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P6G;XP7nC:,1dddX<&d H@B X@~)[80,T<[2PG;P 2 yO' X   )8 X'w  #Xj\  P6G;ynXP#Federal Communications Commission`(#ZFCC 99314 ă   yxdddy )#X\  P6G;ɒP#vf Before the Federal Communications Commission  yO'}9Washington, D.C. 20554 ă  S 'In re Applications of hhCq)pppp#&a\  P6G;u&P#  S'` `  hhCq) pp  S'TRINITY BROADCASTING OF hhCq)ppMM Docket No. 9375  S'FLORIDA, INC. hhCq)  S'` `  hhCq)ppFile No. BRCT911001LY  SX'For Renewal of License of hhCq)  S0'Television Station WHFT(TV)hhCq)  S 'Miami, Florida` `  hhCq) ` `  hhCq)  S 'GLENDALE BROADCASTING hhCq)ppFile No. BPCT911227KE  S 'COMPANY` `  hhCq) ` `  hhCq)  S@ 'For Construction Permit forhhCq)  S'New Television Station inhhCq)  S'Miami, Florida` `  hhCq)  S'` `  hhCq)pp  S'and` `  hhCq)  Sx'` `  hhCq)pp   SP'TRINITY CHRISTIAN CENTER OF hhCq)ppMM Docket No. 93156  S('SANTA ANA, INC. hhCq)pp  S'` `  hhCq)ppFile No. BRCT911129KR  S'For Renewal of License of hhCq)  S'Television Station WHSG(TV)hhCq)  S'Monroe, Georgia hhCq)pp  ` `  hhCq)  S8'GLENDALE BROADCASTING hhCq)ppFile No. BPCT920228KE  S'COMPANY` `  hhCq) ` `  hhCq)  S'For Construction Permit forhhCq)  S'New Television Station inhhCq)  Sp'Monroe, Georgia hhCq) ` `  hhCq)  S 'and` `  hhCq)  S' ` `  hhCq)pp  S'TRINITY BROADCASTING OF hhCq)ppFile No. BRCT940202KE   S 'NEW YORK, INC. hhCq) ` `  hhCq)  SX"'For Renewal of License ofhhCq)  S0#'Television Station WTBY(TV)hhCq)  S$'Poughkeepsie, New YorkhhCqpp) ` `  hhCq)  S%'MARAVILLAS BROADCASTING hhCq)ppFile No. BPCT940426KG  S&'COMPANY` `  hhCq) ` `  hhCq)  S@('For Construction Permit forhhCq)"@(,))ZZ&"Ԍ S'New Television Station inhhCq)  S'Poughkeepsie, New YorkhhCqpp) ` `  hhCq)  S'and` `  hhCq)  S`'` `  hhCqpp) pp  S8'NATIONAL MINORITY T.V., INC. hhCq)ppFile No. BRCT931004KI ` `  hhCq)  S'For Renewal of License of hhCq)  S'Television Station KNMT(TV)hhCq)  S'Portland, Oregon hhCq) ` `  hhCq)  SH 'MARAVILLAS BROADCASTING hhCq)ppFile No. BPCT931230KF  S 'COMPANY` `  hhCq) ` `  hhCq)  S 'For Construction Permit forhhCq)  S 'New Television Station inhhCq)  S 'Portland, Oregon hhCq) ` `  hhCq)  S0'and` `  hhCq)  S'` `  hhCq)pp   S'TRINITY CHRISTIAN CENTER OF hhCq)ppFile No. BRCT930730KF  S'SANTA ANA, INC. hhCq)pp ` `  hhCq)  Sh'For Renewal of License of hhCq)  S@'Television Station KTBNTVhhCq)  S'Santa Ana, California hhCq)pp ` `  hhCq)  S'MARAVILLAS BROADCASTINGhhCq) ppFile No. BPCT931028KS  S'COMPANY` `  hhCq) ` `  hhCq)  SP'For Construction Permit forhhCq)  S('New Television Station inhhCq)  S'Santa Ana, California hhCq) ` `  hhCq)  S'SIMON T` `  hhCq)ppFile No. BPCT931101LF ` `  hhCq)  S`'For Construction Permit forhhCq)pp  S8'New Television Station inhhCq)  S 'Santa Ana, California hhCq) ` `  hhCq)  S%'  MEMORANDUM OPINION AND ORDER \"&,N(N(ZZm%"Ԍ S'ԙX` hp x (#%'0*,.8135@8:(>(ZZ%"  x_applicant, the filers will withdraw their petitions. Even if the money is not being paid directly  x}to the filers, the payment of money to third parties designated by the filers is equally problematic  x+in terms of procedural abuse. As a general matter, the fact of third party payment does not  xcremedy the impropriety of prohibited exchanges. For instance, if a government official does not  xpersonally receive money in return for voting a particular way, but agrees that the money be paid  X4 xto somebody else, that is bribery nonetheless. See 18 USC section 201(b) (b). So long as the  Xx4 xquid of withdrawal is given for the quo of payment, it does not matter, in so far as the prevention  xof procedural abuse is concerned, who the payment goes to. A corrupt exchange the payment  xof cash to induce the withdrawal of a petition to deny has occurred. And in both cases, the  xinitial filing is motivated by the prospect of cash payments, whether to the filer personally or an  xentity picked by the filer. Thus, I would attribute to the filers themselves the payment of funds to parties expressly designated by the filers as recipients.  "Even if one does not accept the argument that designation of third party payees by the  xfilers is tantamount to receipt of the funds by the filers, the creation of the endowments picked  xby the petitioners is quite clearly "other consideration" for the withdrawal of the petitions to deny. Under the regulation, consideration is defined as  "Xfinancial concessions, including but not limited to the transfer of assets or the provision  XO4 "of tangible pecuniary benefit, as well as nonfinancial concessions that confer any type  X:4of benefit on the recipient. (#  xI73.3588(c)(4) (emphasis added). Thus, consideration does not require economic benefit; peace  xof mind, personal satisfaction, or any other kind of advantage not previously enjoyed is sufficient.  X4#d ## XP\  P6QynXP##XP\  P6QynXP#  "A Trinity clearly has made a "financial concession" to petitioners: they have agreed to give  xpaway money. This is something that Trinity had no preexisting obligation to do. The petitioners,  xRin turn, have received "any type of benefit." Even though the money will not flow directly to  x petitioners, they have personally received consideration under the agreement in at least two ways.  "uFirst, petitioners have been given the power to tell Trinity to whom they must transfer the  xfunds in question. This is something that petitioners had no preexisting right to do. If someone  xcomes along and tells me that I can decide how to give away $1 million, that person has  xIconferred an advantage on me the power of allocating those funds that I did not previously  xenjoy. The ability to allocate the funds may not, in the view of some, be as good as receiving  xpthe money personally, but that ability is itself a real benefit. And if the giving away of that other  xperson's money gives me personal satisfaction or happiness or a feeling of wellbeing, that counts  X!4as consideration too.   "Second, and perhaps more importantly, petitioners are clearly benefitted by the settlement  x#agreement in that their public policy goals have been advanced by the creation of the  xendowments. The very raison d'etre of petitioners' organizations is to promote certain social and  xpolitical ideas and causes. And every time one of these ideas or causes is advanced by, for  xinstance,  c'DB a donation to a fund that they support and in which they believe petitioners and"+' ,>(>(ZZ%" presumably their membersip are benefitted by that advancement.  "Of course, petitioners must perceive some value to them in the right of designation and  xin the creation of the scholarship funds in question, or they would never have agreed to the  xsettlement. Thus, when the Order states that "[b]y specifying the recipients of the grants, the  xparties eliminated the possibility that the grants could be awarded in a manner that benefits"  Xv4 xthem, supra at para. 15, it gets things exactly backwards. By designating the recipients of the  xgrants (which the ability to do itself benefitted petitioners) the petitioners were able to ensure  xthat the money would go to a cause that advanced their policy goals and thus inured to the benefit of the petitioning organizations.  "In sum, I think it obviousand thus a violation of our regulationthat petitioners are  xgetting value out of this deal. For these reasons, and contrary to the conclusion of the item, there is in my view no compliance with section 73.3588.  "I am also troubled by the conclusion in this item that "the endowments that would be  xestablished pursuant to the LULAC, SALAD, and NAACP agreements would . . . benefit the  X{4 x_public." Supra at para. 12. This Commission should not be in the business of evaluating the  x_merits or demerits of private charitable or political organizations and encouraging the flow of  xmoney to some groups over others. Suppose for a moment that the shoe were on the other foot:  xwhat if a settlement agreement directed payments to a group that espoused a political, legal or  xsocial philosophy inconsistent with that of the Commission's? Would we deny that settlement  X 4 xon the ground that the causes being funded did not serve the public? Either way, these are wholly  xinappropriate determinations for the Commission to be making. We are supposed to be  ximplementing and enforcing federal communications law, not directing payments to favored  xorganizations, however laudable, in exchange for the withdrawal of official papers in licensing proceedings.  V4Settlement with Competing Applicants: Glendale/Maravillas  Xk4  "dSection 73.3535(c) of our regulations, which addresses the dismissal of applications in  xIrenewal proceedings, provides that competing applicants who with to withdraw their application  X&4 xNcan do so only after the initial decision and must certify "that neither the applicant nor its  x'principals has received or will receive any money or other consideration in excess of the  xlegitimate and prudent expenses of the applicant in exchange for" such withdrawal. 47 C.F.R. section 73.3535(c).  "qHere, competing applicants are being paid $28 million a number far in excess of the  x/parties' costs. Nor was an initial decision ever rendered. With no possibility that the rule could  x<be satisfied, the Commission instead waives the rule for "good cause." As the D.C. Circuit has explained, however,  "Xa waiver is appropriate only if special circumstances warrant a deviation from the general  "rule and such deviation will serve the public interest. The agency must explain why"+' ,>(>(ZZ%"  "deviation better serves the public interest and articulate the nature of the special  "Acircumstances to prevent discriminatory application and to put future parties on notice as to its operation. (#  Xv4 xg Northeast Cellular Telephone Company, 897 F.2d 1164, 1166 (D.C. Cir. 1990)(citing Industrial  Xa4 xBroadcasting Co. v. FCC, 437 F.2d 680 (D.C. Cir. 1970) (requiring showing of special  XL4circumstances other than those considered in general rulemaking)).#Nt0n Q <0#  X54# XP\  P6QynXP#  " There is articulated no "good cause" for waiver here that would not exist in virtually any  x+case in which a competing applicant wanted to withdraw an application from a comparative  xhearing proceeding. If, as the Commission states, the limitation on payments to settling parties  X 4 xlno longer serves any deterrent purpose, supra at para. 14, then the rule itself is useless in all  xapplications and should simply be repealed. But it does not mean that there is something about the facts of this particular case that warrant a waiver.  "And while it may be true that settlements should be encouraged because they decrease  Xh4 xuncertainty and litigation, id. at para. 12, that is an argument for relaxing or eliminating the rule  xconstraining settlements. In fact, it was an argument that was rejected in the course of the  X<4 x/rulemaking that resulted in the instant regulations. See4 FCC Rcd at para. 14. It is not, in any  xevent, a casespecific consideration. Similarly, the fact that settlements in comparative license  X4 xrenewal proceedings in general are to be encouraged, supra at para. 14, goes to the need for the rule itself, not the justifiability of a waiver on the facts of this case.  "Finally, the Commission says that it has no reason to believe that these competing  X4 xapplicants filed their documents with any improper intent. Id. at para. 14. But the fact that there  x"is no specific evidence of intent to abuse Commission processes is likewise a general point that  xit not tied to anything about this particular case. This rule, adopted as a "safeguard[]" against  xprocedural abuses, 5 FCC Rcd. at para. 1, is not premised on actual evidence of bad intent. (Of  x<course, if the rule were anything but prophylactic, it would simply be redundant of the rules that  xRprohibit actual abuse of the Commission's processes.) Rather, the rules establishes a limit on  xsettlement payments in order to decrease the likelihood of such filings. If the rule can be waived  x4anytime a party certifies that it had no bad intent, then the rule would achieve none of its preventative purpose.  X 4 "RThis state of affairs is very much like that in Northeast Cellular Telephone Company, 897  x"F.2d 1166. There, the Court of Appeals vacated the Commission's waiver of the rule requiring  xa licensee to establish its financial qualification. The licensee did not meet the standard set forth  xIin the rule for such qualification, but the Commission waived the rule on the ground that it knew  xfrom experience with the party that it was financially capable of operating the proposed systems.  Xa%4 x[Id. at 1166. Because there was "no speculation" as to the party's financial qualifications,  XL&4enforcement of the rule would not serve its intended purpose. Id. "7' ,>(>(ZZ%"Ԍ "The Court rejected this reasoning, holding that "[i]t does not articulate any standard by  xwhich we can determine the policy underlying its waiver. . . . The record reveals nothing unique  xabout [the licensee's] situation." Here, as explained above, the Commission has not pointed to  x anything about this specific case that warrants departure from the general rule. It simply reasons,  xcin essential part, that it has no reason to believe these applicants acted in bad faith; but this is no  X4 xMmore of a waiver standard than the Commission's belief that the party in Northeast Cellular could  Xx4pay.  XJ4` `  *hhC*q*  "In sum, I believe that the settlement in this case raises a most unseemly appearance of  xpayoffs to favored political or charitable organizations precisely the kind of situation that the  xrelevant rules were intended to prevent. The reasoning of the Commission in approving the  xysettlement as in conformity with our rule strains credulity: when a petitioner in opposition can  xrequire the transfer of cash payments to an entity handpicked by the filer, that is just as much  xan abuse of the filing process as a transfer of cash to the filer itself, and the withdrawing party  xis clearly receiving a benefit under the agreement. Nor do I believe that the reasons given for  xythe waiver of the rule governing competing applicants pass muster under the relevant judicial precedents. Accordingly, I respectfully dissent. c'TA