$//Western Cities Btg, (Longmont, CO), FM, 90-424, FCC 95-12//$ $/300.155(d) Organization and functioning of the Commission/$ $/0.341(d) Authority of ALJ/$ $/500.3001 Abeyance/$ ////newjob/// $///FCC 95-12,1/10/95///$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 FCC 95-12 In re Applications of ) MM DOCKET NO. 90-424 ) WESTERN CITIES BROADCASTING, INC. ) File No. BRH-891201XU ) For Renewal of License ) Longmont, Colorado ) ) AMADOR S. BUSTOS ) File No. BPH-900228MB ) LONGMONT BROADCASTING CORPORATION ) File No. BPH-900216MA ) For Construction Permit ) Channel 282C1 ) Longmont, Colorado ) ) WESTERN CITIES BROADCASTING, INC. ) File No. BPH-890104KC ) For License to Cover Minor ) Changes Station KQKS(FM) ) ) Longmont, Colorado ) MEMORANDUM OPINION AND ORDER Adopted: January 6, 1995; Released: January 13, 1995 By the Commission: 1. We have before us a Motion for Special Relief and Expedited Action jointly filed on July 7, 1994 by Longmont Broadcasting Corporation (LBC) and Amador S. Bustos and oppositions thereto filed on July 18 by Western Cities Broadcasting, Inc. and the Chief of the FCC's Mass Media Bureau. The petitioners ask us to order the ALJ presiding in this case to proceed at once to prepare and issue a partial initial decision resolving all basic qualification issues against Western Cities Broadcasting, Inc. 2. The essential circumstances to which the petitioners direct our attention are: that the hearing designation order for this proceeding, which was released in October 1990, specified two hearing issues calling into question the character qualifications of Western and its principal shareholder; that the hearing record with respect to the comparative issues and one of the character issues against Western was closed in January 1992; that the parties filed proposed findings and reply findings as to those issues in June and July 1992; that an evidentiary hearing as to the other character issue against Western was postponed until March 1993 because of developments in another case involving a closely related issue; that the parties filed proposed findings and replies concerning that other character issue in May and June 1993; and that nothing of any material significance has happened in this case since June 1993. 3. The petitioners contend that further postponement of the ALJ's preparation and issuance of findings on the character issues could be prejudicial, as the value of demeanor evidence might be impaired as his recollection of it grows stale with the passage of time. They also contend that the ALJ's failure to date to issue an initial decision as to Western's basic qualifications to remain a licensee is: (1) contrary to the policy proclaimed in Second Thursday Corp., 22 FCC 2d 515 (1970), order on recon., 25 FCC 2d 112, 113 (1970), against conferring incidental benefits on principals of renewal applicants suspected of wrongdoing; (2) analogous to the practice of prolonging a licensee's immunity from competitive challenge that the court condemned in New South Media Corp. v. FCC, 685 F.2d 708 (D.C. Cir. 1982), as violative of the "full hearing" requirement of 47 U.S.C. 309(e); (3) in violation of the injunction in 47 U.S.C. 155(d) to "expedite the . . . business of the Commission with the objective of rendering a final decision within six months from the final date of the hearing in all hearing cases"; and (4) contrary to the provision in 0.341(d) of the FCC's rules, 47 C.F.R. 0.341(d), that presiding ALJs are to "make every effort" to issue initial decisions "within 90 days of the filing of the last responsive pleading." 4. The petitioners maintain, moreover, that the relief that they seek is not precluded by the freeze on comparative proceedings. They lay stress on a statement in the public notice announcing the freeze to the effect that ALJs may prepare and issue supplemental decisions during the freeze to resolve basic qualifications issues specified in remand orders. Contending that there is no valid public policy reason for distinguishing in this regard between basic qualification issues added in remand orders and basic qualification issues that were specified in some other manner, the petitioners therefore conclude that the Commission intends to allow ALJs to decide any basic qualification issue during the freeze. 5. Whatever the merits of the petitioners' interpretation of the original Freeze Notice, their contentions in that regard have been overtaken by events, as we have emphasized in a more recent public notice that no issue concerning an applicant's basic qualifications is to be adjudicated in a comparative proceeding during the freeze unless disqualification of that applicant would obviate comparative evaluation in the case or the parties have filed a request for approval of a settlement agreement that is contingent upon resolution of a basic qualification issue. "Modification of FCC Comparative Proceedings Freeze Policy," 9 FCC Rcd 6689 (1994). As disqualification of Western would not obviate comparative evaluation in this case and as the parties have not filed for approval of a settlement, the petitioners' request for relief cannot be granted consistently with the terms of the freeze on comparative hearings. 6. Nothing in Second Thursday, which concerned the motion of a trustee in bankruptcy for permission to sell the licensed station of an insolvent renewal applicant for the benefit of creditors, indicates that it would be improper for the ALJ in this case to postpone his resolution of the basic qualifications issues against Western in compliance with the freeze. Nor is New South clearly on point. The New South court did not rule on any question as to the propriety of staying proceedings in a comparative renewal case; rather, its holding concerned the propriety of adjudicating a basic qualification issue against a licensee in a noncomparative proceeding instituted shortly before the end of the license term instead of entertaining competing applications and litigating the issue in the context of a comparative proceeding. 7. The contention that 0.341(d) has been violated is frivolous, as the freeze has obviously superseded that rule provision insofar as it applies to this case. The petitioners' invocation of 47 U.S.C. 155(d) is also unavailing. They fail to explain why they suppose that a mandate to expedite proceedings with the objective of rendering final judgments within six months of the last hearing date obliges us to order the ALJ to issue a partial initial decision in this instance before we have resolved comparative policy issues that must be settled before a final disposition on the merits can be reached. We do not construe the injunction to expedite the "orderly conduct of the business of the Commission" (emphasis added) as requiring adjudicators to forgo orderly processes of deliberation in order to rush to judgment at an early date. We continue to believe that the best and most orderly way of deciding the fundamental comparative policy issues posed by Bechtel -- resolution of which is a prerequisite for final adjudication of the comparative issues in this case -- is through the rulemaking that has been instituted for that purpose, which we intend to complete with all appropriate speed. Hence, we believe that our chosen manner of proceeding in this and similar cases is within the bounds of our legitimate discretion. 8. ACCORDINGLY, IT IS ORDERED That the "Motion for Special Relief and Expedited Action" jointly filed by Longmont Broadcasting Co. and Amador S. Bustos on July 7, 1994 IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary