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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Ronald Brasher ) EB Docket No. 00-156
Licensee of Private Land Mobile Stations )
WPLQ202, KCG967, WPLD495,WPKH771, )
WPKI739, WPKI733, WPKI707, WIL990, )
WPLQ475, WPLY658, WPKY903, WPKY901, )
WPLZ533, WPKI762, and WPDU262 )
Dallas/Fort Worth, Texas )
)
Patricia Brasher )
Licensee of Private Land Mobile Stations )
WPJI362, WPKY900, and WPLD570 )
Dallas/Fort Worth, Texas )
)
David Brasher )
Licensee of Private Land Mobile Stations )
WPBU651 and WPJR757 )
Dallas/Fort Worth, Texas )
)
D.L. Brasher )
Licensee of Private Land Mobile Station WPJR750 )
Dallas/Fort Worth, Texas )
)
O.C. Brasher )
Licensee of Private Land Mobile Station WPJR761 )
Dallas/Fort Worth, Texas )
)
Metroplex Two-Way Radio Service )
Licensee of Private Land Mobile Stations )
WPHS735, WPKP673, WPKM797, )
WPLZ841 and WPJR754 )
Dallas/Fort Worth, Texas )
)
DLB Enterprises, Inc. )
Licensee of Private Land Mobile Stations )
WPKM796, WPKL830, WPJY510, WPLU490, )
WPBH830, WPKP667, WPLY713, WPMH354, )
WPMH477, and WPKY978, )
Dallas/Fort Worth, Texas )
WNAH223 )
Cleora, Oklahoma )
)
DLB Enterprises, Inc., )
Applicant for Conventional Industrial/Business ) File Nos. AO17774,
Private Land Mobile Licenses ) AO20241 and AO19157
Dallas, Texas )
)
Applicant for Conventional Industrial/Business ) File No. AO18555.
Private Land Mobile Licenses )
Crowley, Texas )
)
Applicant for Trunked Industrial/Business ) File No. AO20755.
Private Land Mobile Licenses )
Crowley, Texas )
)
Applicant for Assignment of Private Land Mobile ) File No. D113240
Stations from Ronald Brasher (WPKI707, )
WPKI739, WPKI733 and WPLQ475), Norma )
Sumpter (WPJR739), D.L. Brasher (WPJR750), )
David Brasher (WPJR757), Jim Sumpter )
(WPJR725), Jennifer Hill (WPJR740), )
Metroplex Two-Way Radio Service (WPJR754), )
O.C. Brasher (WPJR761), Melissa Sumpter )
(WPJS437) Dallas, Texas )
)
Applicant for Assignment of Private Land Mobile ) File No. D113242
Station )
)
Applicant for Modification of Private Land Mobile ) File No. D113241
Stations WPKM796, and WPKL830, and )
Assignment of Private Land Mobile )
Stations WPKI733, WPLQ475, WPKI707 )
and WPKI739 from Ronald Brasher )
and Assignment of Private Land )
Mobile Station WPKM797 from Metroplex )
Dallas, Texas )
APPEARANCES
Robert H. Schwaninger, Jr., Benjamin J. Aron, and Garret R. Hargrave on
behalf of DLB Enterprises, Inc., Ronald Brasher, and Patricia Brasher; and
Maureen F. Del Duca, Judy Lancaster, and William H. Knowles-Kellett, on
behalf of the Enforcement Bureau, Federal Communications Commission.
DECISION
Adopted: September 1, 2004 Released: September 7, 2004
By the Commission:
TABLE OF CONTENTS
Paragraph
I. Background 2
II. Initial Decision
Findings of Fact - Factual Background 6
Findings of Fact - Participation of the Nominal Applicants in
Their Applications and Facilities 11
Findings of Fact - Responses to Net Wave Petition and Commission
Inquiries 25
Conclusions of Law - Real Party-In-Interest, Unauthorized Transfer
of Control, Abuse of Process 30
Conclusions of Law - Misrepresentation and Lack of Candor 34
Conclusions of Law - Ultimate Conclusion 37
III. Discussion
Real Party-In-Interest, Unauthorized Transfer of Control 38
Abuse of Process 42
Misrepresentation and Lack of Candor - O.C. Brasher filing 45
Misrepresentation and Lack of Candor - Ruth I. Beardon filing 49
Misrepresentation and Lack of Candor - the Sumpters filing 51
Misrepresentation and Lack of Candor - Net Wave Opposition 62
Misrepresentation and Lack of Candor - Responses to Letters of Inquiry 65
Conclusion 75
IV. Ordering Clauses 77
1. In this decision, we affirm the Initial Decision of Administrative Law
Judge Arthur I. Steinberg, which revoked, denied, or dismissed most of the
above-captioned private land mobile radio licenses and applications of DLB
Enterprises, Inc. d/b/a Metroplex Two-Way Radio Service ("DLB" or
"Metroplex") and its principals, Ronald Brasher, Patricia Brasher, and
David L. Brasher (a.k.a. D.L. Brasher), and a related license of O.C.
Brasher.
I. BACKGROUND
2. As explained below, this proceeding arose from allegations that
Metroplex and its principals, Ronald and Patricia Brasher, abused the
Commission's processes by applying for land mobile radio licenses in the
names of surrogates. These allegations raised questions as to whether
Metroplex and its principals were the real parties-in-interest in
applications filed in the names of some of the Brashers' relatives,
including two who were deceased, and as to whether their motive in
pursuing this course of action was to evade limitations imposed by the
Commission's rules on the number of applications that they could file in
their own names. The allegations raised further questions as to whether
Metroplex and its principals made misrepresentations to and lacked candor
before the Commission. Metroplex and its principals allegedly falsely
represented to the Commission that the nominal applicants were the real
parties-in-interest in the applications and that the nominal applicants
actually exercised control over the licenses that resulted from their
applications. Moreover, Metroplex and its principals allegedly concealed
their own unauthorized control of the licenses as well as the true
circumstances under which the applications were filed. If these
allegations proved true, they would represent serious misconduct of the
type that might, pursuant to the Commission's character policy, disqualify
Metroplex and the Brashers from holding radio licenses.
3. On August 29, 2000, the Commission initiated this proceeding to
determine whether the above-captioned license and applications should be
revoked or denied. Ronald Brasher, 15 FCC Rcd 16326 (2000). The following
issues were specified:
(a) To determine whether any of the above-captioned licensees made
misrepresentations to, and/or lacked candor before, the Commission in
applications and/or responses to Commission inquiries;
(b) To determine whether any of the above-captioned licensees were
undisclosed real-parties-in-interest or willfully and/or repeatedly
violated S 310(d) of the Communications Act of 1934, as amended, by
engaging in unauthorized transfers of control involving their respective
stations;
(c) To determine whether any of the captioned parties abused the
Comission's processes in connection with the filing of applications on
behalf of O.C. Brasher, Ruth I. Bearden, Jim Sumpter, Norma Sumpter,
Melissa Sumpter or Jennifer Hill;
(d) To determine, in light of the evidence adduced pursuant to the
foregoing issues, whether the above-captioned licensees are basically
qualified to be and/or remain Commission licensees;
(e) To determine, in light of the evidence adduced pursuant to the
foregoing issues, whether any or all of the above-captioned licenses
should be revoked;
(f) To determine, in light of the evidence adduced pursuant to the
foregoing issues, whether any or all of the above-captioned applications
should be granted.
4. Judge Steinberg ("ALJ") issued his Initial Decision on August 8, 2003,
revoking most of the above-captioned private land mobile radio licenses
and denying or dismissing the above-captioned applications. Ronald
Brasher, 18 FCC Rcd 16707 (ALJ 2003) (ID). The ALJ found that Ronald
Brasher, Patricia Brasher, and Metroplex abused the Commission's
processes, since they were the real parties-in-interest in applications
they filed in the names of O.C. Brasher, Ruth I. Bearden, Jim Sumpter,
Norma Sumpter, Jennifer Hill, and Melissa Sumpter. The ALJ also found that
Ronald, Patricia, and Metroplex violated 47 U.S.C. S 310(d) by assuming
control of the licenses issued pursuant to those applications without
Commission authorization. Moreover, the ALJ found that Ronald, Patricia,
and Metroplex made misrepresentations to and lacked candor with the
Commission in the applications, in a pleading, in responses to Commission
inquiries, and at the hearing. Ronald, Patricia, and Metroplex filed
exceptions on September 8, 2003 and the Enforcement Bureau filed a reply
on October 2, 2003.
5. We affirm the ALJ's Initial Decision in all material respects. We find
that Ronald and Patricia Brasher and Metroplex abused the Commission's
processes when they filed applications in the names of O.C. Brasher, the
Sumpters, and Ruth Bearden, and that they exercised control over the
resulting licenses without authorization. We further find that Ronald,
Patricia, and Metroplex made misrepresentations and lacked candor in the
applications and in responses to pleadings and inquiries. We conclude that
this misconduct warrants revocation of the licenses and denial of the
applications at issue. In the sections that follow, we set forth in
greater detail the factual findings that underpin our and the ALJ's
conclusions and our analysis of the arguments raised in the parties'
exceptions.
II. INITIAL DECISION
Findings of Fact -- Factual Background.
6. Patricia and her husband Ronald formed Metroplex in 1982 to provide
two-way radio service in the Dallas, Texas area. Patricia owns 60 percent
of Metroplex's stock and Ronald owns the remaining 40 percent. Their son
David and his wife Diane are officers of Metroplex. ID at 16711 PP 6-7,
13. Jim Sumpter, Patricia's brother-in-law, was Metroplex's accountant. ID
at 16711 P 9. Metroplex employs 15 or 16 people and had a gross revenue
for the year 2000 of approximately $2-$2.4 million. ID at 16712 P 11.
7. Filing of applications. During the first part of 1995, two cement
hauling or concrete companies approached Ronald about using Metroplex to
provide service for 600 to 800 mobile units. To serve such potential
customers Ronald knew that Metroplex needed new frequencies on the 480 to
512 MHz band ("T-band"). ID at 16712-13 PP 13-14. Ronald was told by
Scott Fennell of the Personal Communications Industry Association, Ltd.
("PCIA"), the frequency coordinator, that, pursuant to PCIA and FCC
rulings, Metroplex, Ronald, and Patricia could apply for only one T-band
license in each of their names. John Black of Spectrum License
Consultants, Inc., confirmed what Fennell told Ronald. Black understood
PCIA policy to parallel 47 C.F.R. S 90.313(c), which states, in pertinent
part: "A licensee will be required to show that an assigned frequency pair
is at full capacity before it may be assigned a second or additional
frequency pair." ID at 16713 P 15.
8. Ronald testified that Black told him that Metroplex could obtain
multiple T-band channels, despite this limitation, by using different
names on the applications and then combining the licenses into one system.
ID at 16713 P 16; Tr. 586. Ronald further testified that he researched
this matter and discovered four companies that had apparently structured
their T-band systems in this manner. After Ronald and Black researched the
available T-band frequencies, Ronald faxed a list of names and addresses
to Black and asked him to prepare applications in those names. ID at 16713
P 17. The list of names included: David L. Brasher, D.L. Brasher (the same
person), O.C. Brasher (Ronald's deceased father), Ruth I. Bearden (the
maiden name of Ronald's deceased mother), Carolyn Sue Lutz (Metroplex's
then office manager and Patricia's sister), Jim Sumpter (Metroplex's then
accountant and Patricia's brother-in-law), Norma Sumpter (Jim's wife and
Patricia's sister), Melissa Sumpter (Jim and Norma's daughter), and
Jennifer Hill (Jim and Norma's daughter). ID at 16713-14 PP 17, 19. Black
prepared the applications and returned them to Ronald. After they were
signed, they were submitted to PCIA. The PCIA control numbers indicated
that they were all received on the 176^th day of 1996, i.e., June 24,
1996. ID at 16713-14 P 18. The Commission granted all of the licenses on
September 25, 1996, with the exception of Melissa's, which was granted on
October 2, 1996. EB Exhs. 10, 19.
9. Inquiries concerning the applications. In November, 1997, a company
called Net Wave Communications, Inc. ("Net Wave") filed a petition for an
order to show cause why Metroplex's licenses should not be revoked. ID at
16721-22 PP 51-52. Net Wave alleged that Metroplex had knowingly made
false statements on the applications with respect to the real
parties-in-interest in the applications and that Metroplex had concealed
the family relationships between the applicants. Net Wave characterized
the various nominal applicants as Metroplex's "foot soldiers" and not the
true real parties-in-interest in their respective applications. Net Wave
accused Metroplex of "paper licensing" and "hoarding frequencies" using
the allegedly false applicants. Metroplex responded, on November 25, 1996,
with an opposition denying those allegations. ID at 16722 P 53.
10. The Commission subsequently initiated an inquiry into the
applications. It sent out a letter of inquiry on November 9, 1998, to
which Metroplex responded on December 7, 1998, and one on March 4, 1999 to
which Metroplex and its principals responded on April 5, 1999. Metroplex
filed a further response on August 3, 1999. The Commission sent a further
letter of inquiry on September 9, 1999, to which Metroplex responded on
October 13, 1999. Commencement of the instant proceeding followed. ID at
16726 P 75, 16727 P 77, 16731 P 92, 16738 P 122.
Findings of Fact - Participation of the Nominal Applicants in Their
Applications and Facilities.
11. O.C. Brasher. The ALJ found that Ronald's father, O.C. Brasher, died
on August 17, 1995, roughly one year before the filing of his application.
ID at 16714 P 20. On June 17, 1996, Ronald signed O.C.'s application "O.C.
Brasher." Ronald testified that he filed the 1996 application in O.C.'s
name because it was O.C.'s desire when he was alive to have a station. ID
at 16714 P 21. Ronald explained that O.C. had submitted an application for
a station on June 29, 1995, but that PCIA mishandled the application,
which was never filed with the Commission. Ronald and Patricia testified
that they considered the 1996 application part of O.C.'s estate.
12. The ALJ found that Ronald and Patricia, not O.C.'s estate, had paid
for the construction and operation of O.C.'s station using equipment owned
or leased by Metroplex. ID at 16714-15 P 22. On November 17, 1997, the
Commission sent out a Form 800A, asking whether O.C.'s station had been
constructed and whether it was operational. Ronald filled out the document
and signed it "O.C. Brasher EST. R. D. Brasher." ID at 16715 P 23. Ronald
explained that "EST." meant "estate." Later, in 1998, Ronald prepared and
filed an application for the assignment of O.C.'s station from O.C. to
Metroplex. The assignor's signature was "O.C. Brasher" with the
handwritten date "1-26-98." ID at 16715 P 24.
13. On March 29, 1999, Ronald signed the name "O.C. Brasher" to a document
entitled "Radio Station Management and Marketing Agreement" ("Agreement").
The Agreement called for Metroplex to manage the station, lease equipment
to the stations, and collect the station's revenues with any profits to be
paid to O.C. ID at 16715 P 25. The Agreement also contained language
providing that the licensee (i.e., O.C.) retained ultimate supervision
over the stations and that he would indemnify Metroplex under certain
circumstances. ID at 16716 P 26. Ronald testified that he signed O.C.'s
name to the Agreement pursuant to a "Durable Power of Attorney" that O.C.
executed before his death. That document, however, indicated that O.C. had
revoked the power of attorney the same day it was executed, January 16,
1992. ID at 16717 at PP 27-28.
14. The Sumpters. The ALJ found that Ronald, Patricia and the Sumpters
sharply disagreed as to the circumstances surrounding the preparation of
the Sumpter applications. The applications contained the signatures: "Jim
Sumpter," "Norma Sumpter," "Melissa Sumpter," and "Jennifer Hill."
15. Ronald and Patricia testified that, in early 1996, Patricia asked
Norma if she and Jim would be interested in obtaining radio licenses and
explained to Norma that she and Ronald could not obtain any more licenses
in their own names. Norma allegedly told Patricia that she and Jim would
be interested and later, in response to a further inquiry, that Melissa
and Jennifer were also interested. ID at 16718 P 33. Patricia testified
that she, Ronald, Norma and/or Jim had eight to ten conversations over a
period of four to six months on the subject of the Sumpters applying for
licenses and that Patricia had also spoken to Jennifer. ID at 16718 PP
34-36. Ronald and Patricia testified that, on June 10, 11, or 12, 1996,
they took the applications that Black had prepared to Jim's office and
delivered them to Norma and that, on June 17 or 18, they went to Jim's
office and picked up the signed applications. ID at 16719 PP 37-39, 41. At
that time, Patricia prepared checks for the application fees and Ronald
transmitted the applications to PCIA for coordination.
16. The Sumpters, by contrast, all denied that they had signed the
applications filed in their names, that they knew that applications had
been filed in their names, or that they had given permission for anyone to
file in their names. ID at 16717-18 P 31. Gail Bolsover, a Forensic
Document Analyst for the U.S. Postal Inspection Service testified that, in
her opinion, the signatures that appeared on the Sumpter applications were
not the genuine signatures of Jim, Norma, Melissa, and Jennifer and that
Norma's, Melissa's and Jennifer's signatures all appeared to have been
written by the same person. She was not able to identify the writer of the
signatures. ID at 16715 P 24, 16718 P 32.
17. Ronald, Patricia and the Sumpters also differed on the circumstances
surrounding the execution of so-called "client copies" of the
applications. Ronald testified that after he picked up the signed copies
of the applications from Norma, he noticed that "client copies" of the
applications, that had been included with the copies for submission to
PCIA, had not been signed. Ronald said that he told Norma that he needed
to have the client copies signed. ID at 16730 P 89-91. According to Ronald
and Patricia, Norma, Melissa, and Jennifer visited Ronald and Patricia's
home on Saturday June 22, 1996, for shopping, conversation, and social
activities. Ronald and Patricia testified that Norma, Melissa, and
Jennifer signed their client copies, and Ronald photocopied the signed
documents. ID at 16731 PP 92-93. As Jim was not present, his client copy
was not signed or photocopied.
18. The Sumpters denied that they signed the client copies and suggested
that the signatures were copied from other documents. ID at 16731-32 P 94.
In particular, they testified that Norma could not have visited the
Brashers and signed her copy that weekend, since she had accompanied Jim
when he visited his ill, elderly aunt at her home 325 miles away. ID at
16732 PP 95-96. The Sumpters produced credit card and telephone receipts
and other items that assertedly documented the trip. The ALJ found that
Bolsover, the document analyst, testified that signatures of Norma,
Melissa, and Jennifer appeared genuine and that she could not tell whether
the signatures were original to the documents, since she examined poor
quality photocopies of the signatures. Bolsover did testify that the dates
accompanying the signatures, "6-22-96," were machine copies of the same
handwritten entry. ID at 16732-33 PP 97-99.
19. The ALJ found that Patricia testified that Norma and Jennifer called
to tell her that they had received their licenses, but that the Sumpters
testified that they did not recall receiving their licenses and that they
forwarded all FCC-related mail to Ronald. ID at 16720 PP 42-43. The ALJ
further found that Ronald undertook the responsibility of constructing the
stations using equipment owned or leased by Metroplex and that it was
understood by everyone that Metroplex would bear all costs of operation.
All of the revenue received from the stations was deposited in the
Metroplex account and no payments were made to the Sumpters, who had no
involvement in station management. ID at 16720-21 PP 44-48. The ALJ found
that Metroplex did not break down revenues and expenses by station. ID at
16721 PP 49-50.
20. According to the ALJ, the Sumpters testified that they did not learn
of their licenses until the filing of the Net Wave petition. ID at 16721 P
51. Jim testified that Ronald assured him not to worry about the Net Wave
petition and that he (Ronald) would take care of it. ID at 16722 P 54. Jim
said that he was happy for Ronald to do this, although he (Jim) did not
understand the draft opposition to Net Wave's petition. Jennifer testified
that she called Patricia and Ronald and that Ronald had assured her that
everything was under control and that she had done nothing wrong. ID at
16723 P 58. On November 29, 1997, after the opposition to Net Wave's
petition had been filed, each of the Sumpters sent Ronald and Patricia
letters drafted by Jim indicating that they were unaware that they were
licensees, that they had not signed any documents, and that they wanted
their names removed from the licenses. ID at 16723 P 57.
21. By this time, the Commission had sent out copies of FCC Form 800A,
which requires the licensee to indicate whether its station was
constructed and operational. Jim and Norma signed their Form 800As on
December 16, 1997, but advised Jennifer and Melissa not to sign theirs.
Jennifer and Melissa discarded their Form 800As. ID at 16723 P 59. Jim and
Norma then, on December 20, 1997, addressed letters to Ronald and Patricia
acknowledging that they signed the Form 800As and asking Ronald to
transfer the licenses out of their names. ID at 16723 P 60. Ronald
provided FCC Form 1046s (transfer applications) to the Sumpters, which
each of the Sumpters signed on January 28, 1998. ID at 16723-24 P 61.
Because Jennifer and Melissa did not return their Form 800As or respond to
subsequent Commission correspondence, the Commission in April 1998,
cancelled their licenses. ID at 16723 P 62. In July 1998, Ronald called
Jim and told him that if Jennifer and Melissa did not file their Form
800As, they would be "in big trouble." ID at 16724 P 63. Jim, at that
point, retained legal counsel.
22. Carolyn Sue Lutz. In 1996, Carolyn served as Metroplex's office
manager. The ALJ found that Ronald asked Carolyn to apply for a license
and told her that she would not have to do anything with regard to the
station. Carolyn testified that she signed the application as a favor to
Ronald. ID at 16724 PP 64-66. The ALJ further found that Ronald undertook
responsibility for constructing and operating the station using equipment
owned or leased by Metroplex. Carolyn was not involved in the management
of the station, paid none of the costs associated with the station, and
received none of its proceeds. ID at 16724-25 P 67-69.
23. The ALJ found that, in late 1998 or early 1999, Ronald asked Carolyn
to sign a management agreement identical to that executed for O.C. but
that Carolyn refused because she did not consider the station hers and did
not want to be bound by the terms of the agreement. Carolyn made a
counteroffer to Ronald and no agreement was ever signed. ID at 16725 P 70.
After the Netwave petition was filed, Carolyn asked Ronald to remove her
name from the license, because she "knew that [she] had done something
illegal." On January 26, 1998, she signed an application to assign the
station to Metroplex for which she received no compensation. ID at 16725 P
71.
24. Ruth I. Bearden. The ALJ found that Ronald's mother, Ruth, died April
22, 1991. On June 18, 1996, Ronald signed Ruth's name to an application.
ID at 16725-26 PP 73-74. At the hearing, Ronald testified that he filed
the application in Ruth's name because Ruth's brother (Ronald's uncle), Ed
Bearden, had requested him to. ID at 16735 P 105. Ronald testified that Ed
wanted to use the license in his sand and gravel hauling business but that
Ed could not apply in his own name because he was a convicted felon.
Ronald further testified that after Ed told him the sand and gravel
business no longer existed, Ronald, on July 30, 1996, contacted PCIA and
told them to stop processing the application. Ronald stated that he did
not receive the license that was ultimately granted. ID at 16735 PP
106-07. In April 1998, after the Commission cancelled the Bearden license,
Ronald wrote to Black, asking him to apply for the license on behalf of
Metroplex. ID at 16735 P 108.
Findings of Fact - Responses to Net Wave Petition and Commission
Inquiries.
25. The ALJ noted the presence in Metroplex's responses of representations
that could be construed as inaccurate or misleading in light of the
findings recited above.
26. Net Wave Petition. Net Wave's petition sought an order to show cause
why Metroplex's licenses should not be revoked for, among other things,
"grossly misleading and deliberate misidentification of the real party in
interest to applications for those [T-band] facilities. . . . ID at
17621-22 P 52. The opposition, filed on behalf of the "Operators,"
including O.C., the Sumpters, Carolyn, and Ruth, denied those allegations.
The opposition stated specifically that: "Each of the Operators retains
control of its own station(s)." ID at 16722-23 P 56. The opposition also
stated: "Net Wave offered nothing in support of its suggestion that [each]
of the Operators is not a separate real party in interest." ID at 1622-23
P 56.
27. Response to November 9, 1998 Letter of Inquiry. In its December 7,
1998 response to the Commission's letter of inquiry, Metroplex addressed
the licensees' role in supervising Ronald. The response represented that:
Ron Brasher makes reports available of station operations, including
customer loading, preventive maintenance performed, air time usage by
month and day, customer additions and deletions, and revenues and expenses
for each station. Most of the licensees do review these reports and give
directions to Ron Brasher for improvement or for correction of problems.
Ron Brasher is obligated to follow the directions of each licensee. . . .
ID at 16727 P 76. Metroplex also indicated that: "Each applicant and
licensee was responsible for reviewing and signing its own application in
connection with the managed stations." ID at 16727 P 76.
28. Response to March 4, 1999 Letter of Inquiry. Metroplex's April 5, 1999
response to the letter of inquiry described the criteria Ronald used to
select prospective applicants and licensees. These were stated to be:
(i) the person must have been known to [Ronald]; (ii) the person must be
able to fulfill the duties of a Commission licensee, (iii) the person must
have been willing to fulfill the duties of a Commission licensee; (iv) the
person must have been willing to participate in the funding of the
construction of the facilities; (v) the person must have been willing to
participate in the funding of the costs of operation; (vi) the person must
have been willing to accept the risk of failure of any business arising
out of operation of the facilities; and (vii) the person must have been
willing to actively participate in the sale of service and equipment to be
provided to customers of the subject station. Persons who did not evidence
either the ability or the willingness to perform each of these tasks were
not allowed to participate in any managed station agreement.
ID at 16727-28 P 79. Additionally, Metroplex's response made
representations about specific licensees. It described Ronald as the "Son
of O.C. Brasher," without disclosing that O.C. was deceased. ID at 16727 P
78. Concerning the Sumpters, Metroplex recited: "The Sumpters were
informed of the duties that their participation would require and the
potential benefits of ownership which might be obtained by the Sumpters if
the facilities were successful. . . . " ID at 16728 P 80. As to Carolyn,
Metroplex stated: ". . . Ms. Lutz would be entitled to all benefits of
operation as a Commission licensee, including that portion of all profits
. . . that would arise out of operation of the facilities." ID at 16728 P
80. Metroplex's response further indicated that: "[With the exception of
the Sumpters a]ll other licensees participating in management agreements
with DLB have provided substantial direction and supervision regarding the
operation of the subject facilities." ID at 16728 P 80.
29. September 9, 1999 Letter of Inquiry. The Commission's further letter
of inquiry asked Metroplex and its principals to address the circumstances
surrounding the applications filed on behalf of O.C. and Ruth, including
whether these individuals were deceased. Ronald's response purported to
describe his role in the preparation and filing of their license
applications and transfer applications. With respect to O.C., Ronald's
response stated:
On September 25, 1996, the Commission issued a license . . . in the name
of O.C. Brasher. By this time, O.C. Brasher had passed away, and his son,
Ronald D. Brasher, was named the execut[o]r of the estate of O.C. Brasher.
In his capacity as Executor of the Estate, Ronald Brasher attempted to
preserve the license as an asset of the estate. Therefore Ronald Brasher
prepared and submitted an application to assign the license out of the
name of the deceased and into the name of one of the heirs to the O.C.
Brasher estate.
ID at 16734 P 102. The ALJ found that Ronald was not aware of any order of
the probate court appointing him executor of O.C.'s estate. ID at 16734 P
103. With respect to Ruth's application, Ronald's response stated that:
The intent of [the Bearden] application was to create a license in the
name of a corporation for which Ruth I. Bearden was formally the
principal. Due to an error in the preparation of the application at issue
and the similarities that exist between the names of Ronald Brasher's late
mother and this entity, the license was applied for in the name of the
individual instead of the corporate entity that was the intended recipient
of the license. Immediately upon learning of the error in the name of the
entity applying for the license, Ronald Brasher contacted the frequency
coordinator in an attempt to cancel the application here at issue . . . .
Subsequent to this request to halt the processing of this application, the
license was issued. Ronald Brasher immediately contacted the Commission by
telephone, requesting that the license . . . be cancelled.
ID at 16734-35 P 104.
Conclusions of Law - Real Party-In-Interest, Unauthorized Transfer of
Control, Abuse of Process.
30. The ALJ concluded that Ronald, Patricia, and Metroplex were the
undisclosed real parties-in-interest to the applications at issue and that
they exercised de facto control over the license without Commission
authorization in violation of 47 U.S.C. S 310(d). He further concluded
that filing an application in the name of a surrogate constitutes an abuse
of process.
ID at 16746-47 PP 153-55.
31. The ALJ evaluated the issue of control using the criteria set forth in
Intermountain Microwave, 24 RR 983, 984 (1963), and applied in Marc Sobel,
17 FCC Rcd 1872, 1876-87 PP 11-58 (2002). These criteria are:
(a) Does the licensee have unfettered use of all facilities and equipment?
(b) Who controls daily operations?
(c) Who determines and carries out policy decisions, including preparing
and filing applications with the Commission?
(d) Who is in charge of employment, supervision and dismissal of
personnel?
(e) Who is in charge of the payment of financing obligations, including
expenses arising out of operating?
(f) Who receives monies and profits from the operation of the facilities?
ID at 16747 P 156.
32. The ALJ concluded that, under these criteria, Ronald, Patricia, and
Metroplex had de facto control over the stations licensed to O.C., the
Sumpters, and Carolyn, who in turn exhibited no indicia of control. ID at
16747-50 PP 157-67. He observed that the nominal licensees did not prepare
or file their own applications, did not pay the application fees, did not
prepare any forms or reports to the Commission, had no control over any
aspect of daily station operations, had no role in making policy decisions
regarding their stations, did not hire, fire, or supervise station
employees, did not purchase the equipment used at their stations, did not
pay construction costs or operating expenses, and did not receive any
revenue generated by the stations. The ALJ further concluded that Ronald,
Patricia, and Metroplex exercised all of the above functions, that they
did not manage the stations on behalf of the licensees, and that they were
operating the stations for no one but themselves.
33. In view of these findings, the ALJ concluded that the Ronald,
Patricia, and Metroplex were the undisclosed real parties-in-interest in
the applications, since they controlled the filing of the applications and
because the applications were filed solely for their own benefit.
Additionally, the ALJ concluded that Ronald, Patricia, and Metroplex
abused the Commission's processes, because they filed the applications in
the names of others to evade limitations on ownership imposed by the
Commission's rules and to acquire more stations than the Commission would
allow. ID at 16750 P 167-68.
Conclusions of Law - Misrepresentation and Lack of Candor
34. The ALJ concluded that Ronald and Metroplex made misrepresentations of
fact to the Commission, and concealed material information from the
Commission in numerous instances. The ALJ concluded that by signing O.C.'s
and Ruth's names to applications, Ronald falsely represented that these
two individuals had signed their own applications and were living persons.
In the ALJ's view, Ronald compounded these acts by signing O.C.'s names to
other documents, such as the Agreement. ID at 16736-38 PP 112-13, 116-17.
Moreover, the ALJ concluded that Ronald concealed the fact of O. C's and
Ruth's deaths in responding to the Net Wave petition and to the Commission
letters of inquiry until after the Commission had independently learned of
their deaths. ID at 16738-39 PP 119-24. The ALJ noted in particular, that
in finally acknowledging O.C.'s death in his October 13, 1999 response,
Ronald's language misleadingly suggested that O.C. had died after the
filing of his application not before it. ID at 16740 P 128.
35. The ALJ also concluded that Ronald and Metroplex made other
misrepresentations in responding to Commission letters of inquiry. With
respect to the filing of Ruth's application, the ALJ noted that the
account that Ronald gave in responding to the Commission's September 9,
1999 letter of inquiry was totally different from the account that he gave
at the hearing, which involved Ruth's brother, Ed. ID at 16739-40 PP
125-27. The ALJ further concluded that the description contained in
responses to the Commission letters of inquiry as to how Ronald selected
the applicants and as to the control and supervision that the licensees
purportedly exercised were fabrications, since the record demonstrated
that the licensees accepted none of the responsibility and exercised none
of the control and supervision that the responses claimed. ID at 16740-42
PP 129-38.
36. Finally, the ALJ concluded the Ronald and Patricia lied in their
accounts of their dealings with the Sumpters. The ALJ accepted the
Sumpters' testimony that they did not give Ronald permission to file
applications in their names and that they did not sign the client copies
and rejected the contrary testimony of Ronald and Patricia. ID at 16742-45
PP 139-48. In this regard, the ALJ made specific demeanor findings with
respect to these witnesses. He found the testimony of the Sumpters
"forthright, candid and entirely believable," especially during the course
of arduous cross-examination. He found, by contrast, that the record
concerning Ronald and Patricia demonstrated a "pervasive and consistent
pattern of deceit." ID at 16748 P 148.
Conclusions of Law - Ultimate Conclusion
37. The ALJ concluded that Ronald, Patricia, and Metroplex violated the
basic obligation of licensees to be truthful and that they committed
disqualifying deceit. He further found that the findings under the real
party-in-interest, unlawful transfer of control, and abuse of process
issues indicated further disqualifying deception on the part of Ronald,
Patricia, and Metroplex. Accordingly, he concluded that Ronald, Patricia,
and Metroplex were not basically qualified to be Commission licensees and
that their licenses should be revoked and their pending applications
denied. ID at 16745-46 PP 149-52, 16750-51 P 169-70.
III. DISCUSSION
Real Party-In-Interest, Unauthorized Transfer of Control
38. Exceptions. Appellants do not dispute the ALJ's conclusion that,
judged by the standards of Intermountain, Ronald, Patricia, and Metroplex
exercised de facto control over the stations and were the real
parties-in-interest. Instead, they argue that the Intermountain criteria
are obsolete as applied to contemporary business arrangements, such as
management contracts, and that the Intermountain criteria cannot be
meaningfully applied to family relationships. As to the latter argument,
appellants contend that the various family members, including the Sumpters
contributed in various fashions to the success of the overall enterprise
and benefited in various ways from the success of the stations. Thus, for
example, Appellants find it unremarkable that Ron and Pat financed all of
the stations, since they could afford to. Appellants state: "The Brashers
have averred that during all times relevant de facto control of the
subject licenses was held by the family and that such control never
transferred, until such time as this matter involuntarily fractured the
family unit." DLB Exceptions at 21 P 45.
39. Analysis. Appellants' position is without merit. The record of this
case provides no support for the idea that the "family" exercised control
over the radio business or over any of the licenses. It indicates that
Ronald and Patricia Brasher exercised control as the sole owners of
Metroplex (Tr. 754). Ronald and Patricia testified that the major
decisions at Metroplex were made through joint discussion among Ronald,
Patricia, David, and Diane but that the final say was Patricia's. Tr.
77-79, 770-71. As Patricia put it, she "calls the shots." Tr. 754. Jim
Sumpter and Carolyn Lutz may have been employed by the business in more or
less important capacities, as well as being family members, but there is
no indication that they, or the other Sumpters, were ever regarded as
owners capable of exercising control. The ALJ's analysis under the
Intermountain criteria, which we adopt in all material respects, does no
more than confirm that the nominal licensees did not exhibit any indicia
of control. Appellants' accurately characterize what Carolyn and the
Sumpters brought to the stations as "licensing assistance," since they
secured the licenses for Metroplex and nothing more.
40. Appellants' claims that the licensees exercised control in some
respects are not supported by the record. Appellants state: "Jim Sumpter
made all decisions regarding the finances of the business . . . . " DLB
Exceptions at 21 P 45. But Appellants point to no record evidence to
substantiate this claim. Rather, the record indicates no more than that
Jim was a self-employed certified public accountant who served as
Metroplex's accountant from 1982-97, providing them with bookkeeping
services and advice, particularly tax advice. Tr. 1738-39. Additionally,
Appellants cite Ronald's testimony that Norma, for no apparent reason,
directed Ronald to take hers and Melissa's stations off the air. DLB
Exceptions at 22 P 47; Tr. 560-61. Ronald's testimony, however, cannot be
corroborated. Carolyn, who, according to Ronald, relayed Norma's request
to him, did not recall any such incident. Tr. 1137. Norma testified that
she did not even know that there was a license in her name. Tr. 2099.
Melissa testified that she never asked that her station be taken off the
air or directed Norma to do so. Tr. 1344. Moreover, O.C. Brasher and Ruth
Bearden obviously exercised no control over the radio business or the
stations, since they were deceased.
41. We acknowledge that the Intermountain criteria might be viewed
differently to take into account the emergence of new forms of spectrum
use in the wireless services. That consideration, however, does not
warrant a different result in this case. We note, for example, that in
Promoting Efficient Use of Spectrum Through Elimination of Barriers to the
Development of Secondary Markets, 18 FCC Rcd 20604, 20630-42 PP 54-81
(2003), we declined to apply the Intermountain criteria to spectrum
leasing arrangements and held that, in the spectrum leasing context,
section 310(d) did not require the licensee to exercise close working
control over, determine the services on, and set policies affecting the
stations operating on the licensed spectrum. We nevertheless required
licensees to maintain de facto control over the use of the leased spectrum
by exercising "reasonable operational oversight over the leased spectrum
so as to ensure that the spectrum lessee complies with all applicable
technical and service rules." 18 FCC Rcd at 20635 P 65. Assuming arguendo
that such a standard might be applied here, we would still find that that
the nominal licensees failed to maintain control consistent with section
310(d) or were real parties-in-interest. As the findings recited above
indicate, none of the purported licensees exercised any sort of
operational oversight over their facilities or had an expectation of
enforcing any degree of control over Metroplex. Moreover, the licensees
here did not even have the degree of connection to and interest in their
licensed facilities that is implied by the idea of spectrum leasing, since
they received no rents from their facilities and had no other financial
stake in them. The record of this case thus amply demonstrates that
Ronald, Patricia, and Metroplex exercised de facto control over the
stations and were the real parties-in-interest.
Abuse of Process
42. Exceptions. Appellants dispute that Ronald's actions should be
considered an abuse of process. They argue that Ronald's actions did not
pursue an illegitimate purpose or subvert the Commission's rules. They
assert that Ronald was not attempting to "warehouse" underutilized
frequencies, which section 90.313 of the Commission's rules, 47 C.F.R. S
90.313, was intended to prevent. Rather, he was legitimately attempting to
acquire frequencies to meet the demands of two large prospective
customers. Appellants further assert that Ronald could have accomplished
the same lawful goal in an "easier, more straightforward" manner, either
by seeking a waiver of section 90.313 or by filing successive, rather than
simultaneous, applications. According to Appellants, Ronald did not avail
himself of these alternative means only because he was operating without
benefit of counsel and relied on the "absurd" advice of Fennell and Black.
DLB Exceptions at 11 P 25.
43. Analysis. We disagree. Appellants admit that Ronald filed applications
in multiple names because:
. . . the Brashers became aware that the Commission's rules and
regulation[s] at that time prevented DLB from acquiring more than one
T-Band license at a time and that DLB could not apply for further licenses
until such time as all channels on the first license(s) were constructed
and fully loaded. . . . Ron Brasher admitted that he believed that such
restriction existed and that his efforts were focused on a method to
operate in view of this restriction. . . .
Ronald Brasher Exceptions at 5 P 11. Whether or not Ronald believed that
his ultimate goal in acquiring the stations was legitimate, by filing
applications in multiple names, he prevented the Commission from knowing
and examining the true parties to the applications. As we have held: "it
is an abuse of process to specify a surrogate to apply for a station so as
to deny the Commission and the public the opportunity to review and pass
on the qualifications of that party." Arnold L. Chase, 5 FCC Rcd 1642,
1643 P 9 (1990). See also Evansville Skywave, Inc., 7 FCC Rcd 1699, 1702
n. 7 (1992) ("Seeking to obtain a construction permit by misrepresenting
or lacking candor about the applicant's ownership structure could . . .
generally be characterized as abuse of process.") That Ronald could have
pursued his goals by nonabusive means is irrelevant; he did not do so.
44. We reject the suggestion that Ronald acted innocently based on poor
advice. We find that an ordinary reasonable person could appreciate the
essential dishonesty of applying for licenses in the names of surrogates
who would clearly have no ownership or control of the licenses. Moreover,
the record fails to corroborate that anyone gave Ronald misleading advice.
In his testimony, Black, whom Ronald indicated advised him to file
multiple applications, assumed no responsibility and expressed no support
for Ronald's actions. Black acknowledged that he may have discussed the
rule with Ronald, although he did not recall such a discussion. Tr. 1645,
1691. However, his testimony indicates that he did not agree that filing
in multiple names was a legitimate course of action. He stated that:
. . . we all make an assumption that if Bill Jones signed an application,
that it's really Bill Jones applying for a license, and that signature of
Bill Jones is an authentic, valid signature. If we don't make that
assumption, then we indeed do destroy the integrity of the whole process.
Tr. 1707. Black stated that he did not advise people about the
Commission's aggregation limits. Tr. 1709. He testified that he did not
know whether another company, cited by Ronald, had filed applications in
multiple names. Tr. 1711. He denied discussing with Ronald the
requirements for managed stations or of filing multiple applications. Tr.
1731-33.
Misrepresentation and Lack of Candor - O.C. Brasher filing
45. Exceptions. Appellants deny that the filings made in the name of O.C.
reflect an intent to mislead the Commission into believing that O.C. was
still alive. According to Appellants, Ronald had two reasons to believe
that he was authorized to execute documents on behalf of O.C. First,
Appellants refer to a "Durable Power of Attorney" executed by O.C. in
1992. Second, Appellants assert that Ronald was acting as executor of
O.C.'s estate. In this regard, Appellants further assert that Ronald
considered the 1996 application as a replacement for the 1995 application
that PCIA failed to submit to the Commission and that Ronald and Patricia
considered the applications as assets in O.C.'s estate. Appellants
maintain that Ronald's only error is that he did not understand the formal
requirements for executing legal documents in the representative
capacities mentioned above but that his actions were consistent both with
the Commission's rules, which permit estates to hold licenses, and the
Texas Probate Code, under which Ronald was qualified to be executor of
O.C.'s estate.
46. Analysis. We find that Appellants' justification for Ronald's actions
is not credible and that Ronald intended to mislead the Commission into
believing that O.C. was a living applicant. The O.C. Brasher application
gives no indication that Ronald signed it in a representative capacity. It
bears the signature "O.C. Brasher;" the entry in Box 40, which calls for
the "Typed Name of the Person Signing" is "O.C. Brasher;" and the entry in
Box 41 "Title" is marked "(Individual)." EB Exh. 3 at 4. This leaves the
clear impression that O.C. himself signed the application as an
individual. Moreover, the record indicates that, in providing Black with
the names of the prospective applicants, Ronald did not inform Black that
O.C. was deceased or that O.C.'s estate was intended to be the applicant.
On the list of applicants that Ronald provided to Black, the pertinent
entry is simply "O.C. Brasher" with an address and telephone number. EB
Exh. 66. Black testified that he never discussed with Ronald that O.C. was
dead or whether it was all right to submit an application in the name of a
deceased person. Tr. 1671-72. See also Tr. 1650 (Black does not know O.C.
Brasher).
47. Contrary to Appellant's claims, Ronald had no colorable authority to
act on behalf of O.C. or his estate either pursuant to a durable power of
attorney or as an executor. O.C. executed a document entitled "Durable
Power of Attorney for Financial Matters of Oscar Colquitt Brasher" on
January 16, 1992. RB/PB Exh. 2. Under Texas law, however, a durable power
of attorney terminates upon the death of the principal. Tex.Prob.Code Ann.
S 486(a). Ronald testified that he did not know the effect of the
grantor's death on a power of attorney. Tr. 332. Moreover, the document
contains a "Revocation Provision," which reads: "I Oscar Colquitt Brasher,
revoke all authority of my Agent as of 1:42 o'clock p.m on January 16,
1992. Oscar Colquitt Brasher. [Marked text is handwritten.] Ronald
testified that he saw his father sign the revocation provision, but
insisted that the power of attorney had not been revoked and that he
(Ronald) could not understand or explain the revocation provision. Tr.
606-08. Ronald therefore had no colorable basis to rely on any authority
pursuant to this document. This and the uncertainty of his testimony
indicates that Ronald's claimed reliance is no more than post hoc
rationalization.
48. Similarly, the record gives no indication that Ronald acted as the
executor of O.C.'s estate. Under Texas law, to be appointed an executor a
person must make application to the probate court and receive letters
testamentary. Tex.Prob.Code Ann. SS 76, 178, 181, 189. Ronald testified
that he had not (as of his testimony in February 2001) filed O.C's will
with the probate court, been appointed executor by the probate court, or
made any distribution of property. Tr. 333-34. The record also gives no
indication that Ronald treated the station as an asset of O.C.'s estate.
Ronald did not charge the estate with the cost of constructing or
operating the station, did not, at the time, credit the estate with
station profits, and did not, at the time, compensate the estate for
assigning the station to Metroplex. Ronald's failure to take any formal
steps to be appointed executor or to treat O.C.'s estate as an executor
would make Ronald's purported reliance appear no more than post hoc
rationalization.
Misrepresentation and Lack of Candor - Ruth I. Bearden filing.
49. Exceptions. Appellants admit that Ronald's actions in filing an
application in Ruth's name were not "entirely honorable." Ronald Brasher
Exceptions at 16 P 32. Appellants note Ronald's testimony that he filed
the application to assist his uncle, Ed Bearden. Appellants admit that
Ronald's actions "were not in accord with the dictates for Commission
applicants" and "were likely outside the standards for a Commission
licensee." Ronald Brasher Exceptions at 16 P 32, 17 P 33. Applicants
claim, however, that Ronald was forthcoming and remorseful at the hearing,
that he had not benefited personally from the application, and that he had
taken steps to see that the application was not submitted to the
Commission in the first place.
50. Analysis. At the hearing, Ronald essentially admitted that he intended
to abuse the Commission's processes by filing an application on behalf of
an undisclosed real party-in-interest. He stated that he filed the
application at the request of his uncle, Ed Bearden, so that Ed could use
the licenses in his sand and gravel business. Tr. 196. Ronald further
testified that he did not file in Ed's own name since Ed was a convicted
felon and Ronald believed that Ed could not apply for a license. Tr.
196-97. Ronald testified that he attempted to stop the processing of the
application after he had submitted it to PCIA for coordination because Ed
had told him that the sand and gravel business no longer existed. Tr.
201-02. Ronald's testimony is thus entirely consistent with the pattern of
misconduct discussed above, since it illustrates his willingness to
deceive the Commission by filing an application in the name of a
surrogate. The only difference is that, in this instance, he attempted to
terminate the deception because it was no longer necessary.
Misrepresentation and Lack of Candor - the Sumpters filing.
51. Exceptions. In their exceptions, Appellants spend nearly 20 pages
attacking the credibility of the Sumpters' testimony that they did not
sign the applications filed in their names or approve of anyone else doing
so, and that they did not sign the client copies of their applications.
Patricia Brasher Exceptions at 2-21. Appellants accuse the ALJ of ignoring
that the Sumpters had a motive to lie since they were fearful of being
punished and wanted to shift the blame to Ronald and Patricia. In this
regard, Appellants accuse the ALJ of ignoring that the Sumpters had met
among themselves to prepare common testimony.
52. Appellants assert that Jennifer, Norma, and Melissa admitted in
letters to Ronald and Patricia that they knew that their names had been
used. According to Appellants, although the Sumpters claimed that they
were referring to earlier applications, which they admitted to signing in
the late 1980s or early 1990s, Jennifer's testimony indicates that they
were actually referring to the 1996 applications. Moreover, Appellants
assert that they must have known about the licenses issued in their names,
since they received mail about them from the Commission. Appellants note
that Carolyn and Thomas Lewis, a brother of Patricia, Norma, and Carolyn,
admitted that Ronald asked them to sign applications, and suggest that it
would be consistent for Ronald to have asked the Sumpters as well. With
respect to the client copies, Appellants ask why, if Ronald intended to
forge the Sumpters' signatures, he would not have done all four
signatures, instead of only Norma's, Jennifer's, and Melissa's. Appellants
submit that the documentary evidence that the Sumpters submitted to
establish that Jim and Norma were out of town when the client copies were
signed, only establishes that Jim was absent from the Dallas area and not
that Norma accompanied him on his trip. In any event, Appellants complain
that they were unfairly surprised by the introduction of this evidence at
the hearing.
53. Additionally, Appellants contend that the testimony of handwriting
expert, Bolsover, does not corroborate the Sumpters' testimony.
Appellant's point out that while Bolsover testified that the signatures on
the Sumpters' applications did not appear genuine and that one person
probably signed Norma's, Jennifer's, and Melissa's applications, Bolsover
could not identify who had executed the signatures. In any event,
Appellants contend that even if the Sumpters did not sign their
applications, there would be no misrepresentation if the person who did
sign reasonably believed that the Sumpters consented to the signatures. In
this regard, Appellants observe that Norma, Melissa, and Jennifer
testified that they had signed applications earlier. As to the client
copies, Appellants observe that Bolsover testified that the Sumpters'
signatures appeared genuine and that Bolsover detected no indication that
the signatures had been cut-and-pasted. Appellants accuse the ALJ of
drawing unwarranted conclusions from Bolsover's testimony that the dates
on Norma's and Jennifer's copies were probably photocopies of one
handwritten original.
54. Analysis. We affirm the ALJ's findings that the Sumpters testified
truthfully that they did not sign or consent to the signing of their names
on the applications and that Ronald and Patricia lied in asserting that
they did. In many respects, this issue boils down to a determination of
the relative credibility of Ronald and Patricia and the Sumpters. Under
these circumstances, the ALJ's findings concerning the relative
credibility of witnesses are generally entitled to great weight. See,
e.g., TeleSTAR, Inc., 2 FCC Rcd 5, 13 P 23 (Rev. Bd. 1987), citing
Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1078-80 (9^th Cir. 1977)
(administrative law judges' factual determinations based on testimonial
inferences are entitled to special deference). In the present case, the
ALJ made specific demeanor findings. He held that:
In awarding full credit to the testimony of the Sumpters, the presiding
Judge has taken into consideration the nature of the cross-examination of
these witnesses by trial counsel for Ronald, Patricia, and Metroplex.
Counsel had a deep, booming voice, and the tone which he employed in
questioning was extremely confrontational, adversarial, and intimidating.
He could also be very sarcastic. Counsel put a great deal of pressure on
each of the Sumpters, and a reading of the cold transcript of these
proceedings does not begin to do justice to counsel's considerable skills.
That being said, the Sumpters handled themselves exceedingly well in a
highly charged and stressful situation, and their testimony was
forthright, candid, and entirely believable.
ID at 16745 P 148. While the ALJ did not make explicit demeanor findings
about Ronald and Patricia, he found that: "In contrast, the record of this
proceeding as a whole demonstrates a pervasive and consistent pattern of
deceit on the part of Ronald and Patricia. Thus, even independent of the
conflict in the testimony of the Brashers and Sumpters, there still exist
more than ample grounds for concluding that Ronald and Patricia are simply
not credible witnesses." ID at 16745 P 148. The ALJ is entitled to rely on
this finding. The rule in the federal courts is:
It is not true that a jury must exclude the testimony of somebody who has
told a lie. You may think, if you want to, that a person who is false in
one respect is false in all, or you may, on the contrary say a person is
false in one respect but believable in others. It is just a question of
your own common sense applied to the particular testimony that is offered.
Dorothy O. Schulze and Deborah Brigham, A General Partnership, 8 FCC Rcd
442, 444 (1993), quoting United States v. Interstate Engineering Corp.,
288 F. Supp. 402, 415 (D. N.H. 1967). As discussed above, and as further
discussed below, the record of this case amply demonstrates a pattern of
deceit, which provides a sufficient basis to disbelieve Ronald and
Patricia consistent with the Interstate Engineering test.
55. We find that the factors noted by Appellants do not warrant
overturning the ALJ's credibility findings. The record indicates that the
Sumpters did, as Appellants assert, express fear that their involvement in
the filing of the applications might lead to adverse consequences, such as
the loss of Jim's CPA license or fines. Tr. 1057-58, 1100-02 (Jennifer),
1366-67 (Melissa), 1891-92 (Jim), 2201-02 (Norma). We agree with
Appellants that a witness' fear is relevant to a credibility determination
because it tends to establish bias. See, e.g., United States v. Elkins, 70
F.3d 81, 84 (10^th Cir. 1995); People v. Martinez, 7 Cal. Rptr.3d 49, 59
(Cal. App. 2003) (evidence of gang membership admissible to show witness
biased by fear of gang reprisal). In this case, the Sumpters' testimony is
potentially biased by a desire to deny any knowing participation in the
filing of the applications. As the above-cited references indicate,
however, Appellant's counsel explored the Sumpters' fears in cross
examining them. We think that the ALJ's finding that the Sumpters'
testimony under cross examination was forthright and credible can fairly
be understood to encompass the Sumpters' responses to questions regarding
their fears. As an additional matter, we see no significance to the fact
that the Sumpters conferred with each other regarding their testimony.
Under the circumstances, one would expect family members such as the
Sumpters to discuss their testimony with each other even if they were
wholly truthful.
56. We have examined the various circumstances that Appellants contend
undermine the Sumpters' denial that they signed or authorized the
applications in their name or signed the client copies. Although these
factors do tend to raise questions about the Sumpters' account, they do
not render the ALJ's credibility findings "patently unsupportable," which
would give us reason to overturn them. See Contemporary Media, Inc. v.
FCC, 214 F.3d 187, 197-98 (D.C. Cir. 2000). First, it seems odd, as
Appellants contend, that Ronald would not have asked the Sumpters to sign
applications when he did ask Carolyn. It is also noteworthy that Bolsover,
the handwriting expert, could not identify Ronald as the author of the
Sumpters' signatures, as she could with respect to the O.C. and Ruth
signatures. These factors lend some support for Ronald's and Patricia's
viewpoint.
57. Other aspects of Bolsover's testimony, however, cast doubt on Ronald's
account and support the Sumpters'. Ronald testified that he gave the four
unsigned applications to Norma, who later returned the applications to
Ronald with signatures. Tr. 414-20, 424-25, 427. See also Affidavit of
Ronald D. Brasher, EB Exh. 22 at 6-7. The obvious inference is that one or
more of the Sumpters signed the applications. Bolsover, however, testified
that none of the Sumpter signatures appeared genuine. Tr. 2345. Moreover,
while Bolsover could not identify who had written the signatures, she
could not eliminate Ronald or Patricia as the author. Tr. 2345; EB Exh.75.
Thus, although Bolsover was unable to confirm that Ronald or Patricia
signed the Sumpter applications, she found that the Sumpters had not
signed their own applications and could not rule out that Ronald or
Patricia signed them.
58. A second source of questions is the wording of letters sent by the
Sumpters, dated November 29, 1997, after the Net Wave petition and
opposition were filed. In these letters, all of the Sumpters denied
knowledge that they were licensees. Jim wrote:
I have only recently become aware that I am the legal owner of a radio
channel in the Dallas area. I did not know that my name had been used. I
have never signed any documents in this regard.
EB Exh. 39. Norma's, Melissa's, and Jennifer's statements, however,
differed from Jim's. They wrote:
I have only recently become aware that I am the legal owner of a radio
channel in the Dallas area. I knew that you had used my name but I
understood that if a radio channel was awarded then you would immediately
transfer it to your name. I have not signed any documents in this regard
in several years.
EB Exhs. 47, 53, 56. The question arises from the apparent admissions by
Norma, Melissa, and Jennifer that they were aware that their names had
been used on applications. Additionally, Jennifer and Melissa admit to
signing documents at some point in time, although the record contains no
evidence that any license was ever issued to them prior to 1996.
59. At the hearing, Norma, Melissa, and Jennifer testified that they were
referring to applications they previously signed in the late 1980s or
early 1990s. They were cross examined with respect to this testimony, and
the ALJ found their testimony credible. Norma had received earlier
licenses. Jennifer specifically recalled that she signed the earlier
application while she was still living at home and before she was married.
Tr. 1073-74, 1119. Jennifer also recalled that, after seeing the Net Wave
petition, she told Ronald that she did not recall signing anything in the
name of Hill, but only in her maiden name of Sumpter. She testified that
Ronald replied: "Once he had my name, he could use it again and again."
Tr. 1059. Melissa specifically recalled that she was in high school when
she signed the earlier application. Tr. 1315-16, 1320-21, 1346-47. While
the absence from the record of licenses issued pursuant to the alleged
applications fails to confirm this testimony it does not necessarily mean
that they did not sign earlier applications. The ALJ credited the
Sumpters' testimony regarding earlier applications, and we defer to his
credibility finding. Similarly, we accept the ALJ's finding that the
Sumpters were not made aware of the licenses by mailings, since the
Sumpters referred FCC-related mailings to Ronald without reading them. See
ID at 16720 P 43.
60. The third area of concern relates to the client copies. The fact that
Jim's copy was unsigned tends to support Appellants' contention that
Norma, Jennifer, and Melissa had signed their copies when they visited the
Brasher's house while Jim was out of town. Moreover, Bolsover's testimony
indicates that the signatures on the client copies were genuine and that
she could discern no sign of cutting and pasting. Tr. 2326-27, 2335, 2340;
Judge's Exh. 3. Additionally, as Appellants observe, even if the Sumpters'
documentation establishes that Jim was visiting his aunt in Junction,
Texas on June 22, 1996, the date the client copies were allegedly signed,
this does not establish that Norma accompanied him.
61. Despite these circumstances, the record does not squarely contradict
the Sumpters' testimony. Bolsover testified that, because of the poor
quality of the photocopies she was examining, she could not positively
rule out the possibility that the signatures had been cut and pasted from
other documents. Tr. 2362-63. Moreover, Bolsover testified that the dates
on Norma's and Jennifer's client copies were machine copies of the same
handwritten entry. Tr. 2343-44, 2361-62; ALJ Exh. 3 at 2. Thus, Bolsover
could not entirely rule out the possibility of forgery, and the presence
of the machine copied dates raises a suspicion that tampering did occur.
As to the trip to Junction to visit Jim's aunt, the Sumpters'
documentation does not establish by itself that Norma was present on the
trip. However, the ALJ credited Norma's testimony that she spontaneously
recalled that she had been out of town and that she called Jennifer, who
had returned to Dallas, to check the credit card receipts and other
records to confirm Norma's recollection. Tr. 2033-36. The ALJ also
credited Norma's testimony that she invariably accompanied her husband
when he visited his aunt. Tr. 2048. We defer to the ALJ's credibility
findings in this regard.
Misrepresentation and Lack of Candor - Net Wave Opposition
62. Exceptions. Appellants fault the ALJ's findings in two respects.
First, Appellants fault the ALJ for finding that the Sumpters did not
authorize the filing of the opposition to Netwave's petition on their
behalf. Second, Appellants assert that the opposition's statement that
"Each of the operators retains control of its own station(s)" was not a
misrepresentation. Appellants maintain that Ronald was not familiar with
the Intermountain criteria, and therefore did not know that the statement
was false by that standard. Rather, Appellants maintain that Ronald used a
common sense approach to control.
63. Analysis. We find that the opposition was deceptive. Initially,
however, we find no misrepresentation or lack of candor in the fact that
the opposition represented that it spoke for the Sumpters. Although the
opposition does not reflect the Sumpters' views, it appears that Jim
acquiesced in its filing. Jim testified (Tr. 1851-57) that he read the
opposition in draft, although not carefully, but did not understand it or
believe that it reflected his thoughts. Nevertheless, Jim said he was
"happy" to let Ronald take care of matters, that he voiced no objection to
Ronald filing the opposition, and that he did not inform Ronald that he
did not understand the opposition. Tr. 1854-56. Under these circumstances,
we do not fault Ronald for believing that he had authority to file on
behalf of the Sumpters.
64. On the other hand, we find that the statement "Each of the operators
retains control of its own station(s)" (EB Exh. 2 at 3) was false and
misleading. As discussed above, the statement was entirely lacking in
foundation, since the Sumpters, Carolyn, O.C., and Ruth exercised no
control and had no real interest in their stations. Even granting Ronald
some latitude to say that the operators somehow retained "ultimate
control," that cannot reasonably said of O.C. and Ruth, who were both
listed as "operators," although they were deceased and Ruth's station was
never constructed. Similarly, the opposition's statements implying that
O.C. and Ruth were real parties in interest were misleading for the same
reason. The opposition gives no indication that O.C. and Ruth were dead or
that the statements referred to their estates. A reader could not possibly
have known that any such meaning was intended.
Misrepresentation and Lack of Candor - Responses to Letters of Inquiry
65. Exceptions. Appellants dispute that Ronald concealed the fact of
O.C.'s death in the response to Commission's inquiries. They claim that
Ronald disclosed this fact in two filings. First, they claim that even
before the Commission made its inquiry, Ronald executed a Form 800A on
behalf of O.C. and signed it "O.C. Brasher EST. R. D. Brasher." RB/PB Exh.
3. Ronald testified that "EST." meant "estate." Tr. 655. Second, DLB's
December 7, 1998 response to EB's November 9, Letter of Inquiry, contained
a list of the licensees of stations managed by Ronald, including "O.C.
Brasher/ Ronald D. Brasher." EB Exh. 17 at 3. In any event, Appellants
assert that Ronald did not know that the Commission was unaware of O.C.'s
death.
66. More generally, Appellants contend that Ronald was fully forthcoming
in answering Commission inquiries. In this regard, they observe that the
response voluntarily admitted that the stations were being operated in a
trunked manner in apparent violation of the Commission's rules and that
they were being operated without written management agreements. DLB
Exceptions at 7 P 17. Appellants further observe that they supplied nearly
all of the hearing exhibits in this proceeding and that Ronald provided
substantive answers to 96.3 percent of all of the questions asked him at
the hearing.
67. Analysis. We find that Ronald concealed the fact of O.C.'s death.
Appellants' explanation that Ronald did not know that the Commission was
unaware of O.C.'s death is disingenuous. The Commission had no way of
knowing of O.C.'s death until someone informed it of the fact. Our
examination of the record confirms the ALJ's conclusion that O.C.'s death
was not clearly disclosed until Jim Sumpter referred to O.C. (and Ruth) as
"(deceased)" in a declaration submitted April 9, 1999. EB Exh. 37 at 6.
68. We find that Ronald's apparent reference to O.C.'s estate in the Form
800A did not effectively notify the Commission of O.C.'s death or break
the pattern of referring to O.C. as if he were alive. The reference was
both obscure and isolated. A reader of the Form 800A who was not familiar
with the Net Wave petition would not likely appreciate the purported
significance of the reference. Ronald himself essentially admitted as much
when he responded to the question: "Is that your testimony, that you
intended this to be the official notice to the FCC that O.C. Brasher was
deceased?" with the answer "No." Tr. 655. Moreover, Ronald made no other
references to O.C.'s "estate" either before or after filing the Form 800A.
As discussed above, the opposition to the Net Wave petition, filed only
two weeks earlier, referred to O.C. as if he were alive. Approximately
seven weeks later, on January 26, 1998, Ronald signed the assignment
application transferring O.C.'s station to DLB, simply "O.C. Brasher"
again making it appear that O.C. was alive. EB Exh. 20 at 10.
69. Metroplex's responses to Commission letters of inquiry prior to the
disclosure of O.C.'s death in Jim's April 9, 1999 declaration do not
explicitly mention O.C.'s death. The December 7, 1998 response to the
Commission's first letter of inquiry includes, as part of a list of
licenses of managed stations, "O.C. Brasher/Ronald D. Brasher" without
explaining the significance of the dual names. EB Exh. 17 at 3. The April
5, 1999 response to the second Commission letter of inquiry provided a
list of "Marital/Consanguine Relationships." EB Exh. 19 at 000002. Ronald
is described as "Son of O.C. Brasher," without indicating that O.C. is
deceased. Attached to the submission was a document entitled "Radio System
Management and Marketing Agreement," dated March 29, 1999. EB Exh. 19 at
000500-27. The document indicates that it was entered into by DLB and
"Brasher O C." Ronald testified that he had signed the agreement "O.C.
Brasher," but that the correct signature page had inadvertently been
omitted from the copy submitted to the Commission. Tr. 355-56. The August
3, 1999 response to the Sumpter declarations, which indicated that O.C.
was deceased, does not mention O.C. EB Exh. 22.
70. Not until the Commission specifically asked about O.C.'s death on
September 9, 1999, did Ronald's October 13, 1999 response clearly mention
it. It did so in a manner suggesting that O.C. died after the filing of
his application, not before it. The response states:
Ronald D. Brasher contracted with John Black . . . in order to prepare the
application resulting in the license for station WPJR761. Attached hereto
as Exhibit I. This application was prepared simultaneously with an
application in the name of Ronald D. Brasher. . . . The two applications
were placed in the same envelope and mailed to PCIA for frequency
coordination on July 1, 1995.
On September 25, 1996, the Commission issued a license . . . in the name
of O.C. Brasher. By this time, O.C. Brasher had passed away, and his son,
Ronald D. Brasher, was named the execut[o]r of the estate of O.C. Brasher.
In his capacity as Executor of the Estate, Ronald Brasher attempted to
preserve the license as an asset of the estate. Therefore Ronald Brasher
prepared and submitted an application to assign the license out of the
name of the deceased and into the name of one of the heirs to the O.C.
Brasher estate.
EB Exh. 21 at 24. The application referred to was signed, "O.C. Brasher,"
and dated, June 29, 1995. EB Exh. 21 at 28. It is the application that
PCIA misplaced, not the one, dated June 17, 1996, that resulted in the
license grant. EB Exh. 3. Thus, O.C. had not passed away "by this time,"
between the filing of the application and the grant, he had passed away
nearly a year before the application resulting in the grant was filed.
Moreover, as mentioned above, Ronald was never "named the execut[o]r for
the estate of O.C. Brasher" consistent with the Texas Probate Code. The
record also does not establish that DLB, the assignee of the station, was
"one of the heirs to the O.C. Brasher estate." This response was hardly
candid.
71. An examination of the various responses to the Commission's letters of
inquiry reveals numerous instances of false and misleading responses that
add up to a greatly distorted account of the real party-in-interest issue.
72. The December 7, 1998 response to the Commission's November 9, 1998
letter of inquiry falsely represented the control and supervision
supposedly exercised by the nominal licensees. The response states:
Ron Brasher makes reports available of station operations, including
customer loading, preventive maintenance performed, air time usage by
month and day, customer additions and deletions, and revenues and expenses
for each station. Most of the licensees do review these reports and give
directions to Ron Brasher for improvement or for correction of problems.
Ron Brasher is obligated to follow the directions of each licensee. . . .
EB Exh. 17 at 4. As our findings under the transfer of control issue
indicate, the licensees received no reports and gave no directions to
Ronald. In particular, O.C., who was deceased, could hardly have done so.
The response further states:
Each applicant and licensee was responsible for reviewing and signing its
own application in connection with the Managed Stations.
EB Exh. 4 at 5. The deceased O.C. and Ruth obviously did not sign or
review their applications and the Sumpters deny that they did so, an
assertion which the ALJ and we credit. The Commission also asked whether
DLB had received consideration "in exchange for obtaining consent for the
assignment" of the licenses and, if not, asked for an explanation of "the
circumstances under which [DLB] obtained consent of such licensee(s) for
assignment of their licenses." EB Exh. 16 at 3. The response states:
There is no written agreement relating to the assignment of licenses for
the Managed Stations. DLB agreed to pay the Commission's application
filing fees for each of the licensees of the Managed Stations. Subsequent
to assignment of the licenses, DLB will continue to make available
permanent free radio communications service to the licensees of the
Managed Stations.
EB Exh. 17 at 7. Based on this asserted "consideration," the response
declined to discuss further the circumstances under which DLB obtained
consent to the assignments. In fact, as the record shows, there was no
consideration for the assignments. Lutz and the Sumpters requested that
the stations be transferred out of their names. Ronald transferred O.C.'s
station on his own initiative. The statement in the response is thus false
and misleading.
73. The April 5, 1999 response to the Commission's March 4, 1999 letter of
inquiry contains additional false and misleading statements. The response
purports to describe the process by which Ronald identified and selected
the applicants. The response states:
Mr. Brasher's actions were limited to those . . . who would agree to
participate in the ownership, licensing and operation of the subject
stations, including without limitation, performance of all duties
attendant to holding an FCC license. Persons who were either unable or
unwilling to perform such duties were not considered by Mr. Brasher. . . .
. . . each prospective licensee must have been willing to agree to
participate fully in the operation of the facilities, including without
limitation, a willingness to accept risk of failure of any enterprise
arising out of the operation of a business based on obtaining the
requisite license and construction of the licensed facilities. Therefore,
the criteria for the creation of an ongoing relationship to manage
facilities was: (i) the person must have been known to Mr. Brasher; (ii)
the person must be able to fulfill the duties of a Commission licensee;
(iii) the person must have been willing to fulfill the duties of a
Commission licensee; (iv) the person must have been willing to participate
in the funding of the construction of the facilities; (v) the person must
have been willing to participate in the funding of the costs of operation;
(vi) the person must have been willing to accept the risk of failure of
any business arising out of operation of the facilities; and (vii) the
person must have been willing to actively participate in the sale of
service and equipment to be provided to customers of the subject station.
Person who did not evidence either the ability or the willingness to
perform each of these tasks were not allowed to participate in any managed
station agreement.
EB Exh. 19 at 000003-000004. The record totally fails to support this
assertion as the ALJ's findings, which we adopt, indicate. It shows that
Ronald simply selected close relatives to be licensees and either did not
consult them at all or merely asked them to sign applications as an
accommodation so that he could avoid the restrictions of section 90.313.
The record similarly contradicts the following statements: (1) "The
Sumpters were informed of the duties that their participation would
require and the potential benefits of ownership which might be obtained by
the Sumpters if the facilities were successful. . . . "; (2) ". . . Ms.
Lutz would be entitled to all benefits of operation as a Commission
licensee, including that portion of all profits . . . that would arise out
of operation of the facilities"; and (3) "[With the exception of the
Sumpters] All other licensees participating in management agreements with
DLB have provided substantial direction and supervision regarding the
operation of the subject facilities."
74. Finally, Ronald's October 31, 1999 response, in addition to its
statement about O.C., contains the following statement about Ruth's
application:
Ronald D. Brasher contracted with John Black . . . in order to prepare the
application resulting in the license for station WPJR762. This application
was prepared simultaneously with an application in the name of Ronald D.
Brasher. . . . The two applications were placed in the same envelope and
mailed to PCIA for frequency coordination on July 1, 1995. The intent of
[the Bearden] application was to create a license in the name of a
corporation for which Ruth I. Bearden was formally the principal. Due to
an error in the preparation of the application at issue and the
similarities that exist between the names of Ronald Brasher's late mother
and this entity, the license was applied for in the name of the individual
instead of the corporate entity that was the intended recipient of the
license. Immediately upon learning of the error in the name of the entity
applying for the license, Ronald Brasher contacted the frequency
coordinator in an attempt to cancel the application here at issue . . . .
Subsequent to this request to halt the processing of this application, the
license was issued. Ronald Brasher immediately contacted the Commission by
telephone, requesting that the license . . . be cancelled.
As our previous discussion indicates, Ruth's application was filed in 1996
not in 1995. Moreover, the discussion in the response is totally
inconsistent with Ronald's hearing testimony, which indicates that Ronald
filed Ruth's application at the request of Ed Bearden and that he sought
to cancel the application after Ed told him that it was no longer needed.
The statement that Ronald attempted to cancel the license after it was
issued is inconsistent with his hearing testimony that he was unaware that
the license had issued.
Conclusion
75. Exceptions. Appellants assert that the record in this case does not
warrant disqualification. They state:
.. . . the record demonstrates fully that an unsophisticated person, Ron
Brasher, believed that his actions were lawful and did nothing to conceal
the methods he chose to obtain additional channels for DLB. Each of the
applications clearly showed commonality. He executed the 800A for the O.C.
Brasher Estate license by indicating that the license was to held by the
estate. The Defendants responded fully and honestly to each of the WTB's
inquiries, provided thousands of copies of documents pursuant to
discovery, participated openly in the discovery process, and answered with
great effort an enormous amount of questions at hearing, even where the
answers were known to be unhelpful to their case.
The Defendants do not contend that their actions were entirely appropriate
or that the manner by which they chose to license facilities was in strict
accord with the agency's rules and policies. Errors of an administrative
nature, assumptions regarding acceptable licensing methods, failure to
reduce to writing management agreements, etc. thread throughout the
history of this matter.
Exceptions of Ronald Brasher at 22 PP 45-46. Appellants indicate that
Ronald and Patricia are willing to exit the radio business but ask that
Metroplex not be "ruin[ed]," creating hardship for employees and
customers. Exceptions of Ronald Brasher at 23 P 47.
76. Analysis. The record in this case is totally at odds with Appellants'
characterization. Ronald, Patricia, and Metroplex committed egregious
misconduct, not "errors of an administrative nature." They were the
undisclosed real parties-in-interest in applications that they instigated
and filed in the names of relatives. They exercised control over the
resulting licenses without Commission authorization in violation of 47
U.S.C. S 310(d). These activities constituted an abuse of process inasmuch
as they were intended to conceal from the Commission that Metroplex was
applying for licenses in excess of the limitations of 47 C.F.R. S
90.313(c). Moreover, these activities were accompanied by numerous
instances of misrepresentation and lack of candor. The signatures on the
O.C. Brasher and Ruth Bearden applications falsely represented that O.C.
and Ruth had signed the applications and, by implication, that they were
living persons. The signatures on the Sumpter applications falsely
indicated that the Sumpters had signed them and had approved their filing.
The opposition to the Net Wave petition and the responses to the
Commission letters of inquiry falsely represented that the various
applicants/licensees were the real parties-in-interest in the applications
and that they exercised control and supervision over the stations. They
further falsely represented that Ronald had chosen the applicants because
they were ready and willing to exercise their responsibilities as
licensees and that the licensees transferred the stations to Metroplex in
return for consideration. The record indicates that Ronald and Patricia
testified falsely at the hearing about their dealings with the Sumpters.
Intentional misconduct of this nature and magnitude fully warrants
disqualification. See, e.g., Marc Sobel, 17 FCC Rcd 1872 (2002).
IV. ORDERING CLAUSES
77. ACCORDINGLY, IT IS ORDERED, That the Requests for Oral Argument, all
filed September 22, 2003, by Ronald Brasher, Patricia Brasher, and DLB
Enterprises, Inc. ARE DENIED.
78. IT IS FURTHER ORDERED, That the Exceptions of Ronald Brasher, the
Exceptions of Patricia Brasher, and the Exceptions of DLB Enterprises,
Inc., all filed September 8, 2003, ARE DENIED, and that the Initial
Decision of Administrative Law Judge Arthur I. Steinberg, FCC 03D-02 (Aug.
8, 2003), 18 FCC Rcd 16707 (ALJ 2003) IS AFFIRMED.
79. IT IS FURTHER ORDERED, That the licenses of Ronald Brasher for Private
Land Mobile Stations WPLQ202, KCG967, WPLD495, WPKH771, WPKI739, WPKI733,
WPKI707, WIL990, WPLQ475, WPLY658, WPKY903, WPKY901, WPLZ533, WPKI762, and
WPDU262, Dallas/Fort Worth, Texas, ARE REVOKED.
80. IT IS FURTHER ORDERED, That the licenses of Patricia Brasher for
Private Land Mobile Stations WPJI362, WPKY900, and WPLD570, Dallas/Fort
Worth, Texas, ARE REVOKED.
81. IT IS FURTHER ORDERED, That the license of O.C Brasher for Private
Land Mobile Station WPJR761, Dallas/Fort Worth, Texas, IS REVOKED.
82. IT IS FURTHER ORDERED, That the licenses of Metroplex Two-Way Radio
Service for Private Land Mobile Stations WPHS735, WPKP673, WPKM797,
WPLZ841, and WPJR754, Dallas/Fort Worth, Texas, ARE REVOKED.
83. IT IS FURTHER ORDERED, That the licenses of DLB Enterprises, Inc., for
Private Land Mobile Stations WPKM796, WPKL830, WPJY510, WPLU490, WPBH830,
WPKP667, WPLY713, WPMH354, WPMH477, and WPKY978, Dallas/Fort Worth, Texas,
and WNAH223, Cleora, Oklahoma, ARE REVOKED.
84. IT IS FURTHER ORDERED, That the licensees listed above ARE AUTHORIZED
to continue operation of their stations until 12:01 A.M. on the
ninety-first day following the release date of this decision to enable the
licensees to conclude the stations' affairs; PROVIDED, HOWEVER, that if
the licensees seek reconsideration or judicial review of our action
revoking their licenses, they are authorized to operate the stations until
final disposition of all administrative and/or judicial appeals.
85. IT IS FURTHER ORDERED, That the applications of DLB Enterprises, Inc.,
for Conventional Industrial/Business Private Land Mobile Licenses, Dallas,
Texas, File Nos.
AO17774, AO20241, and AO19157, ARE DENIED.
86. IT IS FURTHER ORDERED, That the application of DLB Enterprises, Inc.,
for Conventional Industrial/Business Private Land Mobile Licenses,
Crowley, Texas, File No. AO18555, IS DENIED.
87. IT IS FURTHER ORDERED, That the application of DLB Enterprises, Inc.,
for Trunked Industrial/Business Private Land Mobile Licenses, Crowley,
Texas, File No. AO20755, IS DENIED.
88. IT IS FURTHER ORDERED, That the application of DLB Enterprises, Inc.,
for Assignment of Private Land Mobile Stations from Ronald Brasher
(WPKI707, WPKI739, WPKI733, and WPLQ475), D.L. Brasher (WPJR750), David
Brasher (WPJR757), Metroplex Two-Way Radio Service (WPJR754), and O.C.
Brasher (WPJR761), Dallas, Texas, File No.
D113240, IS DENIED.
89. IT IS FURTHER ORDERED, That, in light of the cancellation of the
licenses of Norma Sumpter, Jim Sumpter, Jennifer Hill, and Melissa
Sumpter, those portions of the application of DLB Enterprises, Inc.,
pertaining to the Assignment of Private Land Mobile Stations from Norma
Sumpter (WPJR739), Jim Sumpter (WPJR725), Jennifer Hill (WPJR740), and
Melissa Sumpter (WPJS437), Dallas, Texas, File No. D113240, ARE DISMISSED
as moot.
90. IT IS FURTHER ORDERED,That the application of DLB Enterprises, Inc.,
for Assignment of Private Land Mobile Station, File No. D113242, IS
DENIED.
91. IT IS FURTHER ORDERED, That the application of DLB Enterprises, Inc.,
for Modification of Private Land Mobile Stations WPKM796, and WPKL830, and
Assignment of Private Land Mobile Stations WPKI733, WPLQ475, WPKI707, and
WPKI739 from Ronald Brasher, and Assignment of Private Land Mobile Station
WPKM797 from Metroplex, Dallas, Texas, File No. D113241, IS DENIED.
92. IT IS FURTHER ORDERED that a copy of this order shall be sent by
certified mail, return receipt requested, to Ronald Brasher, Patricia
Brasher, and DLB Enterprises, Inc., 224 Molina Drive, Sunnyvale, Texas
75182, with a copy to Robert H. Schwaninger, Jr., Schwaninger &
Associates, P.C., 1331 H Street, N.W., Suite 500, Washington, D.C. 20005.
93. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Ronald Brasher, 18 FCC Rcd 16707, 16709 n.1 (ALJ 2003) (ID).
Since several of the individuals in this proceeding share the same last
names, we will follow the practice of the Initial Decision and refer to
the parties by their first names. Thus, when we do not refer to the
parties by their full names, we will refer to Ronald Brasher as "Ronald,"
Patricia Brasher as "Patricia," David L. Brasher as "David," Diane Brasher
as "Diane," O.C. Brasher as "O.C.," Jim Sumpter as "Jim," Norma Sumpter as
"Norma," Jennifer Sumpter Hill as "Jennifer," and Melissa Sumpter
Ellington as "Melissa." Jim, Norma, Jennifer, and Melissa may be referred
to collectively as the "Sumpters." To be consistent, we will refer to
Carolyn Lutz as "Carolyn" and Ruth I. Bearden as "Ruth." See ID at 16709
n.1.
The Associate General Counsel denied the parties' request to file combined
exceptions of 75 pages, three times the limit prescribed by the rules.
Ronald Brasher, FCC 03I-02 (OGC Sept. 22, 2003).
The companies in question are still Metroplex customers. Tr. 97. Metroplex
services a total of 1,000 to 1,200 mobile units on its T-band system. ID
at 16712 P 13. It also services 1,000 to 1,400 mobiles on its 900 MHz
system and an additional 70 or 80 mobiles on its 800 MHz system.
Tr. 1239.
Ronald, Patricia, and DLB filed separate exceptions. Since these pleadings
present what are in effect a single consolidated set of arguments, we will
refer to these parties simply as "Appellants" except where it is
appropriate to cite to a specific pleading. Where we do not summarize the
Enforcement Bureau's reply, this indicates that we agree with the Bureau's
position in material respects and believe that a summary would be
redundant.
Appellants also observe that Ronald, who had no counsel, was unfamiliar
with the Intermountain criteria. While this factor may bear on his intent,
it has no relevance to the issue of whether control was actually
transferred, which is an objective determination based on the conduct of
the individuals involved.
DLB Exceptions at 20 P 43.
Appellants nevertheless recite that: "The family members chosen had
knowledge of DLB's business and contributed in various fashions to the
success of the overall enterprise. . . . O.C. Brasher lived with Ron and
Pat and was also fully aware of the efforts of the business." DLB
Exceptions 18-19 P 41.
This means that "a license must maintain a reasonable degree of actual
working knowledge about the lessee's activities and facilities that affect
its ongoing compliance with the Commission's policies and rules." 18 FCC
Rcd at 20636 P 66. Additionally, the licensee must be in a position to
remedy any violations of the lease or the Commission's rules or suspend or
terminate operation of the system. 18 FCC Rcd at 20636 P 67.
In establishing rules for spectrum leasing, we did not deny the
applicability of Intermountain in other contexts, such as the evaluation
of management agreements. 18 FCC Rcd 20717 P 318. Instead, we sought
comment on whether the revised standard should be applied in such
contexts. Moreover, the spectrum leasing rules establish reporting and
other requirements in place of the Intermountain criteria. We do not
suggest that it would be permissible to depart from the degree of control
presumed by the Intermountain criteria without complying with these
safeguards.
Dawn Daniels Ross of PCIA confirmed that, based on PCIA's interpretation
of section 90.313, PCIA would coordinate only one frequency pair at a time
unless the applicant showed that it had more than 90 mobile units (per
channel) in operation. Ross further confirmed that an applicant with only
potential new customers, as opposed to units in operation, would not be
able to apply for multiple channels. Tr. 2259-62.
Carolyn, for example, testified that she was scared after she saw the Net
Wave petition because: "I knew I had done something illegal . . . and
someone had obviously discovered the loophole and was coming after me for
it." Tr. 1239. Jennifer testified that she showed the Net Wave petition to
her supervisor at work who was an attorney and a CPA. She testified that
his response to reading it was: "My God, what have you gotten yourself
into?" Tr. 1057.
Tr. 586.
Black admitted that he knew that the applicants were members of the
Brasher family and that the applications specified Metroplex's offices as
a common control point, but he denied knowing that the stations would all
be operated by Metroplex. Tr. 1706, 1708. In this regard, Black made the
above-quoted statement in the context of saying that he relied on Ronald
to provide him with eligible applicants. Black testified: "Now, if Ron
Brasher tells me that these people, whoever they are, are eligible to hold
a license, then I'm going to submit the application . . . . " Tr. 1707.
The Commission's rules require that if an applicant is an individual, the
application must bear the original, handwritten signature of the
applicant. 47 C.F.R. S 1.913(a), (e) (1996) (current S 1.917(a),(d)).
See also Garcia v. Caremark, Inc., 921 S.W.2d 417, 420-21 (Tex. App. 1996)
("De facto" administrator did not "qualify" as personal representative
under the terms of the Probate Code).
In responding to EB's request for admissions, Ronald admitted that neither
O.C. nor his estate paid for the construction or operating costs of the
station. He further stated that: "The estate is due compensation for the
value of the license and the revenue owed the licensee's use to date,
however, calculation and valuation of such compensation has been tolled
until the controversy has been resolved to assure accuracy." EB Exhs. 24,
25, items 33, 35, 36.
Appellants cite 47 C.F.R. S 1.948(g) (formerly 1.924(c) (1996)), which
provides: "In the event of the death . . . of a permittee or licensee. . .
the Commission shall be promptly notified of such death. . . . Within 30
days after the occurrence of such death . . . an application shall be
filed for consent to involuntary assignment of such permit or license . .
. to a person or entity legally qualified to succeed to the foregoing
interests under the laws of the having jurisdiction over the estate
involved." Appellants assert that, consistent with this section, Ronald
was eligible to apply for a license on behalf of O.C.'s estate, and was
not required to report O.C.'s death (which occurred prior to filing the
application.) Ronald Brasher Exceptions at 12-13 P 26, 15-16 P 30; DLB
Exceptions at 14-15 P 30. Ronald, however, did not qualify as an executor
under Texas law and did not state in his application that he was filing as
an executor or on behalf of O.C.'s estate. Appellants reliance on section
1.948(g) is, therefore, unavailing.
Ronald sent a fax to PCIA on July 30. 1996, asking PCIA to cancel Ruth's
application. EB Exh. 14. Nevertheless, the Commission issued a license to
Ruth on September 25, 1996. EB Exh. 10 at 1. Ronald testified that he
never received notification of the license and did not recognize the March
31, 1998 letter from the Commission (EB Exh. 10 at 2) canceling the
license for failure to notify the Commission of construction. Tr. 181-82,
209. Ruth's station was never constructed. Tr. 137-38. Subsequently, in
early April, 1998, Ronald sent a copy of the license to Black marked: "To
John Black From R Brasher Please apply for this freq at this location
under DLB." Tr. 1666, 1669; EB Exh. 10 at 1. Black filed an application on
DLB's behalf on April 19 or 20, 1998.
The relevance of this argument is unclear, since Ronald and Patricia
categorically deny that they signed the Sumpters' applications. In any
event, we reject any suggestion that Ronald and Patricia would not be
guilty of forging the Sumpters' signatures if they merely believed that
the Sumpters "would have consented" to the preparation of applications in
their name, as opposed to their actually consenting. Patricia Brasher
Exceptions at 13 P 28. In Danville Television Partnership, 16 FCC Rcd
9314, 9317-18 P 7 (Vid. Ser. Div. 2001), cited by Appellants, the party
accused of forgery successfully argued that he had actual consent to sign
a document with another person's name. This is in accord with general
principles of law. An agent commits forgery by exceeding his or her
authority in executing a document in another person's name. An agent is
not guilty of forgery only if the agent has an honest belief in his or her
authority to do so See United States v. Hill, 579 F.2d 480, 483 n.2 (8^th
Cir. 1978). Appellants also observe that a party can subsequently ratify
and be bound by a forged signature. See, e.g., Kadota Fig Ass'n of
Producers v. Case-Swaye Co., 167 P.2d 523 (Cal. App. 1946). The Sumpters,
however, deny that they ratified their signatures and the case law does
not suggest that subsequent ratification nullifies the original forgery.
In their exceptions, Appellants mischaracterize the ALJ's finding. They
state: ". . . the Court [i.e., the ALJ] found, based on its `reading of
the cold transcript' that it would `[award] full credit to the testimony
of the Sumpters. . . .' " Patricia Brasher's Exceptions at 3 P 7. Clearly,
the ALJ based his findings on his observation of the witnesses during
cross examination, not on a reading of the cold transcript.
Appellants complain that the ALJ erred in according unwarranted
significance to an alleged inconsistency between evidence given by Ronald
and by Patricia. ID at 16743 P 141. The ALJ noted that Patricia testified
that she and Ronald had discussed Metroplex's needs with the Sumpters 8-10
times over a period of 4-6 months before the June 11 meeting at which the
applications were given to Norma. Tr. 809-13. In an affidavit, however,
Ronald indicated that the purpose of the June 11 meeting was to offer the
Sumpters an opportunity to become licensees and that Jim and Norma's
applications were not signed at this "initial meeting" to give them a
chance to decide whether they wanted to hold a Commission license. EB Exh
22 at 6. Appellants complain that the apparent inconsistency reflects no
more than ordinary variations in how people recall the same events and
should not be viewed as indicating a misrepresentation. Although this is a
relatively minor matter, we find that the ALJ did not err in taking this
inconsistency into account as one factor in evaluating the credibility of
the Brasher's account of their dealings with the Sumpters.
Carolyn admitted that she signed her application as a favor to Ronald. Tr.
1162-63, 1165, 1194. Ronald claimed that Carolyn approached Patricia after
hearing that the Sumpters were interested in obtaining some licenses and
asked Patricia to be included. According to Ronald, Patricia then asked
Ronald to ask Carolyn. Tr. 541-42.
Ronald, however, had previously insisted on a contrary version of events
in letters to the Sumpters. After the Sumpters had written to him that
they were unaware that they were licensees, Ronald responded with letters
dated January 6, 1998. He told Jim and Norma: "You signed a request for
license in July, 1996 at your office with [Jim Sumpter, Norma Sumpter],
Pat Brasher and myself present." EB Exh. 37 at 27, 34 at 28. He told
Melissa and Jennifer: "You signed a request for license in July 1996 at
our house in the presence of [Jennifer Hill, Melissa Sumpter], Norma
Sumpter, Pat Brasher and myself." EB Exh. 34 at 29,26, 19 at 00458.
In his statement to the Commission dated August 3, 1999, Ronald stated
that he had closely examined the signatures on the applications for the
first time and noticed that the signatures on Norma's, Melissa's and
Jennifer's applications appeared to have been written by the same person.
He suggested that Norma's signature appeared consistent with her other
known signatures. EB Exh. 22 at 2. Bolsover confirmed the Norma, Jennifer,
and Melissa signatures were probably written by the same person. Tr. 2304;
EB Exh. 75. As noted, however, she did not agree that Norma's signature
was genuine.
Bolsover did testify that she eliminated Ronald as the writer of Jim's
signature. Tr. 2319.
Jennifer added: "In fact I have never signed anything using my married
name of Hill." EB Exh. 56.
EB Exhs. 42 at 1, 43 at 1, 45 at 12.
Appellants accuse the ALJ of ignoring inconsistencies in the Sumpters'
testimony. For example, Jennifer initially testified that she recalled
receiving the Form 800A in the mail and "threw it in the trash" because "I
was angry. I felt like Ronald was blowing me off." Tr. 1061. She
acknowledged, however, that Ronald had filled out a copy of her Form 800A
(EB Exh. 55 at 9) and gave it to Jim for Jennifer to sign. Jennifer
testified that she refused. Tr. 1061-62. Jim testified that he advised
Jennifer not to sign. Tr. 1966, 1978. While Jennifer's recollection seems
somewhat faulty in that she manifestly did not throw out the Form 800A,
which was in front of her while she testified, she immediately corrected
herself, and we do not fault the ALJ's belief that any inconsistency was
not material.
This evidence (EB Exh. 70) includes: (1) notations in Jim's appointment
book indicating he would be out of his office on Friday afternoon June 21
and all day Saturday June 22, (2) records of telephone calls to Jim's aunt
on Friday morning (to tell her he was coming) and Sunday afternoon (to
tell her he arrived home safely); and (3) credit card receipts showing
that he ate at a restaurant in his hometown of Mesquite on Friday (before
he left) and that he bought a tank of gas on Sunday in Junction (for the
ride home). Tr. 1797-1806, 2033-47.
That is, Bolsover examined the photocopies that Ronald allegedly made on
June 22 after the Sumpters had signed the client copies. The client copies
with the original signatures were not accounted for at the hearing.
We find that Appellants were not materially prejudiced by the fact that
they did not have any prehearing notice of this evidence.
The opposition stated: "Net Wave presented nothing to support its
suggestion that [] each of the Operators is not a separate real party in
interest." EB Exh. 2 at 3.
Although the opposition ridiculed Net Wave's claim that the applications
"concealed" the various family relationships involved, it does conceal
knowledge of a significant misunderstanding by Net Wave in this regard.
Net Wave erroneously assumed that " D.L. Brasher" was David Brasher's
wife, Diane. EB Exh. 1 at 3 P 3. The opposition does not disclose the fact
that Net Wave was wrong and that D.L. Brasher and David L. Brasher are
actually the same person.
The opposition was filed November 25, 1997; the Form 800a was dated
December 9, 1997. EB Exh. 2; RB/PB Exh. 3.
The list also refers to a station licensed to "Patricia A. Brasher: Ronald
D. Brasher." EB Exh. 17 at 3. Patricia was, of course, alive.
Due to an alleged collating error, the submitted copy contained a
signature page signed "David L. Brasher." EB Exh. 19 at 000524. The
correct signature page is EB Exh. 5 at 11. Also allegedly as a result of
the collating error, the copy submitted in April 1999 also substituted the
page indicating that notice was to be sent to "O.C. Brasher." Again, the
corresponding page of the David L. Brasher agreement was substituted.
Compare EB Exh. 5 at 10 with EB Exh. 19 at 000523.
The response to the letter of inquiry directed to O.C. was worded as
follows: " . . we hereby inform the Commission that O.C. Brasher is
deceased (death certificate enclosed). As a result, we respectfully inform
the Commission that O.C. Brasher will be unable to respond to the
Commission's inquiry. . . " EB Exh. 21 at 2. O.C. had died four years
earlier.
Tr. 1173.
EB Exh. 19 at 00004.
EB Exh. 19 at 00005.
EB Exh. 19 at 00005.
We wish to make clear, however, that even if we were to overturn the ALJ's
findings crediting the testimony of the Sumpters, this would not
significantly diminish the seriousness of the misconduct found on the
record as a whole.
We have determined that oral argument would not materially assist the
resolution of this proceeding.
Federal Communications Commission FCC 04-210
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Federal Communications Commission FCC 04-210