$//Ramon Rodriguez and Assoc., (Lajas, PR), 86-510, FCC 95-25//$ $/500.3002 Abuse of process/$ $/500.3063 Evidence/$ $/500.3105 Misrepresentation and lack of candor/$ ///newjob/// $///FCC 95-25,1/24/95///$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 FCC 95-25 MM Docket No. 86-510 In re applications of RAMON RODRIGUEZ AND File No. BPH-821208AA ASSOCIATES, INC. DAVID ORTIZ RADIO File No. BPH-830722AL CORPORATION For a construction permit for a new FM station in Lajas, Puerto Rico MEMORANDUM OPINION AND ORDER Adopted: January 19, 1995; Released: January 27, 1995 By the Commission: 1. We have before us an application for review of the Supplemental Decision of the Review Board in this case, 9 FCC Rcd 3275 (1994), filed by David Ortiz Radio Corp. on August 9, 1994, and an opposition filed by Ramon Rodriguez and Associates, Inc. (RRAI) on August 24, 1994. 2. The Commission has held that RRAI's application merits more comparative credit than that of Ortiz, assuming that both are basically qualified, 5 FCC Rcd 4041 (1990), but hearing issues were later specified concerning the basic qualifications of both applicants following a judicial remand. See David Ortiz Radio Corp. v. FCC, 941 F.2d 1253 (D.C. Cir. 1991). In supplemental decisions based on the evidence taken at the remand hearings, the ALJ and the Review Board concluded that RRAI is fully qualified but that Ortiz is disqualified for misrepresenting facts to the Commission. 9 FCC Rcd 3275 (Rev. Bd. 1994); 8 FCC Rcd 2461 (ALJ 1993). Ortiz contends in its application for review that the supplemental decisions are wrong on all counts and therefore urges us to absolve it of the misrepresentation finding and find RRAI disqualified instead. We have considered all of the arguments that Ortiz raises and will respond to those that warrant discussion. RRAI Misrepresentation Issue 3. One of the character issues to be resolved is whether RRAI deliberately deceived the Commission in certifying in an amendment filed on March 18, 1983 that it still had reasonable assurance of the availability of its proposed antenna site and in filing a request to withdraw that amendment on July 7, 1983. As found in the lower decisions, the relevant facts are as follows. 4. The antenna site that RRAI originally specified in its application, which was filed on December 8, 1982, was a tract of land in an area known as Cerro Guaniquilla. The possibility of specifying that site had occurred to Ramon Rodriguez Guzman, RRAI's president and 50 percent owner, upon learning that Ortiz had specified it in its initial application. After hearing from residents in the vicinity that the tract belonged to the government, Guzman contacted employees of the National Resources Agency (NRA) who confirmed that information and advised him that permission to use the tract could be sought by application to the agency's San Juan office. According to Guzman's testimony, one of the employees assured him that the tract was available for use as a transmitter site. Guzman submitted an application for a permit for the proposed use to the NRA's San Juan office on November 18, 1982 and paid the applicable filing fee. Although the land-use application was still pending at the time, Guzman testified that he was reasonably certain when RRAI filed its FM application on December 8th that the Cerro Guaniquilla tract would be available for use as an antenna site, as he had learned from reliable informants that it was government-owned and as he knew that Ortiz was specifying the site in its application, from which he inferred that Ortiz had obtained a permit to use the site for that purpose and hence that RRAI would be able to secure one, too. 5. Later in the same month, i.e., December 1982, an official of the NRA told Guzman that the tract was privately- owned, but, on subsequently searching through records at the Registry of Property in Mayaguez, Guzman found documents indicating that the land in question belonged to a governmental agency called the Conservation Trust of Puerto Rico. An NRA employee agreed in a later conversation with him that the tract might belong to the Trust. On January 10, 1983 Guzman visited Francisco Javier Blanco, the Director of the Conservation Trust, who confirmed that the Cerro Guaniquilla tract was under the Trust's jurisdiction but who told Guzman that it could not be used for an antenna site because it was to be developed as a bird sanctuary. 6. According to Guzman's testimony, however, he was not convinced from the meeting with Blanco that the site was unavailable. He testified that he had been skeptical of Blanco's statements in that regard for several reasons: because David Ortiz was also proposing to install an antenna at that site; because others had previously told him that the tract belonged to the NRA or to a private owner; because the Mayaguez land records were not up to date; and because his brother later reported having learned from a Forestry official that the tract belonged to Codremar, an NRA subsidiary. Guzman accordingly testified that he had directed further inquiries about ownership of the Cerro Guaniquilla tract to NRA employees at various times after the meeting with Blanco. He admitted, though, that while pursuing those inquiries he had also begun to look for an alternative site due to uncertainty as to the ownership of the one at Cerro Guaniquilla. 7. On March 18, 1983 RRAI filed an amendment to change its proposed city of license from Cabo Rojo to Boqueron. The amendment indicated that RRAI still intended to install its transmitter at the Cerro Guaniquilla site. In a letter dated June 5, 1983 RRAI's engineering consultant informed Guzman that a site change was advisable in the interest of improving coverage and recommended that he look for a suitable site in an area called Penones de Melones. Ortiz Rem. Exh.3. Later in the same month Guzman obtained a letter in which the owners of land in that vicinity declared that they were willing to lease it to RRAI. On July 7, 1983, Guzman filed a request to withdraw the amendment of March 18. The withdrawal request made no explicit representation about the antenna site. In August 1983 RRAI filed an amendment to change its proposed antenna site from Cerro Guaniquilla to Penones de Melones. 8. The ALJ held that Guzman and RRAI had not acted with intent to deceive when filing the amendment in March indicating that RRAI still intended to use the site in Cerro Guaniquilla or in filing the withdrawal request in July. He rested the holding on two main premises: first, that the evidence indicated that Guzman had still believed at those times that the Cerro Guaniquilla site was available to RRAI for the proposed use; and second, that there was no evident motive for RRAI to have deceived the Commission as to the availability of that site, in any event. 8 FCC Rcd at 2466  42 and 44-47. He based the first premise, in turn, on these grounds: (a) Guzman's testimony that he continued to inquire about the ownership of the site after the meeting with Blanco bears out his testimony that he doubted the latter's assertion that it belonged to the Conservation Trust; (b) there is no evidence that Blanco disclosed the basis for that assertion to Guzman; (c) evidence that Guzman did not begin to look for a new site until June 1983 lends credence to his testimony that he still believed in March 1983 that the original site was available; and (d) a former applicant in this proceeding, F.M. Minority Broadcasting, specified the Cerro Guaniquilla site in an application filed in April 1983, and Ortiz specified it again when refiling its application in July of that year. Finding, moreover, in light of facts reported in a site amendment that Ortiz filed in October 1985 that Blanco's agency did not own the Cerro Guaniquilla tract, the ALJ remarked that this information "tends to justify Rodriguez' [Guzman's] decision to doubt Blanco's judgment." As regards the premise that there was no motive for deceit, the ALJ stressed that the time allowed for amending as of right had yet to expire when RRAI filed the March amendment and the July 7 withdrawal request and hence observed that, if Guzman had believed that the site was unavailable, he could have so informed the Commission without adverse consequences while seeking a new one. 9. The Review Board conceded in response to exceptions that Guzman's testimony on one relevant point was contradicted by evidence that one of the individuals that he had allegedly contacted at the NRA after his meeting with Blanco had not been employed at that agency in 1983, in light of which the Board discounted that particular testimony, attributing the discrepancy to faulty recollection on Guzman's part. 9 FCC Rcd at 3276 11. The Board otherwise agreed with the ALJ, however, that Guzman's testimony was credible and that it amply supported the finding that Guzman and RRAI still believed when filing the amendment re- specifying the Cerro Guaniquilla site and the withdrawal request that the site was available. 10. We agree with the Review Board and the ALJ that, looking at the record in its entirety, a preponderance of the evidence indicates that RRAI did not intend to deceive the Commission as to material facts when it made the submissions in question, in March and July of 1983. There are two pertinent contentions in the application for review that warrant discussion. First, Ortiz disputes the finding that there was no motive for deceit. Citing Dutchess Communications Corp., 101 FCC 2d 243, 254 (1985), it contends that RRAI had reason to fear that its application would be dismissed if it were to report that it had lost assurance that its specified antenna site would be available. Second, Ortiz contends that Guzman and RRAI should be disqualified for lying in hearing testimony, referring to Guzman's contradicted testimony that he had questioned a certain individual at the NRA about ownership of the Cerro Guaniquilla tract after having met with Blanco. 11. As to Ortiz' first contention, we agree with the ALJ that there was no motive for deceit. Contrary to the appellant's assertion, there is no inconsistency between this finding and the holding in Dutchess. The pertinent distinction is that the applicant that was disqualified in Dutchess for lack of a transmitter site had reported the loss of its original site after the expiration of the time for amending as of right and failed to show good cause for acceptance of its amendment specifying a new site, whereas RRAI was not at risk of being dismissed because the relevant events in this case all occurred prior to the deadline for amending as of right. It simply could have designated another site if it believed that the original site was no longer available. 12. Nor do we find merit in the contention that Guzman should be found to have lied in testifying that he had met with an NRA employee named Angel David Gonzalez in 1983 after his meeting with the Director of the Preservation Trust. Although it seems that the testimony in question was incorrect, as Ortiz produced evidence that no one named Angel David Gonzalez was employed at the NRA in 1983, it is not clear that Guzman uttered it with an intent to deceive. Nearly ten years had elapsed since the meeting with Blanco when Guzman testified at the remand hearing, and he admitted that his recollection as to the dates of his later meetings with NRA employees, the details of those conversations, and the employees' identities was hazy. As Ortiz does not point to any evidence that shows that the inaccuracy was due to something other than an honest mistake, we agree with the Board that there is no basis for concluding that this testimony was deceitful. RRAI Abuse of Process Issue 13. Another issue on which evidence was taken at the remand hearing is whether Juan Carlos Rodriguez Maldonado, who is the son of RRAI's president and fifty-percent owner and who holds one percent of its stock in his own name, impersonated an FCC employee in order to obtain evidence against Ortiz. 14. According to undisputed findings, Maldonado, accompanied by a friend named Juan Esquerado, went to a photographer's shop to hire the proprietor to take pictures that could be presented to show that the facilities of David Ortiz's AM station in Cabo Rojo (WEKO) were co-located with the facilities of his daughter's FM station (WMIO). The photographer, a man named Ortiz Postigo, was a cousin of David Ortiz and advertised on the latter's AM station. The witnesses agree that, when Maldonado solicited his services, Postigo asked him whether he had permission from David Ortiz to photograph the station, that Maldonado replied that it was not necessary to get permission, that Postigo refused the request, that Maldonado and Esquerdo then left the shop, and that Maldonado returned later on the same day for the same purpose and was again rebuffed. 15. The testimony concerning other details of these encounters is contradictory. Maldonado testified (RRAI Rem. Exh.2, pp. 2-3) that he had introduced himself to Postigo by name, but Postigo denied this in an affidavit (Ortiz Rem. Exh.8, p.5) and testified (Tr. at 678, 682, and 690) that he had learned the visitor's name later from David Ortiz, who had allegedly identified him from a description of the visitor's appearance that Postigo gave Ortiz after the encounters. Maldonado and Esquerdo each testified that the latter had accompanied Maldonado on the second visit, moreover, whereas Postigo alleged that Maldonado had returned alone. The principal subject of controversy, though, is what Maldonado said during the second encounter. Maldonado testified that on the second visit he had explained to Postigo that he was associated with RRAI, that RRAI had filed an application for a radio station with the FCC, and that he consequently needed photographs to show that David Ortiz had two stations in the same place. He also alleged that he had told Postigo that he was a member of Andino's Trio, a well-known singing group, and that Postigo had admitted that his face looked familiar. 16. According to Postigo, however, Maldonado asserted on the second occasion that he was from the FCC. Postigo averred that he had then asked Maldonado for proof of his identity, that Maldonado had not complied, and that he, Postigo, had therefore declined to answer any questions. Postigo denied, moreover, that Maldonado had identified himself as associated with RRAI or as a member of Andino's Trio and also denied having told Maldonado that he recognized him. On the other hand, Esquerdo corroborated Maldonado's account of the second visit and added that Maldonado had never said or implied to Postigo that he was an agent or employee of the FCC. 17. In agreement with the ALJ, the Review Board concluded that the evidence does not support a finding that Maldonado had impersonated an FCC employee. 9 FCC Rcd at 3278  19-21. Ortiz contends that this holding should be reversed in light of several considerations. First, it maintains that Maldonado's credibility as a witness is tainted by a prior false statement, referring to the court's observation in David Ortiz Radio Corp. v. FCC, supra, that Maldonado had admitted in an affidavit that, when he had requested the public file of the radio station licensed to Ortiz's daughter and was asked by a station employee what company he represented, he had replied that he was not a representative of any company. 941 F.2d at 1261. (Unlike Ortiz, the court did not maintain that the affidavit detracts from Maldonado's credibility but rather that it tends to indicate that he was acting as an agent of RRAI when he visited Postigo's shop, which is undisputed.) The Board held that the admission does not detract from Maldonado's credibility because it was not "developed on the record" and is not germane to the formally- specified hearing issues, but Ortiz contends that this ruling is erroneous. Without regard to the scope of the hearing issues, we agree with the Board's conclusion that this circumstance does not materially detract from the credibility of Maldonado's testimony. The admission that he gave a false reply to a question in an informal conversation in order to conceal an affiliation that he had no obligation to disclose does not support a finding that Maldonado has a penchant for lying while testifying under oath subject to penalty for perjury. 18. Next, Ortiz argues that Maldonado's hearing testimony that he had explained to Postigo that RRAI was involved in an FCC licensing proceeding should be discredited because there is no mention of any such comment in an account of the incident that Maldonado gave in an affidavit filed in 1988, after the abuse of process question was first raised. There is no conflict, however, between Maldonado's hearing testimony and his 1988 affidavit, in which he denied having identified himself to Postigo as an FCC employee and asserted that he had instead told him that he was an agent of RRAI and a member of Andino's Trio. RRAI Rem. Exh.2, Attachment A. The mere fact that he added a relevant detail in his direct testimony that is not mentioned in a consistent prior affidavit sworn before the abuse of process issue was specified does not establish that his testimony was deceitful in that respect. 19. Finally, Ortiz disputes the Board's finding that Postigo was uncertain and self-contradictory in testifying as to what Maldonado had told him about his relationship with the FCC. 9 FCC Rcd at 3278  19-20. Even assuming that his statements could be construed as consistent in that respect, Postigo's admitted inability to recall Maldonado's exact words detracts considerably from the reliability of his testimony as to the gist of the latter's remarks on point, as a fair reading of the record suggests that the divergence in their testimony in this regard is merely due to a misunderstanding on Postigo's part as to whether Maldonado had indicated that he had a case at the FCC, as opposed to saying that he was from the FCC. 20. Also, as the Board noted, Maldonado's version of the facts is fully corroborated by the testimony of Esquerdo, a witness with no apparent stake in the outcome of the case. Furthermore, we agree with the Board that the testimony of Ortiz's cousin, Postigo, that Maldonado posed as an FCC official during their second encounter does not square well with undisputed testimony that he had previously told Postigo that there was no need to obtain permission to photograph the station's facilities or with the undisputed testimony that Maldonado was a member of a well-known local performing group. Id. at  19-20. Finally, we note that Postigo's testimony that he learned Maldonado's name from David Ortiz is squarely contradicted by Ortiz, who repeatedly testified in a deposition that Postigo had told him the man's name. RRAI Rem. Exh.6, pp. 44 and 55. We therefore conclude that the Board ruled correctly in upholding the ALJ's resolution of the abuse of process issue in RRAI's favor. Ortiz Misrepresentation Issue 21. The court did not indicate in its remand order that there was any need for investigation as to Ortiz's basic qualifications. Mindful, however, of the court's admonition against ignoring conflicts in paper statements, 941 F.2d at 1261, the Commission determined after reassuming jurisdiction of the case that a further hearing issue should be added concerning the veracity of an affidavit from David Ortiz that was materially contradicted by sworn statements of a non-party witness. 7 FCC Rcd at 2634  9-10. The pertinent circumstances are as follows. 22. On May 2, 1988, in a supplement to a petition to add a hearing issue as to whether David Ortiz surreptitiously controlled operation of WMIO(FM), a radio station licensed to his daughter, RRAI submitted an affidavit alleging that David Ortiz had offered to hire the affiant, Jorge Morales Gonzague, as the program director at WMIO(FM). More specifically, Morales alleged that he was currently employed by Miguel Deynes Soto, a member of the Puerto Rican Senate; that he had gone to WEKO on March 2, 1988 to look for a tape of a speech in which the Governor of Puerto Rico had spoken in favor of Sen. Soto; that he had encountered David Ortiz's son, Wilkins Ortiz, at the station, and that Wilkins had given him a copy of the tape; that after receiving the tape he had had a conversation with David Ortiz, in the course of which the elder Ortiz had offered him a job; that on April 18, 1988 David Ortiz had "formally" offered him the position of program director at WMIO(FM); that the affiant had agreed to meet with David Ortiz on the 25th or 26th of the same month to discuss details of the employment, but that the affiant had not kept the appointment, having decided in the interim to continue working for Sen. Soto. 23. In a sworn declaration filed with the FCC on May 17, 1988, David Ortiz denied that he had offered Morales a job at his daughter's station. Ortiz averred that Morales had called WEKO several times in March 1988 asking to speak with him but had been unable to reach him because in each instance he was either absent or too busy to take the call; that Morales had walked into his office unannounced about a week after the last call, introduced himself, alluded to Ortiz' application for a permit for an FM station at Lajas, and confided that he would like to work for Ortiz at the proposed station in the event Ortiz got the permit; that Morales had said in support of this proposition that he was currently working for Sen. Soto but had prior experience in broadcasting as a salesman; that Ortiz had not offered him a job but had promised to contact him if the FCC were to grant his FM application; and that they said good-bye at that point and Morales left. Ortiz averred, moreover, that he had never met Morales on any other occasion; that Morales had said nothing during the meeting about a tape of a speech by the Governor in favor of Sen. Soto; that after having been apprised of Morales' allegations he had spoken with Sen. Soto in a conference telephone call, to which his attorney and Sen. Soto's interpreter had also been privy; that the senator had told him that the speech to which Morales had referred in his affidavit had been delivered by the Governor in Hormigeros in late February of 1988; and, finally, that he, David Ortiz, had determined from a review of WEKO's logs conducted by his staff that the station had not broadcast that speech. Ortiz Rem. Exh. 9, Attachment 1. 24. RRAI presented a second sworn statement from Morales at the ensuing remand hearing, in 1992. Morales alleged in his second affidavit, which is dated May 16, 1988, that one Manuel Feliciano, identifying himself as the president of the Caribbean Detective Bureau and Academy, Inc., had approached him in Sen. Soto's office on May 9, 1988, indicating that he wanted to speak with Morales and that his purpose had something to do with "a conflict over radio stations," one of which was in Cabo Rojo (the location of WEKO(AM) and WMIO(FM)). Morales also alleged in the affidavit that Feliciano had indicated that he wanted information about Morales' movements and that "he was making an approach because the person that he was representing was a very nice person and didn't care for money"; that Feliciano had refused to divulge the name of his client at that point; that they had agreed to meet again at noon on the following day but Feliciano had not kept the appointment; and that Feliciano left in a car with a Puerto Rico license plate marked 81-V-409. In response to questions from the ALJ about the incident, Morales testified at the hearing that Feliciano had told him that his client would be generous if Morales would "do the right things" and that Feliciano had spoken the remark within the hearing of two persons aside from himself: viz., a member of Sen. Soto's staff named Dennys Gonzalez and someone named Acevedo. Tr. at 784-85. 25. Ortiz admitted that he had hired Feliciano and had instructed him to contact Morales but denied having authorized the detective to offer him money. When first asked to explain why he had hired Feliciano, during the course of a pre-trial deposition session, Ortiz replied that he had done so because he had been apprehensive of Morales in light of the latter's brash intrusion into his office and that he had therefore wanted to "find out what kind of person he was, if he was really an announcer or somebody else who probably -- who may cause me any damage or any kind of hazard or something like that." RRAI Rem. Exh.6 at pp. 70-71. Likewise, when the examiner asked shortly afterward why he had wanted to find out what kind of person Morales was, Ortiz answered, "Strictly because he jumped into my office in a way, in a position that a gentleman shouldn't do it that way . . . ." At the hearing, however, Ortiz amplified the explanation. While reaffirming that he had hired Feliciano to investigate Morales due to concern about his own security, Ortiz also testified that he had done so because his attorneys had advised him to hire someone to find out whether Morales had a criminal record that could be used for purposes of impeachment in this proceeding. Tr. at 883-84, 895-96. Finally, Ortiz simply averred in this regard in a post-hearing declaration that he had hired Feliciano, on the advice of counsel, to investigate Morales "as a result of the allegations Morales Gonzague had made about me", without reaffirming his original explanation to the effect that he had hired the detective because he feared that Morales might pose a threat to his physical security. Ortiz Rebuttal Exh. 4, 4. 26. Although RRAI did not dispute Ortiz' assertion that WEKO(AM) had not broadcast the Governor's speech from Hormigueros, it produced an affidavit at the remand hearing from an official of the Popular Democratic Party named Hector Colon, alleging, inter alia, that the affiant had attended a meeting of an organization called Las Damas Populares on February 7, 1988 in Mayaguez, that the Governor had delivered a speech at the meeting in which he had endorsed a number of political candidates, including Sen. Soto, and that the meeting had been broadcast by WEKO(AM). Along with the affidavit from Hector Colon RRAI also produced bills from WEKO(AM) for broadcasting the meeting, addressed to Las Damas Populares and to the Popular Democratic Party, and a report to the Puerto Rican State Electoral Commission signed by David Ortiz which listed the coverage of the meeting of Las Damas Populares as one of the political broadcasts that aired on WEKO(AM) in February 1988. 27. Ortiz objected to admission of the affidavit from Hector Colon because the affiant was not present for cross examination, but the ALJ accepted it on the understanding that Ortiz was free to depose Hector Colon and then move to strike the affidavit in light of the deposition testimony. Instead of deposing Hector Colon, though, Ortiz produced an affidavit in which David Ortiz declared that in light of Hector Colon's assertions he had listened to a taperecording of the broadcast of the Damas Populares meeting on February 7, 1988 on file at WEKO(AM) and had thereby ascertained that the station had, in fact, transmitted a speech by the Governor in the context of its broadcast of the meeting but that the Governor had not mentioned Sen. Soto in the speech. Ortiz alleged, moreover, that an attached exhibit was an accurate transcript of the speech as recorded in the station's tape of the broadcast. The ALJ refused to admit the transcript in evidence, however, because Ortiz had not deposed Hector Colon and because the transcript did not cover the entire broadcast. 28. The ALJ and the Review Board concluded that David Ortiz's explanation for hiring Feliciano, his denial of the allegation that he had offered Morales a job at WMIO(FM), his sworn statements that WEKO(AM) had not broadcast a speech in which the Governor had endorsed Sen. Soto, and his and his son's testimony that Morales had neither requested nor received a tape of such a broadcast when he visited their station were false and deceitful. 8 FCC Rcd at 2467  55-59; 9 FCC Rcd at 3280-81  31-34. Consequently they held that Ortiz is disqualified. 29. In appealing from this adverse holding, Ortiz objects, in the first place, to the finding that WEKO(AM) had broadcast a speech by the Governor that included an endorsement of Sen. Soto, arguing that the Board erred in refusing to consider the transcript that Ortiz had offered to prove that the Governor had not mentioned Sen. Soto in the February 7, 1988 speech. We think that there was good reason for the ALJ and the Board to disregard the proffered transcript, however. It reflected only a portion of the entire broadcast and was not supported by an offer of the taperecording itself, which was in Ortiz's sole possession when it submitted the transcript. 30. Ortiz also maintains, for a variety of reasons, that Morales' testimony is not credible. Implying that Morales was motivated by loyalty to Ramon Rodriguez and his son, Ortiz contends that hearing testimony reveals that he was a "long-time friend and associate" of theirs, but the contention is contrary to the weight of the evidence. See Tr. 662-63, 751-54, and 790- 91. David Ortiz, on the other hand, as a party obviously had a substantial interest in the outcome of this case. More specifically, in weighing his testimony about his meeting with Morales against Morales' conflicting account, it should be borne in mind that, while it has not been shown that Morales had any ulterior motive for testifying as he did, David Ortiz plainly had a substantial self-interested motive for contradicting Morales' account of their meeting in March 1988, which posed serious questions concerning Ortiz's qualifications to be a licensee of the proposed facility. 31. Ortiz asserts that Morales could not accurately describe Wilkins Ortiz, despite having testified that Wilkins Ortiz had given him the tape of the Governor's speech. Morales testified under cross examination that Wilkins Ortiz had apparently weighed about 160 or 170 pounds and seemed to be about five feet six or seven inches tall at the time of their alleged encounter at WEKO(AM) in March 1988, whereas at a hearing session in September 1992 Wilkins Ortiz described himself as weighing 220 pounds and standing five feet eight inches tall. Tr. at 761 and 906-908. The slight discrepancy between the height estimates is immaterial, however, and the difference between the weight estimates is of dubious significance because Wilkins Ortiz admitted that he had gained weight during the past four years and because his estimate of his weight at the time of the hearing is uncorroborated. In short, it cannot be ascertained from the record that Morales' description of Wilkins Ortiz as he appeared in March 1988 was so inaccurate as to belie his testimony about having received a tape from him. 32. Nor, contrary to another of Ortiz's contentions, does RRAI's inability to produce the tape at the hearing discredit Morales' testimony. Morales testified that the tape had been erased by re-recording pursuant to routine administrative practice of Sen. Soto's staff. Tr. at 758. That testimony is plausible, as nearly two months elapsed between the day when Morales allegedly obtained the tape and the day when he signed his first affidavit and as it is not evident that there was any reason for anyone to have taken special measures to preserve the recording during that interval. Ortiz points out that Morales' testimony about receiving a tape is at odds with David Ortiz's testimony that it was against station policy at WEKO(AM) to give out copies of tapes except on written request and in exchange for payment of a standard fee, but Ortiz's testimony in that regard is self-serving and uncorroborated. 33. Ortiz asserts that Morales' testimony on material points should be discredited because the record shows that he lied in testifying that David Ortiz had been the director of the Notiuno network and that they had agreed to meet for a second time on April 25 or 26, 1988. The record shows that Morales and Ortiz contradicted each other on both points but not that Morales lied in either respect. Morales testified that he had worked for six years as a news announcer at WUNO, an all-news radio station in San Juan that produced all the news programming for the 13- station Notiuno network; that David Ortiz had sometimes visited the station and had exchanged greetings with Morales and the other on-duty employees on those occasions; and that Ortiz was Notiuno's director for some period of time during Morales' tenure as a news announcer. Tr. at 768-71 and 780-81. Morales did not allege, however, that Ortiz had ever supervised him or had any conversation with him while visiting WUNO, nor did he say when or for how long Ortiz had been the director of the network or what grounds he had for believing that Ortiz had, in fact, served in that position, as no one questioned him on those points during cross examination. While denying that he had ever held a position at the network itself, Ortiz acknowledged that WEKO(AM), of which he is the controlling owner, is a Notiuno affiliate. Tr. at 839. He did not say whether he had visited WUNO and was not asked whether he had done anything, or knew of any circumstances, that might have fostered an impression that he was, at some point, in charge of the network. It cannot fairly be found from this evidence that Morales lied. Assuming that Ortiz was never a director of the network, it is obviously possible, in light of the relevant testimony, that Morales testified otherwise merely because he was mistaken, and Ortiz gives no reason for concluding that the testimony in question was intentionally false. As for Morales' testimony about the alleged appointment for April 25th or 26th, it is contradicted only by uncorroborated testimony from David Ortiz that is no more credible on its face than what Morales asserted in that regard. 34. Ortiz objects, moreover, to the admission of Morales' testimony about Feliciano's remarks to him. The Board ruled that it had been properly admitted for purposes of rebuttal. 9 FCC Rcd at 3281 33. Ortiz asserts in its application for review that it was not offered as rebuttal evidence but rather as part of RRAI's direct case. Further, it contends that the testimony is inadmissible hearsay because Feliciano died before RRAI introduced a statement from Morales in this regard and thus that Ortiz had no chance to cross-examine the declarant. 35. We need not reach this question because we agree with the lower decisions that David Ortiz's testimony about his reason(s) for hiring Feliciano is inherently implausible. Although Ortiz contends that the Board mischaracterized that testimony, its findings in this regard are well-supported by the hearing record, including the transcript of David Ortiz's pre- hearing deposition. The indications that Ortiz did not tell the whole truth about Feliciano's mission are manifold. To begin with, as the lower decisions rightly stress, his original explanation that he had hired Feliciano because he was fearful of Morales in light of his intrusion into his office does not square with evidence showing that he did not engage the detective until after RRAI had filed Morales' first affidavit, which occurred at least two months after the encounter. Nor does it square with Ortiz's deposition testimony that he had not expected to hear from Morales again after their encounter. RRAI Rem. Exh.6, p.82. The admitted fact that Ortiz made no inquiry about Morales to the police or to Senator Soto also tends to belie that explanation. Tr. at 890. Finally, none of David Ortiz's explanations account for the admitted fact that he directed Feliciano to approach Morales. Ortiz could hardly have expected Feliciano to reliably ascertain by questioning Morales himself whether Morales had a criminal record or whether his representations to Ortiz about his current and prior employment had been truthful. When specifically asked by a cross-examiner why he had directed Feliciano to contact Morales, Ortiz replied, "to find out why he visited me for," (Tr. at 896-97) which explanation does not comport with Ortiz's previous representations that Morales had plainly indicated that his motive for the visit was to solicit employment. The evident speciousness of Ortiz's explanations for hiring Feliciano and instructing him to contact Morales clearly has an important bearing on the central issue concerning the veracity of David Ortiz's account of his meeting with Morales. 36. In view of all of these circumstances, we affirm the conclusion that Ortiz is not qualified to be a licensee. 37. Having concluded that RRAI is qualified to be a licensee and that Ortiz is not, we reaffirm our earlier action granting a construction permit for a new FM station serving Lajas, Puerto Rico to RRAI. See 5 FCC Rcd 4041 (1990), affirming 4 FCC Rcd 6817 (Rev. Bd. 1989). Hence, the Emergency Petition for Rescission of Construction Permit that Ortiz has filed and related pleadings are moot and will be dismissed without further consideration. 38. ACCORDINGLY, IT IS ORDERED that the application for review filed by David Ortiz Radio Corporation on August 9, 1994 IS DENIED and that the Emergency Petition for Rescission of Construction Permit filed on December 24, 1992, the Petition to Dismiss or Deny filed on April 8, 1993, the Motion to Accept Supplement to Emergency Petition filed on September 20, 1993, and the Motion to Accept Further Supplement filed on February 1, 1994 by David Ortiz Radio Corporation ARE DISMISSED as moot. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary