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A. a.(1)(a) i) a)DocumentgPleadingHeader for Numbered Pleading PaperE!n    X X` hp x (#%'0*,.8135@8: ?4t؃>\ #|\  P6G;_P# Before the  a 4 FEDERAL COMMUNICATIONS COMMISSIONS ă i0Washington D.C. 20554  X24#Xj\  P6G;ynXP#In re Applications of hhCq)ppMM Docket No. 91309 ` `  hhCq)  X4KIMLER BROADCASTING, INC.hhCq qpp  *xxX  *pp)ppFile No. BPH900122MN ` `  hhCq)  X4ARTISTIC AIRWAVE BROADCASTERSq ppqhhC hhCq)ppFile No. BPH900122MP (#(#` `  hhCq)  X 4LAURA WILKINSON HERRON q q qhhCq)ppFile No. BPH900122MY  X 4` `  . hhCq)  Xz 4For a Construction Permit for a Newq)pp  *ppq  Xc 4FM Broadcast Station on Channel 233AqhhCq)pp  *  XL4at Temecula, California hhC ` `  ` ` \XX.\XX.XX.\` `  hhCq)  X4` O R D E R ă  X4 ` ` Adopted: August 12, 1999 ; Released:  'L August 17, 1999 'L  By the Commission:  X4 " X}4 "m"#|\  P6G;_P##Xj\  P6G;ynXP#1. This order approves a settlement agreement in the abovecaptioned proceeding  xyproviding for the merger of the abovecaptioned applicants into a single entity, Temecula FM  xLLC (Temecula FM), for the dismissal of the applications filed by Kimler Broadcasting, Inc., and  x'by Laura Wilkinson Herron and for the grant of the application filed by Artistic Airwave  X!4Broadcasters as amended to substitute Temecula FM as the applicant.1!U X4 xp#Xj\  P6G;ynXP#э The following pleadings are pending before the Commission: (a) Joint Petition for Approval  xEof Agreement #Xj\  P6G;ynXP#and Dismissal of Applicants, filed May 5, 1999, by Kimler Broadcasting, Inc.,  xArtistic Airwave Broadcasters and Laura Wilkinson Herron; (b) Amendment, filed May 5, 1999,  x}by Artistic Airwave Broadcasters; (c) Consolidated Comments on Joint Petition for Approval of  xAgreement and Dismissal of Applicants and Amendment, filed May 19, 1999, by the Mass Media  xBureau; (d) Supplement to Joint Petition for Approval of Agreement and Dismissal of Applicants,  xfiled June 2, 1999, by Kimler Broadcasting, Inc., Artistic Airwave Broadcasters and Laura  xWilkinson Herron; and (e) Amendment, filed on June 2, 1999 and supplemented on June 8, 1999, by Artistic Airwave Broadcasters.  'L "  0*o(o(qq"  X4 e  'L 2.` ` By Order, FCC 99I12 (OGC rel. May 12, 1999), the Assistant General Counsel,  X4 xacting under delegated authority, as provided in Implementation of Section 309(j) of the  xCommunications Act Competitive Bidding for Commercial Broadcast and Instructional  X4 xMTelevision Fixed Services Licensees (MM 97234) (First Report and Order), 13 FCC Rcd 15920,  x1595455  94 (1998), indicated that the permittee for Channel 233A should be selected by  xpauction, identified Kimler, Herron and Artistic as the only eligible, qualified bidders to participate  xin the auction, and stayed the hearing proceeding in MM Docket No. 91309 pending the outcome  xof the auction. In referring these applications to the Mass Media Bureau for processing in  xaccordance with the Commission's auction procedures, the order indicated that any settlement  x"agreements should be filed with the Commission rather than with the Mass Media Bureau. By  xPublic Notice, DA 99940 (May 17, 1999), the Mass Media Bureau, in conjunction with the  xWireless Telecommunications Bureau, subsequently scheduled Channel 233A (Temecula,  X 4 xpCalifornia) for auction on September 28, 1999. Bc Xi 4 x"#Xj\  P6G;ynXP#э Although the joint petition for approval of settlement agreement was filed on May 5, 1999,  x+it was not filed with the docket number. Due to this omission, neither the Office of General  xICounsel nor the Mass Media Bureau was aware of the proposed settlement until after the case had been identified as ripe for inclusion in the first group of commercial broadcast auctions.  Following the filing of the proposed settlement,  x&however, that frequency was deleted from the list of commercial broadcast frequencies scheduled  X 4to be auctioned on September 28, 1999.: 4Bc X4#Xj\  P6G;ynXP#э Closed Broadcast Auction: Notice and Filing Requirements for Auction of AM, FM, TV,  X4LPTV, and FM and TV Translator Construction Permits Scheduled For September 28, 1999, DA 991346 (rel. July 9, 1999) at 42.:  X4 e e3.` ` Under the terms of the proposed settlement agreement, the three remaining  xapplicants, Artistic, Herron and Kimler, propose to merge into a newly created limited liability  xcompany, Temecula FM. Each applicant will have a onethird ownership interest in Temecula  xIFM. Artistic will amend its application to specify Temecula FM as the applicant. In exchange  xfor onethird ownership interests in Temecula FM, Herron and Kimler will dismiss their  xrespective applications. Additionally, Herron and Artistic seek the dismissal of their respective pending motions to enlarge issues against each other.  X4 e 4.` ` The proposed settlement, as originally filed, included a Purchase Option Agreement  xreflecting the payment of $300,000 by nonapplicant Magic Broadcasting, Inc. for an option to  xppurchase the station for a total of $1,500,000 and a draft Assets Purchase Agreement reflecting  xthat Magic would purchase related equipment and property from Artistic for $75,000. The Mass  x_Media Bureau opposed the proposed settlement agreement because, in combination with the  x&Purchase Option Agreement, it contemplated the sale of the station to a nonapplicant. According  xto the Bureau, the agreement thus contravened the Commission's prohibition against socalled  x""white knight" settlements, in which a nonapplicant is awarded the construction permit, as well  xlas the restrictions on payments to dismissing applicants set forth in Section 73.3525(a) of the"$0*&&qq"  xCommission's rules, 47 C.F.R.  73.3525. In response to the Bureau's comments, Artistic,  xHerron and Kimler on June 2, 1999 filed a supplement to Joint Petition for Approval of  xIAgreement, reflecting the termination of the Purchase Option Agreement. Also in response to  xtconcerns raised by the Mass Media Bureau, Artistic Airwave has filed a further amendment, dated  xMay 25, 1999, providing all of the Legal Qualifications information regarding Temecula FM required by FCC Form 301, Section II.  X_4 e 5.` ` We will approve the settlement agreement. It complies fully with Section 311(c)  xof the Communications Act, 47 U.S.C.  311(c), and with Section 73.3525 of the Commission  x3Rules, 47 C.F.R.  73.3525, governing settlement agreements among mutually exclusive broadcast  xapplicants. Attached to the Joint Petition is a copy of the Settlement and Merger Agreement.  x/Included in the settlement agreement is a certification that none of the parties to the agreement  xyfiled their respective applications for the purpose of entering into or carrying out a settlement  x+agreement. It also contains a certification that none of the parties has paid or promised any  xconsideration for the merger or for the dismissal of their respective applications other than the  xmutual promises contained in the agreement. In the agreement the parties further state under  xpenalty of perjury that the agreement will serve the public interest by expediting the inauguration  xof new FM service to the community of Temecula and by eliminating the need for further Commission proceedings.  X44 e 6.` ` It is also appropriate to deny pending pleadings that were not considered previously  X4 xdue to the freeze on the adjudication of comparative broadcast cases initiated by the Commission  X4 xin February 1994.iBc X4 xE#Xj\  P6G;ynXP#Ѝ The Commission stayed the adjudication of comparative cases after the D.C. Circuit in  Xh4 x}Bechtel v. FCC, 10 F.3d 875 (D.C. Cir. 1993), invalidated the principal criterion previously used  XS4 xto decide comparative broadcast cases. See FCC Freezes Comparative Proceedings, 9 FCC Rcd  X>41055 (1994), modified, 9 FCC Rcd 6689 (1994), further modified, 10 FCC Rcd 12182 (1995).#x6X@`7X@#i These include exceptions to the Initial Decision :Bc X4 xl#Xj\  P6G;ynXP#эFrank K. Spain, 8 FCC Rcd 4831 (ALJ. 1993), in which the Administrative Law Judge  X4determined that Artistic was the comparative winner.  challenging the ALJ's  xVfavorable resolution of a misrepresentation/lack of candor against Artistic, as well as motions to  xreopen the record and enlarge issues that Artistic and Herron filed against each other while exceptions to the Initial Decision were pending before the Review Board.  X4 e >7.` ` First, we will deny the pending exceptions filed by Herron, Kimler, and Los  X|4 x8Amigos,|Bc X#4 x#Xj\  P6G;ynXP#э After this case became subject to the comparative freeze instituted in February 1994 the  X#4 xpReview Board approved a settlement agreement between Artistic and Los Amigos Media. Los  X$4 xAmigos Media, 10 FCC Rcd 4973 (1995). Although the Board dismissed Los Amigos's application, it did not dismiss Los Amigos's exceptions to the Initial Decision. all of which urge that the misrepresentation/lack of candor issue should have been"|F 0*&&qqS"  xresolved against Artistic. Specified at the request of Kimler, Los Amigos and a third applicant  xwhose application was subsequently dismissed (Joint Petitioners), this issue concerned the  xcircumstances surrounding Station KRTM going dark in the summer of 1982. At issue was  xwhether Stephen Cilurzo had testified falsely in this proceeding that he had not taken KRMT off  x"the air, that the station was still operating when he resigned as its general manager, and that he  xhad not anticipated that the station would go dark. Faced with conflicting evidence as to whether  xan electric company employee, Douglas Davies, had advised Stephen Cilurzo that the station's  xpower was about to be shut off for nonpayment, the ALJ resolved the issue in Artistic's favor.  xWSpecifically, he found the oral testimony of Stephen and Audrey Cilurzo regarding the  X14 xcircumstances surrounding Station KRTM going dark to be credible. 1Bc X 4 xp#Xj\  P6G;ynXP#э Audrey Cilurzo is Stephen Cilurzo's stepmother. She testified that she never gave Douglas Davies Stephen's telephone number in Pasadena, as Davies had claimed in his written testimony.  By contrast, the written  xtestimony of witnesses presented by the Joint Petitioners was, in the ALJ's view, riddled with  xIinternal inconsistencies, and the dispute regarding the date of Cilurzo's actual resignation, which  xhad led to the specification of the issue, was based, the ALJ found, on a mischaracterization of  X 4 xpCilurzo's earlier testimony. bBc X4 x#Xj\  P6G;ynXP#э In particular, the ALJ found that Cilurzo had testified that he was uncertain as to whether  xIhe tendered his resignation to KRMT's Board of Directors before or after he left town, but that  xthe record was clear that, as he had testified, he notified the Board in August 1985 that he had  X4accepted employment elsewhere. Initial Decision, at  158. Under these circumstances, the ALJ refused Joint Petitioners' post x"hearing request that they be permitted to call Mr. Davies as a witness in surrebuttal. The Joint  xPetitioners, the ALJ reasoned, should have anticipated that Audrey and Stephen Cilurzo's oral  xtestimony might contradict Davies' written testimony, and, in any event, they had had ample  xopportunity during the threeday hearing on the misrepresentation/lack of candor issue to produce Mr. Davies as a rebuttal witness.  X44 e K8.` ` The ALJ's refusal to reopen the hearing for additional testimony that would  xallegedly contradict the Cilurzos' testimony was within the ALJ's broad discretion to regulate the  X4 xucourse of the hearing. zBc X4 x#Xj\  P6G;ynXP#э Hillebrand Broadcasting, Inc., 1 FCC Rcd 419  3 (1986) ("Consistent with the  xpdetermination that new service should be provided to the public in the most efficient, expeditious  xmanner possible, ALJs must be given broad discretion to regulate the course of multiparty  XD 4 xIcomparative hearings"). See also ComuniCentre Broadcasting, Inc. v. FCC, 856 F.2d 1551  x(D.C. Cir. 1988) (upholding the dismissal of an application for failure to file proposed findings and conclusions of law within the time allotted by the ALJ).  Thus, the exceptions do not provide a basis to overturn the ALJ's  x resolution of the misrepresentation issue in Artistic's favor. The pending exceptions may therefore be denied. " 0*&&qq"Ԍ X4 e 9.` ` Second, we deny the pending issue requests filed by Artistic and Herron, neither  xof which raises a substantial and material question of fact warranting the specification of basic  x/qualifying issues. In a motion filed March 1, 1995, Artistic sought the addition of site availability  x3and misrepresentation issues against Herron. According to Artistic, Herron never had reasonable  x3assurance of her original transmitter site, her amendments to specify a second transmitter site, and  xthen to correct the coordinates of that second transmitter site were therefore without good cause,  x"and Herron likewise lacks reasonable assurance of its current site. Citing Herron's affirmative  xassertions of reasonable assurance for each site, Artistic maintains that a misrepresentation issue should be specified against Herron.  X 4 e 10.` ` All questions concerning the availability of the various sites specified by Herron  x&are moot inasmuch as she proposes to dismiss her application and the merged applicant, Temecula  xFM, does not propose to use any of these sites. By contrast, Herron will have a onethird  xVownership interest in the ultimate licensee. Thus, her propensity for truthfulness, which reflects  xpon her basic qualifications to be a Commission licensee, remains relevant. Artistic's motion fails  xto raise a substantial and material question of fact that Herron made material misrepresentations  xuconcerning the availability of any of her proposed transmitter sites. As to the original site  xspecified in Herron's application, the site owner indicated that he could see how she had inferred  x"reasonable assurance from their discussions of her possible use of his property as a transmitter  xsite. Letters from the property owner likewise establish a basis for Herron's belief that she had  X44 xreasonable assurance of her current site. Upon learning that she had incorrectly specified the  xycoordinates of that site, Herron diligently amended her application to correct the coordinates.  xContrary to Artistic's contentions, subsequent correspondence from the site owner does not  xestablish that it advised Herron that it had changed its mind about the availability of her current site.  X4 e f 11.` ` In a motion filed May 17, 1995 Herron sought the specification of  xZmisrepresentation, lack of candor, abuse of process, and character issues against Artistic. Herron's  xallegations relate to pleadings filed by Artistic in connection with its earlier request for site and  xmisrepresentation issues against Herron. Specifically, Herron claimed that Artistic: (1) concealed  xmaterial evidence confirming the continued availability of Herron's present transmitter site; (2)  xfalsely denied the awareness of its principal, Stephen Cilurzo, of reasonable assurance letters for  x"Herron's present site that were issued first to Herron and 18 months later to another Temecula  xapplicant who subsequently dismissed its application; (3) falsely stated that the site owner told  xHerron it had changed its mind about letting Herron use the site; and (4) abused the  xCommission's processes by filing frivolous pleadings designed merely to coerce Herron into settlement.  X"4 e 512.` ` Herron's motion fails to raise substantial and material questions warranting the  xspecification of misrepresentation, lack of candor, abuse of process and character issues against  xpArtistic. First, to the extent that Herron's concealment claim focuses on the April 20, 1994 letter  xyCilurzo received from the site owner, that letter merely summarizes the site owner's practice"Q% 0*&&qqe#"  xregarding requests to use its land generally without articulating any specific understanding  xconcerning Herron's proposal, and under these circumstances there would be no apparent motive  x<for Artistic to withhold it. Second, Artistic explains that, although copies of Herron's reasonable  xassurance letter from the landowner were exchanged during discovery, the letters were never  xproperly delivered to Cilurzo or his attorney, presumably because Artistic had changed attorneys  xabout the time of the document exchange and because its new counsel had recently changed his  xaddress. Third, the allegation concerning the site owner's purported "change of mind" concerning  xthe use of Herron's present site consists of Cilurzo's hearsay statements as to what the site  xowner's employees told him about their conversations with Herron. Without corroborating  x/statements from the employees as to what they said to Cilurzo (and to Herron), however, there  x is no basis to determine what was actually said, let alone any basis to find that there is a  xEsubstantial and material question of fact warranting the addition of a misrepresentation issue  xpagainst Artistic. Finally, as to Herron's abuse of process claim, Artistic's motion was not devoid  xof any merit. In fact, it resulted in Herron's filing a site amendment, after discovering that the coordinates originally specified for her present site were erroneous.  X 4   X4 e 13.` ` ACCORDINGLY, IT IS ORDERED, That, pursuant to the authority delegated  xunder 47 C.F.R.  0.251(c), the Joint Petition For Approval Of Agreement And Dismissal Of  x"Applicants, filed May 5, 1999 and supplemented on June 2, 1999, by Kimler Broadcasting, Inc.,  xArtistic Airwave Broadcasters and Laura Wilkinson Herron IS GRANTED, the attached  xsettlement agreement, as supplemented on June 2, 1999, IS APPROVED, and the applications  xfiled by Kimler Broadcasting, Inc. (File No. BPH900122MN) and Laura Wilkinson Herron (File No. BPH900122MY) ARE DISMISSED.  X4 e 14.` ` IT IS FURTHER ORDERED, That the Motion To Reopen The Record And  xEnlarge Issues Against Laura Wilkinson Herron, filed March 1, 1995, by Artistic Airwave  x"Broadcasters, and the Motion To Reopen The Record And Enlarge Issues, filed May 17, 1995,  xby Laura Wilkinson Herron ARE DENIED; and that the Exceptions to Initial Decision filed on  xAugust 16, 1993 by Kimler Broadcasting, Inc., on August 18, 1993 by Los Amigos Media, and  xon August 18, 1993 by Laura Wilkinson Herron ARE DENIED in part and DISMISSED in  XN4part. NBc X4 xJ#Xj\  P6G;ynXP#э To the extent that the exceptions challenge the ALJ's resolution of the standard comparative issue, they are moot and may be dismissed.  X 4 e 15.` ` IT IS FURTHER ORDERED, That the Amendment, filed May 5, 1999 and  x"supplemented June 2, and 8, 1999, by Artistic Airwave Broadcasters IS ACCEPTED, and that  x<the application filed by Artistic Airwave Broadcasters (File No. BPH900122MP), as amended  xon May 5, June 2, and June 8, 1999 to substitute Temecula FM LLC as the applicant IS GRANTED. "!b 0*&&qq "Ԍ X4 e 16.` ` IT IS FURTHER ORDERED, That the adjudicatory proceeding in MM Docket No. 91309 IS TERMINATED.  X4` `  q pp`(#FEDERAL COMMUNICATIONS COMMISSION   ` `  hhCqMagalie Roman Salas ` `  hhCqSecretary ` `  hhCq   ` `  hhCq