WPC& 2BJ Z Univers3|}MX}xP7XPHP LaserJet 4_230_1HPLAS4.PRS 4X}xP7\oeXP26 FP3|XUniversUnivers Bold@^77Goo&BBNu7B77oooooooooo77uuuoˆz7dozz777^oBoodoo7oo,,d,ooooBd7oddddC4Cu7BB!BBPRBozoooooȲdoooo77777777ooooooooodoozodooooodddoooooooooPzBzBB7zddo,oRoooȽBRddNF7loBzoooooJIoBoB,,BBoBBoo,BBBtBnnnnuyy2Psu7coonCzshcnonvyXzXshn~|y77Goo&BBNu7B77oooooooooo77uuuoˆz7dozz777^oBoodoo7oo,,d,ooooBd7oddddC4Cu,oBooBȆBȖ,,BBFoBdB7Boooo4oBJouBoPnBBBsl7BBIozȑ7777uzoooooodoooo7777ooooooonzoooodoArial (TT)Arial (Bold) (TT)29ZX;@f HP LaserJet 4/4MtScript ROOM 224HPLAS4.WRSSX}xP7,,JXP 2}CC,MX}xP7XP$ 2~CC,X~ps7X ZK((,"hKxP7hP"Small Fonts,+Host P"5@^7B_oo/BBNu7B77ooooooooooBBuuuzÑz7ozzzB7BuoBozozoBzz77o7zzzzNoBzooodN8Nu7BB!BBPRBozoooooȲooooo77777777zzzzzzzzzoozzzozzooooooooozzzzzzPzBzBB7zooz7zRzzzȽNRooNF7ooBzoooooJIoBoB77ddoBBoo7dBBtBnnnnuyy2Psu7coonCzshcnonvyXzXshn~|y7B_oo/BBNu7B77ooooooooooBBuuuzÑz7ozzzB7BuoBozozoBzz77o7zzzzNoBzooodN8Nu7odooBȆBȖ77ddFoBoB7Boooo8oBJouBoPnBBBso7BBIozȑ7777uzooooooooooo7777zzzzzzznzzzzzoz",tB^ f ^CCd||CCC|CCCC||||||||||CCh|so8okv|xCCCddCkskskHss00k0ssssFdHsooo`YdY|9|||||C||||||d|x0kkkkkksksksksk80808080sssssssssoktssosvsl|lll||tl||||tlt||||||80||||9x`|||l0lD||lHl0tt|t|HH|ddd||P|H||st||ts|x`x`x`|||||||oCddCCCWddddddddddddddddddddddddddddddddddddddddNd||Choo||~QQ|LLdd|LCCdd~JJ~~zzdddzzCddL"djd9 dCCvCd|o~dC~d~skzUvdYYCCCCo~kodks]zUsk80dhoo~UssvkvvY~]k`sC~koCC~~~~~~~CsdYC\   pxtll\tll@\@\`L2f k FZ&",tB^ f ^CCh||CCC|CCCC||||||||||CCh|so8okv|xCCCddCkskskHss00k0ssssFdHsooo`ddd|8|||||C||||||d|x0kkkkkksksksksk80808080sssssssssoktssosvsl|lll||tl||||tlt||||||80||||8x`|||l0lP||lNl8tt|t|HH|ddd||\|H||st||ts|x`x`x`|||||||oCddCCCWddddddddddddddddddddddddddddddddddddddddNd||Choo||~QQ|LNdd|LCCdd~JJ~~zzdddzzCddL"dod9 dCCzCd|v~`C~o~sdzUvdddCCCCs~vodssdz]sz84ddvo`szvsz]~]vosC~sCC~~~~~~~CzdYC\   pxtll\tll@\@\`L"i~'K2^((xYJTWECYW!CP@lW[G]MMJWWxWRH(((<<(@E@E@+EE@gEEEE*<+ECgCC:5<5xJ"JJJJJ(JJJJJJCCJJtL11xxJ..<mCWCL3[EWEG@GG5L8R@bTW:`RY[YEW(L[RRY@C[RRX((LLLLYWLLLRRRY(E<5(xx}l7lTTlCHqqllllllF`RRqqAAleeeOejjObYYVT`jlllsqqqzn^}YsYllll7YvlFlllAAllllllllllllllllllllllxxxxxxxx&7&llllls7lllllllllllllllllllllllllllllll}}}}xxxxxxxxxx``llllllvvll^^^^lljjjjllbbb^^^^:.M^ll   $//Rem Malloy Broadcasting, Raleigh, NC, MO&O, MM Docket No. 88306, 95R8 //$ $/500.3110 Failure to Prosecute/$ $/73.3568 Dismissal of Application/$ ///newjob/// $///FCC 95R8,4/27/95///$ x` `  hh@hpp  FCC 95R8  S -/ Before the ă  S -  FEDERAL COMMUNICATIONS COMMISSION ă  S -Y Washington, D.C. 20554 ă  Sy- MM Docket No. 88306 ă  S4- In re Applications of Henry R. Malloy, Jr., d/b/a  S-REM MALLOY BROADCASTING@hpp)File No. BPH880627MH  S-PEEBLES BROADCASTING COMPANYhpp)File No. BPH860603ME James S. Lee and Donald L. Baker, d/b/a  S|-INTERACTIVE MEDIAhh@hpp)File No. BPH860707MS  SN-FREE AIR CORPORATIONhh@hpp)File No. BPH860707NH  S -BERNARD DAWSONhh@hpp)File No. BPH860707NW  S-SPECIAL MARKETS MEDIA, INC.@hpp)File No. BPH860703MH For Construction Permit for New FM Station, Channel 275A, Raleigh, North Carolina  Sh$-  S:&-  MEMORANDUM OPINION AND ORDER ă  S(- Adopted: April 21, 1995 hh@ Released: May 1, 1995 "(0*0*0*0*"Ԍ  S- By the Review Board: MARINO (Chairman) and GREENE. "0*(("  S- `  I. A. 1. a.(1)(a) i) a) 1. 1. 1. a.(1)(a) i) a)x 1. ` ` The Review Board has before it for consideration: (1) an Appeal filed  S- xFebruary 27, 1995, by Free Air Corporation from a Memorandum Opinion and Order,  S- x[FCC 95M60, released February 23, 1995, (MO&O), by Administrative Law Judge  xJoseph Chachkin (ALJ), dismissing Free Air's application; and (2) Free Air's Motion  xto Stay filed on the same date requesting a stay of the effectiveness of the above  xorder. Joint Oppositions to the Appeal and Motion to Stay were filed on March 3,  x1995, by Peebles Broadcasting Company, Interactive Media, and Bernard Dawson.  x[For the reasons set forth below, we will deny the appeal and dismiss the stay as moot.  S - ` Cx 2. ` ` On a joint motion to dismiss filed February 3, 1995, by all of the  xopposing applicants, the ALJ dismissed Free Air's application for failure to prosecute  x?because Free Air elected not to exchange any direct evidence on a financial  xJqualifications issue designated against it or to appear at the January 31, 1995 hearing  xYscheduled for trial of the issue. That issue, along with a basic qualifying issue against  xZRem Malloy Broadcasting, had been added by the Board on September 12, 1994, in  Sy- x;an order remanding the case to the ALJ. Memorandum Opinion and Order, 9 FCC Rcd  Sb- x4822 (Rev. Bd. 1994), pet. for extraordinary relief dismissed, 10 FCC Rcd 503 (1995).  x At a conference held on November 2, 1994, the ALJ extended the procedural  x-schedule previously established in this case, after counsel for Free Air produced an  x=October 1994 physician's affidavit averring that Olga Castellanos, Free Air's fifty  xpercent owner, was recovering from breast cancer surgery performed on October 17  xwand would not be able to appear for deposition until the latter part of December 1994.  S- xMO&O at  2. In moving to dismiss the remanded issue, Free Air had claimed that  S- xCastellanos was the principal solely responsible for Free Air's financial certification. S:- xЍ In remanding the financial qualifications issue against Free Air, the Board had  x,assumed that Free Air's other principal was at least partially responsible for Free Air's  S - xfinancing, but the specified issue required Free Air to demonstrate the applicant's qualifications at the time of certification and subsequently.  xThe ALJ also denied a subsequent joint motion for continuance filed by two other  xapplicants, who complained they had been unable to depose Castellanos. Although  xZFree Air supported the motion, it offered no documentation of Castellanos' medical  xcondition, and the ALJ saw no reason to delay the hearing relative to Rem Malloy.  SN- x^Memorandum Opinion and Order, FCC 95M4, released January 9, 1995.  xNotwithstanding the ALJ's extension of the original procedural dates to accommodate  xKCastellanos, Free Air did not exchange its direct case exhibits on January 17, 1995,  xthe revised date set for the exchange of exhibits. Instead, on that date, Free Air filed  xa motion to delete the financial issue specified by the Board, asserting that Castellanos  xywould be unable to testify at hearing and that Free Air would rest its case on the  S - xZmotion to delete. Id. at  4. Free Air again offered no medical certificate to support  x,its opposition. Free Air did not attend the hearing, which the ALJ had rescheduled to"!40*((""  xJanuary 31, 1995. It submitted a letter to the ALJ on January 30 declaring that it  xwould not be present at the hearing and repeating its representation that it would rest  S- x-its case on the motion to delete. Id. The ALJ refused to grant the motion to delete  S- xwbecause substantial questions of fact remained to be resolved. Memorandum Opinion  S-and Order, FCC 95M48, released February 14, 1995.  Sv- `  x 3. ` ` In dismissing Free Air's application, the ALJ held that Free Air's proffered  x,justification centering on Castellanos' health provided no valid excuse for its failure to  SH- xcomply with his order. MO&O, at  8. He stated that "Castellanos' health did not  xjexplain Free Air's failure to exchange its direct case" nor did it "explain Free Air's  S - xunwillingness to offer the testimony of other essential witnesses." Id. Free Air never  xisought a continuance predicated on Castellanos' health or other grounds, nor did it  x,submit a further medical report on Castellanos' health after the doctor's statement of  S - xOctober 1994. Id. & n.8. The ALJ concluded that the proffered justification was a  xYpretext and that "Free Air's real reason for not offering evidence on the financial issue  xadded by the Board [was] its unwillingness to subject its financial showing to the  S- xscrutiny of its opponents." Id. at  8. The ALJ also rejected Free Air's argument that  x[denial of the application, rather than its dismissal, was the appropriate course of  Sb- xaction if an applicant had no reasonable excuse for not appearing at hearing. Id. at   x\9. Finally, he analyzed Free Air's putative misconduct under the standards for  x[dismissal set forth by the Court of Appeals for the District of Columbia Circuit in  S- xComuniCenter Broadcasting, Inc. v. FCC, 856 F. 2d 1551, 1554 (D.C. Cir. 1988),۰ S- xЍ The criteria cited by the court consisted of the applicant's proffered justification  xfor the failure to comply with the presiding officer's order; the prejudice suffered by  xYother parties; the burden placed on the administrative system; and the need to punish abuse of the system and to deter future misconduct.  stating:  ` XxX` ` [G]iven the fact that Free Air has already been afforded an  ` opportunity to come forward with the evidence to meet its  ` burden on the issue added by the Board, which it has  ` cspurned, burdening the administrative system further with  ` its application would be an unconscionable waste of the  ` Commission's time and resources. Also, there would be  ` manifest prejudice to Free Air's opponents if they were  ` drequired to participate in yet another hearing session on  ` Free Air's financial qualifications merely because Free Air  ` defied the Presiding Judge's procedural order. Finally,  ` dismissal of Free Air's application serves the public interest  ` ssince it will have a deterrent effect on counsel who defy ALJ orders.x` "!40*((""Ԍ S-MO&O, at  11.  S- ` x 4. ` ` Free Air contends in its appeal, citing GAF Broadcasting Co., 96 FCC 2d  x411 (Rev. Bd. 1984), that "the dismissal of an application is not warranted where the  xpurported failure to prosecute results from a principal of the applicant not testifying  xbecause of a medical problem and where the ALJ had refused to grant a continuance  xon the basis of such medical problem." Br. at 3. Free Air argues that, because the  xALJ had already denied a continuance, "it would have been futile for Free Air to make  SH- x<another request or to submit an additional affidavit from a doctor." Id. at 4. It also  xargues that it would have been "futile" to submit a partial case since the ALJ  xconsidered Castellanos to be an essential witness, and thus, perforce, it had no choice  S - x,but to prosecute its case through a motion to delete the financial issue. Id. Free Air's  xfinal contention is that there is no factual or legal basis to dismiss its application. Br. at 5.  S - ` x 5. ` ` Discussion. Free Air's reliance on GAF for reinstatement of its application  xis misplaced. There, the presiding ALJ refused to allow a continuance of the hearing  x[where it was alleged that an essential witness, who had been taken ill during his  xtestimony, was unavailable to continue testifying because of poor health. The request  xfor the continuance was supported by a letter from the witness' physician stating that  xithe witness could not testify until the end of summer, and the physician had sent a  xxtelegram advising the ALJ he had ordered his patient not to testify at the scheduled  xhearing. The Board held that the ALJ's ruling was arbitrary and an abuse of  S- xdiscretion. 96 FCC 2d at 413  5. Additionally, the GAF applicant had diligently  xYcontinued to pursue its application, first by submitting the witness, and when he was  xunable to finish his testimony and the ALJ would not continue the case, by attempting  xto proceed on schedule with a substitute witness to sponsor the financial exhibit.  xHere, in contrast, Free Air never sought a continuance or submitted a status update  xYof Castellanos' condition, and it made no attempt to pursue its application by meeting the issue.  S7- ` x 6. ` ` A presiding ALJ has broad discretion in regulating the course of a hearing  S - x;and will be overturned only if his ruling is arbitrary or an abuse of discretion. See GAF  S - xBroadcasting, 96 FCC 2d at 413. In disallowing the continuance sought by the other  xparties, the ALJ noted that the proponents seeking the continuance failed to make a  xshowing for delaying the hearing concerning Rem Malloy. FCC 95M4 at  6. Free  x<Air's argument that it would have been "futile" for it to ask for a continuance or to  xJsubmit an affidavit from the physician is disingenuous. The ALJ had demonstrated at  x-the November 2 conference that he was amenable to suggestions from the parties  xconcerning various courses of action that would resolve the financial issue against  x-Free Air in an orderly and timely fashion and not jeopardize Castellanos' health. He  xextended his original procedural dates by adding in the recovery time estimated by  xZCastellanos' physician before she could be deposed. He suggested that the parties  xcontact Castellanos' physician to determine when it would be permissible to take"#'0*((P("  xCastellanos' deposition and recommended they might be able to minimize the time and  xZburden of the deposition by deposing Castellanos at her Florida home. Tr. 252223.  