******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) JAMES A. KAY, JR. ) WT DOCKET NO. 94-147 ) Licensee of one hundred fifty two ) Part 90 Licenses in the ) Los Angeles, California area ) ) ) ) ) ) ) ) ORDER Adopted: March 4, 1998 Released: March 10, 1998 By the Commission: 1. This order denies a Petition for Reconsideration, filed October 31, 1997, by James A. Kay, Jr. (Kay) and dismisses as moot a related Motion to Stay Proceedings, filed the same day. Kay seeks reconsideration of an order that declined to disqualify Richard L. Sippel (ALJ) as the Presiding Judge in this proceeding, James A. Kay, Jr., FCC 97-349 (Oct. 2, 1997). I. BACKGROUND 2. Following the vacation and remand of the ALJ's summary decision which concluded that Kay's Part 90 licenses should be revoked and that Kay should pay a forfeiture of $75,000, Kay filed a motion to disqualify the ALJ, which the ALJ denied. James A. Kay, Jr., FCC 97M-52 (Apr. 14, 1997). The Commission denied Kay's appeal of the ALJ's action on all grounds. James A. Kay, Jr., 12 FCC Rcd 15662 (1997). In his appeal, Kay had alleged several grounds that purportedly demonstrated the ALJ's bias towards him, only one of which is raised in the pleadings now before us. In this latter regard, Kay contended that the ALJ received, but did not disclose in accordance with the Commission's ex parte rules, the so-called "Pick Letter," which contains derogatory information about Kay. 3. As to the "Pick Letter," the Commission found no basis to conclude that the letter had ever been received by the ALJ. Id. at  11. The letter in question was found in the files of Robert Andary, a former employee of the Commission's Office of Inspector General, and produced by Andary during the course of civil litigation in California. It is a photocopy of a letter typed on the stationery of Gerard Pick, for his signature. It reads: Your Honor -- T[h]ere seems to be a convention that you don't write to a Judge. There is also a convention that if you are about to drown you grab at any straw. Please your Honor, read the enclosed. I know it sounds as if I dramatize myself and my situation; nevertheless my family and I are being systematically destroyed because we brought some impossible facts to the attention of the FCC. And the FCC is hurt in the process. It is the Kay case which is before you. . . . Please read the papers attached hereto. Although the letter closes: "Respectfully -- Gerard Pick," it is signed by his wife, Ann. The heading of the letter is partially obscured on the photocopy by a copy of a handwritten note that reads: Dear Bob [M]y husband passed away. [H]e tried desperately to save us, but I am at the end of the line. Kay is still suing us. The letter is addressed to "THE HON. L. RI. . . Adminis. . . ," the rest being obscured by the note. The mailing address is "Federal Commun. . . 1270 Fairfield . . . Gettysburg, PA. . ., " the rest also being obscured by the note. 4. In response to a Freedom of Information Act request filed by Kay in support of his allegations, the ALJ denied ever having received the letter. See FCC 97M-52 at  11-12. He stated that his case log showed no record of the Pick Letter and that a search of his files of pleadings and correspondence similarly showed no trace of the Pick Letter. He indicated that he had not seen the Pick Letter until Kay produced it in his motion to disqualify. 5. The Commission rejected Kay's contention that the ALJ should be found to have received the letter, despite his denials. 12 FCC Rcd at 15664-65  9-11. The Commission found no merit to Kay's argument that, because the letter "was addressed to the [ALJ]," it should be presumed to have been delivered. Initially, the Commission noted that the ALJ's name is "Richard L. Sippel," not "L. Ri. . . " and that his mailing address is Washington, D.C., not Gettysburg, Pennsylvania. Based on the content of the handwritten note and the fact that the letter was found in Robert Andary's files, the Commission found that it was most likely that Ann Pick signed the letter after her husband's death and that it was delivered to Andary, not the ALJ. 6. Kay now claims to have new evidence that the letter was received by the ALJ. This evidence consists of an unsigned version of the letter found among Gerard Pick's property. Kay indicates that he purchased the letter, on September 15, 1997, at a Sheriff's auction conducted to satisfy a judgment by Kay against Pick. The text of the new letter, which is on the stationery of Century Communications Service, Pick's business, is identical to that of the original Pick Letter. The heading of the letter shows that it was addressed to: THE HON. L. RICHARD SIPPLE Administrative Law Judge Federal Communications Commission 1270 Fairfield Road Gettysburg, PA 18325 The heading also contains the following typewritten data off to one side: "717/337-1311(202/632-7000)," "(1919 M Street) (Washington, D.C.)," and "17 July 1995." The new unsigned letter, like the letter signed by Ann Pick, has the legend "6-SP-SIPPLE" in the upper right hand corner. 7. According to Kay, the additional information disclosed on the new version of the letter undermines the Commission's basis for rejecting the presumption that the letter was delivered to the ALJ. Kay notes that the letter contains the ALJ's full name, albeit misspelled, and a Washington address (in addition to the incorrect Gettysburg address). II. DISCUSSION 8. We deny reconsideration. Kay's new evidence does nothing to establish that the letter was received by the ALJ. It does not alter the basis for concluding that the legal "presumption of receipt" does not apply to this case. As explained by the courts (see Konst v. Florida East Coast Railway Co., 71 F.3d 850, 851 (11th Cir. 1996): The "presumption of receipt" arises upon proof that the item was properly addressed, had sufficient postage, and was deposited in the mail. The presumption is, of course, rebuttable. In this case, there has been no showing that the letter was properly mailed to the ALJ. We do not have either a statement from Ann Pick concerning the mailing of the letter or the envelope that was used. Indeed, the facts before us strongly suggest that it was not properly mailed. Most significantly, the handwritten note to Bob (presumably, Andary), and the fact that the letter was found in Andary's files, support an inference that the letter was directed to him and not the ALJ. Moreover, the address directly associated on the letter with the ALJ's name is an incorrect Gettysburg address. Further, the address "1919 M St., Washington, D.C." is the address of the FCC's main headquarters building in Washington (where the Inspector General is located) but is not the building where the ALJ has his office. Similarly, the phone number (202) 632-7000 was, at one time, the FCC's main telephone number in Washington, D.C., not the ALJ's. 9. The evidence before us provides no reason to conclude that the ALJ received the Pick Letter. We have no reason to doubt the ALJ's representations that he had not seen the letter prior to its proffer by Kay and that his records disclosed no evidence of receipt. The evidence just discussed, indicating that Andary rather than the ALJ received the letter, is fully consistent with the ALJ's representations. III. ORDERING CLAUSES 10. ACCORDINGLY, IT IS ORDERED, That the Petition for Reconsideration, filed October 31, 1997, by James A. Kay, Jr. IS DENIED. 10. IT IS FURTHER ORDERED, That the Motion to Stay Proceedings, filed October 31, 1997, by James A. Kay, Jr. IS DISMISSED as moot. FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary