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 Federal  Communications  Commission  FCC  01D-  01 
 Before  the 
 Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 READING  BROADCASTING,  INC. 
 For  Renewal  of  License  of 
 Station  WTVE(  TV),  Channel  51 
 Reading,  Pennsylvania 


 And 
 ADAMS  COMMUNICATIONS  CORPORATION 
 For  Construction  Permit  for  a  New 
 Television  Station  to  Operate  on 
 Channel  51,  Reading,  Pennsylvania 


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 MM  Docket  No.  99-  153 
 File  No.  BPCT-  940407KF 


 File  No.  BPCT-  940630KG 


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


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


 ISSUES 
 Phase  I 
 4.  The  standard  comparative  renewal  issue  designated  in  the  HDO,  as  further  explicated 
 in  Memorandum  Opinion  and  Order  FCC  99M-  47,  supra,  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  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  FCC  99M-  61,  released  October  15,  1999. 


 Phase  III 
 6.  By  Memorandum  Opinion  and  Order  released  on  January  20,  2000,  a  Phase  III  issues 
 was  added  as  to  Adams'  basic  qualifications: 
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 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  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  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.,  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  FCC  00M-  19,  released  March  6,  2000,  modifying 
 Memorandum  Opinion  and  Order  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. 
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 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  FCC  99M-  47,  released  August  9,  1999.  It  also 
 must  be  determined  whether  RBI  qualifies  for  a  renewal  preference.  Id. 


 Renewal  Period 
 9.  The  relevant  renewal  period  was  determined  to  be  August  1,  1989,  to  August  1, 
 1994.  Memorandum  Opinion  and  Order  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  RBIs  contention  that  Adams  filed  for  settlement,  a  purpose  other  than  owning  a  station  and 
 broadcasting  on  Channel  51. 


 1  Once  a  competing  application  is  filed,  the  renewal  applicant  cannot  upgrade  its  programming  to  meet  the 
 challenge.  RBIs  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  FCC  99M-  47,  at  4-  6,  n.  6.  Relevance  was  measured  by  the  renewal 
 dates. 
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 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.) 


 15.  RBI  has  thirty  five  shareholders.  (RBI  Exh.  2.)  RBIs  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  RBIs  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.  Parkers  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.),  Mr.  Parker  has  made  no  pledge  to  divest  these  other  broadcast  interests. 


 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  Martin 
 W.  Hoffman,  Trustee  in  Bankruptcy,  et  al.,  MM  Docket  No.  97-  128,  Memorandum  Opinion  and  Order 
 FCC  00-  387,  released  November  8,  2000.  (Official  Notice.)  That  settlement  is  being  challenged. 
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 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  WTVEs  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.)  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.) 


 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.  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.) 


 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  Land  Area 
 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. 


 RBIs  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,  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,  RBIs 
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 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  Readings  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 


 3  See  Order  FCC  00M-  52,  released  August  18,  2000  (record  closed). 
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 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  RBIs  president  in  1991,  under  stormy  and  highly 
 questionable  circumstances.  (See  discussion  below  at  Paras.  39-  44.)  He  served  in  the  capacity  of 
 RBIs  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. 


 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. 
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 But  the  record  is  silent  with  respect  to  Mr.  Parkers  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.  Parkers  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.  RBIs  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 
 Stations  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.)  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, 
 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.) 
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 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. 


 Parkers  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 


 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.) 
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 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 


 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  STVRs  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  RBIs  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  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.  Aurandts 
 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.  But  regardless  of  how  RBIs  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.) 
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 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  STVRs  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 
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 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.  RBIs  November  1991  transfer  application  was  prepared  by  one  of  Parkers 
 communications  counsel  (Ms.  Friedman)  in  cooperation  with  RBIs  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. 
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 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.)  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  RBIs  quantity  of  noncommercial  programming  was  minimal. 


 Ascertainment 
 49.  George  Mattmiller  was  the  Stations  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  Stations  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,  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  WTVEs  "In  Touch."  Program.  (Tr.  460-  71, 
 581-  82.) 


 51.  Mr.  Bendetti  testified  that  the  ascertainment  at  WTV(  TV)  did  not  provide  input  into 
 the  Stations  "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 
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 review  a  document  that  indicated  what  were  the  community's  significant  problems.  (Tr.  830-  31.) 
 A  comparison  of  headlines  from  the  Reading  Eagle  (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  RBIs  programming  is  home  shopping,  a  format  which  passed  the 
 public  interest  test  under  a  formal  assessment.  In  re  Home  Shopping  Station  Issues,  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.  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  Commercial  TV  Stations,  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,  supra; 
 Office  of  Communications  of  the  United  Church  of  Christ  v.  F.  C.  C.,  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.  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  Stations  financial  plight.  WTVE(  TV)  also  shared  the  Philadelphia 
 DMA  with  WHSP-  TV,  Vineland,  New  Jersey,  another  Home  Shopping  Network  affiliate.  (Id.  at 
 2.)  Both  stations  provided  the  same  home  shopping  programming.  Cable 
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 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.) 


 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.  RBIs  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,  FCC  99M-  47,  supra  at    11-  13.  The  condition  of  bankruptcy  is  not  conducive  to  the 
 operation  of  a  TV  broadcast  station.  But  there  is  no  evidence  that  RBIs  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.) 


 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 
 RBIs  financial  condition  was  always  unstable.  (Tr.  1711  and  RBI  Exh.  5.) 


 58.  As  a  result  of  its  adverse  financial  condition,  the  Stations  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  Stations  ability  to  produce  and  broadcast  public 


 9  Adams  sought  to  introduce  bulky  records  on  employment  levels  which  were  rejected.  (See  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 
 47  C.  F.  R.  1.243  (Authority  of  presiding  officer.) 
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 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  stations  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.) 


 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  RBIs  non-commercial 
 fare.  Neither  the  Reading  Eagle  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 


 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  RBIs  public  service  signal.  (Tr. 
 1681-  82,  1711.) 
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 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  RBI  Exh.  8,  passim.) 


 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 
 RBIs  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.) 
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 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  RBIs  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  latters  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.) 
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 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- 
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 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.) 


 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.) 
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 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 
 Stations  service-  area  received  news  from  Philadelphias  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.) 


 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. 
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 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.  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.  at  16,  50.)  WTVE(  TV)  worked  with  the  local 
 chapter  of  the  Red  Cross  in  connection  with  the  program,  "Health  Beat."  (Id.  at  17-  18,  52.)  The 
 Station  worked  with  the  Red  Cross  in  assisting  hurricane  victims.  (Id.  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.  at  20- 
 22,  57,  60,  62.)  WTVE(  TV)  aired  PSAs  regarding  an  open  house  at  the  Red  Cross  to  aid  flood 
 victims.  14  (Id.  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.  at 
 25-  30,  67.)  Station  WTVE(  TV)  was  "always  there"  whenever  the  Red  Cross  needed  it  to 
 promote  anything.  (Id.  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.  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.  at  8,  35-  37,  4041.)  WTVE(  TV)  also 
 dealt  with  issues  related  to  pregnancy.  (Id.  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.  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.  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.  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.  at  12-  13.) 


 14  The  "Community  Outreach"  program  that  related  to  flood  victims  was  broadcast  after  the  renewal 
 period.  Id.  at  65-  66.  But  the  programming  was  created  before  the  renewal  period,  served  a  significant 
 public  interest,  and  RBI  gets  some  credit. 
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 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.  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.)  He  was  also  involved  in  producing  WTVE(  TV)  sponsored 
 PSAs  that  covered  a  variety  of  topics.  (Id.  at  12-  13.)  The  station  provided  time  for  "Reading 
 React,"  a  group  that  monitors  a  local  emergency  radio  band.  (Id.  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.  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.  at  49,  52-  54.)  Mr.  Caltagirone  further  affirmed 
 that  other  programs  concerning  state  legislative  affairs  were  broadcast  on  WTVE(  TV).  (Id.  at  10, 
 12-  13.)  Only  WTVE(  TV)  and  a  cable  channel  aired  legislative  report  programs  that  concerned 
 public  issues  and/  or  public  services.  (Id.  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.  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.  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  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.  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.  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.  at  11-  12,  18- 
 20.) 
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 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.  at  8-  10,  25,  28,  33,  35.)  He  also 
 confirmed  that  the  station  had  interviewed  him  in  connection  with  those  veterans'  issues.  (Id.  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., 
 passim.)  She  recalled  other  PSAs  shown  on  WTVE(  TV)  concerning  the  Humane  Society.  (Id.  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.  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.) 


 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.  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.  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.  at  9-  10.) 


 Witnesses  Sponsored  By  Adams 
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 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.  at  7.)  In  situations 
 warranting  warnings  to  the  public,  he  uses  an  emergency  alert  which  is  handled  by  two  county 
 radio  stations.  (Id.  at  9-  10.)  Local  broadcast  media  are  needed  to  inform  the  general  public  in 
 responding  to  such  events  as  a  weather  emergency.  (Id.  at  10.)  WTVE(  TV)  failed  to  contact  him 
 or  his  agency  in  connection  with  broadcasting  information  concerning  a  local  blizzard.  (Id.  at  14- 
 15.)  Mr.  Loos  recalled  that  WTVE(  TV)  only  contacted  him  to  do  a  "short  program."  Id.  at  28- 
 29.  However,  nothing  ever  came  of  it.  (Id.  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.  at  28.)  Those  emergencies  included  two  blizzards  and  one  earthquake  as 
 well  as  related  water  main  and  electrical  problems.  (Id.  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.  at  8.)  So  far  as  he  knew,  WTVE(  TV)  never  broadcast  any  programming  related  to  the 
 District  Attorney's  office.  (Id.  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.  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.  at  6.) 
 Mr.  Troutman  attends  meetings  of  the  Berks  County  Commissioners.  (Id.  at  p.  7.)  WTVE(  TV) 
 never  covered  any  meeting  of  the  County  Commissioners.  (Id.  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.  at  17.)  If  Mr.  Troutman  wanted  to  view  any  local  news 
 stories  he  would  watch  Channel  8  from  Lancaster.  (Id.  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.  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.  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.  at  8-  9.)  WTVE(  TV)  did  not  provide  any  local  news  coverage  of  interest  to 
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 Reading  or  Berks  County  during  the  renewal  period.  (Id.  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.  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.)  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.,  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  MSAs  execution  under  1.65. 
 On  February  7,  1992,  more  than  one  year  after  its  execution,  RBI  reported  the  MSA,  but  only  as 


 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. 
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 an  amendment  to  the  bankruptcy  transfer  application.  (RBI  Exh.  14.)  The  amendment  contained 
 no  identifying  reference  to  the  MSA,  did  not  direct  the  readers  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).  RBIs 
 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  courts  approval  that  the 
 Commission  finally  was  informed  that  Parker  via  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.)  Parker  received  the  authority  to  make  all  personnel 
 decisions  and  no  checks  for  expenses  were  to  be  written  without  his  express  authority.  (Id.) 
 Approval  of  the  MSA  was  obtained  from  the  bankruptcy  court  on  January  8,  1991.  Thus,  the 
 Commission  was  not  informed  immediately  after  the  courts  approval  in  January  1991,  that 
 Mr.  Parker  was  RBIs  chief  operating  officer.  (RBI  Exh.  14.)  Nor  was  the  Commission  informed 
 in  connection  with  the  transfer  of  RBIs  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  RBIs  Ownership  Report  dated  March  31,  1999.  Section 
 10(  b)  of  the  Affiliation  Agreement  provided: 
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 ...  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.)  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  RBIs  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  RBIs  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.  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. 
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 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.  Parkers  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,  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. 


 *  *  * 
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 [W]  e  find  no  error  in  the  ALJs  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,  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,  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.,  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  anyones  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  decisions  language. 
31
 Federal  Communications  Commission  FCC  01D-  01 
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 Disclosures  On  Applications 
 Form  315 
 123.  Questions  4  and  7  of  the  Commissions  transfer  application  form  asks  for 
 information  regarding  character  qualifications. 


 Question  4: 
 Legal  Qualifications: 
 (a)  Has  an  adverse  finding  been  made,  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  the  following:  any  felony, 
 antitrust,  unfair  competition,  fraud,  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 
 disclosure  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? 
32
 Federal  Communications  Commission  FCC  01D-  01 
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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  Commissions  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.  (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. 


 16  Allegan  County  Broadcasters,  Inc.,  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). 
33
 Federal  Communications  Commission  FCC  01D-  01 
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 Parkers  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.  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.) 
34
 Federal  Communications  Commission  FCC  01D-  01 
 35 
 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.,  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  Religious  Broadcasting  Network  et.  al.,  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, 
35
 Federal  Communications  Commission  FCC  01D-  01 
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 Sandino  Telecasters,  Inc.  See  Religious  Broadcasting  Network  et.  al.,  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  narratives 
 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 
 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  47  C.  F.  R.  1.  14. 
36
 Federal  Communications  Commission  FCC  01D-  01 
 37 
 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  Parkers  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  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  Memorandum  Opinion  and  Order,  FCC  88    234, 
 released  August  5,  1988. 


 Although  neither  an  applicant  nor  the  holder  of  an  interest  in  the 
 applicant  to  the  proceeding,  Mr.  Parkers  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  SBBs  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.) 


 18  The  distancing  of  the  lawyers  from  authorship  of  the  narratives  language  creates  a  further  inference  that 
 it  was  prepared  by  Parker  or  under  Parkers  direction  and  then  given  to  the  lawyers. 
37
 Federal  Communications  Commission  FCC  01D-  01 
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 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  Parkers  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.  (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.) 
38
 Federal  Communications  Commission  FCC  01D-  01 
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 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.  Kravetzs  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  Judges  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. 
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 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.  Parkers  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  counsels  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  Judges  adverse  conclusions  became 
 subsumed  in  the  Review  Boards  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.  Parkers  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. 


 19  This  circular  reasoning  comes  across  in  the  testimony:  [O]  nce  the  ALJs  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  didnt  get  the  credit,  but  they  didnt  extend  on  to  the  rest  of 
 opinion,  and  Im  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. 
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 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.  Parkers  view  on  the  effect  the  settlement  of  the  San  Bernardino  proceeding  had  on  the  Initial 
 Decisions  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  Boards  critical  language. 
 (Tr.  2028,  2030,  2064-  65.)  Mr.  Parkers  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.  at 
 4091. 


 Two  If  By  Sea  Broadcasting  Corporation,  12  F.  C.  C.  Rcd  at  2255,  2257  (1997).  This  by 
 direction  letter  published  for  all  to  see  the  serious  questions  festering  about  Mr.  Parkers 
 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  Parkers  qualifications  would  be  in  hearing  in 


 20  Consider  the  more  detailed  disclosure  that  Mr.  Parker  made  to  Telemundo  when  a  business  opportunity 
 was  involved.  See  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 
 FCC  00M    52,  released  August  18,  2000. 
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 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 
 Memorandum  Opinion  and  Order  FCC  99M  -49,  released  September  3,  1999.  The  Hartford 
 license  is  now  the  subject  of  a  settlement  and  to  further  avoid  addressing  Parkers  qualifications, 
 Parkers  interest  has  been  assigned  to  (or  bought  out  by)  a  white  knight.  See  Martin  W. 
 Hoffman,  Trustee,  et  al.,  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.  Wadlows  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  [Parkers]  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 


 22  To  avoid  any  future  uncertainty,  based  on  this  record,  Mr.  Parker  is  declared  to  be  unqualified  to 
 exercise  ownership  or  control  over  RBIs  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. 
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 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  transferees  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  Parkers  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.  Parkers  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.  Parkers  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 
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 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  staffs  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.)  Mr.  Kravetz  sent  the 
 document  to  Mr.  Parker  for  his  review  and  signature.  (Id.)  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.  Kravetzs  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  Parkers  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.  Parkers  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 
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 an  intention  on  the  part  of  the  permittee  to  deceive  the  Commission.  (Id.)  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  [Parkers]  part.  (Id.  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.  Parkers  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-  -  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.) 
 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  Commissions  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 
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 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,  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.  Second  Further  Notice  of  Inquiry  and  Notice  of  Proposed  Rule 
 Making,  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.  Coles  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 


 24  In  re  Monroe  Communications  Corporation,  840  F.  2d  942  (D.  C.  Cir.  1988),  Monroe  Communications 
 Corporation  v.  F.  C.  C.,  900  F.  2d  351  (D.  C.  Cir.  1990). 
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 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.  Gilberts  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  WTVEs 
 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. 
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 Flawed  Program  Taping 
 161.  In  May  1994,  approximately  one  month  before  filing,  Mr.  Gilbert  hired  Mr.  Paul 
 Sherwood  to  tape  RBIs  "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 
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 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.  Sherwoods  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  Conestogas  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, 
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 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  firms  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.  Swansons  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 


 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  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  Protective  Order,  FCC  00M-  48,  released  July  18,  2000  (just  clerical/  paralegal,  copying  and 
 messenger  costs  of  document  search  and  production  were  calculated  @  $6,800). 
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 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  anyones  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 
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 lapse  until  it  was  brought  up  in  the  hearing  by  RBIs  counsel.  Adams  took  immediate  steps  to 
 correct  the  error  and  Adams  is  now  current  with  respect  to  its  incorporation.  Order  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 
 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  RBIs  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  publics 
 interest  through  a  home  shopping  format.  That  was  the  thrust  of  Mr.  Gilberts  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,  RBIs  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  FCC  00M-  07,  supra  and  Memorandum 
 Opinion  and  Order  FCC  00M-  19,  supra. 


 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  51s  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.  Gilberts  testimony  was  credible. 


 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.  Gilberts 
 testimony  before  ruling  on  RBIs  motion. 
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 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  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 


 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. 
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 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 
 Telemundos  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.  Sherwoods  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.  Gilberts  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.  Gilberts  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. 
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 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  FCC  00M-  50,  supra.  Compare  Memorandum  Opinion  and 
 Order,  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.,  10  F.  3  rd  875  (D.  C.  Cir.  1993)  (criterion  of  integration 
 declared  arbitrary  and  capricious)  (  Bechtel  II).  After  Bechtel  II,  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,  13  F.  C.  C.  Rcd 
 15920,  16004-  16006  (1998)  (  First  Report  and  Order).  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.  at  16006.  The  parties  in  this  case  were  put  on  early  notice  of 
 the  application  of  the  newly  adopted  standard.  Memorandum  Opinion  and  Order,  FCC  99M-  47, 
 released  August  9,  1999. 


 188.  The  court  left  it  to  the  Commission  to  adopt  standards  that  might  include  the 
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 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,  supra  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).  RBIs  showing  must  be  based  on  non-  commercial 
 programming  that  was  broadcast  on  Channel  51  during  the  renewal  period.  If  RBIs  service  is 
 shown  to  be  only  minimal,  RBI  receives  no  preference.  Central  Florida  Enterprises,  Inc.  v. 
 F.  C.  C.,  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  incumbents  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.  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  Cowles 
 Broadcasting,  Inc.,  86  F.  C.  C.  2d  993,  1006    1008  (1981),  affd  sub  nom.  Central  Florida 
 Enterprises,  Inc.  v.  F.  C.  C.,  683  F.  2d  503  (D.  C.  Cir.  1982),  cert  denied,  460  U.  S.  1084  (1983). 
 The  renewal  expectancy  is  so  important  that  the  enhancement  factors  of  challengers  pale  before  a 
 showing  of  an  incumbents  meritorious  service.  F.  C.  C.  v.  National  Citizens  for  Broadcasting, 
 et  al.,  436  U.  S.  775,  805  (1978).  Under  the  Cowles  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.,  supra  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,  supra  at  805. 


 191.  RBIs  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  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),  8  F.  C.  C.  Rcd  5321  (1993)  (  Home  Shopping  Order). 


 192.  The  Adams  principles  were  opposed  to  home  shopping  as  programming  that 
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 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  RBIs  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  at  Para.  9.  Accordingly,  RBIs  duty  remains  the  same,  and  if 
 the  evidence  in  this  case  shows  that  RBIs  community  directed  programming  was  only  minimal, 
 then  RBI  receives  no  renewal  expectancy.  Formulation  of  Policies  and  Rules  Relating  to 
 Broadcast  Renewal  Applicants,  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  incumbents  reputation  in  the  community  for  serving  the  needs  and  interests; 
 (4)  the  record  of  compliance  with  the  Communications  Act  and  the  Commissions  rules  and 
 policies;  (5)  evidence  of  community  outreach  in  providing  a  forum  for  the  expression  of  local 
 views.  Fox  Television  Stations,  Inc.,  8  F.  C.  C.  Rcd  2361,  2366    68  (1993),  recon.  denied, 
 8  F.  C.  C.  Rcd  3583  (1993),  modified,  9  F.  C.  C.  Rcd  62  (1993),  affd  sub  nom.  Rainbow 
 Broadcasting,  Inc.  v.  F.  C.  C,  1995  WL  224866  (D.  C.  Cir  1995).  Compare  similar  standards 
 applied  in  Radio  Station  WABZ,  Inc.,  90  F.  C.  C.  2d  818,  840-  842  (1982),  affd  sub  nom.  Victor 
 Broadcasting  v.  F.  C.  C.,  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  stations  local  reputation).  The  later  formulated  and  more  extensive  Fox 
 Television  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,  a  newspaper  of  local  distribution  and  interest.  There  were  meetings  and  discussions 
 with  community  organizations  that  were  identified  in  the  Stations  quarterly  issues  and  programs. 
 There  were  improvements  made.  But  there  was  no  showing  of  extensive  measures  that  are 
 necessary  for  the  expectancy  preference.  See  Fox  Television  Stations,  Inc.,  supra,  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.  Metroplex  Communications,  Inc.,  4  F.  C.  C.  Rcd  8149,  8151-  52  (Review  Bd  1989)  and 
 Seattle  Public  Schools,  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. 
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 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 
 [former]  Section  73.1810(  d)(  4)  of  the  Commissions  Rules. 


 In  the  Matter  of  Airing  of  Public  Service  Announcements  by  Broadcast  Licensees,  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  broadcasters  primary  method  of  responding  to 
 community  needs  and  are  not  to  be  considered  to  be  public  affairs  programming.  Id.  at  349, 
 367.  The  Commission  did  not  want  PSAs  to  dilute  or  diminish  the  airing  of  program-  length 
 material  meeting  community  problems.  Id.  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.  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.  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  faire  programming  mix  at  the  option  of  the  licensee.  Revision  of 
 Programming  and  Commercialization  Policies,  Ascertainment  Requirements,  and  Program  Log 
 Requirements  for  Commercial  Television  Stations,  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  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  Commissions  policy  requiring  issue  responsive  programming. 


 29  See  RBIs  Proposed  Findings  of  Fact  and  Conclusions  of  Law  at  90  n.  15  (WTVEs  use  of  short  form 
 public  programming  is  a  matter  of  licensee  discretion). 
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 198.  The  record  contains  composite  week  analysis  reflecting  in  accord  with  RBIs 
 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.  RBIs  increased  use  of 
 PSAs  did  not  serve  as  a  substitute  for  news  or  issue  -  responsive  programming  or  local  news. 
 RBIs  new  childrens  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  Fox  Television  Stations,  Inc.  , 
 supra,  8  F.  C.  C.  Rcd  at  2376.  In  this  case,  none  of  RBIs  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.  Harriscope  of  Chicago,  Inc.,  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.,  4  F.  C.  C.  Rcd  8149,  8153  (Review  Bd.  1989), 
 affd,  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. 


