired. The program appeared in June 1994, shortly before
    the end of the renewal period. (RBI Exh. 8, App. B.)

74. RBI listed \"Around Our Town\" as a locally-produced program which
    focused on topics related to the local environment and community
    events. (RBI Exh. 8 at 3.)

Public Service Announcements

75. RBI broadcast PSAs throughout the renewal period and averaged
    between 30 to 50 PSAs throughout the day. (Adams Exh. 7 at 5-12,
    22-32.) Some of the PSAs were produced in-house. Others were
    obtained from local, regional or national organizations. RBI also
    would work with local chapters of national organizations to localize
    PSAs. Two such PSAs won awards from the Pennsylvania Association of
    Broadcasters. (RBI Exh. 8 at 3-4.)

76. PSAs broadcast by WTVE(TV) covered such topics as local events; pet
    adoption; missing children; apprehension of suspected criminals;
    health and safety; education; civic and social concerns; the
    environment; persons with disabilities; the elderly; children; the
    armed forces; and religious groups. (RBI Exh. 8 at 4-6.) The timing
    and quality of the PSAs were attested to by community witnesses and
    in letters from listeners that were received by RBI throughout the
    license term. (RBI Exh. 8, App. H; App. L, App. N, App. 0, and App.
    P.)

Children\'s Programming

77. In the fourth quarter of 1992, RBI broadcast several children\'s
    programs. (RBI Exh. 8, App. P, App. X.) WTVE(TV)'s earlier
    broadcasts for children were limited to PSAS. (RBI Exh. 8, App. X.)
    None of the programs were locally produced. RBI would air its
    children\'s fare on Saturday and/or on Sunday mornings.

78. From October 31, 1992 to December 5, 1992, RBI produced and
    broadcast "Go For It,\" a 30 minute program which aired at 9:30 a.m.
    on Saturdays. (RBI Exh. 8, App. X at 18-19, 23.) Guests included
    current or former professional athletes who stressed the importance
    of fitness and who provided advice about developing various sports
    skills.

79. From November 1, 1992 through December 13, 1992, RBI broadcast a
    half-hour program called \"Candid Kids Club.\" (RBI Exh. 8, App. X
    at 24.) Topics covered by the program included learning to fly,
    health tips on warm-up exercises, the life of a sea mammal, Magic
    Johnson\'s life with the HIV virus, a book review, and a movie
    review.

80. On December 19, 1992, RBI began broadcasting \"Adventure Pals,\" a
    30-minute program produced by Christian Children\'s Associates. The
    program contained no product advertisements or commercial breaks.
    The program presented a mix of stories, music, clowns, puppets and
    special guests to address issues of interest to children. Other
    topics included self-

esteem, parent/child relationships and concern for others. (RBI Exh. 8,
App. X at 18, 22.) It cannot be determined from this record whether
\"Adventure Pals\" aired weekly through the end of the renewal
period.[^11] Station records indicate that it usually appeared on
Sundays at 8 a.m. (RBI Exh. 8; App. X at 22; RBI Exh. 9; Adams Exh. 7 at
81.)

81. On January 24, 1993, RBI began broadcasting \"Widget.\" (RBI Exh. 8,
    App. X at 141.) \"Widget" was a 30-minute program that covered
    topics relating to protection of the environment. RBI usually
    broadcast the program on Sundays at 8:30 a.m. (Adams Exhs. 6, 7 at
    81; RBI Exh. 8, App. B.)

82. During the first quarter of 1993, RBI broadcast three other
    children\'s programs during the renewal period: \"Kids
    International,\" \"Nation of Winners,\" and \"How Do You Zoo?\"
    \"Kids International\" appeared on February 27, 1993, between 8:40
    and 9: 10 a.m. That program presents scripture texts taken from
    educational Bible videos. RBI aired \"Nation of Winners\" on March
    7, 1993, between 6:30 and 7:00 a.m. It contained \"interviews and
    segments with children explaining how everyone needs to keep fit.\"
    \"How Do You Zoo?\" appeared on February 27, 1993, between 9:47 and
    10:00 a.m.[^12] It presented animal facts and included a question
    and answer segment involving children.

83. In 1993, RBI began broadcasting \"The Children\'s Room\" and
    \"Twinkle.\" The former focused on children\'s literature and was
    designed to instill an appreciation for reading in children ages
    four through eight. The latter was an animated program featuring a
    magical character with the power to make dreams a reality. The
    character\'s adventures were intended to teach integrity,
    responsibility and means to save the environment. The programs ran
    for approximately 30 minutes and aired from 6:00 to 7:00 a.m. on
    Sundays. (RBI Exh. 8, App. S, T, U, V; RBI Exh. 9; Adams Exh. 7 at
    80.)

Special Programming

84. RBI also broadcast \"special long-form programming\" during the
    renewal period which included inspirational and religious
    programming (often aired during the Christmas season),
    documentaries, and miscellaneous specials. Examples of such specials
    appear in the station\'s Programs/Issues Reports. (RBI Exh. 8, App.
    C at 23-27; App. L at 13; App. P at 15-16.)

85. RBI broadcast local weather reports several times a day. (Tr. 478;
    RBI Exh. 8, App. 0; Adams Exh. 6 at 23-24, 80-8 1; Adams Exh. 7 at
    25-26, 31.) RBI also provided for broadcasting a variety of
    religious shows throughout the license term. (RBI Exh. 8 at 6.)

Lack Of Local News

86. Mr. Parker defended the lack of local news with a rationalization
    that the market served simply could not support program-length local
    newscasts. (Tr. 1746, 1749-51.) The Station's service-area received
    news from Philadelphia's major network stations and from other media
    sources, both electronic and print. (RBI Exh. 5, Appendix A.) But
    that was a totally unacceptable justification for depriving the
    community of local news. News about Reading would occasionally be
    broadcast by the Lancaster, Pennsylvania station and would more
    rarely appear on the Lebanon or Philadelphia stations. (Tr. 1746,
    1786.) RBI saved money by relying on others. But this business
    practice of using someone else to furnish the news only made RBI a
    "free rider" while creating a local news void that was never filled.
    As would be expected, the Station received complaints about the
    absence of regularly scheduled newscasts. By knowingly depriving the
    community of local news coverage, RBI breached its duty to serve the
    needs of the community.

Public Witnesses

87. RBI submitted depositions from persons representing organizations in
    the local Reading area. The deponents expressed their views on how
    RBI addressed areas of concern. In rebuttal, Adams submitted
    depositions from persons who were not satisfied with the way RBI
    addressed concerns. The conflicting views are summarized below.

Witnesses Sponsored By RBI

88. Warren Haggerty, a life-long resident of Reading, was its mayor from
    1987 through 1995. He recalled appearing on a show called the \"The
    Minute with the Mayor.\" A host would ask a question and Mr.
    Haggerty would talk for a minute or so in response. Mr. Haggerty
    does not know when the program was actually aired.[^13] Mr. Haggerty
    also recalled a community promotion campaign called \"Working for a
    Greater Reading,\" which aired on WTVE(TV) as a PSA from the spring
    of 1992 through the end of 1993. (RBI Exh. 25, at 11, 25, 27-30,
    32-35, 37-40, 42-45,47-48, 50.)

89. Sandra Kissinger, life-long resident of Reading, worked with the
    Berks County Chapter of the American Red Cross and used media
    sources to promote the Red Cross in the community. (RBI Exh. 26 at
    5.) She recalled an RBI promotion for the Red Cross following a
    major fire which destroyed an entire city block. WTVE(TV) also aired
    Red Cross PSAs about water safety during the second and third
    quarters of 1991 and the second quarter of 1992. ([Id]{.underline}.
    at 14-15, 42, 44, 46-48.) The Station assisted the local chapter of
    the Red Cross with a lupus support group in the third quarter
    of 1992. ([Id]{.underline}. at 16, 50.) WTVE(TV) worked with the
    local chapter of the Red Cross in connection with the program,
    \"Health Beat.\" ([Id]{.underline}. at 17-18, 52.) The Station
    worked with the Red Cross in assisting hurricane victims.
    ([Id]{.underline}. at 18-20, 53, 55.) The Station also sponsored a
    ham radio club to supply emergency relay communications and when
    there was no emergency, to promote a flea market to fund youth
    services programs. ([Id]{.underline}. at 20-22, 57, 60, 62.)
    WTVE(TV) aired PSAs regarding an open house at the Red Cross to aid
    flood victims.[^14] ([Id]{.underline}*.* at 23-24, 63, 65.) RBI
    helped raise funds for the Red Cross and aired PSAs warning about
    the dangers of heat stroke and informing about health and safety
    classes. ([Id]{.underline}*.* at 25-30, 67.) Station WTVE(TV) was
    \"always there\" whenever the Red Cross needed it to promote
    anything. ([Id]{.underline}. at 30.)

90. Linda Witman, a life-long resident of the Reading area, is the
    executive director of the Berks County Chapter of the March of
    Dimes. (RBI Exh. 27 at 4-5.) WTVE(TV) made a three-minute
    promotional tape of a fundraising event sponsored by the local
    chapter of the March of Dimes. ([Id]{.underline}. at 7-9, 34.) The
    Station also aired the March of Dimes PSA, which was produced
    annually and served as the agency\'s primary fundraiser.
    ([Id]{.underline}. at 8, 35-37, 4041.) WTVE(TV) also dealt with
    issues related to pregnancy. ([Id]{.underline}. at 12, 28-29, 31-32,
    39.) Ms. Witman believed that the relationship with WTVE(TV) raised
    public awareness of the mission of the March of Dimes while
    encouraging donations. ([Id.]{.underline} at 15.)

91. Phyllis Watts is the administrator of Children\'s Rights of
    Pennsylvania, Inc. Her organization provided pictures of missing
    children for the Station to show, which RBI would convert into
    one-minute spots. She found WTVE(TV)\'s airings to be extremely
    helpful.\" (RBI Exh. 28 at 7.) Ms. Watts affirmed that WTVE(TV)
    broadcasts occurred throughout the license term and she believed
    that WTVE(TV)\'s efforts were \"very good\" in comparison with those
    of other area television stations. (RBI Exh. 28 at 5, 80, 103-105.)

92. Ralph Trainer was executive director of \"Abilities in Motion,\"
    which provided services throughout Berks County to people with
    disabilities. (RBI Exh. 29 at 5.) He was coordinator for Americans
    with Disabilities Act and a peer counselor. ([Id*.*]{.underline} at
    6.) Mr. Trainer testified that WTVE(TV) aired programs on behalf of
    the "Office of Aging" and on behalf of "United Cerebral Palsy".
    ([Id]{.underline}. at 9-12, 52-54, 56, 58.) Mr. Trainer concluded
    that the assistance his organization received from WTVE(TV) was
    comparable to that provided by other local media. ([Id]{.underline}.
    at 12-13.)

93. Ray Schacht verified that beginning in 1993, he hosted taped
    programs such as \"Elderly Update\" which were meant to address
    problems of the elderly. (RBI Exh. 30.) However, he was unaware of
    what was done with the programming after it was taped.
    ([Id]{.underline}. at 18.)

94. Stanley J. McCarty has resided in the Reading area for 50 years. He
    was a police officer for 28 years. At the time of his deposition, he
    was the crime prevention supervisor and had held that position for
    nine years. (RBI Exh. 32 at 4-5.) He testified that WTVE(TV)
    produced Pennsylvania Crime Stopper spots, which name and portray
    people who are wanted in connection with serious crimes.
    ([Id]{.underline}*.*) He was also involved in producing WTVE(TV)
    sponsored PSAs that covered a variety of topics. ([Id]{.underline}.
    at 12-13.) The station provided time for \"Reading React,\" a group
    that monitors a local emergency radio band. ([Id]{.underline}. at
    15-16, 58, 60.)

95. Thomas R. Caltagirone has been a member of the Pennsylvania House of
    Representatives for 23 years. Currently, he is Chairman of the
    Commerce and Economic Development Committee. He had served as
    Chairman of the Consumer Affairs Committee and of the Judiciary
    Committee. (RBI Exh. 33 at 4.) He described the program
    \"Legislative Journal\" as a summary of legislative events that
    occur each month in the Pennsylvania state legislature and confirmed
    that WTVE(TV) carried his appearances on \"Legislative Journal\"
    during 1994. ([Id]{.underline}. at 8, 46-47.) He also verified
    WTVE(TV)\'s broadcasting of the PSAs listed in the station\'s second
    quarter of 1994 Issues and Programs Report. ([Id]{.underline}. at
    49, 52-54.) Mr. Caltagirone further affirmed that other programs
    concerning state legislative affairs were broadcast on WTVE(TV).
    ([Id]{.underline}. at 10, 12-13.) Only WTVE(TV) and a cable channel
    aired legislative report programs that "concerned public issues
    and/or public services". ([Id]{.underline}. at 13.) The Station\'s
    broadcasts of legislative reports continued into the third quarter
    of 1994 and reported the first impeachment in Pennsylvania of a
    state supreme court justice. ([Id]{.underline}. at 13-14.)
    Representative Caltagirone believed that WTVE(TV) did an exemplary
    job of allowing public access to these governmental related public
    interest programs. ([Id]{.underline}. at 15.)

96. Monica Ruano-Wenrich, a long-term resident of the Reading area, has
    been an employee of the United Way of Berks County since July 1991.
    (RBI Exh. 34 at 4.) She testified that in 1993, WTVE(TV) broadcast
    PSAs concerning the United Way. ([Id]{.underline} at 9, 27, 29-30.)

97. Ronald Rouse has resided in the Reading area for 15 years. He
    produced segments for the WTVE(TV) program \"Minority Voices.\" (RBI
    Exh. 35 at 4.) He recalled viewing the Station\'s calendar of events
    and the local weather. ([Id]{.underline}. at 8.) \"Minority Voices\"
    did not appear on WTVE(TV) during the renewal period. But it was
    created during the renewal period and receives some credit.

98. Richard Bennett is executive of the Hawk Mountain Council of the Boy
    Scouts of America. He has resided in the Reading area continuously
    since 1988. (RBI Exh. 36 at 4.) Mr. Bennett related that Mr.
    Bendetti spoke at two area high schools in 1993 on careers in
    television in connection with a career awareness program that was
    sponsored by the Boy Scouts. ([Id]{.underline}. at 7-8, 15.) Mr.
    Bennett recalled WTVE(TV) produced PSAs which focused on the
    environment and on belonging to the Boy Scouts as opposed to a
    street gang. ([Id]{.underline}. at 11-12, 18-20.)

99. Douglas F. Didyoung, Sr. is a life-long resident of the Reading
    area. (RBI Exh. 37, at 4.) During the renewal period, Mr. Didyoung
    was the executive director of Prisoners of War/Missing in Action,
    Forget-Me-Nots, Inc. The organization is a public awareness group
    consisting of veterans and civilians who endeavor to have the
    federal government supply answers about soldiers still missing from
    various wars. WTVE(TV) aired videos supplied by his organization
    which related to the construction of a Vietnam War Memorial in Berks
    County. The Station also aired allegations that the federal
    government covered up knowledge about American soldiers held captive
    long after the Vietnam conflict ended. ([Id]{.underline}. at 8-10,
    25, 28, 33, 35.) He also confirmed that the station had interviewed
    him in connection with those veterans\' issues. ([Id]{.underline}.
    at 12, 14.)

100. Joan Breisch, a life-long resident of the Reading area, is the
     executive director of the Literacy Council of Reading/Berks. (RBI
     Exh. 38 at 4-5.) The Literacy Council is a non-profit organization
     that teaches adults to read, write and speak English. Ms. Breisch
     was with the Literacy Council throughout the renewal period. (Id.
     at 5.) She recalled the station airing PSAs during the renewal
     period and one longer program concerning issues related to
     literacy. ([Id]{.underline}., [passim]{.underline}.) She recalled
     other PSAs shown on WTVE(TV) concerning the Humane Society.
     ([Id]{.underline}. at 15, 34, 40, 48.)

101. Daniel Dillard is executive director of the Burn Prevention
     Foundation. He served in that capacity throughout the renewal
     period. The organization develops and distributes educational
     materials and curricula related to the prevention of burn injuries.
     It also coordinates a comprehensive regional health care network of
     providers of burn care services. (RBI Exh. 39 at 3-4.) Mr. Dillard
     confirmed that WTVE(TV) provided assistance in connection with a
     Burn Foundation fund raising event and that it did not charge the
     Foundation for its services. ([Id]{.underline}. at 5-7, 18, 20-21.)
     Mr. Dillard confirmed that WTVE(TV) aired PSAs from the Burn
     Foundation as well as \"News to You\" segments concerning the Burn
     Foundation and the National Fire Protection Association.
     ([Id]{.underline}.)

102. Michael A. O\'Pake, a life-long resident of the Reading area,
     filmed a monthly 30-minute program entitled \"Report to the
     People.\" (RBI Exh. 40 at 4-5.) The program informs the people of
     Berks County about activities of the legislature in Harrisburg.
     ([Id]{.underline}. at 5-6.) Mr. O\'Pake could not confirm whether
     the program aired during the renewal period. But he acknowledged
     that he was contacted by WTVE(TV) in July 1994 with regard to a
     program which was taped and aired later in 1994. ([Id]{.underline}.
     at 7-8, 39.)

103. Frederick C. Windbeck, Jr. is the founder and executive director of
     the Switchback Gravity Railroad Foundation, a volunteer
     organization established in 1986, which seeks to restore
     Pennsylvania\'s first railroad. (RBI Exh. 41 at 7-8, 11.) WTVE(TV)
     worked with the Foundation to produce a low-cost film for the
     purpose of promoting the Foundation and informing the public about
     the railroad. ([Id]{.underline}. at 9-10.)

Witnesses Sponsored By Adams

104. John Loos has been coordinator of emergency management for Berks
     County since 1992. (Adams Exh. 44 at 6.) He has resided in the
     Reading area for 14 years. Mr. Loos coordinates the responses and
     recovery that follow an emergency. ([Id]{.underline}. at 7.) In
     situations warranting warnings to the public, he uses an emergency
     alert which is handled by two county radio stations.
     ([Id]{.underline}. at 9-10.) Local broadcast media are needed to
     inform the general public in responding to such events as a weather
     emergency. ([Id]{.underline}. at 10.) WTVE(TV) failed to contact
     him or his agency in connection with broadcasting information
     concerning a local blizzard. ([Id]{.underline}. at 14-15.) Mr. Loos
     recalled that WTVE(TV) only contacted him to do a \"short
     program.\" [Id]{.underline}. at 28-29. However, nothing ever came
     of it. ([Id]{.underline}. at 23.) Mr. Loos does not recall whether
     WTVE(TV) provided any air coverage with respect to any local
     emergency that occurred during the renewal period.
     ([Id]{.underline}. at 28.) Those emergencies included two blizzards
     and one earthquake as well as related water main and electrical
     problems. ([Id]{.underline}. at 17-27.)

105. Lawrence Medaglia is the elected Registrar of Wills and Clerk of
     the Orphans Court for Berks County. He is a life-long resident of
     the Reading area. (Adams Exh. 45 at 5.) Previously, he was the
     administrative supervisor of the Berks County District Attorney\'s
     office. ([Id]{.underline}. at 8.) So far as he knew, WTVE(TV) never
     broadcast any programming related to the District Attorney\'s
     office. ([Id]{.underline}. at 13.) During the renewal period, the
     only television news coverage available was on Channel 69 from
     Allentown, the Philadelphia network channel, or Channel 8 from
     Lancaster. Mr. Medaglia was not aware of the station\'s airing of
     Crime Stopper PSAs or of its governmental affairs programming.
     ([Id]{.underline}. at 19.) Such unawareness may have been due to
     the absence of WTVE(TV) program scheduling in the local newspapers.

106. James Troutman was the Berks County Clerk of Courts during the
     renewal period. (Adams Exh. 46 at 5.) He has been a resident of
     Berks County for 25 years. ([Id]{.underline}. at 6.) Mr. Troutman
     attends meetings of the Berks County Commissioners.
     [(Id]{.underline}. at p. 7.) WTVE(TV) never covered any meeting of
     the County Commissioners. ([Id]{.underline}. at 13-14.) Mr.
     Troutman had no knowledge of WTVE(TV) ever providing any news
     coverage of any local, state or national elections during the
     renewal period. ([Id]{.underline}. at 17.) If Mr. Troutman wanted
     to view any local news stories he would watch Channel 8 from
     Lancaster. ([Id]{.underline}. at 18.)

107. Roger Kimpland resided in the Reading area for 25 years. For the
     past 20 years, he has been the media coordinator for the Reading
     Area Community College. (Adams Exh. 47 at 5-6.) If he wanted to
     watch coverage of local news and events during the renewal period,
     Mr. Kimpland would watch Channel 8 from Lancaster.
     ([Id]{.underline}. at 9.)

108. David Baldinger is a television producer for Lucent Technologies.
     In the early 1980s he was the operations manager for WTVE(TV). He
     had also worked for Channel 69 in Allentown. He has resided in
     Reading since 1984. (Adams Exh. 48 at 5-6.) While he was at
     WTVE(TV), the station had two news broadcasts per day during the
     week with two-minute updates during the evening and on the
     weekends. Newscasts were locally oriented and included coverage of
     city council and county commissioners\' meetings, local elections
     and criminal enforcement activities. ([Id]{.underline}. at 7-8.)
     Mr. Baldinger recalled that after WTVE(TV) stopped covering local
     news sometime in the mid-1980s, the only television coverage of
     local news was provided for a brief period over Channel 15 from
     Lebanon and, infrequently, from Channel 69 in Allentown.
     ([Id]{.underline}. at 8-9.) WTVE(TV) did not provide any local news
     coverage of interest to Reading or Berks County during the renewal
     period. ([Id]{.underline}. at 10.) Mr. Baldinger testified that
     while Philadelphia stations would not have carried news of interest
     to residents of Berks County, some of the stations closer to
     Reading would have done so. ([Id]{.underline}. at 14-15.)

Community Activities

109. The staff at Station WTVE(TV) made efforts at community outreach.
     Those included fund raisers for the Red Cross, Reading React
     (emergency radio band) and the Burn Foundation. The Station also
     produced a film for the Switchback Gravity Railroad Foundation.
     School visits were made at which Station personnel spoke to
     students about careers in broadcasting. Visits were made by local
     youth groups to the Station\'s studio. (RBI Exhs. 6, 8, and 36.)
     Station staff assisted local police in preparing an informational
     video and a local fire company in producing tapes of an anniversary
     parade. Local high schools were assisted in producing their own
     shows. (RBI Exh. 8, App. N, P.) WTVE(TV) produced a five-minute
     segment about the Reading Rehabilitation Hospital that aired on a
     local cable system. ([Id]{.underline}.) The Station donated space
     for the translator of the Harrisburg public television station.
     (Id. at 32.) The Station distributed fliers that explained a
     non-alcoholic dairy beverage program, donated equipment and support
     services in conjunction with the production of a video on teenage

drinking and driving, and participated in meetings of local women\'s
groups and discussions on careers in broadcasting. (RBI Exh. 8 at App.
V.) These are all commendable activities that receive credit.

