WPCz/ 2BJ Z Courier3|x)RomanTimes New Roman BoldX@XPPS - PSt 4M ROOM 228 LPT1XPPSPS.WRSSx  @!fX@26FE 3|xCourierTimes New RomanNew Roman (TT)Times New Roman (Bold) (TT)Courier New (TT)Times New Roman (TT)Times New Roman (Bold) (TT)~X@2o (!XaKv Courier New (TT)Times New Roman (TT)DDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxd2BRdd$BBdq2B28dddddddddd88qqqYzoBNzoozzB8B^dBYdYdYBdd88d8ddddBN8ddddY`(`lBdYddBoBBBYYFdBNB2Bdddd(dB7dqBdPn<dYzzzzBBBBqodYYYYYYYYYYY8888dddddddnddddddd?xxxX.7Xx6X@DQX@7PC2X XP\  P6QXP.7UC2X(XU4  pQXm$Cannot open the driver specified by "i~'^:DpddȨDDDdp4D48ddddddddddDDpppd|Ld|pȐD8DtdDdpXpXDdp8Dp8pdppXLDpdddXP,PhD4htDDD4DDDDDDdDp8dddddȐXXXXXJ8J8J8J8pddddppppddpddddzpdddXXhXXXXXdddhdptL8LpLDLpphhp8ZDP8pppddƐXXXpLpLpLphfDtppppppȐhXXXpDppLDd4ddC6CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxHjdDddddddd<d<CCYYdCCddCYCdYzzzzCCCCqodYYYYYYYYYYY8888dddddddnddddddd"5@^2Coddȧ8CCdr2C28ddddddddddCCrrrdzNdzoȐC8CtdCdoYoYCdo8Co8odooYNCodddYO,Oh2CC!CCPRCdodddddȐYYYYYN8N8N8N8oddddooooddoddddzodddYYYYYYddddooPoNoNCNodo8RoodȐYYoNoNNF2ldCddddddin abeyance for consideration by the Commission. The Commission has held that it would,  xconsistent with the practice of the federal courts, vacate findings of an Initial Decision in  X#- xconnection with a settlement. Constance J. Wodlinger, FCC 85335, released July 10, 1985,  Xh$- xMciting United States v. Munsingwear, Inc., 340 U.S. 36, 3840 (1950). However, the Supreme  XQ%- xCourt distinguished Munsingwear and unanimously held in U.S. Bancorp Mortgage Company v.  X:&- xyBonner Mall Partnership, 115 S. Ct. 386, 392 (1994), that federal courts should not automatically  xgrant a request to vacate merely because the parties have agreed to such relief, where decisions below would become moot by reason of settlement. "),**qqn("Ԍ X- ` ~ԙ  x3.` ` In support of their request to vacate, the applicants point out that the Supreme  X- xiCourt's U.S. Bancorp ruling, which concerns the relationship between courts in the federal system  xwhere reliance is placed on a lower court's finding unless clearly erroneous, is not binding on the  x=Commission and is inapposite for Commission proceedings where Initial Decisions are subject  X- xyto de novo review. The applicants also note that there are equitable grounds for relief because  xCrystal has been unable to obtain a ruling on its exceptions to the Initial Decision which were  Xv- x/filed in 1989, in light of the Public Notice, FCC Freezes Comparative Proceeding, 9 FCC Rcd  X_- x1055 (1994); because Crystal, which was represented by Tom Root during the hearing, did not  xreceive effective assistance of counsel; and because Crystal's principal had surgery and diagnosis  xKof cancer at the time that she certified that her application was complete, thus suggesting that the  xdiscrepancy between the dates in the application and the applicant's engineering exhibit was the result of inadvertence rather than misrepresentation.  X - ` }x4.` ` Before ruling on the applicants' request, it will be helpful to consider the approach  X - x-taken, before and after U.S. Bancorp, by Federal courts on requests to vacate in conjunction with  x{settlement agreements. Some courts have summarily granted requests to vacate without  X- xexplanation, but most have denied such requests. Illustrative of the latter approach is Aetna  Xy- xyCasualty and Surety Company v. Home Insurance Company, 882 F. Supp. 1355 (S.D.N.Y. 1995),  xholding that, in assessing a proposed settlement conditioned on grant of a request to vacate, the  xKcourt must weigh the private interests of the parties in terminating litigation by settlement against  x.the public interest in finality of judgments, including any precedential or preclusive effect that  X- x[they may have. Similar views were expressed in Manufacturers Hanover Trust Co. v. Yanakas,  x 11 F.3d 381 (2d Cir. 1993)(vacatur is not a proper use of the judicial system if it would allow  xa party with a deep pocket to eliminate a precedent it dislikes simply by agreeing to a sufficiently  X- xlucrative settlement); Oklahoma Radio Associates v. FDIC, 3 F.3d 1436 (10th Cir.  x>1993)(permitting parties to use settlement to withdraw unfavorable precedents fraught with  X- xpotential for abuse); and In re United States, 927 F.2d 626 (D.C. Cir. 1991)(judicial system ought  xnot allow social value of precedent, created at a cost to the public and other litigants, to be a  X|-bargaining chip in the process of settlement).   XN- ` "x5.` ` In essence, federal courts generally reject requests to vacate to preserve precedents  x>and to prevent litigants from unfairly avoiding preclusive effects of an adverse decision by  xmerely entering into a settlement. In this regard, an Initial Decision in a Commission proceeding,  xeven if permitted to become final without review, does not establish a precedent that is binding  X- xon the agency in some future case. See Public Notice, FCC 6125, 20 RR 1141, Jan. 6, 1961.  xHowever, a decision of the former Review Board or the Commission that becomes moot because  xof a settlement would be given precedential weight unless a request to vacate has been granted.  xMore importantly, any decision, whether issued by an ALJ, Review Board or the Commission,  x>that is not subject to further review because of a settlement would be entitled to protection  X#- xagainst collateral attack, unless a request to vacate has been granted. See Shawn Phalen, 7 FCC  xRcd 7638, 7639  9 (1992)(absent vacatur, findings and conclusions of decision that is  xzunreviewed because of settlement would be final and binding as to parties in that decision).  xyThus, an applicant that has been disqualified in an Initial Decision could show rehabilitation or  xjother postdecision mitigating circumstances, but it could not relitigate the underlying adverse  X (-findings. RKO General Inc. (WAXYFM), 5 FCC Rcd 642 (1990). " (,))qq&"Ԍ X- ` Bԙx6.` ` In light of this analysis, the factors leading federal courts to refuse to approve  xKsettlements that involve requests to vacate are also pertinent for the Commission's assessment of  xrequests for such relief. Indeed, the reasons given by the federal courts for denial of requests to  x-vacate lead us to conclude that the Commission should generally deny requests to vacate unless  x<the parties make a showing of some special circumstances beyond the mere fact that the case has  X- x@been settled. See, e.g., A.L.Mechling Barge Lines, Inc. v. United States, 368 U.S. 324  x(1961)(vacatur appropriate when losing party has lost its right, through no fault of its own, to  X_- x-have judgment reviewed). As to the showing made by the applicants in this case, the contention  xconcerning the inability of Crystal to obtain a ruling on its exceptions to the Initial Decision is  X1- xa factor that, in our view, warrants an exception to the general approach set forth above. The  X - xLFreeze on Comparative Proceedings, which was an unforeseeable circumstance, has precluded  xthe prompt processing of applications and caused hardship to affected applicants, as well as  ximpeding the initiation of new broadcast service. Under these circumstances, we are persuaded  xthat the public interest would be served by giving favorable consideration to routine requests to  xvacate filed in conjunction with settlement agreements involving applicants, as here, that are  X -subject to the Freeze on Comparative Proceedings.  X-  Xy-  x7. ACCORDINGLY, IT IS ORDERED, That the request to vacate findings and  xconclusions of the Initial Decision filed by Julio A. Villamil, Maria Elena Villamil, Lawrence  xM. Wrathall and Nayereh E. Wrathall, d/b/a Villamil FM Radio, Crystal Communications, Inc.,  xand California Community Television Network in their May 20, 1996 Joint Request for Approval  x[of Settlement IS GRANTED; that paragraphs 3945 and 8386 of the Initial Decision, 4 FCC Rcd  x2762 (ALJ 1989), in this proceeding ARE VACATED; and that this proceeding IS TERMINATED.  x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hh@ x` `  hh x` `  hh@William F. Caton x` `  hh@Acting Secretary  X7-x` `  hh h