 30  RBI  relies  on  Radio  Station  WABZ,  Inc.,  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.  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  the  composite  week  of 
 RBIs  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.) 
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 201.  At  best,  RBIs  reputation  was  mixed.  To  its  credit,  the  Red  Cross,  the  March  of 
 Dimes,  and  a  local  Childrens  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  Stations  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  Stations  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  RBIs  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  Childrens  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,  supra,  8  F.  C.  C.  Rcd  at  2416-  2418  and  Seattle  Public  Schools,  supra,  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  Commissions  Rules  is  a  sine 
 que  non  to  qualify  for  a  renewal  expectancy  preference.  Metroplex  Communications,  Inc.,  4 
 F.  C.  C.  Rcd,  supra  at  8153  (licensees  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  licensees  continued  compliance  with 
 Commission  rules  and  its  dedication  to  serving  the  community. 
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 Cowles  Broadcasting,  Inc.,  supra,  86  F.  C.  C.  2d  at  1017.  RBI  falls  short  of  the  Commissions 
 norm  of  continued  compliance.  Because  of  the  predictive  nature  of  future  compliance,  there  is 
 no  room  to  vacillate.  Even  if  RBIs  minimal  programming  qualified  for  a  finding  of  substantial 
 service,  RBIs  intended  or  reckless  noncompliance  rebuts  the  preference.  Id.  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: 
 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: 
 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: 
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 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  RBIs  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  Parkers  deficient  disclosure  was  to 
 hide  from  the  Commission  the  fact  that  Mr.  Parker  was  gaining  control  of  RBIs 


 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  stations  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. 
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 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  Parkers  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  Parkers  background.  The  willful 
 withholding  of  such  material  corporate  information  also  showed  indifference  or  a  reckless  and 
 wanton  disregard  of  a  licensees  obligation  to  be  forthcoming  with  the  Commission.  RKO 
 General,  Inc.  v.  F.  C.  C.,  670  F.  2d  215,  225  (D.  C.  Cir.  1981),  cert.  denied,  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.  supra,  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.,  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. 


 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.,  6  F.  C.  C.  Rcd  4387 
 (1991). 


 33  47  U.  S.  C.    310(  d). 
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 Commission  licensees  first  must  seek  and  obtain  the  Commissions  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,  e.  g.,  American  Music  Radio,  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.,  17  F.  C.  C.  2d  856,  863  (1969),  aff'd  sub  nom.  Greater  Boston 
 Television  Corp.  v.  F.  C.  C.,  444  F.  2d  841  (D.  C.  Cir.  1970),  cert.  denied,  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.  Parkers  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" 
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 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  RBIs  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  RBIs  non-  disclosures  significantly  detracts  from  any  renewal  expectancy.  But  a 
 finding  of  RBIs  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  RBIs  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,  1  F.  C.  C.  2d  393,  394 
 (1965).  See  also  Bible  Broadcasting  Network,  Inc.,  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.  Parkers  holdings  when  it  entered  into  the  MSA  and  RBI  must  be 
 aligned  with  Mr.  Parkers  objective  qualifications  for  purposes  of  diversification.  Accordingly, 
 Adams  is  awarded  a  significant  diversification  preference.  Pueblo  Radio  Broadcasting  Service,  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,  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., 
 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.,  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,  8  F.  C.  C.  Rcd  8401  (1993). 
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 Past  participation  by  an  owner  in  local  civic  affairs  is  considered  a  part  of  the  local  residence 
 affiliation  which  indicates  an  interest  in  the  communitys  welfare.  Policy  Statement  on 
 Comparative  Broadcast  Hearings,  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,  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,  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.,  93  F.  C.  C.  2d  127,  129  (1983)  ("  Fox  River").  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,  supra.  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.,  39  F.  3d  1217,  1222  (D.  C.  Cir.  1994).  What  is 
 relevant  is  that  which  may  be  of  "decisional  significance."  RKO  General,  Inc.  v.  F.  C.  C.,  670  F.  2d 
 215,  229  (D.  C.  Cir.  1981),  cert.  denied,  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.,  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.,  941  F.  2d  1253,  1260  (D.  C.  Cir. 
 1991).  Intent  can  also  be  inferred  from  motive.  Joseph  Bahr,  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.  ,  supra,  and  Golden  Broadcasting 
 Systems,  Inc.,  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,  102 
 F.  C.  C.  2d  1179,  1210-  11,  1231-  32  (1986)  (  Character  Qualifications);  Center  for  the  Study  and 
 Application  of  Black  Economic  Development,  10  F.  C.  C.  Rcd  2836,  2837  (Review  Bd.  1995) 
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 (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  Fox  River,  supra.  Thus,  it  is  well 
 established  that  only  an  intentional  misrepresentation  or  lack  of  candor  can  result  in  an  adverse 
 character  finding.  Fox  River,  supra. 


 222.  The  most  relevant  character  traits  in  dealing  with  the  Commission  have  always 
 been  truthfulness  and  reliability.  The  Commissions  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  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;  Websters  New  Collegiate  Dictionary  453  (1979);  Blacks  Law 
 Dictionary  594,  903  (5  th  Ed  1979).  See  also  Leflore  Broadcasting  Co.,  Inc.  v.  F.  C.  C.,  636  F.  2d 
 454,  461    62  (D.  C.  Cir.  1980).  Cf.  United  States  v.  Nill,  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  Leflore  Broadcasting  Co.,  Inc  v.  F.  C.  C.  , 
 supra.  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.  Parkers  false  or  misleading  disclosures  or  disclosures  that  were  lacking 
 in  candor  will  be  considered.  Character  Qualifications,  1210-  11  and  n.  76  and  n.  77. 


 Question  4 
 False  And  Misleading  No  Answers 


 223.  Applying  those  principles  to  Mr.  Parkers  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  Commissions  reliance  on  the  truth,  accuracy,  completeness  and  candor  of 
 representations  made  by  those  owning  and/  or  controlling  licensees.  See  Leflore  Broadcasting 
 Company,  Inc.  v.  F.  C.  C.  supra,  636  F.  2d  at  461. 
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 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..  Id.  The 
 gravamen  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.  Parkers  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.  Parkers  self  serving  explanations  in  RBIs  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,  2  F.  C.  C.  Rcd  2126  (Review  Bd 
 1987),  affd,  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.,  supra,  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.  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. 


 34  Mr.  Parkers  fraud  was  committed  at  the  Commission  and  not  before  another  governmental  unit. 
 Therefore,  there  is  no  adverse  finding  or  conclusion  made  with  respect  to  Parkers  no  answer  to  the 
 fraud  question  in  Form  346  used  in  the  application  for  an  LPTV  license  in  Los  Angeles.  (See  para.  124, 
 supra.) 
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 Question  7 
 Adequate  Answers  But 
 One  Misleading  Amendment 


 226.  Acts  of  willful  misrepresentation  raise  a  core  concern  of  truthfulness.  Character 
 Qualifications,  supra  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.  Wadlows  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  Schoenbohm  v.  F.  C.  C.,  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 


 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. 
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 where  there  are  unresolved  character  issues  which  can  be  revisited  in  a  later  proceeding,  license 
 renewal,  transfer  or  assignment.  Allegan  County  Broadcaster,  Inc.,  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  staffs  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  staffs  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  staffs  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  staffs  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 


 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  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 
 Decision  in  this  case. 
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 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  brio  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  Parkers  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  proceedings  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.)  But  the 
 amendment  could  only  provide  a  sufficient  answer  if  the  staff  looked  up  the  San  Bernardino  case 
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 history.  37  So  there  is  no  reason  to  change  that  impression  in  light  of  Mr.  Parkers  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  Parkers  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. 


 Parkers  Exclusive  Fault  Mitigates  Against  RBIs  Disqualification 
 233.  There  are  mitigating  circumstances  for  RBI  to  remain  qualified  to  hold  a  license, 
 provided  Parker  leaves  the  scene.  See  Character  Qualifications,  supra  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 
 courts  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  RBIs  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  RBIs  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  RBIs  other  stockholders. 


 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.,  41  F.  C.  C.  2d  1005,  1010  (Review  Bd  1973),  and  Folkways  Broadcasting  Co.,  27  F.  C.  C. 
 2d  614,  616-  617  (Review  Bd  1971). 
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 (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.  Parkers  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  PCS  2000,  L.  P.,  12  F.  C.  C.  Rcd  1681,  1688    89  (1997) 
 (disqualification  not  warranted  where  applicant  expeditiously  removed  CEO  responsible  for 
 misrepresentation);  Faulkner  Radio,  Inc.,  88  F.  C.  C.  2d  612,  618  (1981)  (renewal  conditioned  on 
 total  exclusion  of  wrongdoer  from  station  operations);  and  Teleprompter  Cable  Systems,  Inc.,  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  Character  Qualifications,  supra,  at  1224  n.  103.  Therefore, 
 RBIs  non-  involvement  is  buttressed  by  the  lesser  harm  of  Parkers  misconduct  with  respect  to 
 transfer  applications,  even  though  one  of  the  tarnished  transfers  was  for  the  purpose  of  gaining 
 RBIs  release  from  bankruptcy,  an  isolated  event  not  likely  to  reoccur. 