xhHe asked the parties for their views about commencing the hearing toward the end of  xxJanuary or early February 1995 and received no objection from counsel for Free Air.  x]Tr. 252728. Having failed to seek a continuance or to submit any updated  xZinformation from Castellanos' physician on Castellanos' physical condition, Free Air  x-can not complain on appeal that the ALJ's denial of the other parties' request for a  xcontinuance based on Free Air's failure to cooperate with Castellanos' deposition was arbitrary or an abuse of discretion.  S - ` x 7. ` ` Finally, Free Air's argument that it would have been "futile" to submit a  xpartial case and that it had no choice but to seek deletion of the issue is also without  xmerit. Other than the bare statement that Castellanos was considered an "essential"  xwitness, Free Air, as noted by the ALJ, offered no explanation why it could not  xexchange its direct case or offer the testimony of other witnesses. In the  S - xMemorandum Opinion and Order, 10 FCC Rcd 503, supra, dismissing Free Air's and  xYRem Malloy's requests for extraordinary relief seeking reversal of our order adding the  x=issues, the Commission pointed out that "a party may request relief pursuant to  xsummary decision procedures before the ALJ to correct any alleged factual errors  xwunderlying the Board's determination to add financial issues against these applicants."  x<10 FCC Rcd at 505  11. The ALJ found it baffling, in dismissing Free Air's motion  xito delete, that Free Air failed to avail itself of the summary decision procedures, but  x<noted that, in any event, if a summary decision motion had been based only on the  xjattachments to the motion to delete, it could not have been granted because the  xattachments showed there are genuine issues of material fact for determination at a  S- x,hearing. Memorandum Opinion and Order, FCC 95M48, supra, at n.3. From our own  x[review of that showing, we agree there was ample basis for the ALJ to find that  xsubstantial and material questions of fact continued to exist as to Free Air's financial  xhqualifications. Finally, the ALJ persuasively explained in detail how his dismissal ruling  Se- xsatisfied the factors enumerated in ComuniCenter in determining whether dismissal  SN- xis warranted.N۰ S- xЍ The ALJ found Innovative Women's Media Association v. FCC, 16 F.3d 1287  x(D.C. Cir. 1994), cited by Free Air, inapposite. We agree with the ALJ's conclusion  S- x<that Innovative is not apposite. There, the applicant's failure to meet the exchange deadline and attend the hearing was attributable to the absence of counsel. His action dismissing Free Air's application rather than simply denying  S7- x;it fully comports with Commission precedent. See, e.g., Beth Knight, 7 FCC Rcd 1889  x(Rev. Bd. 1992) (application dismissed where applicant indicated it would not present  S -evidence on issue allegedly wrongly added); review denied, 7 FCC Rcd 5975.S 4۰ S$- xЍ Free Air alleges in passing that the joint motion to dismiss Free Air's application  xwas not properly signed and thus was required to be dismissed. We perceive no need  S&-to disturb the ALJ's ruling in this regard. MO&O, at  10.S" 0*(("Ԍ S- ` ԙx 8. ` ` ACCORDINGLY, IT IS ORDERED, That the Appeal, filed February 27,  x1995, by Free Air Corporation IS DENIED; and that Free Air's Motion to Stay filed on the same date IS DISMISSED as moot. x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhMarjorie Reed Greene x` `  hhMember, Review Board