Cross Petition — O'Leary v. United States

Supreme Court, U.S.

| y LE D

951881 MAY 17 19%

Case Nov itp dP TRE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBEF TERM 1996

ROSA WARE, BOOKER T. WADE, JR.,

GWENDOLYN MAY-BARLOW, AND HOPE SMITH

BYNUM, Joint Cross-Petitioners

v.

FEDERAL COMMUNICATIONS COMMISSION

and

UNITED STATES OF AMERICA,

Respondents

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

CONDITIONAL CROSS-PETITION FOR A WRIT

OF CERTIORARI

Stephen T. Yelverton, Esq.

Counsel of Record

Yelverton Law Firm, P.C.

1101 30th St., N.W.,

Suite 500

Washington, D.C. 20007

Tel. 202-625-4321

Whether the actions of the Federa! Communications

Commission in sequestering Rosa Ware, a ‘wtural person and

party, from adverse witnesses at an admirwistrative hearing

are in confli.¢ with Rule 615 (1) of the “ederal Rules of

Evidence and thus denied her “due process”?

Whether the Federal Communications Commission

improperly disqualified Rosa Ware, Gwendolyn May-Barlow,

and Hope Smitii Bynum, although not finding them to have

personally engaged in disqualifying misconduct, but merely

associated with Booker T. Wade, Jr., whom was found to

have engaged in disqualifying misconduct?

Whether the Federal Communications Commission,

in conflict with precedent of this Court, improperly failed to

use the "preponderance of [substantial] evidence” standard in

disqualifying Booker T. Wade, Jr., and other parties to an

administrative hearing and thus denied them "due process"?

Whether the Federal Communications Commission

denied “due process" to Booker T. Wade, Jr., by

disqualifying him based upon allegations in which he had no

notice and thus improperly engaged in a "trial by ambush"?

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Whether the Federal Communications Commission

denied "due process" to Booker T. Wade, Jr., by

disqualifying him based upon supposed representations by

him which are not in the record?

Whether the Federal Communications Commission

denied “due process" to Rosa Ware, Booker T. Wade, Jr.,

Gwendolyn May-Barlow, and Hope Smith Bynum by

disqualifying them based upon a supposed FCC policy which

does not exist?

PARTIES TO THE PROCEEDING

The following persons were also parties to the appeal

before the United States Court of Appeals for the D.C.

Circuit whose judgment is sought to be reviewed:

Black Television Workshop

of Los Angeles, Inc.

Mary V. Woodfork

The following persons were named as parties to the

FCC proceeding on review, but did not appeal their

disqualification to the U.S. Court of Appeals:

Dr. Clint Wilson

Gary Cordell

Roy Campanella, Jr.

Linda Pate

Titilola Payne Parker

Jerrome Duncan

Black Television Workshop of Los Angeles, Inc. was

not named as a party to the FCC proceeding, but did

participate as a party in the appeal to the U.S. Court of

Appeals for the D.C. Circuit.

Black Television Workshop of Los Angeles, Inc. is a

California non-profit and non-stock corporation, which was

incorporated in 1981. It is governed by a multi-member

board of directors. The corporation is not publicly owned,

nor is it affiliated with any other entity. It has no parent

aii i

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publicly issued. The sole activity of the corporation is to

engage in television broadcasting. On October 3, 1994, the

corporation filed for bankruptcy protection in the Federal

Bankruptcy Court for the Central District of California. On

February 23, 1995, the case was converted to Chapter 7 and

Arnold L. Kupetz, Esq. was named Trustee (Case No. SV

94-45938KL).

The cross-petitioners, Rosa Ware, Booker T. Wade,

Jr., Gwendolyn May-Barlow, and Hope Smith Bynum are

natural persons and have served as officers and directors of

Black Television Workshop.

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TABLE OF CONTENTS Page(s)

QUESTIONS PRESENTED FOR REVIEW ....... i

PARTIES TO THE PROCEEDING ........... iii

SA ee SAE iS ole Pe ee V

TABLE OF AUTHIORITICS .... ces cc ees eee vi-ix

CTU GAOT 6 sé ele a a ree ote Pewee ke ae I

Pe RE ee 66S oe Kak ea I

STATUTORY AND OTHER PROVISIONS ....... 2

STATEMENT OF THE CASE ............... 3

SUMMARY OF ARGUMENTS ............. 13

REASONS FOR GRANTING THE PETITION .... 15

(a) Improper Sequestration ........... 15

(b) Improper Attribution of Misconduct .... 17

(c) Improper Standard of Proof ......... 21

Oe “See EE oes oye ee he oles 23

(e) Lack of Record Evidence .......... 25

(f) Violation of Non-existent FCC policy ... 26

CAE oe als x ow tb ke eee. eee 28

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TABLE OF AUTHORITIES —_—— Page(s)

Federal C a, er

Angel F. Ginorio, 9 FCC Rcd 698 (1994) ....... 28

Bellingham Television Associates, Inc. ,

103 FCC2d 222 (Rev. Bd. 1986) ............ 20

High Country Communications,

6 MX Ba ee Ce a ry, oe eve Cee 19

Seven Locks Broadcasting Co.,

6 Pi Ae Ge Ce i ee 0 eee ee ware 26-27

Silver Star C Sila hdl a

© PLL, Bee Ge Ce ee Cs he ht oe eos 21, 27

Spanish International Broadcasting,

a A, ROG Se Cees or es Si oe ee 27

4X Red Seep (ibeee és oe eee eee es 3, 26

Univision Holdings, Inc., 8 FCC Red

59) CIPS) + ee 6 wre ees ere ei eee 23

; Decisi

752 F.2d 670 (D.C. Cir. 1985) ........ ieee 19

Consolo v, FMC, 383 U.S. 607 (1966) ......... 22

Geders v. U.S., 425 U.S. 80 (1975) ........... 16

LS ————

-Vil-

Page(s)

Goldberg v. Kelly, 397 U.S. 254 (1970) ........ 18

In re Oliver, 333 U.S. 257 (1948) ............ 27

In Re Ruffalo, 390 U.S. 544 (1968) ........... 24

Kaczmarczyk v. INS, 933 F.2d 588

(7th Cir. 1991), cert. denied,

SRa ene ES. gg va ec eckcckn. 19

Lindsay v. NSTB, 47 F.3d 1209

ites GTI cg ove ek bk bw be cicweus 22

Morton v. Ruiz, 415 U.S. 199 (1974) .......... 26

NLRB vy. Stark, 525 F.2d 422

(2nd. Cir. 1975), cert. denied.

ok kt. a a 16

Rhoa-Zamora v. INS, 971 F.2d 26

Se 19

RKO General, Inc, v. FCC,

67D F.2d 215 (D.C. Cir. 19961) ............. 27

Smith v, Estelle, 602 F.2d 694

I I ta ne Wn ee 24

Steadman v, SEC, 450 U.S. 91 (1981) ......... 21

Varlack v, SWC Caribbean, Inc., 550 F.2d

Bre Ge Gs WEE Oa ee ee ec ee oe ee 16

Williams v. Florida, 399 U.S. 78 (1970) _.._._.. 24

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Page(s)

Unites S Constituti

ft. er ee ee 25

Re mr eer ar er eee ar tc 25

Statutes

De SP gh ee hc bee 8 ow sens 25

Oe es PD sla ee 6 od io ee ee Ok 2, 43

Oe Rs er head wo ae ee ee ee eee es

Federal Rules of Evidence

ree ho ae areal e es oe kee es 6 2, 15-16

FCC Rules

ig eS oe |) RP ar reine Creer aris y Rie

Miscellaneous

Weinstein’s Ev;

ee ee eee 16

-ix-

Page(s)

ini | Ord

(Chronological Order)

tial i ALJ Walter C. Miller.

FCC 83D-13, rel. Feb. 24, 1983 ....... BTW App.

Order to Show Cause, Hearing Designation Order,

3 FCC Rcd 5443 (1988) .......... "3-5, 23, 27

itial Decisi ‘ALJ bh Chachkin.

2 ee ee ig ook ee ewes 7-9

Decision, 8 FCC Rcd 4192 (1993) ........... 9-10

a ee sec ccc cca hees 10

Order, FCC 941-013, rel. Feb. 15, 1994 ........ 11

Order, 9 FCC Rcd 4477 (1994) ............ 1, 11

Order, Case No. 94-1031 and Consolidated

Case No. 94-1655, D.C. Circuit,

I ee a ee we l

Judgment, D.C. Circuit,

filed Sept. 18,1995 .................. 2. 13

Order, D.C. Circuit,

a Se ae 2,17

NION W

The decisions of the Federal Communications

Commission ("FCC"), and the interlocutory order, final

judgment, and orders on rehearing and hearing in banc of the

U.S. Court of Appeals for the D.C. Circuit, denying the

relief requested by the ’ vint cross-petitioners are cited in the

Table of Authorities herein. The decisions are included in

the Appendix of petitioner Black Television Workshop of Los

Angeles, Inc. (docketed April 17, 1996). The orders and

judgment of the D.C. Circuit are unreported.

The Appendix submitted by Black Television

Workshop is cited herein as (BTW App.). The joint cross-

petitioners are also submitting a Joint Appendix in a separate

volume. It is cited herein as (Jt. App.).

JURISDICTION

The FCC entered a final decision in this proceeding

in Order, FCC 94-220, rel. September 1, 1994, 9 FCC Rcd

4477, which disqualified the cross-petitioners as broadcast

permittees or licensees. The Order of the FCC also revoked

the construction permit for non-commercial Channel 68, Los

Angeles, California, which is held by Black Television

Workshop of Los Angeles, Inc. The cross-petitioners serve

as directors of the corporation (Jt. App. 108a).

A timely appeal of the Order of the FCC was filed

with the U.S. Court of Appeais for the D.C. Circuit. It

entered an interlocutory order on December 5, 1994, denying

the cross-petitioners’ motion for summary reversal of the

decisions of the FCC as to their individual qualifications to

be broadcast permittees or licensees (BTW App. 1a-3a).

ia,

ie

A final judgment in the case was entered on

September 18, 1995, which denied the appeal of the cross-

petitioners and which upheld the revocation of the Channel

68 construction sermit. A petition for rehearing and

suggestion for heaving in banc was denied on November 17,

1995 (Case No. 94-1031 and Consolidated Case No. 94-

1655) (BTW App. Sa-1 1a).

Black Television Workshop of Los Angeles, Inc., a

party to the proceeding, timely filed a petition for writ of ~

certiorari on February 14, 1996. By letter of February 15,

1996, the Clerk granted Black Television Workshop leave to

refile its petition by April 15, 1996. The petition was refiled

by that date and docketed on April 17, 1996.

The jurisdiction of this Court was timely invoked by

Black Television Workshop, pursuant to 28 U.S.C. Section

1254 (1). The cross-petitioners rely upon U.S. Supreme

Court Rule 12.5 to file their cross-petition, which is timely

filed by May 17, 1996. The Solicitor General and the FCC

have been served with this cross-petition.

STATUTORY AND OTHER PROVISIONS INVOLVED

The statutory and other provisions cited herein, which

are 47 U.S.C. 309, 47 U.S.C. 312, 47 C.F.R. 1.351, and

Rule 615 (1) of the Federal Rules of Evidence, are set forth

in the Joint Appendix (Jt. App. 121a-124a).

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STATEMENT OF THE CASE

In Order to Show Cause, Hearing Designation Order,

lability (" "), 3 FCC Red 5443

(1988), the FCC designated for revocation the construction

permit of Black Television Workshop of Los Angeles, Inc.

("Workshop") (Jt. App. 110a-116a). It is a non-stock and

non-profit corporation governed by a multi-member board of

directors. All of the directors are African-Americans (BTW

App. 13a-18a).

The FCC granted to the corporation in 1983 the

construction permit for non-commercial television Channel

68 in Los Angeles. This would be the only minority-

controlled non-commercial television station in Los Angeles,

which has one of the highest concentrations of minorities of

any major metropolitan area. The construction permit was

not granted pursuant to a minority preference policy (BTW

App. 13a-18a).

The HDO was based upon a purported unauthorized

transfer of control and unauthorized control of the

corporation because of a change and/or deletion of directors

without prior FCC approval (Jt. App. 110a-111a). However,

the FCC has no articulated policy to determine whether a

change and/or deletion of directors of a non-profit and non-

stock entity results in a legally cognizable transfer of control

or violates FCC rules. Transfers of Control of Non-Stock

Entities, 4 FCC Red 3403 (1989).

The HDO resulted from the allegations of Mary V.

Woodfork to the FCC Woodfork claimed that she was

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unfairly removed as a director of the corporation in 1986.

According to Woodfork, her removal was the result of the

actions of Booker T. Wade, Jr., who had been serving as

counsel to the corporation and later as an officer and director

(Jt. App. 117a-120a). Wade had previously served as a

Legal Assistant to an FCC Commissioner (Jt. App. 5a). He

is one of the joint cross-petitioners herein.

The HDO also specified general issues of

misrepresentation and/or lack of candor against Wade,

Woodfork, and all of the current and former directors of the

corporation. These persons are Rosa Ware, Gwendolyn

May-Barlow, and Hope Smith Bynum, who are the other

joint cross-petitioners herein, and Gary Cordell, Dr. Clint

Wilson, Roy Campanella, Jr., Titilola Payne Parker, Linda

Pate, Esq., and Jerrome Duncan, Esq. (Jt. App. 110a-116a).

Ware has continuously served as a director of

Workshop since formation of the corporation in 1981. She

is the sister of Wade. May-Barlow and Bynum began

serving as directors in 1987. Woodfork, one of the original

directors, disputes the election of May-Barlow and Bynum

(Jt. App. 7a; BTW App. 110a-116a).

The specified issues resulted from Woodfork’s

generalized and undocumented allegations of attorney

misconduct by Wade. The HDO failed to specify what

misrepresentations or candorless statements may have been

made or who made them (Jt. App. 110a-116a).

The Mass Media Bureau ("MMB") of the FCC issued

a Bill of Particulars, on October 11, 1988. However, the

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MMB failed to specify any allegations of misrepresentation,

lack of candor, or other FCC misconduct by Ware, May-

Barlow, or Bynum, which would justify their individual or

personal disqualification. All of the purported misconduct by

Wade is prior to the time that May-Barlow and Bynum

became directors in 1987 (Jt. App. 117a-120a).

The HDO placed the burden of proceeding with the

evidence and the burden of proof on the FCC. This is

required by 47 U.S.C. 312 (d) (Jt. App. 112a, 124a).

The MMB, which prosecuted the case, assumed the

burden of proceeding with the evidence and the burden of

proof for the FCC. It directed its case against Wade and

focused on his purported misconduct as an attorney for the

corporation. The primary witness against Wade was

Woodfork (Jt. App. 1a-40a).

Woodfork’s accusations are related to a supposed

scheme first conceived by Wade in 1981 to take control of

the corporation and to oust her as a director in 1986.

Woodfork has demanded that the FCC determine May-

Barlow and Bynum not to be legitimate directors of the

corporation because they are associated with Wade.

Woodfork considers herself to be the "true owner” of the

corporation (Tr. 711-712, 910, 924-928).

Woodfork demanded that the FCC not allow Channel

68 to operate under the control of persons she considers

illegitimate. She wanted the FCC to award her as an

individual the construction permit for Channel 68. This is

because in her view she exposed Wade’s purported

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wrongdoing in ousting her as a director of the corporation

(Tr. 910, 927-928).

During pre-designation investigations and pre-hearing

discovery, in the 1987-1992 time period, the FCC failed to

depose Woodfork or any other prospective witnesses against

Wade, or to preserve the testimony of any prospective

witnesses adverse to Wade. The FCC had no notes as to

interviews with Woodfork or other prospective witnesses (Tr.

153, 207-208).

During pre-hearing discovery, the MMB declined to

depose Ware, May-Barlow, and Bynum. However, as

parties to the proceeding, they produced voluminous

corporate documents in response to requests for production

of documents from the MMB. Prior to designation for

hearing, they assisted in providing voluminous corporate

documents to the FCC in response to its investigation of the

corporation.

At the hearing, the MMB declined to call May-

Barlow and Bynum to testify. No evidence was adduced at

the hearing that either May-Barlow or Bynum engaged in any

misrepresentation or lack of candor, or other disqualifying

misconduct (Jt. App. 1a-40a).

Ware testified at the hearing at the request of the

MMB. During the hearing, the ALJ sequestered Ware from

Woodfork and other adverse witnesses and ordered her

counsel not to disclose to her any testimony by adverse

witnesses (Tr. 493-517).

ee

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The purpose of this tactic was to prevent Ware from

knowing the testimony of Woodfork until after Ware had

testified. The MMB had refused to disclose, prior to the

hearing, the testimony of Woodfork, or other witnesses

adverse to Ware.

Wade did not testify at the hearing. The MMB,

which had the burden of proceeding with the evidence and

the burden of proof, failed to subpoena him. The MMB

declined to move to dismiss Wade as a party to the

proceeding, even though the ALJ directed it to file such a

motion (Tr. 1590, 1831-1832). The MMB further declined

to submit into evidence Wade’s deposition testimony and

answers to interrogatories, even though directed to do so by

the ALJ (Tr. 1586-1589, 1802, 1807-1808).

In the Initial Decision ("L.D."), 7 FCC Red 7819

(1992), the ALJ uncritically accepted at face value the

testimony of Woodfork which demonized Wade as engaging

in purported misconduct by assuming control of the

corporation and in ousting her as a director. This testimony

was first given in 1992 and relates to events in the 1981-

1986 time period (Jt. App. la-40a).

The LD., paras. 110-118, made conclusions of

misrepresentation and lack of candor by Wade, but contains

no citations to the record of any evidence of intent to deceive

of knowledge of any falsity. Although Wade did not testify,

he was disqualified as a FCC permittee (Jt. App. 49a-53a).

The LD. revoked the construction permit of the

corporation. This was because of a purported abdication of

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control to Wade by the directors and/or unauthorized transfer

of control of the permit by Wade resulting from a change of

directors without prior FCC approval. LD., para. 124 (Jt.

App. 55a-56a).

The LD. disqualified as individual FCC permittees or

licensees all of the former and current directors. This

included Ware, May-Barlow, and Bynum. Such blanket

disqualification also included two former directors who were

not deposed by the MMB and were not called to testify at the

hearing. Those persons never participated in the proceeding

as parties and thereby failed to appeal their disqualification.

LD., paras. 121, 124-127 (Jt. App. 54a-56a).

The LD., paras. 121, 125-127, disqualified Ware for

abdication of control of the permittee and/or assisting in an

unauthorized transfer of control without prior FCC

authorization. No findings or conclusions as to

misrepresentation or lack of candor, or other disqualifying

misconduct, by Ware were made. No findings or

conclusions of intent to deceive, or knowledge of any falsity,

by her were made (Jt. App. 1a-40a, 55a-56a).

The LD., paras. 121, 124-127, disqualified May-

Barlow and Bynum. No findings or conclusions as to

misrepresentation or lack of candor, or disqualifying

misconduct, by them were made. No findings or conclusions

of intent to deceive, or knowledge of any falsity, by them

were made. The LD. failed to give any intelligible reason

for their disqualification (Jt. App. 1a-40a, 55a-56a).

All of the findings and conclusions of the LD, relate

re A tg i

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to purported attorney misconduct by Wade in the 1981-1986

time period. This was before May and Bynum became

directors of the corporation in 1987 (Jt. App. 1a-40a).

Even though the LD. found that Wade had acted

without authority from the corporation and was not an officer

and director at the time, it nevertheless attributed his

purported attorney misconduct to the corporation and its

directors. However, no findings or conclusions were made

against the corporation or its directors as to any disqualifying

misconduct or intentional deceit. L.D., paras. 114, 117, and

121-131 (Jt. App. 5la, 53a, 55a-58a).

At the time of giving testimony against Wade at the

1992 hearing, Woodfork was not represented by counsel.

Woodfork believed that she would be personally awarded the

Channel 68 construction permit, if Wade was discredited.

Neither the ALJ, nor the MMB hearing counsel, informed

Woodfork at the hearing that she was a target for prosecution

or disqualification (Jt. App. la-40a).

Woodfork was thereafter disqualified in the LD.,

paras. 130-131, based upon her own testimony against Wade

(Jt. App. 57a-58a). After being disqualified, Woodfork

retained counsel and attempted to revise and recant her

hearing testimony in post-hearing pleadings.

The FCC in Decision, 8 FCC Rcd 4192 (1993),

affirmed the LD. The disqualification of Ware was

affirmed, at para. 28, because of abdication of control of the

permittee. However, no findings or conclusions of

misrepresentation or lack of candor, or disqualifying

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misconduct, by her were made. No findings or conclusions

of intent to deceive, or knowledge of any falsity, by her

were made. Ware was only found not to be a credible

witness. Decision, para. 9. (Jt. App. la-40a, 68a).

The Decision, paras. 11-13, 28, and n. 53, affirmed

the disqualification of May-Barlow and Bynum. However,

no intelligible reasons were given. No findings or !

conclusions of misrepresentation or lack of candor, or |

disqualifying misconduct, by them were made. No findings

or conclusions of intent to deceive, or knowledge of any |

falsity, by them were made (Jt. App. la-40a, 72a, 90a-91a).

Reconsideration of the Decision was denied in

Memorandum Opinion and Order ("MO&O"), 8 FCC Red

8719 (1993). It declined to address the issue as to whether

there is any factual or legal basis for the disqualification of

Ware, May-Barlow, and Bynum (Jt. App. 94a-103a).

The MO&O, n. 11, suggested for the first time that

Ware, May-Barlow, and Bynum were actually disqualified

because of their supposed non-cooperation in the pre-

designation investigation and their supposed disruption of the

hearing (Jt. App. 102a). The MO&O failed to acknowledge

that the hearing, which was held in downtown Los Angeles,

was disrupted because of riots during the week of April 27-

30, 1992. This resulted in several witnesses and named

parties not appearing to testify and in the hearing being

suspended in order to evacuate from the city.

Reconsideration of the MO&O was requested because

the FCC relied upon a new rationale for disqualification.

sk.

This appeal was dismissed by the General Counsel, acting

pursuant to delegated authority. Order, FCC 941-013, rel.

Feb. 15, 1994 (Jt. App. 104a-107a).

There was no substantive discussion in the Order as

to the issues raised on reconsideration. The Order, para. 8,

did state, but without any explanation, that because Ware,

May-Barlow, and Bynum abdicated control of the permittee,

they are culpable for whatever misconduct by Wade which

occurred (Jt. App. 106a).

Because FCC rules prohibit an appeal to the Court of

a delegated action by the staff, an application for review was

filed with the FCC. The application for review was denied

without comment in Order, FCC 94-220, rel. September 1,

1994, 9 FCC Rcd 4477 (Jt. App. 108a-109a).

Ware, Wade, May-Barlow, and Bynum timely

appealed on October 3, 1994, their individual disqualification

and also appealed the revocation of the construction permit

to the U.S.Court of Appeals for the D.C. Circuit (Case No.

94-1655). A separate appeal had previously been filed by

Woodfork as to her individual disqualification (Case No. 94-

1031). The jurisdiction of the D.C. Circuit was pursuant to

47 U.S.C. 402 (b) (1), (5), and (6).

On October 3, 1994, Workshop, as a corporation,

filed for Federal bankruptcy protection. On February 23,

1995, the case was converted to Chapter 7. Arnold L.

Kupetz, Esq. was appointed Trustee (Case No. SV 94-

45938KL, Central District of California). The intent of

Kupetz is to sell the construction permit to a third-party

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unrelated to the former or current directors in order to pay

creditor claims of over $2,000,000 (BTW App. 19a-20a).

On September 18, 1995, the D.C. Circuit entered a

final judgment denying the appeals. It held that there was

"ample evidence” on the record to support the FCC’s

decision that the Channel 68 construction permit should be

revoked and that Ware, Wade, May-Barlow, and Bynum are

disqualified from "inheriting" the permit. A petition for

rehearing and hearing in banc was denied on November 17,

1995 (BTW App. 5a-7a, 10a-11a).

Kupetz, as Trustee, filed on February 14, 1996, a

petition for certiorari, on behalf of the corporation. It was

docketed on April 17, 1996. The purpose of that petition is

to require the FCC to abide by its policies and by Federal

bankruptcy policy, which would allow the sale of a revoked

broadcast permit to a third-party unrelated to the former or

current directors in order to protect creditors.

This cross-petition of Ware, Wade, May-Barlow, and

Bynum is with respect to their personal and individual

qualifications to be an FCC broadcast permittee or licensee.

They made no claim to the D.C. Circuit that they were

attempting to "inherit" the Channel 68 construction permit

from the bankruptcy Trustee and make no such claim to this

Court. Their grievance before this—Court is reputational

injury and the redemption of their qualifications to be an

FCC permittee or licensee of other broadcast stations.

ee ee _

Mims tl eerie) Bert PRE as

sh.

SUMMARY OF ARGUMENTS

The FCC revoked the construction permit for what

would only be the second African-American owned and

controlled non-commercial television station in the nation.

The FCC also disqualified all of its directors, who are

African-Americans.

The revocation proceeding was initiated by the FCC

in 1988 based upon changes in the directors of a non-profit

corporation, which violate no FCC regulation and which are

the subject of a pending rule making to determine if such

changes should be regulated at all, or subject to a reporting

requirement. The revocation proceeding was also initiated

based upon conclusory and unspecified allegations of

misrepresentation and lack of candor.

No specific allegations of deceit were made until after

the hearing commenced in 1992 and relate to events in the

1981-1986 time period. The FCC declined to preserve any

pre-hearing testimonial evidence from its witnesses. At the

beginning of the hearing, the FCC refused to disclose the

testimony of its witnesses and it sequestered parties from the

adverse testimony of its witnesses. This was done to prevent

the parties from knowing the specific allegations against them

until after they testified.

The FCC based its case upon the testimony of Mary

V. Woodfork, a dissident former director of the corporation.

Woodfork believed that she would be personally awarded the

FCC permit for the station as a reward for her testimony

against Booker T. Wade, Jr., the corporation’s legal counsel.

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However, Woodfork was disqualified by the FCC

based upon her own testimony against Wade. She was not

represented by counsel at the hearing and was not advised by

the ALJ or FCC counsel that she was a target for prosecution

or disqualification. After the hearing, Woodfork retained

counsel and attempted to revise and recant her testimony in

post-hearing pleadings.

This case is actually about the FCC sanctioning

Wade, an African-American, and one of its former attorneys

and former Legal Assistant to an FCC Commissioner,

because it disapproved of the manner in which he represented

the non-profit corporation as legal counsel. The FCC

believed that Wade was attempting to get rich from a

broadcast permit and only “had his self-interest in mind” (Jt.

App. 42a).

In a fit of pique, the FCC concluded that the directors

had either encouraged Wade’s involvement, as legal counsel,

in the affairs of the corporation, or had done nothing about

it, and thus themselves deserved punishment. The FCC,

acting in a "blunderbuss," then punished the corporation and

its directors by revoking its broadcast permit and

disqualifying them.

The actions of the FCC were taken under the pretense

of preventing a transfer of control of the corporation to

Wade, as legal counsel, which was not authorized or

approved by it in advance. The actions of the FCC were

also taken under the pretense of punishing a supposed failure

to inform it that such a transfer of control to Wade, as legal

counsel, had occurred.

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The FCC repeatedly violated its own rules, policies,

and procedures in its vendetta to publicly humiliate Wade for

committing the perceived "sin" of attempting to get rich from

a broadcast permit. It conducted an extralegal "star

chamber" proceeding against Wade, in what was also an

attorney disciplinary proceeding against him as a former FCC

employee. Such a cavalier disregard by the FCC for the

"due process" rights of Wade and other petitioners, Ware,

May-Barlow, and Bynum, requires that certiorari be granted.

REASONS FOR GRANTING THE PETITION

(a) The petition for writ of certiorari raises an

important Federal question of law as to whether the

actions of the FCC in sequestering Rosa Ware, a

natural person and party, from adverse witnesses at

the administrative hearing are in conflict with Rule

615 (1) of the Federal Rules of Evidence and thus

denied her “due process"?

The petition for writ of certiorari raises an important

Federal question of law as to whether the actions of the FCC

in sequestering Rosa Ware, a natural person and party, from

adverse witnesses are in conflict with Rule 615 (1) of the

Federal Rules of Evidence. Such rules of evidence apply to

FCC administrative hearings, pursuant to 47 C.F.R. 1.351.

Because the actions of the FCC are in conflict with the

Federal Rules of Evidence, certiorari should be granted.

During the hearing, the ALJ improperly sequestered

Ware from Mary V. Woodfork, an adverse witness, and

ordered Ware’s counsel not to inform her of the testimony of

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such adverse witnesses (Tr. 493-517). This action by the

ALJ is in patent conflict with the Federal Rules of Evidence,

Rule 615 (1), which allows a party who is a natural person

to be present at all times to confront adverse witnesses.

Exemption from sequestration is automatic and not a

matter of discretion. The purpose of Rule 615 (1) is to

prevent problems as to confrontation and "due process”

which would otherwise arise. Weinstein’s Evidence, Vol. 3,

Section 615 [02]; Advisory Committee’s Note to Rule 615.

The refusal of the FCC to protect Ware’s rights, as

codified in the Federal Rules of Evidence, requires that her

disqualification be vacated. Varlack v. SWC Caribbean,

Inc., 550 F.2d 171, 175-176 (3rd Cir. 1977). Ware was

disqualified as a result of the testimony of Woodfork.

The arguments of the FCC in rationalizing Ware’s

sequestration are inapposite (Jt. App. 70a-71a). According

to the FCC, an individual testifying at an administrative

hearing may be sequestered where that individual’s presence

is not necessary for the effective advocacy of the cause.

However, Ware was a party to the hearing and her

Own personal qualifications were under challenge. She had

a right to be present to confront adverse witnesses in order

to effectively advocate her own cause. See, Geders v. ULS.,

425 U.S. 80, 88 (1975), the petitioner is not simply a

witness, but also a defendant.

The reliance of the FCC on NLRB v., Stark, 525 F.2d

422, 429-430 (2nd Cir. 1975), cert. denied, 424 U.S. 967

1%.

(1976) is wholly misplaced. There, the persons to be

sequestered were complainants, not parties subject to

sanctions as is the case with Ware.

The FCC further argues that Ware was not prejudiced

by sequestration from Woodfork or other adverse witnesses

because she could have discussed their testimony with her

counsel after she testified and then offered rebuttal evidence.

However, this could be done by any party who is

sequestered. If such procedure is effective to alleviate

prejudice, then there would be no need to exclude any party

from sequestration.

Accordingly, certiorari should be granted. The

actions of the FCC are in conflict with the Federal Rules of

Evidence and with precedent of other Circuits. The D.C.

Circuit failed to address this issue of improper sequestration,

although it was timely raised before the FCC and that Court.

(b) The petition for writ of certiorari raises

an important Federal question of law as to

whether the FCC improperly disqualified or

sanctioned Rosa Ware, Gwendolyn May-

Barlow, and Hope Smith Bynum, although

not finding them to have personally engaged

in disqualifying misconduct, but merely

associated with Booker T. Wade, Jr., who

was found to have engaged in disqualifying

misconduct?

The petition for writ of certiorari raises an important

Federal question of law as to whether the FCC violates the

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“due process" rights of parties to its administrative hearings

by disqualifying or sanctioning them for the misconduct of

other parties merely because of their association with the

offending party. A Federal agency must conduct its

proceedings in accordance with "due process." Goldberg v.

Kelly, 397 U.S. 254, 266-267 (1970). The failure to do so

requires that certiorari be granted.

The decisions of the FCC made no findings that

Ware, May-Barlow, or Bynum personally engaged in any

disqualifying misconduct. Indeed, the FCC, which had the

burden of proceeding with the evidence and the burden of

proof, declined to call May-Barlow and Bynum to testify at

the hearing and did not put into the record any evidence

adverse to them (Jt. App. 1a-40a). Ware, who was called to

testify, was only found not to be a credible witness (Jt. App.

19a, 24a, 53a, 68a).

The FCC nevertheless disqualified Ware, May-

Barlow, and Bynum because of their association with Booker

T. Wade, Jr., who was the focus of the FCC’s prosecution.

Ware is the sister of Wade. May-Barlow was presumed to

be Wade’s cousin (Jt. App. 7a, 73a).

The decisions of the FCC repeatedly referred to

Ware, May-Barlow, and Bynum as the "Wade Group.” No

meaningful attempt was made to distinguish the actions of

Wade from their actions (Jt. App. 59a, 65a, 102a, 106a).

The findings and conclusions of the decisions of the

FCC as to purported misconduct by Wade refer to the 1981-

1986 time period. They do not address the period of time

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(after 1986) in which May-Barlow and Bynum served as

directors of the corporation (Jt. App. 1a-40a).

A Federal agency must "engage in a careful,

individualized review of the evidence.” Rhoa-Zamora v.

INS, 971 F.2d 26, 33 (7th Cir. 1992), citing Kaczmarczyk

v._ INS, 933 F.2d 588, 595 (7th Cir. 1991), cert. denied,

112 S.Ct. 583 (1991). The failure of the FCC to do so

requires that the disqualification of Ware, May-Barlow, and

Bynum be vacated.

In order to justify disqualification, the FCC must

establish the existence of misrepresentation or deceit by

demonstrating the making of an intentional, material, and

false statement by a party. High Country Communications,

4 FCC Rcd 6237, 6238, para. 9 (1989). A party must have

knowledge of falsity in order to have intent to deceive.

California Public Broadcasting Forum v. FCC, 752 F.2d

670, 679 (D.C. Cir. 1985).

There is no record evidence, or any findings or

conclusions, of any knowingly false or misleading testimony

presented to the FCC by Ware, May-Barlow, or Bynum.

Nor is there any record evidence that information was

intentionally withheld from the FCC by them, that inaccurate

information was intentionally provided by them to the FCC,

or that they had any knowledge of falsity (Jt. App. 1a-40a).

The FCC has itself cautioned against branding

potential broadcasters as "liars," or of unfit character to be

a permittee or licensee, without seeking or considering their

explanations. This is especially so in contentious cases, such

-20-

as the one at hand. Bellingham Television Associates, Inc. ,

103 FCC2d 222, 225, para. 6 (Rev. Bd. 1986).

The actions of the FCC in disqualifying Ware, May-

Barlow, and Bynum are particularly shameful because these

persons who are the victims of its "blunderbuss” are African-

American females. The policy of the FCC is to bring more

minorities and women into broadcasting.

However, without any factual or legal basis, the FCC

disqualified three African-American females from holding a

broadcast permit or license. This would also disqualify them

from holding a management position at a broadcast station.

Such disqualification further stigmatizes them as being of

unfit character, which would have an adverse effect on their

credit rating, general employment prospects, and on their

eligibility for licensing as professionals.

Accordingly, certiorari should be granted. The

actions of the FCC are in conflict with fundamental

principles of “due process" and with precedent of-other

Circuits requiring an "individualized" review of the evidence,

not guilt by association or guilt by reason of “blood.” The

D.C. Circuit failed to address this issue, although it was

raised by Ware, May-Barlow, and Bynum both before the

FCC and that Court.

4.

(c) The petition for writ of certioran raises

an important Federal question of law as to

whether the FCC, in conflict with precedent

of this Court, improperly failed to use the

"preponderance of [substantial] evidence”

standard in disqualifying Booker T. Wade,

Jr. and other parties to the administrative

hearing and thus denied them "due process"?

The petition for writ of certiorari raises an important

Federal question of law as to whether the FCC improperly

failed to use the "preponderance of [substantial] evidence"

standard in disqualifying Wade and other parties to the

administrative hearing. The actions of the FCC are in direct

conflict with Steadman v. SEC, 450 U.S. 91, 101 (1981).

As held in Steadman, in order for a Federal agency

to impose sanctions, it must demonstrate disqualifying

misconduct by a “preponderance of [substantial] evidence"

and not by mere “substantial evidence." The FCC has

acknowledged that, where it has the burden of proceeding

with the evidence and the burden of proof, it must

demonstrate that it is more likely than not that a party

engaged in disqualifying misconduct and not merely infer

that such misconduct occurred. Silver-Star Communications-

Albany, Inc., 6 FCC Rcd 6905, 6906, para. 18 (1991).

However, in spite of this clear mandate from the

Court as to the appropriate legal standard of proct to impose

sanctions and its own acknowledgement of that legal

standard, the FCC used the lesser “substantial evidence"

standard against Wade and the other parties. In its brief

7}.

before the D.C. Circuit, the FCC admitted that it used this

lesser standard. See, FCC appellee brief, pp. 22-25, filed

May 18, 1995.

As defined by the FCC in its appellee brief, the

"substantial evidence” standard only minimally requires it to

find such relevant evidence in the record to support its

decisions which a reasonable mind might accept as adequate

to support a conclusion. Lindsay v. NSTB, 47 F.3d 1209,

1213 (D.C. Cir. 1995). As held in Consolo v, FMC, 383

U.S. 607, 620 (1966), “substantial evidence” is something

less than the weight of the evidence.

Wade, Ware, May-Barlow, and Bynum raised on

appeal the issue as to the appropriate evidentiary standard to

use. The D.C. Circuit, in its Judgment, filed September 18,

1995, did not directly address this issue. Rather, it stated

without explanation that there is "ample evidence" in the

record to support the decisions of the FCC (BTW App. 6a-

7a). However, an "ample evidence” standard has no legal

meaning and the D.C. Circuit gave it none.

Accordingly, certiorari should be granted. The actions

of the FCC are in conflict with precedent of this Court as to

the proper legal standard of evidence or proof for a Federal

agency to impose sanctions against a party.

93.

(d) The petition for writ of certiorari raises

an important question of Federal law as to

whether the FCC denied "due process" to

Booker T. Wade, Jr., by disqualifying him

based upon allegations in which he had no

notice and thus improperly engaged in a

"trial by ambush”?

The petition for writ of certiorari raises an important

Federal question of law as to whether the FCC denied "due

process” to Wade by disqualifying him based upon

allegations in which he had no notice and thus engaged in a

"trial by ambush.” From the beginning of this proceeding,

the FCC prosecuted its case based upon secrecy and surprise.

Pursuant to 47 U.S.C. 309 (e), a hearing designation

order shall specify with particularity the matters and things

in issue and shall not include issues phrased generally.

Univision Holdings, Inc., 8 FCC Red 3931, para. 3, 3932,

paras. 6-7 (1993), general conclusory allegations are not

acceptable. However, in violation of this Federal statutory

requirement, the HDO only contained general conclusory

allegations of misconduct against Wade. The bill of

particulars was only slightly less vague (Jt. App. 110a-120a).

After designation for hearing in 1988, the FCC

declined to take written statements or depositions from its

witnesses. At the beginning of the hearing in 1992, the FCC

refused to disclose the testimony of its witnesses. It also

required the sequestration of Wade and Ware from adverse

witnesses. This was done in order to prevent Wade and

-24-

Ware from knowing the testimony to be used against them.

The FCC based its case on the testimony of

Woodfork. She first testified in 1992 as to events in the

1981-1986 time period. She had no notes from that period.

When Woodfork first made complaints in 1987 to the FCC

about Wade, it failed to take any effort to preserve her oral

claims or testimonial evidence.

Woodfork alleged for the first time at the 1992

hearing, that Wade directed her in 1986 to sign in blank

an FCC ownership report. Wade was disqualified for fraud

and intentional misrepresentation based upon this allegation

in which he had no prior notice (Jt. App. 29a, 51a). His

purported fraud and misconduct was then attributed to Ware,

May-Barlow, and Bynum, and the other parties (Jt. App.

56a, 106a).

These trial tactics by the FCC are in conflict with

fundamental principles of "due process” and with precedent

of this Court. In Re Ruffalo, 390 U.S. 544, 551 (1968), an

agency is required to inform the accused of the charges

before the hearing commences and cannot amend the charges

on the basis of testimony it later elicits at the hearing.

Trials are not poker games in which prosecutors can

conceal their cards until played. Williams v. Florida, 399

U.S. 78, 82 (1970). See also, Smith v. Estelle, 602 F.2d

694, 699 (Sth Cir. 1979), surprise and secrecy by

prosecutors prevent effective cross-examination by defendants

in challenging the accuracy or materiality of evidence and

thus cannot be condoned.

-25-

Accordingly, certiorari should be granted. The FCC

must not be allowed to conduct a “trial by ambush." Not

only do such tactics offend the Fifth Amendment requirement

of "due process,” but also implicate the First Amendment.

The FCC is the gatekeeper as to who is allowed to be

a broadcaster. Its decisions as to who is disqualified from

this public trust must be above reproach and not be tainted

by improper trial tactics. This issue of lack of notice was

raised before the D.C. Circuit, but not addressed.

(e) The petition for writ of certiorari raises

an important question of Federal law as to

whether the FCC denied “due process” to

Booker T. Wade, Jr., by disqualifying him

based upon supposed representations by him

which are not in the record?

The petition for writ of certiorari raises an important

question of Federal law as to whether the FCC denied “due

process” to Wade by disqualifying him based upon supposed

representations by him which are not in the record. A

Federal agency is required to base its decisions upon record

evidence. 5 U.S.C. 706 (2) (F). The failure to do so is a

basis for review by appellate courts.

The FCC found that Wade made intentional and

knowing misrepresentations and lacked candor in not fully

disclosing to it his involvement as an attorney in the affairs

of the corporation (Jt. App. 53a). However, Wade did not

testify at the hearing, because the FCC failed to subpoena

him, and it declined to introduce into the record his

-26-

deposition testimony or written statements by him (Jt. App.

la-40a). Thus, with no record evidence of any deceitful

testimony or statements by Wade, there is no basis in law to

disqualify him for intentional deceit.

Accordingly, certiorari should be granted. The

actions of the FCC are in conflict with Morton v. Ruiz, 415

U.S. 199, 235 (1974), which requires Federal agencies to

follow established rules and procedures. This issue was

raised before the D.C. Circuit, but not addressed by it.

(f) The petition for writ of certiorari raises

an important Federal question of law as to

whether the FCC denied "due process” to

Rosa Ware, Booker T. Wade, Jr.,

Gwendolyn May-Barlow, and Hope Smith

Bynum by disqualifying them based upon a

supposed FCC policy which does not exist?

The petition for writ of certiorari raises an important

question of Federal law as to whether the FCC denied “due

process” to Ware, Wade, May-Barlow, and Bynum by

disqualifying them based upon a supposed FCC policy which

does not exist. Such actions by the FCC are in conflict with

precedent of this Court.

The FCC does not have and never had a policy as to

what constitutes a transfer of control of a non-commercial

permittee or licensee because of changes in the board of

directors, or because of the deletion of a director. Transfers

of Control of Non-Stock Entities, 4 FCC Red 3403, para. 1,

3405, para. 14, n. 43 and 45 (1989); Seven Locks

7).

Broadcasting Co., 94 FCC2d 899, 901-902 (1983). Thus,

the legal premise of the HDO and of the FCC decisions, that

as a result of Wade’s involvement there was an unauthorized

transfer of control of the corporate permittee because of

changes in the composition of its board of directors and/or

deletion of a director, is without any basis in law.

Although the FCC has authority to enforce the

provisions of the Communications Act as to control of a

permittee or licensee, it does not have authority to impose

sanctions for violating a supposed policy which does not

exist. It is contrary to fundamental principles of “due

process” to sanction a party for conduct in which he or she

had no notice was in violation of FCC policy. In Re Oliver,

333 U.S. 257, 273 (1948). See also, RKO General, Inc. v.

FCC, 670 F.2d 215, 223-224 (D.C. Cir. 1981), an agency

must give notice of its standards or policy and then apply

that policy only after the policy is proclaimed to de in effect.

Regardless of the requirement of prior FCC approval

for changes in directors of non-commercial entities,

abdication of control or unauthorized transfer of control of

a permittee or licensee is not disqualifying unless the

abdication or transfer is accompanied by deceit. Silver Star

6 FCC Rcd at 6907, para. 20. See also, Spanish

International Broadcasting, 2 FCC Red 3336, 3339, para. 20

(1987), unauthorized control was found which was not

disclosed to the FCC, but no intent to conceal was inferred.

Where there is an abdication of control or

unauthorized control, but which is not accompanied by

deceit, FCC policy only requires the imposition of a

-28-

monetary forfeiture. Angel F. Ginorio, 9 FCC Rcd 698,

699 (1994). As previously noted, the FCC made no findings

or conclusions of deceit by Ware, May-Barlow, or Bynum

(Jt. App. la-40a). Thus, there is no basis in law to

disqualify them for deceit as to abdication of control.

Accordingly, certiorari should be granted. The FCC

disqualified Ware, Wade, May-Barlow, and Bynum based

upon violation of a supposed FCC policy as to control of a

non-profit entity which does not exist. This issue was raised

before the D.C. Circuit, but not addressed by it.

CONCLUSIONS

WHEREFORE, in view of the foregoing, Ware,

Wade, May-Barlow, and Bynum request that the Court grant

certiorari and review the decisions of the FCC, and the

decisions on appeal of the U.S. Court of Appeals for the

D.C. Circuit, which improperly disqualified them as

permittees or licensees of the FCC. The actions of the FCC

are in conflict with fundamental principles of "due process”

and are in conflict with precedent of this Court.

If the FCC’s extralegal actions against Ware, Wade,

May-Barlow, and Bynum are condoned --- putting them into

an administrative hearing and disqualifying them with no

semblance of fairness or “due process" --- then no

broadcaster is safe from such regulatory abuse. Any

broadcast station and its principals, who are not in favor with

the FCC, for whatever reason, can be singled out with

impunity for harassment or driven out of broadcasting. This

is wholly contrary to the American system of justice.

May 17, 1996

Respectfully submitted,

By:

Stephen T. Yelverton, Esq.

Counsel of Record

Yelverton Law Firm, P.C.

1101 30th St., N.W., Suite 500

Washington, D.C. 20007

Tel. 202-625-4321