Compliance

**Failures To Report Information**

110. To qualify for a renewal preference, the incumbent licensee must
     show a positive record of compliance with the Communications Act
     and Commission rules. [Cowles Broadcasting, Inc.]{.underline}, 86
     F.C.C. 2d 993, 1017 (1981). Under the management of Micheal Parker,
     RBI is shown to have been lax and indifferent in reporting
     significant events. RBI has candidly acknowledged that it failed on
     multiple occasions to comply with Commission requirements

to timely and accurately report officers, directors, shareholders and
ownership/operating agreements. (RBI Exh. 14; Tr. 624-628, 814-815.)

Management Services Agreement

111. RBI entered into the MSA on May 28, 1989, under which Partel was to
     receive a substantial ownership interest in RBI.[^15] (RBI Exh. 18
     at 6-19; Adams Exh. 19; Tr. 626.) The MSA was to be reported to the
     Commission within 30 days of the MSA's execution under §1.65.

On February 7, 1992, more than one year after its execution, RBI
reported the MSA, but only as an amendment to the bankruptcy transfer
application. (RBI Exh. 14.) The amendment contained no identifying
reference to the MSA, did not direct the reader's attention to the MSA
in the material which followed, and gave no communicative information
from which it might be determined that Parker would be in full charge of
the business of Station WTVE(TV). RBI's counsel, to his credit,
disclosed in a composite document prepared for the hearing these many
RBI "Reporting Failures." Mr. Parker offered as explanation for delays
in disclosure the fact that the MSA was a work in progress which needed
court approval before achieving finality. (Tr. 625-626.) But it was more
than 18 months from the bankruptcy court's approval that the Commission
finally was informed that Parker [via]{.underline} Partel had "full
authority necessary to conduct the day-to-day operations of the
Station." (Adams Exh. 19 at 4.) There was no acceptable excuse offered
for the delay.

112. Mr. Parker was to be elected chief operating officer with "full
     authority" to conduct those day-to-day operations.
     ([Id]{.underline}.) Parker received the authority to make all
     personnel decisions and no checks for expenses were to be written
     without his express authority. ([Id]{.underline}.) Approval of the
     MSA was obtained from the bankruptcy court on January 8, 1991.
     Thus, the Commission was not informed immediately after the court's
     approval in January 1991, that

Mr. Parker was RBI's chief operating officer. (RBI Exh. 14.) Nor was the
Commission informed in connection with the transfer of RBI's license
that Mr. Parker had been elected a director of RBI in August, 1989, at
the same meeting in which the MSA was approved by RBI\'s shareholders.
(Adams Exh. 13 at 3-4.) (RBI Exh. 14.) Reference to the MSA appears
towards the end of the document as a consulting contract between Partel,
Inc. and the debtor that was court approved. (Adams Exh. 30.) The mere
reference to the MSA in February, 1992 as cited in RBI Exh. 14, did not
disclose that Partel was to receive a substantial ownership interest or
that the Parker had full operational control over WTVE(TV).

Officers, Directors and Shareholders

113. RBI has acknowledged that between October, 1991 and March, 1994, it
     misreported to the Commission the identities of RBI\'s officers and
     directors. (RBI Exh. 14.) Inaccurate reports were included in
     RBI\'s 1991 long-form transfer of control application, in its
     April, 1992 ownership report, and in its April, 1993 ownership
     certification. Mr. Parker signed the inaccurate reports in question
     which he brushed away as \"inadvertence\[s\]\". (Tr. 815.) RBI\'s
     long-form transfer of control reflected that as late as November
     1991, RBI stock had not been issued to individuals and entities who
     had received the right to the stock almost one month prior to the
     filing of the application. (Adams Exh. 28.) These matters were too
     important to be excusable "inadvertence\[s\]".

Telemundo Option Agreement

114. In May, 1998, RBI entered into a Network Affiliation Agreement
     ("Affiliation Agreement\") with Telemundo Network, Inc. (RBI Exh.
     11.) After a delay of one year, the Affiliation Agreement
     accompanied RBI's Ownership Report dated March 31, 1999. Section
     10(b) of the Affiliation Agreement provided:

> \... Telemundo shall have the right (the \"Option\"), in its sole
> discretion, exercisable upon sixty (60) days written notice to \[RBI\]
> (the \"Option Notice Date\"), to purchase all interests in \[RBI\] or
> substantially all of the assets \[sic\] of \[RBI\] for a purchase
> price equal to the greater of (i) \$40 million or (ii) twelve (12)
> times the broadcast cash flow for the previous twelve (12) month
> period. \-\-- \[T\]he Option shall be of no force or effect until such
> time as the grant of \[RBI\]\'s license renewal application filed on
> or about April 1, 1994, with the FCC becomes final, that is, no longer
> subject to FCC or judicial review.

[(Id]{.underline}.) Thus, Telemundo held a conditional option to acquire
ownership of Station WTVE (TV) and timely disclosure of that option was
withheld without excuse.

115. Section 73.3613 of the Commission\'s Rules requires the submission
     to the Commission, within 30 days of execution, of agreements which
     relate to the present or future ownership of a broadcast license.
     Section 73.3613(b)(3)(iii) specifically includes options as
     agreements required to be submitted. The Telemundo Affiliation
     Agreement was not submitted

to the Commission until April, 1999, almost a year after it was
executed. The fact that the option was contingent upon RBI succeeding in
its renewal did not negate RBI's duty to timely disclose the option.

116. By letter dated March 26, 1999, addressed to Ms. Ann Gaulke, an
     official of Telemundo, Mr. McCracken acknowledged RBI's decision
     not to disclose the option:

> Because I never believed that Section 10(b) \[of the Telemundo
> Affiliation Agreement\] constituted an option that Telemundo could
> exercise at any time whether RBI desired to sell or not, I have not
> filed the \[Telemundo Affiliation Agreement\] with our ownership
> reports as an option affecting ownership.

(Adams Exh. 87.)

117. A motive for the non-disclosure appears elsewhere in the McCracken
     letter:

> Our communications attorney has pointed out to us that the option set
> out in Section 10(b) could be construed in a way that could cause RBI
> considerable comparative disadvantage in the \[to-be-designated
> comparative renewal\] hearing, because it may seem that RBI could not
> be relied upon by the FCC to honor its promises to operate the station
> during the coming license renewal\.... Thus, the last thing RBI wants
> is for the FCC to perceive that it seeks license renewal solely to
> unload the television station at the direction of an option holder.

([Id]{.underline}*.* at 1.) Mr. McCracken and RBI were concerned that
the agreement could harm their comparative case and therefore
arbitrarily chose not to file in violation of §73.3613.

# 

Phase II

Misrepresentation/Lack Of Candor

118. Evidence was received on whether Mr. Parker engaged in a pattern of
     misrepresentation or lack of candor with respect to disclosures
     made to the Commission in six separate applications and one
     amendment. Five of the applications and the one amendment were
     filed while Parker was a principal of RBI. The disclosures
     concerned formal Commission decisions that were adverse to Mr.
     Parker's character qualifications. (Adams Exhs. 49, 50, 51, 52, 53,
     54.) The burden of proceeding and the burden of proof on the issue
     were assigned to Adams. The Bureau participated in the examination
     of witnesses and sponsored two documents and two stipulations.

### San Bernardino

119. On October 30, 1987, a Commission Administrative Law Judge issued
     an Initial Decision, which found, *inter alia,* that Mr. Parker was
     a real party-in-interest to the application of San Bernardino
     Broadcasting Limited Partnership (\"SBBLP\"), an applicant for a
     new television station in San Bernardino, California. The Judge
     based his finding on actions taken by Mr. Parker between the time
     SBBLP was organized and the time SBBLP\'s general partner fired Mr.
     Parker as consultant. Mr. Parker appeared as a witness and
     testified at the San Bernardino hearing. (Tr. 1922.) As a
     consequence of Mr. Parker\'s role, the Judge disqualified SBBLP\'s
     application from comparative consideration. [Religious Broadcasting
     Network]{.underline}, 2 F.C.C. Rcd 6561 (Admin. L. J. 1987). Mr.
     Parker received and read a copy of the Initial Decision shortly
     after its release. (Tr. 2082.)

120. On July 5, 1988, the Review Board refused to award integration
     credit and held:

> We affirm, *con brio,* the ALJ\'s refusal to award \"integration\"
> credit to SSB; its application was and remains a travesty and a hoax.
> We need not repeat, point-by-point, all of the findings of fact which
> the ALJ has set out to support his conclusion that the progenitor and
> the real party-in-interest of SBB is definitely not Van Osdel, she
> being merely a fig leaf for the true kingpin of SBB, one Micheal
>
> Parker, who currently holds an interest in numerous other broadcast
> permits (I.D., para. 61), and who could not in his own identity have
> hoped to prevail in this very close comparative contest.
>
> \* \* \*
>
> \[W\]e find no error in the ALJ's core conclusion that Van Osdel is
> neither the sole nor dominant management figure \-\-- but a convenient
> vizard \[and SBBLP\] is a **transpicuous sham** \[cite omitted\], and
> the ALJ justly rejected its **attempted fraud**. [Religious
> Broadcasting Network]{.underline}, 3 FCC Rcd 4085, 4090 (Rev. Bd.
> 1988). (Emphasis added.)

Mr. Parker received and read a copy of the Review Board\'s decision
shortly after its release. (Tr. 2085.)

121. After the Initial Decision, the parties reached a settlement which
     the Review Board approved. 5 F.C.C. Rcd 6362, released October
     31, 1990. SBBLP received \$850,000 to dismiss its application.
     [Religious Broadcasting Network]{.underline}, 5 F.C.C. Rcd 6362
     (Rev. Bd. 1990). Mr. Parker did not directly share in the payment
     to SBBLP. He testified that he "never got a dime." (Tr. 1945.)
     However, at one time Mr. Parker held a 20% interest in SBBLP which
     he transferred to a sister and her husband who did receive money
     from the settlement. Mr. Parker testified that his understanding at
     that time was that approval of the settlement resolved the real
     party-in-interest issue in favor of SBBLP, rationalizing that
     otherwise, SBBLP could not have participated in the settlement.
     (Tr. 2069-70, 2074-75.)

**Mt. Baker**

122. One month after the Review Board found Mr. Parker to be an
     undisclosed real party-in-interest, the Commission denied an
     application for review filed by another entity controlled by Mr.
     Parker. (Tr. 747.) [Mt. Baker Broadcasting Co., Inc.]{.underline},
     3 F.C.C. Rcd 4777 (1988). Mt. Baker asked the Commission to
     reinstate a construction permit for a new television station in
     Anacortes, Washington. The staff had cancelled the permit due to a
     substantial variance found between what had been authorized and
     what Mt. Baker had actually constructed. The Commission denied
     reinstatement and held:

> \[I\]mproper construction did not occur through error or inadvertence;
> the facts clearly indicate an **effort to deceive** the Commission.
> (Emphasis added.)

3 F.C.C. Rcd at 4778. Mr. Parker received and read the Commission\'s
decision shortly after its issuance. (Tr. 1908, 2076.) Notwithstanding
the finding of an "effort to deceive the Commission", Mr. Parker
testified that he understood that the Commission did not have a problem
with anyone's character in the proceeding because no character issue was
added and decided. (Tr. 2645.) The conclusion that the Commission had no
problem is rejected in view of the decision's language.

**Disclosures On Applications**

**Form 315**

123. Questions 4 and 7 of the Commission's transfer application form
     asks for information regarding character qualifications.

**Question 4**:

**Legal Qualifications**:

> \(a\) [Has an adverse finding been made]{.underline}, adverse final
> action taken or consent decree approved by any court or administrative
> body as to the applicant or any party to the application in any civil
> or criminal proceeding brought under the provisions of any law
> [related to]{.underline} the following: any felony, antitrust, unfair
> competition, [fraud]{.underline}, unfair labor practices, or
> discrimination? (Emphasis added.)
>
> \(b\) Is there now pending in any court or administrative body any
> proceeding involving any of the matters referred to in 4(a)?
>
> If the answer to (a) or (b) above is Yes, attach as Exhibit No. \_\_\_
> , a [full]{.underline} [disclosure]{.underline} concerning the persons
> and matters involved, identifying the court or administrative body and
> the proceeding (by dates and file numbers), stating the facts upon
> which the proceeding was based or the
>
> nature of the offense committed, and disposition or current status, of
> the matter. Information called for by this question which is already
> on file with the Commission need not be refiled provided: (1) the
> information is now on file in another application or FCC form filed by
> or on behalf of transferee; (2) the information is identified fully by
> reference to the file number (if any); the FCC form number and the
> filing date of the application or other form containing the
> information and the page of paragraph referred to; and (3) after
> making the reference, the transferee states, "No change since date of
> filing."

**Question 7**:

**Broadcast Interests**:

> Has the applicant or any party to this application had any interest in
> or connection with the following:

(a) an application which has been dismissed with prejudice by the
    Commission?

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(b) an application which has been denied by the Commission?

(c) a broadcast station, the license of which has been revoked?

(d) an application in any Commission proceeding which left unresolved
    character issues against the applicant

> \(e\) If the answer \-\--is Yes, state in Exhibit No. \--, the
> following information

(i) name of party,

(ii) nature of interest, giving dates,

(iii) call letters of station,

(iv) location.

Question 4 calls for "full disclosure" about adverse findings of "fraud"
and essentially asks for copies of the decisions. The word "fraud" is
sufficiently descriptive to require disclosure of the adverse decisions
against Parker in San Bernardino ("transpicuous sham" and "attempted
fraud") and Mt. Baker ("effort to deceive the Commission"). Question 4
was answered "no." The information requested by Questions 7(a) and 7(b)
were answered "yes." Question 7(c) asks about revocations and the
question was answered "no." Question 7(d) calls for disclosure in the
context of the Commission's Allegan policy and that question was
answered "no."[^16]

### 

### Form 346

124. Form 346 is used to apply for an application to construct a low
     power television station (LPTV). Form 346 questions concerning the
     legal qualifications of an applicant are substantially the same
     that Form 315 asks of parties to a transfer. But Question 4 is
     different in one material respect. In Form 315, Question 4 asks
     whether a party was the subject of an adverse finding made by "any
     administrative body." In Form 346, the Question 4 counterpart asks
     whether an adverse finding has been made that was related to
     "[fraud before another govern-mental unit]{.underline}." (Emphasis
     added.) Since the adverse findings that would apply to Mr. Parker
     involve only the subject of "fraud" at the Commission and not at
     "another governmental unit," the facts of this case do not fit with
     respect to Form 346 Question 4. However, the disclosures in Form
     346 Question 7 do apply to Mr. Parker in the same manner as
     Question 7 disclosures apply in Form 315.

### Parker's Disclosures To The Commission

**San Francisco**

125. On March 2, 1989, an entity named West Coast United Broadcasting
     (\"West

Coast") filed an application for consent to transfer control of Station
KWBB(TV), San

Francisco. (Adams Exh. 50.) West Coast\'s secretary signed the
application on behalf of the transferor and the transferee giving for
her address Mr. Parker\'s residential address. (Adams Exh. 50 at 23; Tr.
1939-40.) The application reported that Mr. Parker was a vice president
and a director for West Coast and would continue as such following the
transfer. (Adams Exh. 50 at 24, 34.)

126. West Coast responded to the questions with an unqualified \"no\" to
     both parts of Question 4. (Adams Exh. 50 at 7.) West Coast
     responded to Question 7 in the affirmative as to subparts (a)
     and (b) and in the negative as to subparts (c) and (d) thus denying
     that there were any unresolved character issues against Parker. The
     narrative disclosure stated in an exhibit:

> Micheal L. Parker, Vice President and a director of West Coast, \...
> is an officer, director, and shareholder of Mt. Baker Broadcasting
> Co., which was denied an application for extension of time of its
> construction permit for KORC(TV), Anacortes, Washington, FCC File No.
> BMPCT-8607OIKP. See Memorandum Opinion and Order, FCC 88-234, released
> August 5, 1988. Mt. Baker Broadcasting Co. has pending before the
> Commission a Petition for Reconsideration of that decision.

([Id]{.underline}. at 26-27.) The narrative failed to mention the
finding of the "effort to deceive the Commission." The narrative also
failed to mention at all the San Bernardino decision or

Mr. Parker\'s role in the flawed SBBLP application.

127. The law firm of Schnader, Harrison, Segal & Lewis (\"Schnader,
     Harrison\") submitted the application to the Commission. (Adams
     Exh. 50 at 1; Tr. 1858.) R. Clark Wadlow, a Schnader, Harrison
     partner, previously represented Mr. Parker, or entities in which he
     had attributable interests. (RBI Exh. 46 at 2.) Mr. Parker
     acknowledged having reviewed the narrative response in Exhibit III
     which he asserted had been drafted by Schnader, Harrison attorneys.
     Mr. Parker claimed that West Coast had relied upon legal advice to
     decide what was needed to respond to the application\'s questions.
     (RBI Exh. 46 at 6.) Mr. Parker testified that he believed the
     information referenced above in connection with Question 7 had been
     prepared by

Mr. Wadlow. (Tr. 1941, 2012.) Mr. Wadlow was not certain that he had
reviewed the application. (Tr. 1858, 1864-65.) Mr. Wadlow concluded that
Question 7 was answered correctly, but he had no explanation as to why
the San Bernardino decision was not referenced. Nor had he read the Mt.
Baker decision at that time. (Tr. 1859-60, 1865.) Mr. Parker was not
represented in Mt. Baker by Schnader, Harrison. (Tr. 1914.)

**Los Angeles (LPTV)**

128. On December 8, 1989, Mr. Parker filed an application for a
     construction permit for a new low power television station in Los
     Angeles. (Adams Exh. 49.) Mr. Parker answered questions 4 and 7 in
     the same manner as the disclosure in West Coast. He also included
     the same narrative statement relative to the Mt. Baker construction
     permit stating that an extension of time was denied and that a
     petition for reconsideration was pending before the Commission.
     (Adams Exh. 49 at 4-5, 11.) As was the case in the West Coast
     application, nothing appeared in the Los Angeles application
     relating to the "effort to deceive" in Mt. Baker and nothing at all
     appeared with respect to the San Bernardino decision which was not
     even mentioned.

**Norwell (WHRC)**

129. On July 23, 1991, an application was filed to transfer control of
     Station WHRC-TV, Norwell, Massachusetts, from Nikita Maggos to Two
     If By Sea Broadcasting Corporation ("TIBS"). Mr. Parker was the
     president, sole director and 100% shareholder of TIBS. (Adams Exh.
     51 at 10.) The application was transmitted to the Commission by Mr.
     Eric Kravetz, a communications attorney. ([Id]{.underline}., Tr.
     2343.)

130. In response to Questions 4 and 7, TIBS checked the same \"no\" and
     \"yes\" boxes as had West Coast. (Adams Exh. 51 at 9, 11.) The
     narrative exhibit contained the same information about the denial
     of Mt. Baker\'s extension application but no reference was made to
     a petition for reconsideration. The exhibit explaining Question 7
     "yes" responses stated the following:

> Micheal Parker was an officer, director and shareholder of
>
> Mt. Baker Broadcasting Co., which was denied an application for
> extension of time of its construction permit for KORC(TV) , Anacortes,
> Washington, \[citations omitted\].
>
> Although neither an applicant nor the holder of an interest in the
> applicant to the proceeding, Micheal Parker\'s role as a paid
> independent consultant to San Bernardino Broadcasting Limited
> Partnership (\"SBB\"), an applicant in MM Docket No. 83-911 for
> authority to construct a new commercial television station on Channel
> 30 in San Bernardino, CA, was such that the general partner in SBB was
> held not to be the real party in interest to that applicant and that,
> instead, for purposes of the comparative analysis of SBB\'s
> integration and diversification credit, Mr. Parker was deemed such.
> [See]{.underline} [Religious Broadcasting Network et.
> al.]{.underline}, FCC 88R-38, released July 5, 1988. NM Docket 83-911
> was
>
> settled in 1990 and Mr. Parker did not receive an interest of any kind
> in the applicant awarded the construction permit therein,
>
> Sandino Telecasters, Inc. See [Religious Broadcasting Network et.
> al.]{.underline}, FCC 9OR-101, released October 31, 1990.[^17]

(Adams Exh. 51 at 17-1 8.)

131. Mr. Parker testified that he does not know the narrative\'s author.
     But he believes that an attorney drafted it and he suggested that
     Mr. Marvin Mercer, RBI\'s bankruptcy attorney, prepared the
     narrative with input from either Mr. Eric Kravetz or Mr. Wadlow\'s
     law firm (then Sidley & Austin). (RBI Exh. 46 at 7; Tr. 1798,
     1952-54, 2058.) Mr. Kravetz, a communications counsel who did some
     work for Mr. Parker, denied any role in the narrative\'s
     preparation and had no knowledge as to who prepared it or how it
     was prepared. (Tr. 2344-46.) Mr. Wadlow also denied that he had any
     role. (Tr. 1805.) Ms. Paula Friedman, a former Sidley & Austin
     associate, testified that she had no role in the Norwell
     application and that so far as she knew, no one from Sidley &
     Austin had any role. (Tr. 2105-06.) Whoever was the drafter, Mr.
     Parker admitted reviewing the application and approving it,
     including the narrative. (RBI Exh. 46 at 7.)

132. Mr. Parker justified the omissions regarding the Mt. Baker and San
     Bernardino decisions based on a letter that he had received from
     Mr. Wadlow on February 18, 1991. (RBI Exh. 46 at 7 and Attachment
     D.) The Wadlow letter addressed the sufficiency of the narrative's
     disclosure and stated:

> It is our opinion that the Administrative Law Judge (\"ALJ\") \[in the
> San Bernardino case\] simply concluded that SBBLP had failed to report
> your activities and involvements \[sic\] with SBBLP - - which the ALJ
> found to be such as to make you a real party-in-interest. However, the
> ALJ did not find that you had done anything improper \[sic\] or that
> anything you had done reflected adversely on you.
>
> As I mentioned above, we have continued to represent you in other FCC
> proceedings, as we have for the last eight or ten years. You serve as
> a principal of other FCC licensees. We are aware of no question that
> has ever been raised as to your qualifications to hold such a
> position.

Mr. Parker and Mr. Wadlow testified the letter was prepared in haste
because Mr. Parker had requested that it be prepared quickly in order to
present it to third parties in connection with matters related to RBI\'s
bankruptcy. (Tr. 1806-08, 2001-02, 2016-19, 2025; Adams Exh. 59.) The
letter was not prepared in connection with disclosures to be made to the
Commission.

133. Following the Norwell grant, three more applications were filed
     which contained the same questions and answers which had appeared
     in the West Coast and Norwell applications: Reading, Twenty Nine
     Palms and Dallas. The narrative describing the Mt. Baker and San
     Bernardino decisions which had appeared in the Norwell application
     was used once again. (Adams Exh. 52 at 7, 12, 30; Adams Exh. 53;
     and Adams Exh. 54 at 7, 10, 24-25; Tr. 1971-74.)

**Reading (WTVE)**

134. On November 13, 1991, an application was filed for the assignment
     of Station WTVE(TV), Reading, PA. (Adams Exh. 52.) The transferee
     was Partel, the company controlled by Mr. Parker that had entered
     into the MSA with RBI. The disclosure followed the pattern of
     answering "no" to questions about fraud and including in an exhibit
     the "boilerplate" narrative as was used for West Coast and Norwell.
     Sidley & Austin represented that it had no connection with Parker's
     disclosure.[^18] (Tr. 1805, 2105.) In response to Question 7(a) as
     to whether any party had any interest in or connection with any
     application that had been denied or dismissed with prejudice, Mr.
     Parker responded "yes." (Adams Exh. 52 at 12.) But Mr. Parker
     answered "no" to Question 7(d) asking whether there were unresolved
     character issues. The narrative descriptions of Mr. Parker [vis a
     vis]{.underline} the Mt. Baker and San Bernardino proceedings were
     submitted to the Commission as follows:

> Micheal Parker also was an officer, director and shareholder of Mt.
> Baker Broadcasting Co. Mt. Baker Broadcasting Co.'s application for
> extension of time of its construction permit for KORC(TV), Anacortes,
> Washington (FCC File No. BMPCT-86070KP) was denied. [See]{.underline}
> [Memorandum Opinion and Order,]{.underline} FCC 88 -- 234, released
> August 5, 1988.
>
> Although neither an applicant nor the holder of an interest in the
> applicant to the proceeding, Mr. Parker's role as a paid independent
> consultant to San Bernardino Broadcasting Limited Partnership
> ("SBB"), - - - was such that the general partner in SBB was held not
> to be the real party in interest to that applicant and that, for
> purposes of the comparative analysis of SBB's integration and
> diversification credit, Mr. Parker was deemed such. - - - . This
>
> proceeding was settled in 1990 and Mr. Parker did not receive an
> interest of any kind in the Sandino Telecasters, Inc., the applicant
> awarded the construction permit. (Citation omitted.)

(Adams Exh. 52 at 30.)

**Twenty Nine Palms (KVMD)**

135. On June 4, 1992, an application for the assignment of Station
     KVMD(TV) at Twenty Nine Palms, CA was filed. (Adams Exh. 53.) Mr.
     Parker was the transferee and he executed the transferee portion of
     the application. There was no law firm or lawyer identified with
     this application. Mr. Parker responded "no" to Question 4 about
     "fraud". He also answered "no" to Question 7(d) asking whether Mr.
     Parker had any interest in or connection with any application which
     left an unresolved character issue against the applicant. (Adams
     Exh. 53 at 6, 8.) Mr. Parker did answer in the affirmative to
     Question 7(a) and 7(b) asking whether he had any interest in or
     connection with an application which had been denied or dismissed
     with prejudice, referring to Parker's disclosure in an exhibit.
     (Adams Exh. 53 at 18-20.) The narrative accounts of the Mt. Baker
     and San Bernardino proceedings were the same as those made in the
     Station WTVE(TV) transfer quoted above. (Adams Exh. 53 at 19-20.)

**Dallas (KCBI)**

136. On August 3, 1992, an application for assignment of the license of
     International Broadcast Station KCBI, Dallas, TX, was filed. (Adams
     Exh. 54.) The assignee was TIBS, a Parker controlled entity. Mr.
     Parker responded "no" to the question about fraud. He also answered
     "no" to the question of whether he had any interest or connection
     with any applications which left an unresolved character issue
     against the applicant. In this particular application, the staff
     sought a clarifying amendment on whether basic character issues had
     been sought or added with respect to any of the applicants whose
     applications had been dismissed. (Bureau Exh. 2 at 3; Tr. 1977,
     1979.) After receiving the request, Mr. Kravetz spoke with Mr.
     Parker and in October 1992, Mr. Kravetz drafted an amendment, which
     Mr. Parker signed:

> Two If By Sea Broadcasting Corporation (\"Two If By Sea\") has applied
> for authority to acquire Station KCBI from Criswell Center for
> Biblical Studies. As part of that application, Two If By Sea listed
> applications in which its officers, directors and principals
>
> had held interests and which were dismissed at the request of the
> applicant. [This will confirm that no character issues had been added
> or requested against those applicants when those applications were
> dismissed]{.underline}. (Emphasis added.)

(Adams Exh. 55 at 3; Bureau Exh. 2; Tr. 1980, 1982-83, 2355-56.) Mr.
Parker testified that

he or someone under his direction had provided Mr. Kravetz with the
information and that Mr. Kravetz proposed the amendment which Mr. Parker
reviewed "very carefully" and was "satisfied as to its accuracy." (Tr.
1983.) Mr. Kravetz testified that he had spoken to the FCC staff. (Tr.
2355.) Mr. Kravetz then drafted the amendment (Adams Exh. 55) based on
information that Mr. Parker provided and which Mr. Parker reviewed and
signed thereby giving his approval. (Tr. 2355-56.) In drafting the
amendment, Mr. Kravetz relied exclusively on information provided him by
Mr. Parker and made no independent research. (Tr. 2357.)

Mr. Kravetz filed the amendment on October 29, 1992. The Commission
staff granted the application one day later. (Adams Exhs. 55, 56.)

**Evidence Of Lack Of Candor**

137. Mr. Parker never told Mr. Kravetz that a real party-in-interest
     issue had been added in the San Bernardino proceeding. That was a
     critical piece of information and its withholding by Parker left
     Mr. Kravetz factually out in the cold. Mr. Kravetz was entitled to
     receive candid information from Parker before he drafted the
     amendment. Had Mr. Parker told

Mr. Kravetz that a real party-in-interest issue had been requested and
added in San Bernardino, Mr. Kravetz would not have drafted the
amendment as he did. That conclusion is established by the
uncontradicted testimony of Mr. Kravetz. (Tr. 2372.) Mr. Kravetz's
testimony is credible. As a practicing attorney, there would be no
motive for Mr. Kravetz to draft and/or file an incomplete or misleading
amendment with the Commission. To the contrary, as a practitioner before
the Commission, Mr. Kravetz had every motive to file a complete and
truthful document. Therefore, it is accepted that Mr. Kravetz would have
identified and fully described the San Bernardino proceeding had Mr.
Parker informed him of the facts. In that event, Mr. Kravetz would have
disclosed to the Commission staff that a real-party-in interest issue
had been added in the San Bernardino proceeding and that it had been
resolved by the hearing Judge adverse to Mr. Parker and that the Review
Board had agreed with the Judge's conclusion. (Tr. 2372-74.)

138. Mr. Parker testified that he told Mr. Kravetz that there were no
     unresolved issues in the San Bernardino proceeding based on advice
     that Mr. Parker said he received from Sidley & Austin attorneys.
     (RBI Exh. 46 at 8; Tr. 1983-84.) But Mr. Parker received no such
     advice from Sidley & Austin. Mr. Wadlow testified that he could
     never have given such advice because he was aware that a character
     issue had been added against SBBLP in the San Bernardino
     proceeding. (Tr. 1813.) In direct contravention of advice that Mr.
     Parker would have received had the lawyers been fully informed by
     him, the amendment misleadingly concluded that:

> No character issues had been added or requested against those
> applicants when those applications were dismissed.

(Adams Exh. 55 at 3.) That was not literally true and became misleading
without a full explanation. A real-party-in-interest issue had been
added in which Parker was involved and which was resolved on the merits
against SBBLP and Parker. Initially, Mr. Parker contended in written
testimony that the Dallas amendment was not meant to include information
about the

Mt. Baker or the San Bernardino proceedings:

> Based on the previous advice from the Sidley attorneys about the Mt.
> Baker and San Bernardino proceedings, Linda or I indicated that there
> were no unresolved character issues pending when the applications to
> which I was a party were dismissed.

(RBI Exh. 46 at 8.) That statement, while incomplete, was literally
accurate because with adverse character findings having been made on the
merits, there were no unresolved character issues left to resolve.

139. But at the hearing, Mr. Parker took a different approach. He
     explained in open court that he had intended the amendment to cover
     only those applications in which he, Parker, was the named
     applicant or in which he had an interest. According to Mr. Parker's
     rationale, because the Dallas application noted that Mr. Parker was
     neither the applicant nor the holder of an interest in the
     applicant, the San Bernardino application was not relevant to the
     Dallas amendment:

> The amendment says and gives the same disclosure \-\-- . And it may be
> cutting fine hairs but the amendment says what the amendment says and
> it clearly says that while I was neither the applicant or a holder of
> an interest, this was (sic) the facts of the case.

(Tr. 1987-88.) Mr. Parker was less then candid in giving such testimony.
His "fine hairs" explanation for omitting information shows Mr. Parker
giving the Commission less than the full facts when he exchanged and
introduced his written testimony. His live testimony that he held no
interest in the San Bernardino application of SBBLP is intentionally
deceptive because he had been found in that proceeding to be the real
party-in-interest behind a "transpicuous sham." So in that respect he
was a "holder of an interest."

140. Mr. Parker also wrongly suggested at the hearing that Mr. Kravetz
     had drafted the responsive amendment because Mr. Kravetz knew what
     had been represented in the original KCBI application concerning
     the San Bernardino application. (Tr. 1990.) That was at best a
     mischievous distraction. As noted above, Mr. Kravetz had no role in
     drafting the narrative in the Dallas application. (Adams Exh. 54 at
     24-25.) And he had no knowledge about the real party-in-interest
     issue. (Tr. 2372) As for the Dallas amendment, Mr. Parker was
     solely responsible for the disclosure and took advantage of his
     counsel's lack of information. Yet, Mr. Parker seeks to convince in
     this proceeding that the Dallas amendment indirectly informed the
     staff of the legal effect of the San Bernardino proceeding because
     the Judge's adverse conclusions became subsumed in the Review
     Board's decisions that denied SBBLP any integration credit and
     accepted a settlement. (Tr. 2027.)[^19] But there is absolutely no
     basis in the language of the amendment and/or in Mr. Parker's
     testimony to excuse or justify an intentional omission by

Mr. Parker in the Dallas amendment (Adams Exh. 55) of adverse findings
against his qualifications in the Mt. Baker and San Bernardino
proceedings.

141. Mr. Parker has also testified in this proceeding that after the San
     Bernardino decisions denying comparative credit because Mr. Parker
     was the real- party-in-interest but allowing a settlement payment
     to be made to SBBLP, he believed that the real-party-in-interest
     issue \"went away.\" (Tr. 2027.) Evidence cannot be found in this
     record that Mr. Wadlow shared Mr. Parker's view on the effect the
     settlement of the San Bernardino proceeding had on the Initial
     Decision's conclusions because Mr. Wadlow could not recall having
     so advised

Mr. Parker on the subject. (Tr. 1829, 1856.) Mr. Parker testified that
by the time of the

San Bernardino dismissal, he had concluded in his own mind that the
disqualifying issue had been resolved favorably by the Review Board
notwithstanding the Board's critical language.

(Tr. 2028, 2030, 2064-65.) Mr. Parker's explanation must be rejected.
Mr. Parker acknowledged that he knew that a character issue had been
added in the San Bernardino proceeding prior to the dismissal of the
application. (Tr. 1992.) Even though not literally found to be
"unqualified,"

Mr. Parker understood that the character issue focused, in large part,
on him and that the character issue was going to have implications for
him. (Tr. 2080-81.)[^20]

142. Mr. Parker continued to assert that prior to a Commission "by
     direction" letter to TIBS, he had formed his self-acquitting view
     that the Review Board in its approval of the San Bernardino
     settlement had favorably resolved the issue. (Tr. 2637-39.) That
     misapprehension was dispelled in 1997, when the Commission
     published that letter:

> Serious character questions also remain regarding the assignee,
> Parker/TIBS. For example, in one instance an administrative law judge
> disqualified an applicant in a comparative hearing for a new
> television station after finding Parker to be an undisclosed principal
> in that applicant. *See Religious Broadcasting Network, 2* FCC Rcd
> 6561, 6566-67 (I.D. 1987). The Review Board upheld the
> disqualification, characterizing the application as a \"travesty and a
> hoax\" 3 FCC Rcd 4085, 4090 (Rev. Bd. 1988), and the applicant as a
> \"transpicuous sham\" which had \"attempted fraud\" upon the
> Commission. [Id]{.underline}. at 4091.

[Two If By Sea Broadcasting Corporation]{.underline}, 12 F.C.C. Rcd at
2255, 2257 (1997). This "by direction" letter published for all to see
the serious questions festering about Mr. Parker's character
qualifications and came close to suggesting that Parker was
"unqualified" to own or control a licensee. Despite those concerns about
qualifications, it was later advised in a staff letter dated May 22,
1997, that the earlier "by direction" letter did not limit the
transferability of any stations that were commonly controlled by Parker.
(Bureau Exh. 2.)[^21] It seems from the later letter advice that it was
contemplated that Parker's qualifications would be in hearing in
connection with a contemplated assignment of a Hartford license (WHRC --
TV) after the qualifications of the assignor were litigated in a pending
renewal proceeding. (Bureau Exh. 2.)

But the qualification questions of the contemplated assignee which was a
Parker controlled entity, were never formally addressed. The statute of
limitations barred the issues for this case. [See]{.underline}
[Memorandum Opinion and Order]{.underline} FCC 99M -49, released
September 3, 1999. The Hartford license is now the subject of a
settlement and to further avoid addressing Parker's qualifications,
Parker's interest has been assigned to (or bought out by) a "white
knight." [See]{.underline} [Martin W. Hoffman,Trustee, et
al]{.underline}., 15 F.C.C. Rcd 22086, 22089 n.4 (2000). It is truly
remarkable that since 1989, Mr. Parker has been able to successfully
navigate through the Commission always one tack away from anyone taking
a dead reckoning on his character qualifications.[^22]

Mr. Wadlow's Letter

143. The Wadlow letter was written eight months after the Review Board
     had affirmed the Initial Decision in the San Bernardino proceeding,
     yet the letter makes no mention of the decision. (Adams Exh. 58.)
     It was written and delivered within 45 minutes of the request
     because it was needed by Mr. Parker to show to a third party. (Tr.
     1866; 2002 -- 2003.) The letter was written on stationary of the
     law firm of Sidley & Austin and used the colloquial "our opinion"
     and the collective "we." It had the trappings of and indeed it was
     an opinion letter of the law firm of Sidley & Austin. The letter
     represented that the Initial Decision in the

San Bernardino proceeding had not been reviewed. But Mr. Wadlow had
litigated on behalf of another party in the San Bernadino proceeding. It
is not surprising he had not reviewed the Initial Decision in a matter
which he actively litigated because, having first-hand knowledge, he did
not need to review the facts. (Tr. 1831.) According to the letter, the
Judge "did not find

\[Mr. Parker\] had done anything improper or that anything \[he\] had
done reflected

adversely on \[him\]. (Adams Exh. 58.) Mr. Wadlow modified that
conclusion by his testimony that the "conclusion \[in the letter\],
other than the reference to the ALJ, is accurate." (Tr. 1822.) But the
letter was never intended as advice on Commission disclosure thereby
making it less relevant.

144. The Wadlow letter also stated that the law firm was "aware of no
     question that has ever been raised as to \[Parker's\]
     qualifications" to serve as a principal of Commission licensees.
     That legal opinion was based in part on the action of the Review
     Board to approve SBBLP for settlement whose application was denied
     but not dismissed. (Tr. 1823.) It is true that there has not been
     an adjudication by an Initial Decision, the Review Board or the
     Commission that Mr. Parker was "disqualified" to hold a
     license.[^23] That is an important distinction because while there
     were decisions on the merits that Parker had been involved in
     disqualifying conduct, there was never any ruling that he was
     "disqualified." Mr. Parker was justified in relying on the legal

advice as stated in the letter that he has not been "disqualified".
However, that letter provides no comfort with respect to answering "no"
to Question 4 or in failing to fully disclose the findings of "fraud."

**Norwell Disclosure**

145. The transfer application for the station in Norwell was filed by
     Mr. Kravetz for the transferor, Nikita Maggos. (Adams Exh. 51.)
     (Tr. 2344.) TIBS, the transferee, was a controlled by Mr. Parker
     who personally executed the transferee section. (Adams Exh. 51 at
     14, 16-18.) Mr. Parker answered Questions 7(a) and (b) in the
     affirmative as to whether any party to the application had any
     interest in or connection with any application which had been
     denied or dismissed with prejudice. (Adams Exh. 51 at 11, 16-18.)
     In an exhibit, Mr. Parker described his interests in Mt. Baker and
     his participation in San Bernardino.

146. Mr. Kravetz was not connected with the Parker/TIBS disclosure in
     the Norwell application. He received the transferee's disclosure
     from Mr. Parker. (Tr. 2346 --47.)

Mr. Kravetz did not review the disclosure or discuss it with Mr. Parker.
(Tr. 2348.) The question asking about "fraud" was answered "no" by Mr.
Parker and not by Mr. Kravetz. Parker also answered "no" to the question
asking if there were unresolved character issues.

Mr. Parker believed that his San Bernardino disclosure was sufficient
given that he had no ownership interest, he did not directly benefit
financially from the settlement, and the crux of

the offending conduct was a failure to disclose the scope of Parker's
association with the

SBBLP application. And Parker was also relying on advice from Sidley &
Austin that his "qualifications" to hold a Commission license were in
order. There is a substantial question as to Mr. Parker's reasoning for
making inadequate disclosure which is being addressed in this
proceeding. But under the limited circumstances of his retainer, Mr.
Kravetz was not responsible for Mr. Parker's disclosures. Therefore,
there is no issue concerning advice of Mr. Kravetz as a defense.

**Dallas Disclosure**

147. Disclosure also was made at a later date in an exhibit with which

Mr. Kravetz had more of a hands on connection. (Adams Exh. 55.) Mr.
Kravetz recalls that in October 1992, he was contacted on a question
about the application by Mr. Parker or by a member of the Commission
staff. (Tr. 2354.) The application had been filed on August 3, 1992.
(Adams Exh. 54.) But Mr. Kravetz was not associated with that document.
(Tr. 2354.) A question was posed by Commission attorneys who were
processing the application. The question concerned the adequacy of
disclosure in the application. Mr. Kravetz testified:

> And I talked to Andrea Ellis, who was the FCC staff person at the time
> who was reviewing the \[Dallas\] application to find out what the
> defect was. She advised me that there was nothing explicit in
>
> the application that talked about whether \[the\] character issue had
> been added or raised with regard to the other applications with which
> the applicant was connected -- the applicant and its principal were
> connected.

(Tr. 2355.)

148. Mr. Kravetz spoke with Mr. Parker, advised him of the staff's
     concerns and of the need to "cure the defect", and "asked him if he
     \[Parker\] could provide a statement."

(Tr. 2355-56.) Mr. Parker complied and Mr. Kravetz prepared an amendment
in which he inserted "the additional information" that Mr. Parker
provided. ([Id]{.underline}.) Mr. Kravetz sent the document to Mr.
Parker for his review and signature. ([Id]{.underline}.) Mr. Kravetz
undertook no independent research into the cases because that is not
what he had been retained to do in preparing an amendment. (Tr. 2357.)
Mr. Kravetz testified that if Mr. Parker had told him

(Mr. Kravetz) that he (Mr. Parker) had been found to be a real party in
interest in the San Bernardino proceeding, Mr. Kravetz would have
insisted on disclosing the case and the fact of the added issue and the
relevant case history. (Tr. 2374-75.)

149. The evidence shows that Mr. Parker handled all disclosure himself,
     without benefit of counsel. Mr. Kravetz drafted and filed a Dallas
     amendment based on information provided by Mr. Parker. Mr. Parker
     has offered his own reasons as to why he thought that the
     additional details about the San Bernardino proceeding were
     unnecessary. But the reasons given by Mr. Parker, which are his
     alone and not attributable to Mr. Kravetz, are self-contradictory
     and rejected. First, he testified that he did not consider the San
     Bernardino proceeding to have been included in the universe of
     applications covered by the Dallas amendment. (Tr. 1986-88.)
     Second, he asserted that he thought that the San Bernardino
     proceeding had been resolved on a comparative basis only without
     any finding of a disqualification. (Tr. 2027-28, 2064-67, 2070.)
     Third, he stated that he believed that the real party-in-interest
     issue had been favorably resolved in an approved settlement. (RBI
     Exh. 46 at 4; Tr. 2070.) But such reasoning as discussed and
     analyzed above, has no connection at all with Mr. Kravetz's limited
     legal services that were of a technical filing nature not involving
     research or counseling.

**Mr. Parker Was Capable Of More Meaningful Disclosure**

150. In stark contrast to the wobbly explanations as to why the obvious
     Commission holdings were not disclosed in Parker's applications,
     Mr. Parker later found it to be in his interest to be more complete
     in representing operative facts of the adverse findings. Far more
     informative facts were contained in Mr. Parker's letter sent in
     1998, to Ms. Ann Gaulke, Vice President for Affiliate Relations,
     Telemundo Network, Inc. (Bureau Exh. 1 at 9-10.) Mr. Parker wrote
     to Ms. Gaulke that the San Bernardino proceeding found that he was
     an undisclosed real party in interest and that as a result an
     applicant was found disqualified. He also made reference to
     conclusions reached in the Initial Decision. He advised Ms. Gaulke
     that in the Mt. Baker proceeding, the Commission held that
     construction of a facility without disclosing it to the Commission
     "evinced an intention on the part of the permittee to deceive the
     Commission." ([Id.]{.underline}) However, Mr. Parker represented to
     Ms. Gaulke that she need not be concerned because in

subsequent transfer applications, the Commission "passed on" his
qualifications and the Commission never raised "any alleged defects in
character on \[Parker's\] part." ([Id]{.underline}. at 10-11.) The
Gaulke letter was written by another or others but Mr. Parker read it
and signed it. (Tr. 2629, 2679.) The Gaulke letter presents a marked
improvement over Mr. Parker's earlier disclosures to the Commission.

151. In an effort to "educate" the proceeding on what was intended to be
     conveyed in the Gaulke letter, Mr. Parker testified that the fact
     of the San Bernardino settlement was not "significant in terms of
     this letter" though it was "significant in terms of the overall
     look at the case." (Tr. 2683.) Ms. Gaulke had requested a "due
     diligence letter" on "my problems vis-à-vis relicensure at the
     FCC." (Tr. 2663.) Mr. Parker considered himself to be "under an
     obligation to provide full disclosure of all information of
     potential consequence" relating to that question.
     ([Id]{.underline}.) The Gaulke letter had legal implications which
     could have severe financial consequences if the information
     provided by Parker was misleadingly incomplete. Mr. Parker
     testified more than once that it was important that the letter
     disclose " all the bad things that can go wrong."

(Tr. 2622, 2629-30.) By contrast, in disclosures to the Commission for
license transfers in

San Francisco, Los Angeles, Twenty Nine Palms, Norwell, Dallas and
Reading, there was not the same concern. He believed that the far lesser
disclosures in the transfer applications were adequate because the
limited disclosures would be linked with a presumed "personal knowledge"
of the details on the part of the staff. (Tr. 2664.)

Phase III

Abuse of Process

152. A substantial question was raised on whether Adams filed its
     application for the purpose of obtaining a settlement which would
     be an abuse of the Commission's process. The burden of proof and
     the burden of proceeding were assigned to RBI. The Bureau
     participated in the examination of witnesses.

153. Adams denies that it filed its application for the purpose of
     entering into any kind of settlement or other arrangement pursuant
     to which Adams would dismiss its application. (Tr. 2430.)
     Unrebutted testimony shows that Adams filed its application for the
     purpose of obtaining a construction permit and that it intends to
     build a station in Reading, PA. (Tr. 2429-30, 2465.) Adams
     principals testified without contradiction that the group was
     primarily interested in operating a new station and developing a
     community service for Reading.

(Tr. 2430.)

154. All but one of Adams\' principals also were principals of Monroe
     Communications Corporation (\"Monroe\"), a comparative renewal
     challenger in 1982 for a television station in Chicago. (Tr.
     2429-2430.) After a decade of litigation, including appeals to a
     court of

appeals,[^24] the proceeding settled with Monroe dismissing its
application in return for a buy out

of approximately \$18 million. (RBI Exh. 19.) The Commission approved
the settlement and acknowledged that Monroe had not filed its
application for the purpose of entering into a settlement. (RBI Exh. 22
at 3.)

155. The rules for settlement of comparative renewal proceedings were
     amended in 1989, seven years after the filing of the Monroe
     application and five years before the filing of the Adams
     application. [Formulation of Policies and Rules Relating to
     Broadcast Renewal Applicants, Competing Applicants, and Other
     Participants to the Comparative Renewal Process and to the
     Prevention of Abuses of the Renewal Process]{.underline}*,* 4
     F.C.C. Rcd 4780, 66 R.R.2d 708 (1989), *recon. denied, 5* F.C.C.
     Rcd 3902, 67 R.R.2d 1515 (1990). The rulemaking was an outgrowth of
     an in-depth analysis and criticism of the prevalence of abuses of
     process found to exist in the comparative renewal process.
     [Cf]{.underline}. [Second Further Notice of Inquiry and Notice of
     Proposed Rule Making]{.underline}, 3 F.C.C. Rcd 5179 (1988). The
     Commission revised rules so that no for-profit dismissal of a
     comparative renewal challenger would be permitted. The prohibition
     rule against abuse of process was in play when Adams filed in 1994.

156. Mr. Gilbert was a principal of both Monroe and Adams. He was the
     primary witness for Adams, having a close working relationship with
     Adams' communications counsel dating back to the Monroe venture. A
     practicing lawyer, Mr. Gilbert was aware of the settlement
     limitations that took effect in 1991. When he received and read Mr.
     Cole's memorandum dated August 15, 1991, he was made aware of this
     new policy to limit settlements of comparative renewal proceedings
     to out-of-pocket expenses. (Adams Exh. 62.) Mr. Gilbert continued
     to be aware in 1994, when Adams\'s application was prepared and
     filed, that no for-profit settlement would be permitted under the
     Commission\'s rules, and he so advised all of the Adams
     shareholders when they invested. (Tr. 2429-2430, 2466, 2467.) The
     Adams principals went forward because there was still potential
     benefits for challengers. As experienced risk-takers, the Adams
     group could, through the successful prosecution of a \"comparative
     renewal\" application, acquire a valuable television broadcast
     opportunity for considerably less than the fair market value. (Tr.
     2430, 2467.) The potential for gain was attractive to the Adams
     principals who been financially successful in a similar venture,
     but who were yet to own a station. (Tr. 2429, 2467; Adams Exh. 1.)

157. Adams also held a belief that the renewal process presented an
     opportunity to replace \"home shopping\" programming which, in
     Adams view, was not providing locally-originated programming that
     served any local public interest. (Tr. 2457-2458, 2467-2468.)
     However, the Adams group had no connection at all with the Reading
     community and it cannot be accepted that they picked RBI from a
     list of renewals out of concern at the time of target selection for
     the interests of local viewers of Channel 51. The prime motivation
     was a business opportunity that incidentally could also target
     "home shopping." Adams had an awareness of the criticisms of \"home
     shopping\" programming from source materials that Adams' counsel

provided which presented adverse views from knowledgeable sources. (Tr.
2468-2471; Adams Exhs. 63, 64, 65, 67.) Adams formed a belief that
\"home shopping\" stations generally do not accommodate
locally-originated programming dealing with local community issues. (Tr.
2468.)

Mr. Gilbert also believed that a station which provided no
locally-originated programming would be vulnerable to a renewal
challenge because of the difficulty in achieving a renewal expectancy.
(Tr. 2457 2468.) Adams' counsel apparently shared Mr. Gilbert's view of
that vulnerability.

158. After discovering that "home shopping" was a target of opportunity,
     Adams and counsel formulated their strategy to file against a
     vulnerable applicant wherever located.

(Tr. 2471, 2473; Adams Exh. 66). The first opportunity that met Adams'
schedule and that "was available \" was a station in Marlborough,
Massachusetts. (Tr. 2474.) Adams reviewed two-weeks of taped programming
while retaining a real-estate firm to locate an antenna site.

(Tr. 2474.) Mr. Gilbert also interviewed residents of the Marlborough
service area. Adams concluded that it had a suitable candidate to
challenge. However, Adams did not file for the Marlborough channel
because Adams could not locate a suitable transmitter site. (Tr.
2475-2476.)

159. So Adams decided to remobilize and strike against a \"home
     shopping\" target found in Reading, PA. (Tr. 2476.) Adams retained
     an engineering firm to prepare the technical portion of an
     application. Adams\' consultant focused on planning for "news
     gathering equipment" with a goal of providing "local service to the
     community." (Tr. 2390-2393; Adams Exhs. 73, 74.) That commitment to
     local service influenced budget figures which the consultant
     provided to Mr. Gilbert. (Tr. 2392-2393; Adams Exhs. 73, 74.) Prior
     to filing its application, Adams made no effort to purchase
     WTVE(TV) outright or to even determine the potential cost of
     purchase. (Tr. 2541.) In fact, neither Adams nor Monroe ever sought
     to purchase any television station, anywhere. (Tr. 2542.) Adams\'
     stated reason for not attempting to purchase a station is

that doing so would not achieve Adams' goal of a Commission precedent
negating public interest "home shopping." (Tr. 1118.) Adams had already
decided that a challenge presented the highest and best economic
opportunity.

On-Site Survey

160. Between February and June 1994, Mr. Gilbert made several trips to
     Reading. (Tr. 2475-2476, 2478, 2538.) At no time during any of
     these trips did Mr. Gilbert watch WTVE's Channel 51. (Tr. 1064,
     1065.) During those trips, Mr. Gilbert informally interviewed 30 to
     40 people. (Tr. 2476-2477, 2538.) The interviews were conducted at
     business establishments and not in homes. (Tr. 2538.) Mr. Gilbert
     did not ask for the names of the people he interviewed, and he made
     no written record of the interviews. (Tr. 2538-2539.) Mr. Gilbert
     stated that none of the people he interviewed were aware of Station
     WTVE(TV). (Tr. 2539) In view of the uncontrolled, haphazard
     methodology employed by Adams, this evidence of investigating the
     needs of the community is accorded little weight. But the evidence
     is consistent with Adams' strategy and was not rebutted.

Flawed Program Taping

161. In May 1994, approximately one month before filing, Mr. Gilbert
     hired Mr. Paul Sherwood to tape RBI's \"home shopping channel.\"
     (Tr. 2483-2484 and Tr. 2139, 2154-2156.) Mr. Gilbert was referred
     to Mr. Sherwood by Mr. Gilbert\'s daughter who worked with

Mr. Sherwood\'s brother in Chicago. (Tr. 2484, Tr. 2138.) Mr. Sherwood
is not a professional media consultant. He is a computer systems
consultant. (Tr. 2137, 2149.) Mr. Sherwood has no expertise in analyzing
or in evaluating the content of television programming. (Tr. 2149-2150.)
Nor does he have any expertise in analyzing or in evaluating the public
service performance of television stations. (Tr. 2150.)

162. For the duration of the Adams taping job, Mr. Sherwood lived in
     Chester Springs, Pennsylvania, approximately 30 miles from Reading.
     Chester Springs was serviced by Suburban Cablevision. (Tr.
     2147-2148.) Suburban Cablevision did not carry Station WTVE(TV).
     (Adams Exh. 11.) But it did carry the "home shopping" national
     program. (Tr. 2148.)

Mr. Gilbert\'s initial instructions to Mr. Sherwood were to tape the
\"home shopping channel.\" (Tr. 2139, 2140) To the best of Mr.
Sherwood\'s recollection, Mr. Gilbert never even mentioned Station WTVE
or Channel 51. (Tr. 2139-2140.) Mr. Gilbert never told Mr. Sherwood the
purpose for the taping. (Tr. 2144, 2145-2146.)

163. Per instructions from Mr. Gilbert, on June 1, 1994, Mr. Sherwood
     began recording an initial twenty four hours of the \"home shopping
     channel.\" (Tr. 2148, 2485-2486.) That recording was not of WTVE
     programming but of the \"Home Shopping Club,\" a cable channel
     carrying the national "broadcast feed". (RBI Exhs. 24, 47 at 1-2;
     Tr. 2477-2478, 2488-2489.) The recording contains not a single
     station identification for Channel 51 in Reading; it only contains
     identifications for the \"Home Shopping Club.\" (RBI Exh. 47 at 12)
     The recording also shows a depiction of the "Home Shopping Club"
     logo and repeats the words \"Home Shopping Club\" with the
     voiceover announcement:

> You\'re watching America\'s original shop at home television service,
> bringing you 24 hours of savings, fun and excitement every day. Live
> from Tampa Bay, Florida, it is the Home Shopping Club.

(RBI Exh. 47 at 2.) The recording also contains hourly promotional
announcements for upcoming segments of the "Home Shopping Club." (RBI
Exh. 47 at 2.) The misguided project had taped Tampa Bay programming and
was clearly started off the mark.

164. Mr. Gilbert reviewed the recording of June 1, 1994. (Tr. 2487.)
     Based on his review and despite the evident fact that the Tampa Bay
     recording was not programming of Station WTVE(TV), Mr. Gilbert
     instructed Mr. Sherwood to continue to record the programming,
     twenty-four hours per day, each day for the period June 13 to June
     30, 1994. (Tr. 2477, 2478, 2489-2490.) (RBI Exh. 47 at 1.) Mr.
     Sherwood dutifully recorded the \"Home Shopping Channel\" from June
     13 through June 30, 1994. (Tr. 2148.) Mr. Gilbert received a second
     batch of recordings (June 22 through June 30) from Mr. Sherwood
     which was after Adams had filed its application. (Tr. 2493; Adams
     Exh. 77.) The June 22-June 30 recordings

also were not of Station WTVE(TV). (RBI Exh. 47 at 1-2.) The June
22-June 30 recordings virtually mirrored the content of the June 1 tape
and the June 13-June 21 recordings. (RBI Exh. 47 at 2.)

165. The only PSAs reflected in any of the recordings were those
     produced for national consumption by the Missing Children Help
     Center located in Tampa Bay, Florida. (RBI Exh. 47 at 3.) Of the
     missing children highlighted in those PSAs, only four are
     identified as missing from or last seen in Pennsylvania. Of those
     four, only one is identified as missing from or last seen in

the Philadelphia-Wilmington-Atlantic City area. None of the missing
children were from or last seen in Reading. (RBI Exh. 47 at 3-4.) This
best illustrates Adams' problem. There was no difference in the "home
shopping" format that emanated from Tampa Bay. What Adams missed was
WTVE(TV)'s noncommercial broadcasting and how and when it was presented
to the community in between the predominant "home shopping" broadcasts.

166. It was five years later that Mr. Gilbert discovered the taping
     error. (Tr. 2499.) It is concluded that Mr. Gilbert believed that
     he had given adequate instructions on the tapings because there is
     no rational motive for Mr. Gilbert to deliberately skewer Mr.
     Sherwood's efforts or to intentionally send him down the wrong
     warren. (Tr. 2484-85; 2554-55.) The evidence of this faulty survey
     shows the value of careful prior planning. But it does not support
     a finding of an intent to deceive or an abuse of process.

Proposed Transmitter Site

167. On June 29, 1994, Adams offered to obtain an option for the
     prospective use of a transmitter owned by Conestoga Telephone &
     Telegraph Company ("Conestoga"). (Adams Exh. 68; Tr. 2480.) Adams
     wanted to lease space to affix a UHF antenna to Conestoga's
     existing tower, and to occupy 500-600 square feet of an existing
     equipment building at the site. Conestoga subsequently advised
     Adams that any lease concerning the use of the Conestoga tower
     would be contingent on the ability to obtain proper zoning permits
     to construct an additional building or expand the existing
     structure. (Adams Exh. 68; RBI Exh. 74.)

168. More than two years after the letter of intent, Adams and Conestoga
     had not reached an agreement regarding Adams' use of the proposed
     transmitter site. (RBI Exh. 74.) By letter dated August 8, 1996,
     Conestoga advised Adams: "At this point, we have no agreement
     whatsoever regarding this site." (RBI Exh. 74, Tr. 2531.) Gilbert,
     responded: "I am totally aware of the obligations stated in your
     letter of August 8, 1996.... Please forward me an executed copy of
     the Restated Option Agreement and License/Lease Agreement with the
     appropriate check and we can finally be on our way after all the
     many, many years." (RBI Exh. 75; Tr. 2532-2533.)

169. The Conestoga Option Agreement was not executed until
     December 1996. (Adams Exh. 71.) The Option Agreement was for a
     period of three years to begin with delivery of the executed
     agreement and payment to Conestoga. (Adams Exh. 69.) Adams
     delivered the executed Option Agreement and payment on December
     20, 1996. (Adams Exh. 71.) The Option

Agreement was neither renewed nor extended during its term and, on or
about December 20, 1999, it expired. (Tr. 2535; RBI Exh. 76; Adams Exh.
69 at 2; Adams Exh. 71 at 1 and 3.) On May 17, 2000, shortly before the
Phase III hearing in this case, Adams sought to renew its option for the
prospective use of the Conestoga tower. (Tr. 2535; RBI Exh. 76.) There
is no evidence of an absolute rejection by Conestoga. It is concluded
from this record that Adams continues to make reasonable efforts to
perfect its transmitter site and has a reasonable chance of success.

Adams' Dealings With Telemundo

170. Ms. Anne Swanson is a partner of the law firm of Dow Lohnes &
     Albertson in Washington, D.C. specializing in communications law.
     On behalf of Telemundo, a Spanish-language network, Ms. Swanson
     spoke with Mr. Cole on April 30, 1999, about the possibility of
     settling this proceeding. This conclusion was confirmed by the law
     firm's cooperative discovery and by her straightforward testimony
     assisted by contemporaneous notes.[^25] (Tr. 2215-2217, 2219-2222,
     2301-2302.) (RBI Exh. 52 at 4-5.) During an initial conversation,
     Ms. Swanson initiated a query about Adams' level of interest in
     settlement, and specifically at what amount of money its interest
     might ripen into acceptance. Later that day, Ms. Swanson again
     spoke with Mr. Cole. He advised her that while Mr. Gilbert planned
     to pursue the application, Mr. Gilbert would not say "no" to a
     settlement. (Tr. 2219-2221; RBI Exh. 52 at 4-5.)

171. Mr. Gilbert was Adams' designated negotiator. (Tr. 2215-17,
     2219-24.) So on the same day, April 30, 1999, Ms. Swanson
     telephoned Mr. Gilbert. (Tr. 2219-2220, 2222-2224, 2302.) (RBI Exh.
     51 at 2.) Ms. Swanson asked Mr. Gilbert for a settlement figure and

Mr. Gilbert responded that he could not give her a figure because Adams
had not valued the station. (Tr. 2225-2226; RBI Exh. 52 at 5.) Mr.
Gilbert committed Adams to pay one-third of the expenses for obtaining
an appraisal. (Tr. 2223-2224, 2230-2231; RBI Exh. 52 at 5; RBI Exh. 57.)
According to Ms. Swanson's contemporaneous, reliable and credible notes,
Mr. Gilbert had indicated at that time that Adams would be reasonable
with respect to a possible settlement. (RBI Exh. 52 at 5.)

172. On June 2, 1999, Ms. Swanson received the appraisal. The next day,
     she

faxed the appraisal to Mr. Cole along with a letter reconfirming that
Adams had agreed to pay for a third of the cost. (RBI Exh. 62 and Adams
Exh. 75.) On June 7, 1999, Mr. Gilbert, Mr. Cole, Ms. Swanson and
possibly Ms. Gaulke, a Telemundo vice president, participated in a
telephone conference to discuss the appraisal and hoped for settlement.
(Tr. 2268-2274.) (RBI Exh. 52 at 10-11.) The noninvolvement of RBI and
Parker in the appraisal and negotiations was a concern since the
participation of all three parties, the two applicants and the "white
knight," would be

needed to close any settlement. (Tr. 2270-72.) Mr. Gilbert did not want
his time wasted and reported that Adams was only interested in pursuing
serious settlement negotiations. From this evidence it is found that Mr.
Gilbert was prepared to negotiate a serious settlement in June 1999.
(Tr. 2273.) (RBI Exh. 52 at 11.) But the evidence does not show Mr.
Gilbert as initiator of the discussions.

173. On a subject aside from settlement, Mr. Gilbert contacted Ms.
     Swanson on

July 14 to express Adams' interest in a Telemundo affiliation. (Tr.
2277-2278; RBI Exh. 52 at 12.) The next day, Mr. Gilbert and Ms. Swanson
discussed the possibility of Telemundo providing Adams with Spanish
language programming in the event that Adams' application was
successful. (Tr. 2281-82; RBI Exh. 52 at 14.) On July 16, 1999, Ms.
Swanson spoke with

Mr. Cole and with Ms. Gaulke about Adams' interest in affiliation and
settlement. (RBI Exh. 50 at 10.) The question of a future
Adams-Telemundo affiliation was deferred since RBI was then a Telemundo
affiliate. (Tr. 2286; RBI Exh. 54 at 4.) On July 29, 1999, Ms. Swanson
spent more time in considering the affiliation question which was
eventually deferred. (Tr. 2285-86.)

Common Counsel For Monroe And Adams

174. There is another circumstantial question raised by the retainer
     arrangement between Adams and its counsel. Adams is represented in
     this proceeding by Bechtel & Cole, the same law firm that
     represented Monroe which succeeded in winning a money settlement.

(Tr. 1018, 1042.) Adams' fee agreement with Bechtel & Cole provides that
the firm is to be paid at a rate that is \$100 per hour less than their
usual hourly rates with respect to the prosecution of Adams' application
(\$125/hour versus \$225/hour). (RBI Exh. 21.) (Tr. 1019.) The fee
agreement also provides that Bechtel & Cole be paid twice their usual
hourly rate (\$450/ hour) in the event that Adams' application is
granted or if the application is dismissed on terms that are
"economically favorable," including a settlement for only reasonable and
prudent expenses. (RBI Exh. 21.) The fee agreement that was signed on
June 30, 1999, memorializes the substance of an oral agreement that was
reached in 1993. (Tr. 1019-20.) Mr. Gilbert contends that there was no
fee agreement until the written version was signed. Recall that Monroe
had paid Bechtel & Cole "a substantial bonus" for its work. (Tr.
1014-15.) It is found that when the Adams application was filed in 1994,
there was no question in anyone's mind that Bechtel & Cole would be
satisfactorily compensated with or without a formal fee agreement. The
Monroe past was the Adams prologue as far as legal fees were concerned.
There is no feature of the fee agreement that is inconsistent with the
testimony of Mr. Gilbert that the Adams application was filed to win the
license.

Failure To Keep Current A Corporate Certificate

175. In the course of the hearing, it was determined that Adams had
     inadvertently permitted its corporate certificate to expire. Adams
     was incorporated in Massachusetts on November 23, 1993, before it
     filed its application in this proceeding. (RBI Exh. 71.) However,
     on August 31, 1998, Adams was involuntarily dissolved for failing
     to file state annual reports. (RBI Exh. 72.) The evidence shows
     that Mr. Gilbert and Adams' counsel were unaware of the

lapse until it was brought up in the hearing by RBI's counsel. Adams
took immediate steps to correct the error and Adams is now current with
respect to its incorporation. [Order]{.underline} FCC 00M-50, released
July 25, 2000 (revival certificate).

Credibility Findings

176. RBI sought misrepresentation/lack of candor issues against Adams
     after the conclusion of Phase III. The issues were denied.
     [Memorandum Opinion and Order]{.underline}

FCC 00M-56, released October 18, 2000. However, questions of Adams'
candor which arose in the hearing of this case will be addressed here.
The five subjects on which Reading challenges Adams' truthfulness are
examined below and RBI's arguments are considered anew.

**Application**

177. There seemed to be a switch in testimony from Adams' asserting that
     its application was an opportunity to establish that it is
     impossible to broadcast in the public's interest through a "home
     shopping" format. That was the thrust of Mr. Gilbert's testimony in
     Phase I when he testified to the background of the Adams
     application.[^26] Also, in the course of his testimony, Mr. Gilbert
     disclosed that Adams was discussing settlement possibilities
     beginning shortly before this case was set for hearing. That
     testimony raised questions of settlement intent, particularly when
     considered with the fact that the same principals, as members of
     the Monroe enterprise, had settled for cash. After hearing this
     testimony, RBI's motion to

enlarge was granted in part and an abuse of process issue was added
because substantial questions of fact had been raised. [Memorandum
Opinion and Order]{.underline} FCC 00M-07, [supra]{.underline} and
[Memorandum Opinion and Order]{.underline} FCC 00M-19,
[supra]{.underline}.

