**JOINT STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL, COMMISSIONER MICHAEL J. COPPS, AND
COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: Applications for Assignment of License and Renewal of License for
Stations KESC(FM), Wilburton, Oklahoma, and KMCO(FM), KNED(AM),
KTMC(AM), and KTMC-FM (FIN 67582), McAlester, Oklahoma*

On March 1, 2005, the applicants filed a pleading requesting that we
recuse ourselves from participation in this proceeding because of ex
parte contacts made by Andrew Jay Schwartzman of the Media Access
Project. These ex parte communications were in the form of e-mails and
oral communications with our offices urging us to overturn the Media
Bureau's ruling in this proceeding. In the case of the Offices of the
Chairman and Commissioner Adelstein, e-mail presentations were made to
the Commissioners and their staff and oral communications were made to
the staff; in Commissioner Copps' Office, ex parte presentations were
made only to staff. The applicants contend that these communications
were prejudicial and "impermissibly 'intruded into the calculus of
consideration of individual decisionmakers.'" Request for Immediate
Recusals and Investigation Into Prohibited Ex Parte Communications at 7
(quoting *Peter Kiewit Sons' Co. v. United States Army Corps of
Engineers*, 714 F.2d 163, 170 (D.C.Cir. 1983)).

Assuming that the applicants are correct and Mr. Schwartzman's
communications violated the Commission's ex parte rules -- an issue that
is being addressed by our Office of General Counsel, *see* 47 C.F.R.
§ 0.251(g)

[^1] -- recusal nevertheless is not appropriate. *Power Authority of the
State of New York v. FERC*, 743 F.2d 93, 110 (2d Cir. 1984) (ex parte
communications do not require an administrative body to disqualify
itself). Recusal is required only where there is a serious doubt about
the agency's ability to act fairly and impartially; of particular
importance in making that assessment is whether the ex parte
communications contained information outside the record that the parties
did not have an opportunity to rebut. *Id.*

Here, steps have been taken to ensure that the parties receive notice
and an opportunity to respond to all of Mr. Schwartzman's contentions
concerning the merits of this proceeding. In accordance with our rules,
the Office of General Counsel has directed that all written ex parte
presentations and summaries of all oral ex parte presentations be sent
to the applicants. This measure addresses the applicants' suggestion of
potential prejudice due to Mr. Schwartzman's ex parte presentations. The
Commission's action in this matter will reflect the fair and impartial
consideration of the record, and the applicants will have access to the
substance of all ex parte contacts and a full opportunity to respond
before the Commission reaches any decision on the merits.

It is of course open to any Commissioner to recuse himself from a
proceeding out of an abundance of caution. But to take such action when
there is no basis for doing so threatens to encourage unwarranted
recusal requests and interfere with the efficient and effective
functioning of the agency. We therefore decline to recuse ourselves from
this proceeding.

[^1]: The Commission's Office of General Counsel has notified Mr.
    Schwartzman that his communications violated the Commission's ex
    parte rules.