 235.  The  Policy  Statement  on  Character  Qualifications,  supra,  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  to  RBIs  qualification  to  hold  a  Commission  license,  there  is  no 
 predictive  value  in  Mr.  Parkers  misconduct  insofar  as  RBIs  future  broadcast  conduct  is 
 concerned.  Therefore,  RBI,  removed  from  Mr.  Parkers  influence  and  control,  need  not  be 
 disqualified  from  holding  a  Commission  license. 


 Parkers  Misconduct  Still  Attributable 
 To  RBIs  Renewal  Expectancy 


 236.  But  RBI  cannot  disavow  Mr.  Parkers  conduct  for  purposes  of  a  renewal 
 expectancy.  One  of  the  elements  for  a  renewal  expectancy  is  licensee  misconduct.  Cowles 
 Broadcasting,  Inc.,  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 
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 expectancy  is  lost  to  the  renewal  applicant.  Central  Florida  Enterprises,  Inc.  v.  F.  C.  C.,  683  F.  2d 
 503,  509  (D.  C.  Cir.  1982)  affirming  Cowles  Broadcasting,  Inc.,  supra.  In  this  case,  RBIs 
 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.  Parkers  conduct  as  RBIs  president  must  be  attributed  to  RBI  in  the 
 narrow  context  of  license  renewal  and  therefore,  as  a  result  of  Mr.  Parkers  wrong-  doings  and  the 
 Stations  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  Telemundos  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  Memorandum  Opinion  and 
 Order,  FCC  00M-  07,  released  January  20,  2000,  appeal  denied,  Memorandum  Opinion  and 
 Order,  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, 
 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.,  7 
 F.  C.  C.  Rcd  636  (1992),  affd  sub  nom.  Garden  State  Broadcasting  Limited  Partnership  v.  F.  C.  C., 
 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. 


 38  Findings  of  fraud,  misrepresentation  and  lack  of  candor  require  a  specific  intent  and  therefore  those 
 findings  are  not  attributable  to  RBI. 
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 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  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  44s  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  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,  4  F.  C.  C.  Rcd  4780,  recon. 
 denied,  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  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  challengers  concern  over  programming  as  evidence  of  the  bona  fides  of  a  lawful  motive 
 for  a  challenge.  See  WWOR-  TV,  supra  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.  In  this  case,  the  record  contains  unrebutted  testimony 
 establishing  that  Adams  principals  had  concluded  before  filing  that  home  shopping 


 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.) 
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 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  Stations  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  RBIs  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  Stations  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 


 40  Adams  relies  on  its  certificate  of  incorporation  in  Massachusetts  as  evidence  of  a  bona  fide  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. 
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 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,  8  F.  C.  C.  Rcd  3135,  3137  (1993),  affd  Marie  M.  Ochoa  v.  F.  C.  C.,  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.,  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, 
 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  Commissions  filing  rules.  Because  of  Mr.  Parkers  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.  Gilberts  testimony.  Therefore,  Adams  is  fully 
 qualified  to  hold  a  license. 
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 248.  In  light  of  RBIs  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,  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  Global  Information  Technologies,  Inc., 
 8  F.  C.  C.  Rcd  4024,  4031  (Review  Bd.  1993)  (slight  preference  for  30  %  coverage  differential  ) 
 and  Christian  Broadcasting  of  the  Midlands,  Inc.,  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,  supra  at  394  (diversification  merits 
 primary  significance).  Compare  Pueblo  Radio  Broadcasting  Service,  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,  supra  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. 


 41  Implementation  of  Section  309(  j)  of  the  Communications  Act,  supra,  13  F.  C.  C.  Rcd  at  16006; 
 Policy  Statement  on  Comparative  Broadcast  Hearings,  1  F.  C.  C.  2d  393,  394  (1965);  Bible 
 Broadcasting  Network,  Inc.,  7  F.  C.  C.  Rcd  4578,  4579  (1992). 
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 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,  supra  at  16006.  This  expresses  a  policy  permitting  settlement  of  the 
 remaining  comparative  cases.  Id.  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  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  RBIs  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  SL  Communications,  Inc.  v.  F.  C.  C.,  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  RBIs  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. 


 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  RBIs  other  stockholders. 
 (RBI  Exh.  46  at  8.) 
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 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 


 43  In  the  event  exceptions  are  not  filed  within  30  days  after  the  release  of  this  Initial  Decision  and  the 
 Commission  does  not  review  the  decision  on  its  own  motion,  this  Initial  Decision  will  become  effective  50 
 days  after  its  public  release  pursuant  to  47  C.  F.  R.  1.276  (d). 
80