178. It is important to note the negative fact that at no time in the
     deposition discovery phase was an Adams principal asked the
     question directly as to why Adams had filed or what was Adams'
     motive for filing. When Adams put on its case countering
     allegations of abuse of the hearing process, Mr. Gilbert testified
     that the prime motive for organizing Adams after a multi-million
     dollar settlement was for a business reason, i.e., that a challenge
     could result in acquiring a permit to construct a TV station at
     costs below the market value of the station. At the same time, Mr.
     Gilbert could achieve what he saw as an improvement in Channel 51's
     programming. (Tr. 2467-69.) Consistent with that testimony, in
     November 1999, in an attachment to an opposition to a motion, Mr.
     Gilbert declared that the Adams group intended to successfully
     prosecute its application and had no intention of settling. Mr.
     Gilbert's testimony was credible.

179. RBI seeks an adverse intent inferred from the fact that Adams did
     not pursue the option of purchasing a station that was broadcasting
     a home shopping format. Such a purchase would have permitted Adams
     to replace home shopping with its own programming. However, under
     Adams' cost benefit analysis, it would expend lower costs in a
     litigated challenge than in an open market purchase. RBI counters
     that Adams could have searched for a station that was available at
     a "bargain price" since Adams was not concerned about location. But
     Adams had no duty to bargain hunt rather than file a challenge. The
     controlling question is not to measure business options that were
     available to Adams in 1994.[^27] It is to determine the primary
     motive underlying Adams' application.

**Telemundo Discussions**

180. The evidence shows that on April 30, 1999, the month before the
     [HDO]{.underline} was released, Anne Swanson, counsel for
     Telemundo, spoke with Harry Cole, counsel for Adams, with respect
     to possible settlement. (Tr. 2215-17; RBI Exh. 52.) Ms. Swanson
     asked Mr. Cole how interested Adams might be in settling. Ms.
     Swanson heard that Mr. Gilbert would not say "no" to a settlement,
     thus encouraging further discussion. Ms. Swanson spoke directly
     with Mr. Gilbert and asked him to name a settlement price. Towards
     that end, both agreed to share the cost of an appraisal and Mr.
     Gilbert assured Ms. Swanson that he would remain reasonable as

to agreeing on a settlement amount. (Tr. 2223-24; RBI Exh. 52 at
5.)[^28] Then the discussion between Telemundo and Adams went no
further.

181. RBI also seeks a finding of a lack of candor in Adams failing to
     fully explain in Phase I testimony the degree of interest that
     Adams had in Hispanic programming. The record evidence indicates
     that Adams would have liked to have a commitment from Telemundo
     that it would provide Hispanic programming. But Telemundo was then
     under contract to RBI and its counsel was concerned about a lawsuit
     if it pursued an opportunity with Adams. Mr. Gilbert should have
     been more forthright in answering deposition questions that skirted
     the issue of Adams having expressed an interest in obtaining the
     right to Telemundo programming. But Telemundo had cut off any such
     discussion in 1999, and the subject never became a matter of

negotiation. Such a "Q and A" in a deposition where the question of
motive for filing was not asked directly will not support a
disqualification and such evidence does not prove a lack of candor.

182. None of this evidence proves an intention on the part of Adams to
     settle when it filed in 1994. The motivation for the Swanson
     initiated discussions were consistent with pursuing Telemundo's
     interest in the Spring of 1999, by preserving an affiliation. Such
     efforts were initiated by Telemundo when Ms. Swanson saw RBI
     exposed to a serious renewal challenge. These conclusions show
     nothing untoward about settlement.

**Sherwood Tapings**

183. Mr. Gilbert testified with adequate candor to Mr. Sherwood's
     episodic taping. The "home shopping" format that was broadcast by
     Station WTVE(TV) was to be assessed for public service value by
     Adams. Mr. Gilbert was in charge of the taping project and
     programming evaluation. In June 1994, Mr. Sherwood taped what he
     and Mr. Gilbert believed to be programming that was being broadcast
     from Station WTVE(TV). (Adams Exhs. 76-77.)

Mr. Gilbert reviewed the tapes, at times utilizing a fast forward
feature. His testimony at deposition and in the hearing may have been
lacking in clarity. But nothing of decisional significance was raised by
RBI showing that Mr. Gilbert had intentionally misled. It happened that
Mr. Sherwood, who was not experienced in taping television programming,
accidentally taped national home shopping programming and the error was
not caught. His review was in two stages that were prescribed by Mr.
Gilbert. By happenstance, the first day of taping contained PSAs from
Pennsylvania which, after review by Mr. Gilbert, led him to believe that
taping was being made of WTVE(TV) programming. After a review of the
test run, Mr. Gilbert perceived that it would be clear sailing and Mr.
Sherwood was then virtually on his own as he taped for two additional
weeks. Mr. Gilbert did monitor from afar by telephone but there was no
hands-on supervision.

184. All taping was done in June 1994, shortly before Adams filed. The
     purpose of the taping and review was to document Mr. Gilbert's
     long-held negative views on "home shopping" formats which he had
     reached before the Sherwood tapings. So the short time between
     taping and filing has no decisional significance. More importantly,
     there was no misleading testimony in Mr. Gilbert's sometimes shaky
     account of what should have been an easy chore. There was no
     intentional misleading of the parties or of the Presiding Judge.
     The substance of the taping was sufficient for Adams to formulate
     or confirm a judgment on Station WTVE(TV)'s "home shopping"
     programming. It is concluded that there was in excess of two weeks
     of relevant programming taped which Mr. Gilbert reasonably
     monitored and reviewed. The net effect of the taping project was a
     good faith assessment by Adams of the programming of Station
     WTVE(TV) which was used by Adams to base a decision to file a
     challenging application.

**Hispanic Programming**

185. RBI requested adverse findings for allegedly misleading testimony
     on planned programming. The Adams principals gained appreciation
     for the benefit of Hispanic programming in the Monroe proceeding.
     Before filing in 1994, the Adams principals had formed a general
     intent to seek to offer Hispanic broadcasting if an affiliation
     could be arranged with a Hispanic network. RBI argues that there
     were conflicting accounts given by the Adams' principals. Mr. Umans
     testified that Hispanic programming had been decided upon from the
     outset, while Mr. Haag had no recollection, and the application
     makes no reference to programming. Mr. Fickinger testified that
     there never was a plan. But Mr. Fickinger also testified that it
     was always understood that at the appropriate time, there would be
     an effort made to offer Hispanic broadcasting. The Adams principals
     operated in a loose fashion in light of their past success over a
     period of many years and in view of the length of time that it
     takes to prosecute a challenging application. Evidently, the group
     saw no need for an internalized structure in view of the experience
     of having once endured a lengthy renewal hearing. The exploratory
     efforts of Mr. Gilbert with Ms. Swanson to discuss a relationship
     with Telemundo supports Adams contention that it was interested in
     providing a Hispanic programming format for Reading.

**Corporate Status**

186. There is no reason to spend any more time on the significance of a
     short lapse in Adams' certificate of incorporation which Adams took
     steps to correct as soon as was reasonably possible after its
     discovery. [Order]{.underline} FCC 00M-50, [supra]{.underline}.
     [Compare]{.underline} [Memorandum Opinion and Order]{.underline},
     FCC 00M-56, released October 18, 2000.

CONCLUSIONS OF LAW

#### I

#### Comparative Renewal Hearing Standards

187. Integration of ownership into management was declared to be
     unlawful by a federal appeals court. [Bechtel v.
     F.C.C]{.underline}., 10 F. 3^rd^ 875 (D.C. Cir. 1993) (criterion of
     integration declared arbitrary and capricious) ("[Bechtel
     II]{.underline}"). After [Bechtel II]{.underline}, the Commission
     addressed the comparative standards to be applied in the few
     remaining comparative cases. [Reexamination of the Policy Statement
     on Comparative Broadcast Hearings, First Report and
     Order]{.underline}, 13 F.C.C. Rcd 15920, 16004-16006 (1998)
     ("[First Report and Order]{.underline}"). The Commission determined
     that its approach would be "simply to permit the renewal applicants
     and their challengers, within the confines of the generally phrased
     standard comparative issue, to present the factors and evidence
     they believe most appropriate." [Id]{.underline}. at 16006. The
     parties in this case were put on early notice of the application of
     the newly adopted standard. [Memorandum Opinion and
     Order]{.underline}, FCC 99M-47, released August 9, 1999.

188. The court left it to the Commission to adopt standards that might
     include the existing "enhancements" of local residence, civic
     involvement, and broadcast experience. The Commission did not
     reject these "enhancements." Each enhancement could be considered
     as an individual objective comparative factor. However, with only a
     few comparative cases that could be litigated, the Commission
     decided not to adopt any new criteria. The Commission continues to
     recognize, however, that in a hearing in which a renewal applicant
     carries the burden of proof in showing "substantial performance", a
     high level of performance will be the most important factor and
     will trump other comparative considerations. [First Report and
     Order]{.underline}, [supra]{.underline} at 16005-16006.

**Renewal Expectancy Requires Substantial Performance**

189. RBI has the burden to show that it is entitled to a preference as a
     renewing licensed broadcaster. 47 U.S.C.A. §309(e). RBI's showing
     must be based on non-commercial programming that was broadcast on
     Channel 51 during the renewal period. If RBI's service is shown to
     be only "minimal", RBI receives no preference. [Central Florida
     Enterprises, Inc. v. F.C.C]{.underline}., 683 F2d 503, 506 (D.C.
     Cir. 1982). The "public interest" supercedes self interests of the
     incumbent and the challenger:

> The merit or lack of merit in the incumbent's record -- and the degree
> of renewal expectancy to which he is thereby entitled -- and all the
> other factors are all to be weighed, all at once, all with an eye
> toward the public interest.

[Id]{.underline}. at 506 -- 507 n.16.

190. The Commission awards a renewal expectancy only to those renewal
     applicants who demonstrate a performance during the renewal period
     that was "substantial." [See]{.underline} [Cowles Broadcasting,
     Inc.]{.underline}, 86 F.C.C. 2d 993, 1006 -- 1008 (1981),
     [aff'd]{.underline} [sub]{.underline} [nom]{.underline}. [Central
     Florida Enterprises, Inc. v. F.C.C.]{.underline}, 683 F. 2d 503
     (D.C. Cir. 1982), [cert]{.underline} [denied]{.underline}, 460 U.S.
     1084 (1983). The renewal expectancy is so important that the
     enhancement factors of challengers pale before a showing of an
     incumbent's "meritorious service." [F.C.C. v. National Citizens for
     Broadcasting]{.underline}, et al., 436 U.S. 775, 805 (1978). Under
     the [Cowles]{.underline} standard, where past service is shown to
     be "substantial" it must also be considered to have been
     "meritorious." [Central Florida Enterprises, Inc. v.
     F.C.C.]{.underline}, [supra]{.underline} at 506. And where service
     is "meritorious," the renewal expectancy "should not be destroyed
     absent good cause." [F.C.C. v. National Citizens for
     Broadcasting,]{.underline} [supra]{.underline} at 805.

191. RBI's programming will be considered in the context in which RBI
     was operating between 1989 and 1994. RBI was in Chapter 11 from
     1986 to 1991. RBI had made a business decision to specialize in
     "home shopping" and there is no prohibition against broadcasting a
     "home shopping" format. The Commission found that a licensee can
     fulfill its public interest obligation by offering a predominance
     of "home shopping," provided that there is an appropriate amount of
     public interest broadcasting provided. [See]{.underline}
     [Implementation of Section 4(g) of the Cable Television Consumer
     Protection and Competition Act of 1992, as amended, 47 U.S.C.
     Section 614(g)(2)]{.underline}, 8 F.C.C. Rcd 5321 (1993) ("[Home
     Shopping Orde]{.underline}r").

192. The Adams principles were opposed to "home shopping" as programming
     that could accommodate public service broadcasting. But nothing was
     filed by Adams in connection with the rule making, a failure which
     undercuts Adams' claim of championing the public interest by filing
     against RBI's renewal. The Commission did show concern for a
     lessening of community directed broadcasting at "home shopping"
     stations and issued a specific directive that such stations must
     provide public affairs programming that is responsive to issues
     confronting local communities. [Home Shopping Order]{.underline} at
     Para. 9. Accordingly, RBI's duty remains the same, and if the
     evidence in this case shows that RBI's community directed
     programming was only "minimal", then RBI receives no renewal
     expectancy. [Formulation of Policies and Rules Relating to
     Broadcast Renewal Applicants]{.underline}, 3 F.C.C. Rcd 5179, 5185
     (1988).

193. The renewal expectancy paradigm has five criteria: (1) the efforts
     made to ascertain community needs and interests; (2) the
     programming response to those needs and interests; (3) the
     incumbent's reputation in the community for serving the needs and
     interests;

\(4\) the record of compliance with the Communications Act and the
Commission's rules and policies; (5) evidence of community outreach in
providing a forum for the expression of local views. [Fox Television
Stations, Inc]{.underline}., 8 F.C.C. Rcd 2361, 2366 -- 68 (1993),
[recon]{.underline}. [denied]{.underline},

8 F.C.C. Rcd 3583 (1993), [modified]{.underline}, 9 F.C.C. Rcd 62
(1993), [aff'd]{.underline} [sub]{.underline} [nom]{.underline}.
[Rainbow Broadcasting, Inc. v. F.C.C]{.underline}, 1995 WL 224866 (D.C.
Cir 1995). [Compare]{.underline} similar standards applied in [Radio
Station WABZ, Inc.]{.underline}, 90 F.C.C. 2d 818, 840-842 (1982),
[aff'd]{.underline} [sub]{.underline} [nom]{.underline}. [Victor
Broadcasting v. F.C.C]{.underline}., 722 F. 2d 756 (D.C. Cir. 1983)
(quantity of non-entertainment programming and extent it met identified
needs and interests; amount of locally produced programming; and
station's local reputation). The later formulated and more extensive
[Fox Television]{.underline} standards will be applied in this case.

**Ascertainment**

194. From 1989 to 1990, RBI ascertained community needs by referrals and
     staff review of literature of community based organizations. In
     1990, with the hiring of Mr. Mattmiller as Station Manager, the
     efforts expanded to include the polling of business and community
     leaders and organizations. Heavy reliance for ascertainment was
     placed on news items in the [Times/Eagle]{.underline}, a newspaper
     of local distribution and interest. There were meetings and
     discussions with community organizations that were identified in
     the Station's quarterly issues and programs. There were
     improvements made. But there was no showing of "extensive measures"
     that are necessary for the expectancy preference. [See]{.underline}
     [Fox Television Stations, Inc]{.underline}., [supra]{.underline}, 8
     F.C.C. Rcd at 2370-71 (formal interviews with community leaders and
     numerous contacts with community leaders). Nor do the efforts of
     RBI even approach those that were approved in other renewal cases.
     [Cf]{.underline}. [Metroplex Communications, Inc]{.underline}., 4
     F.C.C. Rcd 8149, 8151-52 (Review Bd 1989) and [Seattle Public
     Schools]{.underline}, 4 F.C.C. Rcd 625, 635 (Review Bd 1989)
     (subsequent histories omitted). Where a station takes short cuts,
     does not utilize direct contacts with local civic leaders, and
     tries to make up the difference with PSA type formats, the renewal
     expectancy is not to be expected.

**Responsive Programming**

195. RBI relies on its quantitative analysis of programming that it
     asserts was responsive to identified community issues or needs. But
     the programming is in large part in the PSA format:

> A \[PSA\] is one for which no charge is made and which promotes
> programs, activities, or services of Federal, State or local
> governments (e.g. recruiting, sales of U.S. Savings Bonds, etc.) or
> the programs, activities or services of nonprofit organizations
>
> (e.g., UTGF, Red Cross Blood Donations, etc.) or any other
> announcements regarded as serving community interests.
> [See]{.underline} \[former\] Section 73.1810(d)(4) of the Commission's
> Rules."

[In the Matter of Airing of Public Service Announcements by Broadcast
Licensees]{.underline}, 81 F.C.C. 2d 346 at n.1.

196. Under Commission doctrine, it is necessary to separate PSAs from
     programming.

PSAs are important but are not to be "a broadcaster's primary method of
responding to community needs" and are not to be considered to be
"public affairs" programming. [Id]{.underline}. at 349, 367. The
Commission did not want PSAs to dilute or diminish "the airing of
program-length material meeting community problems." [Id]{.underline}.
And the Commission made clear that while it encouraged PSAs, it did not
want its approval to have any "negative effect on the broadcasting of
public affairs material." [Id]{.underline}. at 368. There were three
categories for broadcasters to report in the Annual Programming Report:
"news, public affairs and other." Since PSAs did not meet the first two
categories, the Commission authorized their being reported (at the
option of the licensee) in

the third "other" category. [Id]{.underline}. What was made clear by
this prescribed reporting methodology was continuation of the policy
that PSAs could not be claimed for credit as news or programming.

197. As deregulation evolved, the Commission repealed TV programming
     guidelines

and permitted a [laissez]{.underline} [faire]{.underline} programming
mix at the option of the licensee. [Revision of Programming and
Commercialization Policies, Ascertainment Requirements, and Program Log
Requirements for Commercial Television Stations]{.underline}, 98 F.C.C.
2d 1076, 1087 (1984). But even with deregulation, the Commission
recognized "the continuing obligation of all licensees to contribute
issue -- responsive programming." [Id]{.underline} at 1088. And even
though RBI chose to use a short form of public programming as a matter
of its "licensee discretion,"[^29] it still must be held to the
Commission's policy requiring issue responsive programming.

198. The record contains composite week analysis reflecting in accord
     with RBI's Program/Issues Reports \[RBI Exh 8, Tabs C -- X\], that
     there was no local news and only a scant amount of issue
     programming at WTVE(TV). In three of the composite weeks, there was
     no more than three hours of non-entertainment programming. At best,
     the home shopping format was interrupted only 8% of the time in
     1994, for noncommercial programming, the highest percentage of
     noncommercial programming in the entire renewal period. RBI's
     increased use of PSAs did not serve as a substitute for news or
     issue - responsive programming or local news. RBI's new children's
     programming and an expansion of religious programming were minimal
     improvements that were not shown to be issue responsive. State
     legislative reports were more in the nature of last ditch efforts
     by WTVE(TV) at the end of the period to give an appearance of
     responsive programming. In actuality, the legislative programming
     was in the "canned" format and was not shown to be community issue
     responsive.

199. Most of WTVE(TV)'s broadcast day was devoted to the "home shopping"
     format with the resulting effect of minimizing issues of concern to
     the Reading community. By comparison, a "substantial" record was
     found where the evidence showed regularly scheduled news and public
     affairs programming, specials and PSAs. [See]{.underline} [Fox
     Television Stations, Inc.]{.underline}, [supra]{.underline}, 8
     F.C.C. Rcd at 2376. In this case, none of RBI's public service
     programs were offered on a regularly scheduled basis, its short
     form public service programming appeared at the end of each 30
     minutes of home shopping, and its flagship programming such as
     "News To You" appeared in a variety of time slots with little or no
     notice given to viewers. The programming had such little respect in
     the community that the local newspaper did not carry program times.

As a result, there was no way for viewers to keep informed through the
programming of WTVE(TV). RBI has a programming record that for the
category of responsive programming, fails to qualify for the preference.
[Cf.]{.underline} [Harriscope of Chicago, Inc]{.underline}., 5 F.C.C.
Rcd 6383, 6385 ("minimal" performance receives no preference). [^30]

## 

**Community Reputation**

200. This criteria is relevant to renewal expectancy only if the
     programming is found to be substantial. [Metroplex Communications,
     Inc.]{.underline}, 4 F.C.C. Rcd 8149, 8153 (Review Bd. 1989),
     [aff'd]{.underline}, 5 F.C.C. Rcd 5610 (1990) (public witness
     testimony cannot create a basis for renewal expectance). But as a
     contingency, the evidence will be considered here.

201. At best, RBI's reputation was mixed. To its credit, the Red Cross,
     the March of Dimes, and a local Children's Rights group were
     complimentary of the PSAs. Representatives of local government and
     police were also complimentary of responsive PSAs. A member of the
     Pennsylvania House of Representatives praised the Station's
     willingness to devote airtime to PSAs and to the presentation of
     prepared political statements of state representatives and state
     senators. But there was also criticism from others for the absence
     of local news. The Mayor of Reading was reticent about the
     Station's performance. One terminated employee testified about
     complaints that he received from members of the community about the
     lack of local newscasting from WTVE(TV). The nature of the positive
     evidence was one of gratitude for carrying PSA spots. Such
     qualified evidence is necessarily given lesser weight than positive
     testimony of programming that is found by viewers to be especially
     useful for the community. In that regard, the significant weakness
     found in the public witnesses on behalf of RBI was that none was a
     regular viewer of Station WTVE(TV). By comparison, the adverse
     testimony of Mr. Loos that there was no coverage of local
     emergencies and of Mr. Baldinger that there was no local news
     during the renewal period offset RBI's positive testimony.

**Community Outreach**

202. Recognition is given for efforts at community outreach. RBI
     assisted organizations such as the Red Cross, the March of Dimes,
     the Children's Rights of Pennsylvania, the Burn Prevention
     Foundation, and the Switchback Gravity Railroad Foundation,
     primarily through the airing of helpful PSAs. Station staff members
     also held career days for school children to encourage interest and
     careers in the fields of broadcasting. These activities merit some
     recognition. But they do not meet the efforts that the Commission
     found noteworthy in [Fox Television Stations, Inc,]{.underline}
     [supra]{.underline}, 8 F.C. C. Rcd at 2416-2418 and [Seattle Public
     Schools]{.underline}, [supra]{.underline}, 4 F.C.C. Rcd at 638.
     This evidence proffered by RBI of its record on community outreach
     is not sufficient to gain a renewal preference.

#### 

**Record of Compliance**

203. Compliance with the Communications Act and the Commission's Rules
     is a [sine que non]{.underline} to qualify for a renewal expectancy
     preference. [Metroplex Communications, Inc.]{.underline}, 4 F.C.C.
     Rcd, [supra]{.underline} at 8153 (licensee's record must reflect
     compliance with the strictures governing broadcasters' conduct).
     The Commission has an exacting standard:

> \[L\]icensee misconduct may provide a more meaningful basis for
> preferring an untested challenger over a proven incumbent. Licensee
> misconduct pertinent to broadcast service may raise questions both as
> to the licensee's continued compliance with Commission rules and its
> dedication to serving the community.

[Cowles Broadcasting, Inc]{.underline}., [supra]{.underline}, 86 F.C.C.
2d at 1017. RBI falls short of the Commission's norm of "continued
compliance." Because of the predictive nature of future compliance,
there is no room to vacillate. Even if RBI's minimal programming
qualified for a finding of "substantial service," RBI's intended or
reckless noncompliance rebuts the preference. [Id]{.underline}. The
record contains substantial and credible evidence establishing that
there were violations by RBI of the Act and the Rules during the renewal
period.

# 

**Failures To File Timely And Accurately**

204. RBI was inaccurate in reporting its ownership. RBI also transferred
     control to Mr. Parker before receiving authorization from the
     Commission and omitted material information from the transfer
     application. Finally, RBI lacked candor through the multiple
     delicts of its agent Parker and particularly when he responded in a
     misleading manner to a specific inquiry by Commission staff. RBI
     also failed to file with the Commission, prescribed documents that
     are required under specific Commission rules.

**Reporting Violations**

205. Section 73.3613(b)(3) requires:

[Filing of contracts]{.underline}:

> Each licensee \... of a commercial \... TV\... station shall file with
> the F.C.C. copies of the following \... documents\... within 30 days
> of execution thereof:
>
> Ownership or control: Contracts, instruments or documents relating to
> the present or future ownership or control of the licensee\... shall
> include but are not limited to the following:
>
> Any agreement providing for the ownership or voting rights of
>
> the licensee\'s stock ....
>
> Management consultant agreements with independent contractors; \...
> station management contracts with any persons, whether or not
> officers, directors, or regular employees, which provide for both a
> percentage of profits and a sharing in losses; or any similar
> agreements.

206. Section 73.3615(a) requires:

[Ownership Reports]{.underline}:

> Ownership Reports shall provide the following information \[for a
> corporation\] as of a date not more than 60 days prior to the filing
> of the Report:
>
> The name, residence, citizenship, and stockholding of every officer,
> director \....
>
> And in the case of all licensees:
>
> A list of all contracts still in effect required to be filed with the
> F.C.C. by § 73.3613 showing
>
> the date of execution and expiration of each contract; \-\--.

The evidence establishes, and RBI admits, that the MSA was not filed
within thirty days of its execution in violation of §73.3613. Nor did
RBI list the MSA in its ownership reports until 1997, eight years after
the MSA\'s execution, a gross violation of §73.3615. In addition, RBI
did not correctly list its directors in its 1992 ownership report and it
wrongfully certified in its 1993 filing that its 1992 report had been
correct.

207. With respect to ownership reports, Mr. Parker, as RBI\'s president,
     certified recklessly to the accuracy of each noted document. Mr.
     Parker knew that he was providing ownership information to the
     Commission. He also knew that the information must be accurate. RBI
     asserts that Mr. Parker just did not pay attention to the accuracy
     of the information that he was providing. If failure to pay
     attention is accepted as an excuse, it could be used anytime a
     licensee is questioned about a deficient disclosure. In this case,
     that "excuse" is not acceptable because it is not supported by any
     fair view of the relevant evidence.

208. The Parker/RBI MSA was executed in May 1989, which a bankruptcy
     court approved in August 1990. Yet the MSA was not reported with an
     acceptable degree of candor until seven years later in 1997.[^31]
     There were many opportunities to set the record straight with the
     Commission between 1989 and 1997. But Mr. Parker chose to leave the
     Commission in the dark as to who was calling the shots at Station
     WTVE(TV).

209. In October 1991, a year after the MSA received court approval, Mr.
     Parker caused the issuance of a sufficient number of shares of RBI
     stock to effect a transfer of control in his favor. To secure this
     control, he caused a block of control stock to be voted in favor of
     a new slate of directors which included himself. Shortly after the
     election of those directors, the application for RBI's transfer was
     filed without disclosing any of those critical corporate decisions
     to the Commission. Nor were they disclosed while the Commission was
     considering a transfer application to bring RBI out of bankruptcy.
     One result of Parker's deficient disclosure was to hide from the
     Commission the fact that Mr. Parker was gaining control of RBI's

management. If while the transfer application was being considered the
Commission had been presented with complete facts about Mr. Parker, a
decision to consider the application might have been deferred until the
significance of Parker's history with the Commission was assessed. The
willingness on the part of RBI, through Parker, to hold back significant
information on the truth about control while the Commission was
considering a license transfer shows a motive to obtain the transfer
before the Commission learned the facts about Parker's background. The
willful withholding of such material corporate information also showed
indifference or a reckless and wanton disregard of a licensee's
obligation to be forthcoming with the Commission. [RKO General, Inc. v.
F.C.C.]{.underline}, 670 F. 2d 215, 225 (D.C. Cir. 1981), [cert.
denied]{.underline}, 456 U.S. 927 and 457 U.S. 1119 (1982).

210. There also is sufficient evidence indicating that Mr. Parker as
     prospective president and director of RBI understood that the MSA,
     a document required to be filed under §73.3613, had not been filed
     and that as a result erroneous information had been deliberately or
     recklessly provided to the Commission while it was considering a
     transfer application that it was being asked to approve. As a
     matter of law and as a matter of fact, those reporting violations
     were willful.[^32] Such willful transgressions or acts of
     indifferent disregard of truthfulness in filing detract from the
     renewal expectancy. [Cowles Broadcasting, Inc.]{.underline}
     [supra]{.underline}*,* 86 F.C.C. 2d at 1017.

**Unauthorized Transfer Of Control**

211. The evidence shows an unauthorized transfer of control. RBI\'s
     November 1991 transfer application and amendments thereto willfully
     or recklessly omitted material facts, namely, the MSA, the actual
     issuance of stock, and the subsequent election of new officers and
     directors. Those violations and failures to be fully informative to
     the Commission, particularly when coupled with an intentional
     failure to respond candidly to a staff inquiry, eliminates any hope
     of renewal expectancy. [Fox Television Stations Inc.]{.underline},
     *supra, 8* F.C.C. Rcd at 2390.

212. Section3l0(d)of the Act provides:[^33]

> No construction permit or station license, or any rights thereunder,
> shall be transferred, assigned, or disposed of in any manner,
> voluntarily or involuntarily, directly or indirectly, or by transfer
> of control of any corporation holding such permit or license, to any
> person except upon application to the Commission and upon finding by
> the Commission that the public interest, convenience, and necessity
> will be served thereby.

Commission licensees first must seek and obtain the Commission's consent
before transferring control of Commission licenses. Thus, prior to any
consummation of a transfer of control of a license, the parties to the
transfer must file a full and complete application with the Commission.

The Commission then must grant the application before consummation of
the transaction may take place. [See]{.underline}, e.g., [American Music
Radio]{.underline}, 10 F.C.C. Rcd 8769 (1995).

213. A transfer of control includes a transaction in which a name
     remains the same, but control of the licensee-entity is transferred
     from one person or entity or group of persons-or entities to
     another. Control includes any act which vests in a new entity or
     individual the "right to determine the manner or means of operating
     the licensee and determining the policy that the licensee will
     pursue.\" [WHDH, Inc.]{.underline}, 17 F.C.C. 2d 856, 863 (1969),
     [aff\'d]{.underline} [sub]{.underline} [nom]{.underline}*.*
     [Greater Boston Television Corp. v. F.C.C.]{.underline}, 444 F.2d
     841 (D.C. Cir. 1970*),* [cert]{.underline}. [denied]{.underline}*,*
     403 U.S. 923 (1971). Full disclosure is required for a transfer of
     control even where as here, a corporation in bankruptcy transfers a
     license to a newly formed corporation using the same name. In this
     case, Mr. Parker had full managerial, operational and budgetary
     control under the MSA.

214. In October 1991, control of RBI passed from the shareholders who
     had taken RBI into bankruptcy to a new group of shareholders,
     appointed and led by Mr. Parker to effect his control as president
     of RBI. Parker's control took place prior to the filing of a
     transfer application which occurred in November 1991. And the
     change took place well before Commission approval which occurred in
     February 1992. RBI, under the direction and control of Mr. Parker,
     improperly issued its stock so that control of RBI was transferred
     to Partel/Parker without the Commission being adequately informed
     that Mr. Parker was back in business in control of another
     licensee.

215. It is instructive to observe the ways that the Commission was
     misinformed. The November 1991 transfer application indicated that
     stock had not yet been issued when in fact it had been issued. The
     application erroneously reported that 50,000 shares of RBI voting
     stock was currently outstanding which was not the case. It further
     reported erroneously that \"consummation\" of a previously granted
     short-form application (the August application) had not occurred.
     In fact, the opposite was true in all these respects. The
     referenced 50,000 shares had

been cancelled on September 17, 1991; new stock had been issued four
weeks later on

October 15, 1991; and the new stockholders met and voted in new
directors on October 30, 1991. A true and accurate transfer application
would have disclosed those facts. The application also could have
offered the explanation provided by Mr. Parker at the hearing, if it was
true, that RBI felt it could not fully consummate the transaction and
emerge from bankruptcy until it had satisfied secured creditors. But
whether or not true, any deference to creditors had nothing to do with
timely disclosing material facts to the Commission about control. The
ultimate travesty was holding back from disclosing to the Commission
until 1997, the fact and effect of the MSA.

**Exculpatory Circumstances**

216. The Bureau would offset Mr. Parker\'s reporting errors with his
     removing RBI from a debtor-in-possession status. The Bureau
     observes that the November 1991 application disclosed the basic
     parameters of the transaction inasmuch as all of RBI\'s
     \"proposed\"

shareholders were listed. A \"consummation\" of the short form grant
could not occur because of an intervening garnishment of Dr. Aurandt\'s
stock. But even under that scenario, the Bureau concedes that Mr. Parker
would have had a motive to conceal the issuance of the stock. That being
the case, the Bureau would count the lapses in disclosure against
renewal expectancy but not against RBI's basic qualifications. While the
Bureau does not believe that RBI\'s premature transfer of control and
related failures to disclose are fatal to its license, the Bureau
contends that the scope of RBI's non-disclosures significantly detracts
from any renewal expectancy. But a finding of RBI's disqualification is
not needed to resolve this case. Certainly, it would be unfair to charge
RBI with the disclosure machinations of Mr. Parker who had succeeded in
snatching control from an unwilling board of directors. It is evident
that in 1991, there was intense corporate infighting over control and by
October 1991, Mr. Parker had won.

Diversification

217. RBI fails to attain a renewal expectancy because of WTVE(TV)'s
     minimal performance during the renewal period and RBI's failures to
     comply with the communications laws. Therefore, diversification of
     control of media of mass communications has become relevant to the
     outcome. [Policy Statement on Comparative Broadcast
     Hearings]{.underline}, 1 F.C.C. 2d 393, 394 (1965).
     [See]{.underline} [also]{.underline} [Bible]{.underline}
     [Broadcasting Network, Inc]{.underline}., 7 F.C.C. Rcd 4578, 4579
     (1992). Here, Adams holds the advantage. Only one of its
     principals, Mr. Umans, has an interest in a medium of mass
     communications. He has pledged to divest himself of that interest
     in the event Adams prevails. By comparison, Mr. Parker, RBI\'s
     president, a director, and its largest shareholder, holds the
     licenses to two full-power television stations through 100%
     ownership of corporate licensees. RBI knew of Mr. Parker's holdings
     when it entered into the MSA and RBI must be aligned with Mr.
     Parker's objective qualifications for purposes of diversification.
     Accordingly, Adams is awarded a significant diversification
     preference. [Pueblo Radio Broadcasting Service]{.underline}, 5
     F.C.C. Rcd 4829 (Rev. Bd. 1990).

**Comparative Coverage**

218. Because RBI cannot be counted on to build a transmitter with the
     permit it holds, Adams gains a very slight preference for proposing
     to serve 33% more people than WTVE(TV) currently serves. [Simon
     Geller]{.underline}, 90 F.C.C. 2d 250, 276 (1982) (slight
     preference to applicant

with four times greater coverage to well-served areas); [Global
Information Technologies, Inc.]{.underline},

8 F.C.C. Rcd 4024, 4031 (Rev. Bd. 1993) (slight preference for 30%
differential in overall population service); [Christian Broadcasting of
the Midlands, Inc.]{.underline}, 99 F.C.C. 2d 578, 583 (Rev. Bd. 1984)
(slight preference for 24% coverage differential to well-served areas).

**Local Residence And Civic Activities**

219. RBI is owned by a majority of shareholders who reside or have
     resided within the city limits of Reading or within the predicted
     Grade B contour of WTVE(TV). RBI is entitled to a preference for
     local ownership. [Edward F. and Pamela J. Levine]{.underline}, 8
     F.C.C. Rcd 8401 (1993).

Past participation by an owner in local civic affairs is considered a
part of the local residence affiliation which indicates an interest in
the community's welfare. [Policy Statement on Comparative Broadcast
Hearings]{.underline}, F.C.C. 2d 393, 396 (1965). Several of the
stockholders have been involved in local civic activities in Reading or
within the Grade B service area. Quarterly lists of issues and programs
show that RBI also has participated in community activities. Adams, on
the other hand, claims no credit for local civic activities.
Accordingly, RBI also is entitled to a preference for civic involvement.
[Gloria Bell Byrd]{.underline}, 8 F.C.C. RCD 7124 (1993). Because RBI
has failed to meet the criteria for a renewal preference, there should
be lesser credit awarded for local residence or local civic involvement.
It would be inconsistent to award RBI for sporadic civic involvement
when it had fallen down on its primary duty to provide comparative
credit for local residence and civic activities in view of its far
greater failure as a broadcaster. Therefore, RBI receives only a
marginal credit.

**II**

**Misrepresentation/Lack Of Candor**

220. The Phase II issue was added to resolve substantial questions
     concerning failures on the part of Mr. Parker to disclose in his
     filings with the Commission "the actual nature and scope of his
     previously adjudicated misconduct." [Memorandum Opinion and
     Order]{.underline}, FCC 99M-61, released October 15, 1999. A
     finding and conclusion of a misrepresentation requires reliable
     evidence that false or materially misleading statements were made
     with an intent to deceive. [Fox River Broadcasting
     Inc.]{.underline}, 93 F.C.C. 2d 127, 129 (1983) (\"[Fox
     River]{.underline}\"). Lack of candor, a more subtle form of
     misrepresentation, involves concealment, evasion or some other
     failure to be fully informative, but also carried out with an
     intent to deceive. [Fox River]{.underline}, [supra]{.underline}*.*
     The affirmative duty of candor, which has particular significance
     for a licensee, requires an applicant before the Commission to be
     \"fully forthcoming as to all facts and information relevant\" to
     its application. [Swan Creek Communications, Inc. v.
     F.C.C.]{.underline}, 39 F.3d 1217, 1222 (D.C. Cir. 1994). What is
     relevant is that which may be of \"decisional significance.\" [RKO
     General, Inc]{.underline}. v. F.C.C., 670 F.2d 215, 229 (D.C. Cir.
     1981*),* [cert]{.underline}. [denied]{.underline}*,* 456 U.S. 927
     and 457 U.S. 1119 (1982). An intent to deceive can be found by
     direct evidence or when the evidence supports a reasonable
     inference. [California Public Broadcasting Forum v.
     F.C.C.]{.underline}, 752 F.2d 670, 679 (D.C. Cir. 1985). Such an
     inference arises from a false statement of fact coupled with proof
     that the party making it had knowledge of its falsity. [David Ortiz
     Radio Corp. v. F.C.C.]{.underline}, 941 F.2d 1253, 1260 (D.C. Cir.
     1991). Intent can also be inferred from motive. [Joseph
     Bahr]{.underline}, 10 F.C.C. Rcd 32, 33 (Rev. Bd. 1994). Finally,
     indifference and wanton disregard for accuracy are equivalent to an
     affirmative and deliberate intent to deceive. [RKO General, Inc. v.
     F.C.C.]{.underline} , [supra]{.underline}, and [Golden Broadcasting
     Systems, Inc]{.underline}., 68 F.C.C. 2d 1099, 1106 (1978).

221. Because of the regulatory need of a licensing agency to rely on
     licensees' representations, when a licensee is found to have
     intentionally misled the Commission whether through
     misrepresentation or lack of candor, that party may no longer be
     qualified to hold a Commission license. [Policy Regarding Character
     Qualifications in Broadcast Licensing,]{.underline} 102 F.C.C. 2d
     1179, 1210-11, 1231-32 (1986) ("[Character
     Qualifications]{.underline}"); [Center for the Study and
     Application of Black Economic Development,]{.underline} 10 F.C.C.
     Rcd 2836, 2837 (Review Bd. 1995)

(fundamental purpose for character inquiry is to make predictive
judgment for honesty and future compliance). Deceptions take many forms.
And whether the deception involves misrepresenta-tion or lack of candor
through affirmatively false statements or through evasion or failures to
be fully honest and forthcoming, there must be an intent to deceive or
mislead the Commission in order for the deceptive disclosure to be
disqualifying. [See]{.underline} [Fox River]{.underline},
[supra]{.underline}. Thus, it is well established that only an
intentional misrepresentation or lack of candor can result in an adverse
character finding. [Fox River]{.underline}, [supra]{.underline}.

222. The most relevant character traits in dealing with the Commission
     have always been "truthfulness" and "reliability." The Commission's
     main concern is with respect to licensing someone who will be
     forthright in dealing with the Commission and respectful of
     compliance with the law. [Character Qualifications]{.underline}
     at 1209. In transfer application questions calling for disclosures
     of "fraud" by yes or no answers, the nature of the "fraud" to be
     disclosed is equated with deceit. [Character Qualifications at
     1196]{.underline}; [Webster's New Collegiate
     Dictionary]{.underline} 453 (1979); [Black's Law
     Dictionary]{.underline} 594, 903 (5^th^ Ed 1979). [See]{.underline}
     [also]{.underline} [Leflore Broadcasting Co., Inc. v.
     F.C.C]{.underline}., 636 F. 2d 454, 461 -- 62 (D.C. Cir. 1980).
     [Cf]{.underline}. [United States v. Nill]{.underline}, 518 F. 2d
     793 (7^th^ Cir. 1975) (fraud connotes perjury, falsification,
     concealment, misrepresentation). The Commission may treat even an
     insignificant misrepresentation as disqualifying. [See]{.underline}
     [Leflore Broadcasting Co., Inc v. F.C.C]{.underline}. ,
     [supra]{.underline}. Certainly, the nature of the violation, the
     circumstances surrounding it, and other pertinent considerations
     such as repetitiveness are relevant as to future reliability.
     Therefore, all of the facts and circumstances of Mr. Parker's false
     or misleading disclosures or disclosures that were lacking in
     candor will be considered. [Character Qualifications]{.underline},
     1210-11 and n. 76 and n.77.

**Question 4**

**False And Misleading "No" Answers**

223. Applying those principles to Mr. Parker's multiple filings, the
     checking of a "no" to a direct question asking about "adverse final
     action taken" related to "fraud" results in a disqualification for
     intentional misrepresentation or lack of candor. Mr. Parker admits
     to having substantial experience in broadcast regulation
     compliance. He has made many filings with the Commission in
     connection with applications for licenses and license transfers.
     (RBI Exh. 46

at 1-2.) From 1989 to 1992, Mr. Parker was responsible for making
disclosures to the Commission regarding five applications for the
transfer of TV station licenses, and one amendment to an application for
transfer of an international radio broadcast license. In each instance,
Mr. Parker was responsible for providing truthfully complete information
as it was called for by each form utilized. It would be unreasonable to
require the staff to trace for truth and accuracy each and every checked
answer in every transfer form that is filed at the Commission. This case
presents a clinical illustration of how licensing regulation is
fundamentally premised upon the Commission's reliance on the truth,
accuracy, completeness and candor of representations made by those
owning and/or controlling licensees. [See]{.underline} [Leflore
Broadcasting Company, Inc. v. F.C.C.]{.underline} [supra]{.underline},
636 F. 2d at 461.

224. An intent to deceive by providing false answers to direct questions
     can be inferred from this "special nature of the obligation of
     honesty that a licensee owes to the [F.C.C.]{.underline}."
     [Id]{.underline}. The [gravamen]{.underline} here is that in each
     of five transfer forms, Mr. Parker answered "no" to specific
     questions as to whether an adverse finding was made by any
     administrative body relating to "fraud."[^34] Mr. Parker
     consistently answered "no" to the questions on the transfer
     application forms asking about "fraud. The "no" responses made
     repetitively by Parker with respect to the five transfer
     applications were false and misleading. A fair assessment of the
     evidence dictates that conclusion. A preponderance of the evidence
     establishes Review Board findings of "transpicuous sham" and
     "attempted fraud" and a Commission decision that Mr. Parker was a
     principal in "an effort to deceive" the Commission. Clearly, in
     order to be truthful with the Commission, Mr. Parker had to check
     off the "yes" answers to the question of whether he had been the
     subject of "an adverse finding" by an "administrative body." To
     make matters worse, the false and misleading "no" answers were not
     even mentioned in Mr. Parker's prepared written testimony. (RBI
     Exh. 46.) To escape responsibility, Mr. Parker slanted his
     testimony to protest that neither proceeding "raised a character
     issue as to \[his\] qualifications to hold Commission licenses" and
     that the San Bernardino proceeding "did not present an issue as to
     \[his\] qualifications." (RBI Exh. 46 at 3, 7.)

225. Mr. Parker's self serving explanations in RBI's case in chief about
     "character issues" and "qualifications" amount to smokescreens that
     offer no credible defense for giving "no" answers to highly focused
     questions asking about "adverse findings." Mr. Parker even
     persisted in cross examination when he was pointed to Question 4
     and asked "whether an adverse finding has been made" to which he
     twice answered "no." (Tr. 1944.) The answer, if given truthfully,
     clearly calls for a "yes" because Mr. Parker was a party to each of
     the five transfers and knew that both the Mt. Baker and the San
     Bernardino decisions had made unequivocal "adverse findings" as to
     himself and to the parties to those proceedings that he controlled.
     Under the circumstances, Mr. Parker, as a principal of RBI, must be
     found to have violated the requirement for absolute candor of
     licensees. [Catoctin Broadcasting Corp. of New York]{.underline}, 2
     F.C.C. Rcd 2126 (Review Bd 1987), [aff'd]{.underline}, 4 F.C.C. Rcd
     2553 (1989) (further citation history omitted). Also evident is the
     clear motive for Mr. Parker to falsify his answers to Question 4
     because the Commission can refuse to renew a license where the
     applicant has made a knowing misrepresentation or lack of candor of
     the kind found in Mr. Baker and in San Bernardino. [Leflore
     Broadcasting Company, Inc. v. F.C.C]{.underline}.,
     [supra]{.underline}, 636 F. 2d at 461. The courts recognize that
     the Commission would be derelict if it did not hold licensees such
     as RBI to a "high standard of punctilio." [Id]{.underline}. Mr.
     Parker has disregarded this standard of "punctilio" with his "no"
     answers to Question 4 in five applications which constitute a
     series of multiple misrepresentations in disclosure exacerbated by
     misleading written testimony and live hearing testimony.

## Question 7

**Adequate Answers But**

**One Misleading Amendment**

226. Acts of willful misrepresentation raise a "core concern of
     truthfulness." [Character Qualifications]{.underline},
     [supra]{.underline} at 1209. The narrative descriptions of the Mt.
     Baker and San Bernardino proceedings made or obtained by Mr. Parker
     in each of the application exhibits were incomplete. But in view of
     the questions asked, the narrative disclosures are not found to be
     willfully misleading. Parker answered "yes" to Question 7(a)
     and (b) which were literally correct answers. He then gave "exhibit
     3" narratives for the follow-up questions on name, dates, nature of
     interest, and locations in Question 7(e). However, the information
     provided in an amendment in response to a broader staff inquiry for
     more information was deliberately inadequate and Mr. Parker
     intended thereby to mislead the Commission staff.

**Negligent Omissions**

227. There was no excuse for the total omission of the San Bernardino
     proceeding from the San Francisco and the Los Angeles applications.
     Mr. Parker thought it was

Mr. Wadlow's oversight and Mr. Wadlow denied any role in drafting the
disclosures in those

two applications. While the omission is highly disappointing, there is
only evidence of poor

recollection and negligence or a combination of both on the part of Mr.
Parker. In a very close call, the overall evidence of incomplete
disclosures in those two applications fails to show purposeful omission
with intent to mislead. In another context, the element of
deliberateness is lacking in proof and therefore there is no proven
disqualifying conduct shown with respect to the minimal narrative
disclosures made by Mr. Parker in the San Francisco, Los Angeles,
Norwell, Reading, Twenty Nine Palms and Dallas applications.
[See]{.underline} [Schoenbohm v. F.C.C]{.underline}., 204 F. 3d 243, 247
(D.C. Cir. 2000). In the allegedly deficient narrative descriptions the
alleged delict was in not providing sufficient detail. But as noted
above, Parker properly checked "yes" to question 7(a) and 7(b). Those
affirmative answers required Parker to take the next step and provide
identifying data (name, interest, call letters, docket number,
location). Parker went beyond that data and volunteered a narrative
which while lacking significant details, was reasonably responsive to
the question. So it would be improper to find willful acts of
intentional deceit in the Parker narratives that responded to Questions
7(a) and (b) which were correctly answered "yes." [^35]

**Adequate Allegan Disclosure**

228. The Allegan policy was adopted in a comparative proceeding in which
     qualifying issues were added against a competing applicant. In an
     attempt to settle the case before deciding the merits of the added
     issues, the Commission adopted a policy permitting settlement
     buyouts

where there are unresolved character issues which can be revisited in a
later proceeding, license renewal, transfer or assignment. [Allegan
County Broadcaster, Inc.]{.underline}, 83 F.C.C. 2d 371, 373 (1980). In
other words, if there had been an unresolved issue in Mt. Baker as to
whether Parker intended to deceive in his construction plans, the issue
would be required to be fully disclosed under Question 7(d). Similarly,
if there was an unresolved real party-in-interest issue in

San Bernardino, then that issue would need be fully described. But in
both cases, there was nothing that was unresolved: In Mt. Baker, Parker
was found to have attempted to "deceive

the Commission" and in San Bernardino he was found to have orchestrated
a "transpicuous sham." Question 7(d) asks only about "unresolved
character issues." There were no unresolved issues to be disclosed and
Parker did not misrepresent by checking off "no" to Question 7(d) asking
for a "yes" or "no" answer on whether there is "any Commission
proceeding which left unresolved character issues against the
applicant."[^36]

## False And Misleading Amendment

229. The Dallas disclosures in an application and particularly in an
     amendment, are treated separately because of aggravating
     circumstances. The "no" answer to Question 7(d) in the Dallas
     application could have prompted the staff to ask Mr. Parker to file
     an amendment stating whether basic character issues had been sought
     or added with respect to any of the applications listed. (Bureau
     Exh. 2. at 2.) The staff's question about added issues was over and
     above information called for by Question 7 and was not limited by
     Allegan. The amendment that was filed on October 29, 1992, in
     response to the staff's query was misleading and lacked candor in
     stating only:

> This will confirm that no character issues had been added or requested
> against those applicants when those applications were dismissed.

(Adams Exh. 55 at 3.) The Mt. Baker case was not a comparative case and
so an added issue would not have been procedurally necessary. But the
Commission finding of a Parker contrived "effort to deceive" would have
been responsive to the staff's oral request for basic qualifying
information that should have been provided. However, the more offending
aspect of the amendment was with respect to San Bernardino. The staff's
question was more open-ended and was directly applicable to San
Bernardino wherein a hearing Judge had added a character issue that
directly implicated Parker as the undisclosed real party-in-interest who
had engineered the scheme. In affirming that determination, the Review
Board characterized the ploy as a "transpicuous sham" and an "attempted
fraud." One would be hard put to craft stronger language

to make the point that a character issue had been added against an
entity that was controlled by Mr. Parker, the undisclosed operative
behind the sham. The aggravation starts with the failure of Mr. Parker
to use an inquiry from the staff to finally come clean with respect to
his role in

San Bernardino. It was insulting under the harsh light that the Review
Board had cast on

Mr. Parker to advise the staff in a written formal amendment only that
"no character issues had been added." One was not only added. It was
decided "[con]{.underline} [brio]{.underline}" against Mr. Parker.
Finally, it was a degrading tactic to deliberately withhold material
adverse information from the attorney retained to make the filing.

**Parker Disclosures Not Involving RBI**

230. Phase II focused on Commission forms which required "yes" or "no"
     answers and narrative descriptions about the facts and
     circumstances related to filings that described the

Mt. Baker and San Bernardino proceedings. It was a truth finding
mission. There was no evidence found that Mr. Parker consulted any other
officer or director about his disclosures in Commission filings,
including the transfer application taking RBI out of bankruptcy. Nor is
there any evidence that any other officer or director knew about or had
participated in the Parker disclosures before this proceeding was set
for hearing. Therefore, the record evidence does not support a separate
finding of deceit (or intent to deceive) on the part of the licensed
entity.

Mr. Parker, as an individual applicant and as an officer of TIBS and
RBI, should have provided more detail related to the Mt. Baker and San
Bernardino proceedings. But his failure to do so in responding to
Question 7 did not involve deceit attributable to RBI. On the other
hand, when confronted directly with a staff question as to whether any
character issues had been requested or added in any proceeding where he
had been a party to the application, Mr. Parker, as president of TIBS,
misled his attorney and responded in a less than candid fashion. The
processing staff, in the course of its duty, was asking whether there
were any questions about Parker's character that should be considered
before approving the application. Mr. Parker is experienced and
sophisticated in Commission applications and in making disclosures. He
must be held to be aware of and responsible for his obligation to be
forthright when asked a question by the Commission staff. But RBI should
not bear the responsibility.

**Parker Testimony Not Involving RBI**

231. On a specific point of candor, the Presiding Judge formed an
     impression, made known in open court, that Mr. Parker appeared to
     believe that merely disclosing the San Bernardino proceeding's
     ultimate result was sufficient and that it was up to the staff to
     look up the case history and read for themselves what the hearing
     Judge and the Review Board had found as to Mr. Parker. (Tr. 2652.)
     Mr. Parker denied the accuracy of that impression but his
     explanation was off-the-point. He offered the circular explanation
     that when the Commission staff asked the question, the Dallas
     amendment provided a sufficient answer. ([Id]{.underline}.) But the
     amendment could only provide a sufficient answer if the staff
     looked up the San Bernardino case

history.[^37] So there is no reason to change that impression in light
of Mr. Parker's wholly

inadequate Dallas amendment and it is concluded here that the impression
formed in hearing the testimony of Mr. Parker was justified. It also
shows an added lack of candor for Mr. Parker to now deny the effect of
what he clearly said under oath.

232. In contrast with the incomplete Dallas disclosure, there is
     reliable evidence in this record through the "Gaulke letter"
     showing that in a context outside of Commission disclosure, Mr.
     Parker has been selectively more sharing of the facts. (Bureau Exh.
     1 at 9-10.) The evidence shows that when substantially the same
     information about prior character findings was requested and
     forwarded to Telemundo in connection with a contemplated business
     transaction, the disclosure was more extensive and, as a result,
     was closer to the truth about Mr. Parker and his previously
     adjudicated character. While the letter is not directly relevant to
     the Phase II issue, it illustrates the level of knowledge that
     Parker has with respect to the resolved character issues in Mt.
     Baker and San Bernardino and that the focus and scope of his
     disclosure depends entirely on his personal interest in making the
     disclosure. For purposes of this case, such contrasting disclosures
     illustrate how Parker's self-interested disclosures are not to be
     trusted. But his lack of candor for purposes of preserving his
     self-interest should not be attributed to RBI.

**Parker's Exclusive Fault Mitigates Against RBI's Disqualification**

233. There are mitigating circumstances for RBI to remain qualified to
     hold a license, provided Parker leaves the scene. [See]{.underline}
     [Character Qualifications]{.underline}, [supra]{.underline} at
     1210 n. 76 (circumstances and other considerations may attenuate
     consideration of further reliability and truthfulness). The record
     shows that RBI was in dire financial straits when Mr. Parker
     appeared on the scene. It was the fact of bankruptcy that brought
     RBI and Parker together. RBI needed an experienced manager to bring
     the enterprise out of bankruptcy. A factor that resulted in the
     court's approval of a Parker crafted reorganization plan included
     the MSA which gave Parker operational control and a substantial
     equitable position through Partel. It was soon after the MSA was
     executed that Mr. Parker challenged RBI's directors, took control,
     and appointed his

own slate of directors. As a result, when he was filing misleading
applications, including the transfer application removing RBI from
bankruptcy, Mr. Parker was acting alone and without any input, direction
or control from RBI's other officers and directors with regard to
disclosure.

234. It is expected that Mr. Parker will voluntarily remove himself from
     all vestiges of control at RBI. As Mr. Parker testified:

> if there is to be a penalty imposed, it should be against me alone,
> not against RBI to the detriment of RBI's other stockholders.

(RBI Exh. 46 at 8.) If Mr. Parker does not honor that pledge, the other
directors of RBI might wish to consider his removal from his position of
control because as this record illustrates, he cannot be trusted to deal
openly with this agency. Commission precedent shows the importance that
would attach to Mr. Parker's removal. The Commission has acted favorably
towards licensees taking remedial action to remove persons from
ownership and control positions who are responsible for misconduct.
[See]{.underline} [PCS 2000, L.P]{.underline}., 12 F.C.C. Rcd 1681, 1688
-- 89 (1997) (disqualification not warranted where applicant
expeditiously removed CEO responsible for misrepresentation); [Faulkner
Radio, Inc]{.underline}., 88 F.C.C. 2d 612, 618 (1981) (renewal
conditioned on total exclusion of wrongdoer from station operations);
and [Teleprompter Cable Systems, Inc]{.underline}., 40 F.C.C. 2d 1027
(1973) (no disqualification in case involving criminal misconduct where
applicant took rehabilitative step of hiring new management and board
members). It is recognized that RBI was a party only to one transfer
application and all other applications had no connection with RBI. And
the Commission finds that character is more relevant "where an applicant
is acquiring, as opposed to transferring." [See]{.underline} [Character
Qualifications]{.underline}, [supra,]{.underline} at 1224 n. 103.
Therefore, RBI's non-involvement is buttressed by the lesser harm of
Parker's misconduct with respect to transfer applications, even though
one of the tarnished transfers was for the purpose of gaining RBI's
release from bankruptcy, an isolated event not likely to reoccur.

235. The [Policy Statement on Character Qualifications]{.underline},
     [supra]{.underline}, 102 F.C.C. 2d at 1217-18 holds that mitigating
     factors are relevant and must be considered on a case by case basis
     to determine whether the removal of a principal as the sole
     wrongdoer will suffice without sanctioning a corporate licensee and
     its other stockholders. Here there was the further mitigating
     factor of RBI being subjected to the jurisdiction of a bankruptcy
     court that limited the authority of the directors. It was the court
     which approved the MSA that gave Mr. Parker the control, thereby
     giving judicial assurance to the directors that the licensee was in
     good hands. Mr. Parker operated alone on disclosures and he could
     not be effectively controlled by the board of directors. That is
     particularly true with respect to applications having nothing to do
     with the license of WTVE(TV) in which Mr. Parker gave false answers
     to a very specific Question 4. It also was Parker alone who gave
     inadequate disclosures in an amendment about the issues in the Mt.
     Baker and San Bernardino proceedings. Even in the case of the
     disclosures in connection with the transfer removing RBI from
     bankruptcy, there is no evidence that the directors were consulted
     or had any control over disclosures made to the Commission for that
     purpose. And Mr. Parker alone gave the testimony lacking in candor
     in this proceeding. Since the removal of Mr. Parker would be a
     [sine qua non]{.underline} to RBI's qualification to hold a
     Commission license, there is no predictive value in Mr. Parker's
     misconduct insofar as RBI's future broadcast conduct is concerned.
     Therefore, RBI, removed from Mr. Parker's influence and control,
     need not be disqualified from holding a Commission license.

**Parker's Misconduct Still Attributable**

**To RBI's Renewal Expectancy**

236. But RBI cannot disavow Mr. Parker's conduct for purposes of a
     renewal expectancy. One of the elements for a renewal expectancy is
     "licensee misconduct." [Cowles Broadcasting, Inc.]{.underline}, 86
     F.C.C. 2d 993, 1017 (1981). When misconduct is not an isolated
     event and is not counterbalanced by a showing of substantial
     broadcast performance, the renewal

expectancy is lost to the renewal applicant. [Central Florida
Enterprises, Inc. v. F.C.C.]{.underline}, 683 F. 2d 503, 509 (D.C. Cir.
1982) [affirming]{.underline} [Cowles Broadcasting, Inc.]{.underline},
[supra]{.underline}. In this case, RBI's mediocre programming for the
community was not close to substantial. In addition, RBI, through Mr.
Parker, was subjected to an unauthorized transfer of control which was
unreported. RBI also admitted failures to timely disclose to the
Commission the MSA executed in May 1989, the Form 315 transfer
application for Station WTVE(TV), an FCC Form 323 ownership report filed
in 1992, an Annual Ownership Certification Letter for 1993, and an
Annual Ownership Report for 1994. (RBI Exh. 14.) Mr. Parker's conduct as
RBI's president must be attributed to RBI in the narrow context of
license renewal and therefore, as a result of Mr. Parker's wrong-doings
and the Station's deficient programming, RBI cannot receive a renewal
expectancy.[^38]

**III**

**Abuse Of Process**

237. The Phase III issue was added to determine whether there was
     substantial evidence showing that Adams filed its application with
     a purpose of obtaining a payoff. The issue was added after the
     conclusion of Phase I and following the testimony of Mr. Gilbert on
     the "background " of the Adams application. (Tr. 994 to 1136.) Mr.
     Gilbert gave as reason for Adams' filing, his conviction that home
     shopping programming was inherently flawed in that it cannot meet
     the duty owed by a broadcaster to address the public interest needs
     of a community. He also testified to discussions with Telemundo's
     counsel about a possible settlement. As a result of that testimony,
     it became necessary to determine the motive or motives for the
     Adams application and the circumstances of the settlement
     discussions. [See]{.underline} [Memorandum Opinion and
     Order]{.underline}, FCC 00M-07, released January 20, 2000,
     [appeal]{.underline} [denied]{.underline}, [Memorandum Opinion and
     Order]{.underline}, FCC 00M-19, released March 6, 2000.

238. The legal test of an "abuse of process" includes the use of a
     Commission process to achieve a result that the process was not
     intended to achieve or to make any use of that process to subvert
     the purpose that the process was intended to achieve. [Broadcast
     Renewal Applicants]{.underline}, 3 F.C.C. Rcd 5179, n.2 (1988).
     Section 311(d)(1)(3) of the Act permits the Commission to approve a
     settlement agreement "only if it determines that \-\-- (B) no party
     to the agreement filed its application for the purpose of reaching
     or carrying out such agreement." Thus, an abuse of process would
     include the filing of an application for the purpose of achieving a
     settlement which would also be a direct violation of §311 of Act.
     However, the Commission will not infer improper purpose without a
     specific showing of an improper motivation. [WWOR-TV,
     Inc.]{.underline}, 7 F.C.C. Rcd 636 (1992), [aff'd sub
     nom]{.underline}. [Garden State Broadcasting Limited Partnership v.
     F.C.C]{.underline}., 996 F. 2d 386 (D.C. Cir. 1993). It is
     necessary to evaluate and analyze the relevant evidence surrounding
     the application and testimony in order to determine motivation.

239. Underlying this concern for Adams' motives were the circumstances
     involving these same principals and their earlier settlement. The
     Adams principals are virtually all the same principals as those of
     Monroe, the challenger in Chicago. The Monroe application was
     declared the winner. But rather than construct and operate a
     station, the principals opted to take a cash settlement of
     approximately \$17.5 million. The Monroe/Adams principals claim
     that they would have proceeded to construct and operate in
     [Harriscope]{.underline} but they believed that Monroe would not
     have been able to produce similar quality Spanish language
     programming. The settlement order specified that there would be a
     continuation of Channel 44's "exemplary Spanish language
     programming."

240. Adams consists of experienced business persons and community
     leaders who were well aware of the substantial monetary reward that
     can be achieved as a renewal challenger. With millions of dollars
     obtained through a settlement and the continued use of the law firm
     that had succeeded for Monroe, the contest for WTVE(TV) might also
     result in a favorable monetary settlement. However, the relevance
     of that awareness is offset by the fact that in 1989, five years
     before Adams filed, the Commission had addressed shenanigans of
     renewal challengers and decided to limit settlements to costs and
     expenses and then only if a challenger remained in the case through
     an Initial Decision. [See]{.underline} [Formulation of Policies and
     Rules Relating to Broadcast Renewal Applicants, Competing
     Applicants, and Other Participants to the Comparative Renewal
     Process and to the Prevention of Abuses of the Renewal
     Process]{.underline}, 4 F.C.C. Rcd 4780, [recon.
     denied]{.underline}, 5 F.C.C. Rcd 3902 (1990). Counsel for Adams
     informed the principals of that policy change through a memorandum
     dated August 15, 1991. (Adams Exh. 62.) Therefore, with a policy
     against settlements in place, the Adams principals realistically
     could not have filed an application with a primary intention of
     obtaining a settlement. Rather, Adams' motivation for filing was
     primarily to obtain a construction permit and build a station in
     Reading, PA. The evidence shows that the Adams principals saw the
     renewal process as a means to acquire a valuable television
     broadcast authorization at less than market value. In an effort to
     achieve that legitimate business goal, the Adams principals were
     just as prepared to litigate in earnest here as they were in the
     decade long [Harriscope]{.underline} challenge. (Tr. 2429-30,
     2465.) [^39] The mere fact that this cohesive group of experienced
     business people did not cobble together a written business plan
     does not convince otherwise.

241. In addition to their business outlook, the Adams principals have
     evidenced some concern for programming. The Commission has in the
     past carefully examined evidence of a repeat challenger's concern
     over programming as evidence of the [bona fides]{.underline} of a
     lawful motive for a challenge. [See]{.underline}
     [WWOR-TV]{.underline}, [supra]{.underline} at 638-639. In that
     case, the applicant had at first testified that a concern for
     programming was what drove the application. But when the date of a
     key meeting was shown to negate sufficient time to review
     programming, the challenging applicant lost all credibility.
     [Id]{.underline}. In this case, the record contains unrebutted
     testimony establishing that Adams principals had concluded before
     filing that "home shopping"

programming was not providing locally-originated news programming or
other programming that served a public interest. (Tr. 2457-58, 2467-68.)
In addition, starting in August 1993, almost a year before filing the
challenge, Adams' counsel was providing literature to Mr. Gilbert that
was critical of "home shopping" programming. (Adams Exhs. 63, 64, 65,
67.) Mr. Gilbert studied the literature upon its receipt and before
filing the application. (Tr. 2468-71.)

242. There are other indicia which reject settlement as the overriding
     motive. Adams considered a range of stations that carried home
     shopping and initially chose to file in California and later in
     Boston.[^40] The steps taken to look into the available
     opportunities were those expected, including a serious search for
     antenna sites. The searches in California and in Boston would have
     been a waste of time and money if settlement was the only goal and
     those unproductive efforts negate an inference of an intent to file
     for a settlement in Reading. Other credible evidence shows that in
     addition to site searches, the venture obtained bank financing,
     hired an engineer to analyze a suitable site, instructed that
     engineer that local broadcasting capability was a prime concern,
     methodically reviewed the Station's programming, visited the
     Reading area and interviewed local persons. While there was a foul
     up in the taping of programming, it did not prevent Adams from
     undertaking a plausible assessment of familiar "home shopping"
     format that was broadcast by Station WTVE(TV). And while no one of
     these indications of interest is conclusive of motive, in the
     aggregate, these are significant objective facts that negate an
     intent to file for settlement.

243. The most significant circumstance of a settlement motive was the
     discussion in the Spring of 1999. Mr. Parker first approached Mr.
     Gilbert on a settlement proposal which was summarily rejected as
     not serious. Telemundo later contacted Mr. Gilbert through Ms.
     Swanson and broached the subject of settlement for credible
     business reasons. At that time, Telemundo had an affiliation
     agreement with RBI to provide Hispanic programming. Telemundo\'s
     counsel was aware that there was a serious challenge to RBI's
     renewal and that there would be a hearing commencing in May 1999.
     Telemundo saw its RBI affiliation to be in jeopardy and therefore
     had a business reason to initiate settlement discussions. Adams
     took the contact seriously enough to share in paying for an
     appraisal of the Station's market value. But there is no evidence
     that there was any activity beyond discussion which was never
     joined in by RBI. Telemundo was probing in order to protect its
     affiliation status. Adams would have given consideration to a
     serious settlement offer. With the primary impetus coming from
     Telemundo, there is no inference from that fact that Adams had
     filed to settle. Nor would settlement in 1999, or later, effect the
     convincing item of objective circumstantial evidence which is the
     Commission policy effectively banning "greenmail" that was in place
     when Adams filed.

244. In the final analysis, if Adams was primarily interested in
     repeating a hefty buyout by challenging another renewal, would this
     sophisticated syndicate have targeted a licensee that was emerging
     from bankruptcy and obviously short of cash? If a profitable
     settlement was its prime motive, Adams might have attempted a more
     ingenious "greenmail" against a renewal

applicant having deeper pockets than a financially wounded RBI. Viewed
in a realistic light, a renewal applicant just coming out of bankruptcy
would be a highly likely target to compete with for a license because of
the likelihood of difficulty for such an incumbent to prove a
meritorious renewal expectancy.

**Adams' Testimonial Veracity**

245. For a finding of an intentional misrepresentation or a lack of
     candor there must be substantial and reliable evidence that Adams
     intentionally distorted a hearing record. [Maria M.
     Ochoa]{.underline}, 8 F.C.C. Rcd 3135, 3137 (1993),
     [aff'd]{.underline} [Marie M. Ochoa v. F.C.C.]{.underline}, 98 F.3d
     646 (D.C.

Cir. 1996). Candor in a hearing is important. But there will not be a
disqualification for "insignificant misstatements." [Fox River
Broadcasting, Inc.]{.underline}, 88 F.C.C. 2d 1132 n.15 (Review Bd.
1982). It appears that in depositions, filings in this litigation, and
in testimony at the hearing,

there were varying accounts given by Mr. Gilbert. And in certain
respects, Mr. Haag and

Mr. Fickinger also gave different testimony than that of Mr. Gilbert.
But none of those testimonial disparities significantly distorted the
record. Any confusion caused may be attributed to the fact that this
case has a complex hearing record that has been in assemblage since May
1999. The Commission recognizes that "errors and inconsistencies \[in
witness positions and emphasis\] are not unusual in cases of this
magnitude and complexity.\" [ABC-ITT Merger Case]{.underline},

9 F.C.C. 2d 289, 324 (1967). There has been a careful analysis of the
testimony of Adams principals regarding motive for filing, the Telemundo
settlement and programming discussions, the taping episode, and the
temporary lapse of Adams' corporate status. The testimony of Adams
principals, while not crisp, clear and concise in all respects, has not
misrepresented any material facts, has not misstated any facts of
decisional significance, has not distorted the record, has not been
misleading, and has not been lacking in candor.

**Ultimate Conclusions**

246. Micheal Parker assumed control without authorization and serially
     caused RBI to violate the Commission's filing rules. Because of Mr.
     Parker's filings on behalf of RBI while in control of its
     management and its Station WTVE(TV), and because of the
     deficiencies found in WTVE(TV) programming during the renewal
     period, RBI cannot qualify for a renewal preference.

247. Adams did not file its application for purposes of a settlement.
     And there are no substantial questions raised with respect to Mr.
     Gilbert's testimony. Therefore, Adams is fully qualified to hold a
     license.

248. In light of RBI's failure to show by a preponderance of evidence
     that it merits a renewal expectancy, diversification, signal
     coverage and local residence/civic activities become the
     controlling standards under the "generally phrased standard
     comparative issue."[^41]

249. Adams has only one principal with one existing media interest which
     is pledged to be divested if Adams is declared the winner. Mr.
     Parker, who is the largest shareholder of RBI and its president,
     holds licenses to two full power television stations through his
     ownership of their corporate licensees. Therefore, Adams must be
     awarded a slight comparative merit for diversification. [Pueblo
     Radio Broadcasting Service]{.underline}, 5 F.C.C. Rcd 4829 (Review
     Bd. 1990).

250. RBI has failed to show by reliable evidence that it will be able to
     obtain a new antenna site and construct a new tower. Adams, by
     comparison, has shown a reasonable likelihood to construct an
     antenna that will serve 33% more people than Station WTVE(TV)'s
     current signal presently serves. Therefore, Adams is awarded a
     slight comparative credit for its projected slightly superior
     signal coverage. [Compare]{.underline} [Global Information
     Technologies, Inc]{.underline}.,

8 F.C.C. Rcd 4024, 4031 (Review Bd. 1993) (slight preference for 30 %
coverage differential ) and [Christian Broadcasting of the Midlands,
Inc.]{.underline}, 99 F.C.C. 2d 578, 583 (Review Bd. 1984) (slight
preference for 24 % coverage differential).

251. RBI receives slight credit for local residence and related local
     civic activities. But those criteria receive a lesser credit than
     Adams' diversification and superior signal coverage. [Policy
     Statement on Comparative Broadcast Hearings]{.underline},
     [supra]{.underline} at 394 (diversification merits primary
     significance). [Compare]{.underline} [Pueblo Radio Broadcasting
     Service]{.underline}, 5 F.C.C. Rcd 4829, 4832 (excluding credit for
     integration, diversification and superior coverage should surpass
     its local characteristics and civic affairs). (Review Bd 1990). RBI
     deserves an even lesser credit for local residence because of its
     failure to qualify for a renewal preference in that it failed to
     adequately service the local issues. The Commission has emphasized
     the relevance of local residency as showing an interest in the
     welfare of the community. [Edward F. and Pamela J.
     Levine]{.underline}, [supra]{.underline} at 8402. RBI has shown a
     disinterest in the welfare of the community by its meager public
     service programming and by not qualifying for the preference.

252. Based on the criteria of diversification and better signal coverage
     compared against local residency and civic affairs which are
     substantially discounted by unmeritorious programming, Adams is
     declared the winner.

**Settlement Option**

253. Both the renewal applicant (without Parker/Partel) and the
     challenger are found to be basically qualified to receive a
     Commission license. In view of the phasing out of comparative
     selection, the Commission has authorized "where the circumstances
     afford assurance that the competing applications were not filed for
     speculative or other improper purposes," the waiving of limitations
     on settlement payments to dismissing applicants. [Implementation of
     Section 309(j) of the Communications Act]{.underline},
     [supra]{.underline} at 16006. This expresses a policy permitting
     settlement of the remaining comparative cases. [Id]{.underline}.
     The Bureau urges settlement as being in the public interest. In
     light of the findings that RBI, without Parker, is

qualified to own or assign its license and that Adams has not abused the
renewal process, the

parties could settle this case while exception(s) to the [Initial
Decision]{.underline} are being prepared for submission or are filed and
being considered by the Commission.[^42]

254. In deciding this case, Parker is found to be "unqualified" to
     control RBI's license because of his unauthorized taking of
     control, his failures to report timely and accurately, and
     particularly because of his false answers to Question 4 denying
     "fraud," his causing the misrepresented Dallas amendment to be
     filed, and his lacking in candor in his hearing testimony. Mr.
     Parker also is found to be "disqualified" from benefiting from any
     settlement that might be achieved between RBI and Adams.
     [See]{.underline} [SL Communications, Inc. v. F.C.C.]{.underline},
     168 F3rd 1354, 1358 (D.C. Cir. 1999) (Commission policy was
     approved which denies the right of settlement to those who act
     "mendaciously" before the agency). As a result, Mr. Parker is not
     qualified either to hold any position of control in connection with
     RBI's license, or to participate in a settlement between RBI and
     Adams.

ORDER

IT IS ORDERED that the renewal application of Reading Broadcasting, Inc.
(File No. BRCT--940407KF) IS DENIED.

IT IS FURTHER ORDERED that the application of Adams Communications
Corporation (File No. BPCT--940630KG) IS GRANTED.

IT IS FURTHER ORDERED that Micheal L. Parker IS FOUND NOT QUALIFIED to
hold or control a broadcasting license allotted to Reading Broadcasting,
Inc., or to participate in a settlement between Reading Broadcasting,
Inc. and Adams Communications Corporation in connection with this
proceeding, or in a settlement of this proceeding involving any assignee
of either entity.[^43]

FEDERAL COMMUNICATIONS COMMISSION

Richard L. Sippel

Administrative Law Judge

[^1]: Once a competing application is filed, the renewal applicant
    cannot upgrade its programming to meet the challenge. RBI's
    application was filed on April 7, 1994, and Adams filed its
    competing application on June 30, 1994. This leaves only the month
    of July as a possible opportunity to upgrade. But Adams contends
    that RBI had no meritorious programming in the month of July.
    Therefore, Adams could not be prejudiced by the inclusion of that
    one month. The renewal period begins and ends on the same dates as
    the expiration date of a license term and conforms with the
    standards for adjudicating renewal preferences. [Memorandum Opinion
    and Order]{.underline} FCC 99M-47, at 4-6, n.6. Relevance was
    measured by the renewal dates.

[^2]: After the record was closed, a "white knight" was awarded the
    license to the Hartford Station by assignment incident to a
    settlement under which TIBS is to receive approximately \$7 million.
    [See]{.underline} [Martin W. Hoffman, Trustee in Bankruptcy, et
    al.]{.underline}, MM Docket No. 97-128, [Memorandum Opinion and
    Order]{.underline} FCC 00-387, released November 8, 2000. (Official
    Notice.) That settlement is being challenged.

[^3]: [See]{.underline} [Order]{.underline} FCC 00M-52, released August
    18, 2000 (record closed).

[^4]: RBI Exh. 2 does not identify which of the shareholders have owned
    an interest in RBI during the renewal period. Nor does RBI rebut or
    explain in its Reply the noted deficiency. The unanswered criticism
    includes the failure to show that all of the civically active
    shareholders were such during 1989-1994; a failure to show that the
    claimed activities all occurred in that period; and a failure to
    show that the activities occurred within or were related to any
    community or organization within the Grade B contour.

[^5]: Various documents identify Mr. Parker as RBI\'s executive
    vice-president. (E.g., RBI Exh. 3 and Adams Exh. 18.) Irrespective
    of his corporate title, Mr. Parker functioned as RBI\'s chief
    operating officer throughout the renewal period. (Tr. 824.)

[^6]: Dr. Aurandt and Mr. Parker had been at odds for some time and Dr.
    Aurandt had attempted on more than one occasion to remove Mr. Parker
    as RBI\'s president. (Adams Exh. 13 at 52.)

[^7]: RBI stock was reissued to all shareholders on December 31, 1991,
    at the insistence of the Meridian Bank in order to reflect the
    bank\'s status as a secured creditor. (Tr. 798.)

[^8]: STV Reading, Inc. was a corporation initially controlled by Dr.
    Aurandt. RBI and Parker contend that

    Dr. Aurandt was "previously approved" by the Commission which would
    mean that STVR's 4.8% interest in RBI would incrementally bring the
    total of ownership shares issued to "previously-approved"
    shareholders to 51.6% which mathematically negates a transfer of
    control. (Tr. 954-55; RBI Exh. 17 for ID but not received into
    evidence.) This theory of shareholders being "previously approved"
    was not substantiated or accepted. (Tr. 1189.) However, full
    attention was paid to RBI's arguments for its Exh. 17 and it is
    clear that counsel worked hard to prepare and present the evidence.
    A detailed explanation for the exclusion ruling is set forth in
    [Order]{.underline} FCC 00M-36, released May 30, 2000, following a
    round of pleadings. The most significant problem found with Exh. 17
    was one of reliability. Dr. Aurandt's declaration was conclusory,
    did not account for an "original issue" of 1,000 shares, and lacked
    reliable proof that he owned more than 50% of STV stock prior to
    October 15, 1991. As stated in the Order: "Reading has failed to
    show that Exhibit 17 accounts for 17,640 shares of Reading stock
    \-\-- and no resolution of the question can be made without the
    testimony of Dr. Aurandt and/or more definitive business records."
    [Id]{.underline}. But regardless of how RBI's stock register showed
    the issuance of stock,

    Mr. Parker demonstrated that he was in control before the Commission
    had approved any assignment application. In his sworn testimony, Mr.
    Parker admitted that as of October 30, 1991, he thought that he held
    effective voting control. (Tr. 977-78, 987.)

[^9]: Adams sought to introduce bulky records on employment levels which
    were rejected. ([See]{.underline} Adams Exhs. 33-38, rejected
    January 10, 2000.) Rejected exhibits included a ream of documents
    that would add over an inch of data to the record on a fact that was
    adequately established by Adams Exhibit 16 and an RBI admission.
    Argument was heard when the Adams evidence was rejected. (Tr.
    725-726.) This was a routine evidentiary call that was within the
    discretion of the Presiding Judge that need not be revisited.
    [See]{.underline} 47 C.F.R. §1.243 (Authority of presiding officer.)

[^10]: There was an evident economic incentive to increase air time for
    home shopping programming in order to make the Station more
    attractive to cable systems. This posed a tension since those
    systems might have chosen to carry satellite-feed home shopping
    programming rather than RBI's public service signal. (Tr. 1681-82,
    1711.)

[^11]: RBI\'s Children\'s Issues and Program Reports do not list
    \"Adventure Pals\" after the first quarter of 1993. (RBI Exh. 8,
    App. X.) Nonetheless, WTVE(TV)\'s logs and its Programs/Issues
    Reports continue to mention the program as well as other children\'s
    shows aired by WTVE(TV) during the renewal period. (RBI Exh. 8, App.
    R; Adams Exhs. 6, 7; RBI Exh. 8, App. B, U. V.) Despite the
    conflict, the program receives credit.

[^12]: \"How Do You Zoo?\" was rebroadcast in the fourth quarter of
    1993. (RBI Exh. 8, App. T at 10.)

[^13]: Although presentation of the program occurred after the renewal
    period ended, it is accepted that the idea for the program occurred
    before the renewal period expired. RBI gets some credit.

[^14]: The \"Community Outreach\" program that related to flood victims
    was broadcast after the renewal period. [Id]{.underline}. at 65-66.
    But the programming was created before the renewal period, served a
    significant public interest, and RBI gets some credit.

[^15]: The most legible copy of the MSA was introduced as Adams Exh. 19
    that reflects signatures of

    Mr. Parker and Dr. Aurandt and their signatures' notarizations on
    May 28, 1989.

[^16]: [Allegan County Broadcasters, Inc.]{.underline}, 83 F.C.C. 2d
    371, 373 (1980) (subsequent procedures to be taken to address
    unresolved substantial character allegations not addressed
    previously in order to accommodate settlement).

[^17]: Adams has objected in prehearing motions to the citations by Mr.
    Parker to non-published versions of Review Board decisions. While it
    was an irritant purposefully inflicted and although the rules
    require FCC Record cites, the practice does not constitute evidence
    of a lack of candor. [See]{.underline} 47 C.F.R. §1.14.

[^18]: The distancing of the lawyers from authorship of the narrative's
    language creates a further inference that it was prepared by Parker
    or under Parker's direction and then given to the lawyers.

[^19]: This circular reasoning comes across in the testimony: \[O\]nce
    the ALJ's opinion was appealed, then the controlling document was
    the review board (sic); not just their opinion on the \[\$\]850,000
    \[settlement\], but their opinion rendered in terms of -- at least
    my understanding of what that opinion

    was \-\-- that for comparative analysis she didn't get the credit,
    but they didn't extend on to the rest of opinion, and I'm sure you
    guys will argue about that, but that was understanding." (Tr.
    2026-27.) Parker seems to have lost any semblance of truth and
    accuracy in that testimony when he stops short of the key finding
    that he was provocateur of a "transpicuous sham."

[^20]: Consider the more detailed disclosure that Mr. Parker made to
    Telemundo when a business opportunity was involved.
    [See]{.underline} Paras. 162-163 below.

[^21]: Letter dated May 22, 1997 (Corrected) to Alan C. Campbell, Esq.
    from Barbara A. Kreisman, Chief, Video Division, Mass Media Bureau
    received in evidence as Bureau Exh. 2 in posthearing ruling,
    [Order]{.underline} FCC 00M -- 52, released August 18, 2000.

[^22]: To avoid any future uncertainty, based on this record, Mr. Parker
    is declared to be "unqualified" to exercise ownership or control
    over RBI's license.

[^23]: The Commission suggested that Mr. Parker might be disqualified in
    the published "by direction" letter to TIBS, 12 F.C.C. Rcd at 2255,
    2257. But that letter was not an adjudication.

[^24]: [In re Monroe Communications Corporation]{.underline}, 840 F.2d
    942 (D.C. Cir. 1988), [Monroe Communications Corporation v.
    F.C.C.]{.underline}, 900 F.2d 351 (D.C. Cir. 1990).

[^25]: Dow, Lohnes attorneys were most diligent and cooperative under
    intense demands to produce relevant evidence on the Telemundo
    settlement efforts. There were multiple [in-camera]{.underline}
    inspections made for privileged matter after the documents were
    screened by Ms. Swanson and other attorneys of the firm, including
    another partner. Ms. Swanson was personally attentive to each
    discovery request, including a review and redacting of her personal
    diary, and she answered the questions with care and candor. For more
    details, [see]{.underline} [Protective Order]{.underline}, FCC
    00M-48, released July 18, 2000 (just clerical/paralegal, copying and
    messenger costs of document search and production were calculated @
    \$6,800).

[^26]: On November 2, 1999, RBI filed a motion to add an abuse of
    process issue against Adams. The pleading cycle was concluded on
    December 1, 1999. The Presiding Judge waited to hear Mr. Gilbert's
    testimony before ruling on RBI's motion.

[^27]: The business opportunity as seen by Mr. Gilbert did not include
    as a factor the lost opportunity to broadcast in his view of the
    "public interest" while the litigation was under way for these
    several years. But there is weight accorded to Adams' cost benefit
    analysis, the "horseback" economics of which were never challenged.
    More importantly, it does not negatively impact upon Adams'
    convincing credibility.

[^28]: There was a delay in the transmission of the appraisal documents
    to RBI in discovery. Adams contends that the delay was due to an
    oversight and that the identity of the appraisal was made clear in
    answers to interrogatories. According to RBI, Adams answers to
    interrogatories that are dated April 19, 2000, disclose that Adams
    was contacted by Ms. Swanson to negotiate a "white knight"
    settlement and that in June 1999, a copy of the appraisal was
    furnished to Mr. Cole. RBI was not caught by surprise as a result of
    the delay and there is insufficient evidence to support a finding
    that Adams had purposely withheld the documents.

[^29]: [See]{.underline} RBI's Proposed Findings of Fact and Conclusions
    of Law at 90 n.15 (WTVE's use of short form public programming is a
    matter of licensee discretion).

[^30]: RBI relies on [Radio Station WABZ, Inc]{.underline}., 90 F.C.C.
    2d, 818, 836 (1982) as authority for awarding a renewal preference
    for short form public service programming. In fact, in that case,
    the Commission approved broadcasting with "a number of recorded
    public affairs series on a weekly basis, as well as a number of
    specials dealing with political, educational, religious, and
    health-related issues." [Id]{.underline}. at 837 (fn. omitted).
    Also, in that case there was a record of composite week broadcasting
    of 3 hours and 40 minutes of noncommercial broadcasting for an
    average of 31 minutes per day. [Compare]{.underline} the composite
    week of RBI's public affairs programs from all sources which showed
    nothing for the first three years and only a minimal amount for the
    last two years. (Adams Exh. 2-7.)

[^31]: RBI claims that the MSA "was reported in an amendment filed by
    \[RBI\] on February 7, 1992". (RBI PFC at 96-97.) But there was only
    passing reference to the MSA in the February, 1992 amendment as an
    attachment. (Adams Exh. 30 at 8.) It did not mention that the
    "contract of employment" gave control of the station's operations to
    Parker. Nor did it disclose that such "contract of employment"
    included Partel or mention the contemplated RBI stock ownership for
    Partel. Such oblique hints do not qualify as a "report" to the
    Commission.

[^32]: The term \"willful\" means that the violator knew that it was
    taking the action in question, irrespective of any intent to violate
    the Commission\'s rules. [Southern California Broadcasting
    Co.]{.underline}, 6 F.C.C. Rcd 4387 (1991).

[^33]: 47 U.S. C. § 310(d).

[^34]: Mr. Parker's "fraud" was committed at the Commission and not
    before [another]{.underline} governmental unit. Therefore, there is
    no adverse finding or conclusion made with respect to Parker's "no"
    answer to the "fraud" question in Form 346 used in the application
    for an LPTV license in Los Angeles. ([See]{.underline} para. 124,
    [supra]{.underline}.)

[^35]: Question 7 does not ask for the details of findings of "fraud" as
    does Question 4 to which Parker falsely and repeatedly answered
    "no".

[^36]: The Commission facilitated future consideration of unresolved
    issues by amending its forms (including Forms 314 and 315) "to
    require full disclosure by an applicant of any interest in an
    application "dismissed with prejudice" by the Commission, and the
    underlying circumstances thereof. [See]{.underline} 83 F.C.C. 2d at
    373. But in both Mt. Baker and San Bernardino, the request for
    extension of time and the SBBLP application were only "denied" and
    there were no "dismissals with prejudice." In fact, Mr. Parker
    apparently was permitted the right to participate in a San
    Bernardino settlement. That will not be permitted in the
    [Initial]{.underline} [Decision]{.underline} in this case.

[^37]: The fact that information is on file elsewhere at the Commission,
    does not relieve an applicant of its responsibility to furnish the
    Commission with complete and accurate information when asked. [Vogel
    Ellington Corp]{.underline}., 41 F.C.C. 2d 1005, 1010 (Review Bd
    1973), and [Folkways Broadcasting Co]{.underline}., 27 F.C.C. 2d
    614, 616-617 (Review Bd 1971).

[^38]: Findings of fraud, misrepresentation and lack of candor require a
    specific intent and therefore those findings are not attributable to
    RBI.

[^39]: The Monroe principals litigated many years before the Commission
    and a federal court of appeals. In the order approving settlement,
    the Commission noted that the Monroe application was not filed to
    secure a settlement. (RBI Exh.22.)

[^40]: Adams relies on its certificate of incorporation in Massachusetts
    as evidence of a [bona]{.underline} [fide]{.underline} intent to
    conduct business. The fact that there was an inadvertent lapse in
    the charter, subsequently cured, is not entitled to any weight and
    will not be considered as adverse evidence against Adams.

[^41]: [Implementation of Section 309(j) of the Communications
    Act]{.underline}, [supra]{.underline}, 13 F.C.C. Rcd at 16006;
    [Policy Statement on Comparative Broadcast Hearings]{.underline}, 1
    F.C.C. 2d 393, 394 (1965); [Bible Broadcasting Network,
    Inc]{.underline}., 7 F.C.C. Rcd 4578, 4579 (1992).

[^42]: Any settlement would be without reference to Mr. Parker who would
    be expected to honor his pledge and accept a result which is not to
    the detriment of RBI or to the detriment of RBI's other
    stockholders. (RBI Exh. 46 at 8.)

[^43]: In the event exceptions are not filed within 30 days after the
    release of this [Initial Decision]{.underline} and the Commission
    does not review the decision on its own motion, this [Initial
    Decision]{.underline} will become effective 50 days after its public
    release pursuant to 47 C.F.R. §1.276 (d).