NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file pnmc5021. File pnmc5021 (.txt & .wp) is in directory \pub\Public_Notices\Miscellaneous. ************************************************************** *** ******** $//Lucinda Felicia Paulos, Sebastopol, CA., MM 90-298, MO&O,FCC 95R-07//$ $/500.3525 Settlement Agreement/$ ///newjob/// $///FCC 95R-7,4/20/95///$ Before the FEDERAL COMMUNICATIONS COMMISSION FCC 95R-07 Washington, D.C. 20554 MM Docket No. 90-298 In re Applications of LUCINDA FELICIA PAULOS File No. BPH-880516MB JOHN A. CAROLLO, JR. File No. BPH-880519MX For Construction Permit for a New FM Station, Channel 229A (93.7 MHz) Sebastopol, California MEMORANDUM OPINION AND ORDER Adopted: April 18, 1995; Released: April 25, 1995 By the Review Board: MARINO (Chairman) and GREENE. 1. A Joint Request For Approval of Settlement Agreement was filed on March 13, 1995, by Lucinda Felicia Paulos and John A. Carollo, Jr. On March 30, 1995, Carollo filed a petition for leave amend, which he supplemented on April 5, 1995. The Mass Media Bureau, in Comments filed March 21 and April 10, 1995, supports the grant of both the joint request and the petition for leave to amend as consistent with the relevant requirements of the Communications Act, Commission rules, and precedent. We will approve the settlement agreement and grant the petition for leave to amend for the reasons discussed below. 2. In a Decision, 8 FCC Rcd 8237 (Rev. Bd. 1993), we affirmed the presiding Administrative Law Judge's selection of John A. Carollo, Jr. as the superior comparative applicant. Paulos filed a timely petition for reconsideration, but the Board did not act on it because of the Commission's Public Notice suspending comparative cases. FCC Freezes Comparative Proceedings, 9 FCC Rcd 1055 (1994). A third applicant, Manzanita Media, Inc., did not file either a petition for reconsideration or an application for review of our Decision, and the Board dismissed Manzanita's application on the ground that its prior denial of Manzanita's application had become final by operation of law. Lucinda Felicia Paulos, 9 FCC Rcd 2530 (Rev. Bd. 1994). The Commission denied Manzanita's application for review of the dismissal ruling, 10 FCC Rcd 145 (1995), and Manzanita did not seek judicial review of the Commission's order. 3. In their Joint Request, Carollo and Paulos, the two remaining applicants after nearly seven years of litigation, seek approval of a Settlement Agreement, which, if approved, will result in the grant of Carollo's application and the dismissal of Paulos' application. Carollo will reimburse Paulos for her legitimate and prudent expenditures up to $85,000. 4. The applicants have satisfied the requirements of 47 USC 311(c)(3) and 47 CFR 73.3525(a) that: (a) their applications were not filed for the purpose of entering into a settlement agreement; (b) the public interest will be served by the settlement of this protracted litigation which will authorize the establishment of the first commercial aural service in Sebastopol; and, (c) the proposed settlement payment does not exceed Paulos' legitimate and prudent expenses. 5. The parties also request the Board to vacate the Initial Decision, 7 FCC Rcd 3145 (1992), in this case, based on Shawn Phalen, 7 FCC Rcd 7638 (1992), and RKO General, Inc. (WAXY-FM), 5 FCC Rcd 642 (1990), and rule that the Initial Decision "not bear upon Ms. Paulos' ability to acquire interest(s) in the future, provided that she submit, if necessary, an adequate showing of good character." In its Comments at 2-4, the Bureau supports the parties' request to vacate the Initial Decision, but cautions the Board to refrain from issuing a ruling on "what showing Paulos should be required to make concerning her qualifications in the event she applies for a Commission authorization in the future." 6. We will vacate the findings and conclusions of the Initial Decision in accordance with Commission precedent recently discussed in Raymond W. Clanton, FCC 95R-03, released March 16, 1995, and Frank Digesu, Jr., 9 FCC Rd 7866 at  7 (Rev. Bd. 1994). We do not believe that the applicants have requested a declaration in advance concerning the showing that must be submitted in the future to establish Paulos' qualifications. Moreover, as contemplated by the Commission's decision in Allegan County Broadcasters, Inc., 83 FCC 2d 371, 373 (1980), questions about a dismissing applicant's basic qualifications need not be resolved prior to approval of a settlement agreement, and will, if necessary, be "revisited in a future proceeding should the applicant again seek to obtain a Commission license." 7. Finally, Carollo has demonstrated good cause for his petition for leave to amend. See Raymond W. Clanton, supra. The amendment proposes to substitute a Nevada corporation, Sebastopol Radio Corporation, of which Carollo is the 100% owner, for his individual application. Carollo's amendment also proposes a permissive increase in the effective radiated power of his proposed station. Pet. For Leave to Amend at 2-3. Based on its analysis of the amendment, the Bureau has determined that the engineering proposal "complies with all applicable technical requirements." Comments of April 10 at 1-2. Good cause has been shown for Carollo's engineering amendment which will help resolve the protracted litigation by settlement. See Evergreen Broadcasting Co., 6 FCC Rcd 5599, 5603-04 (1991). 8. ACCORDINGLY, IT IS ORDERED, That the Joint Request For Approval of Settlement Agreement filed on March 13, 1995, by Lucinda Felicia Paulos and John A. Carollo, Jr. IS GRANTED, and the attached agreement IS APPROVED; 9. IT IS FURTHER ORDERED, That the petition for leave to amend filed March 30, 1995, and supplemented April 5, 1995, by John A. Carollo, Jr., IS GRANTED and that the attached amendment as supplemented IS ACCEPTED; that Sebastopol Radio Corporation is substituted as the applicant; and that the Initial Decision, 7 FCC Rcd 3145 (ALJ 1992), IS VACATED; and, 10. IT IS FURTHER ORDERED, That the petition for reconsideration filed December 27, 1993, by Lucinda Felicia Paulos IS DISMISSED; that the application of Lucinda Felicia Paulos IS DISMISSED; that the application of Sebastopol Radio Corporation (BPH-880519MX) IS GRANTED; and that this proceeding IS TERMINATED. FEDERAL COMMUNICATIONS COMMISSION Joseph A. Marino Chairman, Review Board