WPC 2?BJZECourier3|f#Xw P7cXP#HP LaserJet IIISi PostScript Rm 610HPLAIIPO.PRSx  @hhhhHJwX@ X-#Xw P7cXP#2)qLXCourierTimes Roman"S^2CRddCCCdq2C28dddddddddd88qqqYzoCNzoozzC8C^dCYdYdYCdd88d8ddddCN8ddddY`(`lC2CC!CCCCCCCCCCd8YYYYYYzYzYzYzYC8C8C8C8ddddddddddYdddddodYYYYYYdzYzYzYzYdddddddCdCdCCCdNCdz8zCzCzCz8dddddCCCoNoNoNoNzCzCzCdddddzYzYNF2[dCYddddd7>d<d<$YYdCCddooCYd<d<$YYdCCddooCY%7777777777>>>1eOIIOC=OO%+OCbOO=OI=COOhOOC%%47%17171%777V7777%+77O77155<%%%n%%%%%%%%%%7O1O1O1O1O1bII1C1C1C1C1%%%%O7O7O7O7O7O7O7O7O7O7O1O7O7O7O7O7=7O1O1I1I1I1I1O7C1C1C1C1O7O7O7O7O7O7O7%7%7%%%7+%O7CC%C%C%CO7O7O7O7O7bOI%I%I%=+=+=+=+C%C%C%O7O7O7O7hOO7C1C1N'27%177777"SS7!TT7S!117n%%77l==n%1n!t>><<>>mBBs,>[N6-msTN[TTTH_<1CPthe folded unipole antenna were installed and on May 8, Chameleon began operation from the Harris County site. 12 FCC Rcd at 1935657  2022.   x13. Within a month, the Division discovered its errors. On May 18, it rescinded the STA because  xit discovered that Chameleon could not provide city grade coverage of Bay City, as required by 47 C.F.R.  x[ 73.24(i), from the Harris County site. In the July 25 letter of inquiry discussed above, the Division, in  xLaddition to inquiring about the claimed "loss" of the Bay City site, also asked Chameleon whether it was responsible for construction of a tower at the Harris County site. 12 FCC Rcd at 19357  2324.   x14. The ALJ found that, in its August 4, 1995 response to the Bureau's inquiry, Chameleon  xLfalsely claimed that McClish, not Werlinger, had taken the initiative in building the tower. The response  xlindicated that McClish approached Werlinger and sought permission to build a tower on land that  xChameleon had leased. Chameleon also claimed that the tower had been built at McClish's expense and  xthat no funds had passed between Chameleon and McClish. 12 FCC Rcd at 19357  25. The ALJ  xOconcluded that this response was lacking in candor. Werlinger admitted at hearing that he was  x"instrumental" in making arrangements with McClish for construction of the tower. He also admitted that  xhe had approached McClish after Vu told him that the STA would not be granted if new construction was  xinvolved. He also admitted that $5000 of the money used by McClish to construct the tower was money  xthat Werlinger had previously paid to McClish for other purposes and that after the work was finished,  S-Werlinger paid McClish for and owns the tower. Id. at 1935758  2627.   x15. Based on these findings, the ALJ concluded that Chameleon had engaged in a pattern of  xoutright falsehoods, evasiveness, and deception, which rendered it unqualified to be a Commission  xlicensee. He concluded that Chameleon had falsely claimed in its STA request that the STA was  xnecessary due to "loss" of the Bay City site. He further concluded that Chameleon had compounded this  xfalse claim with deceptive and evasive responses in written submissions to the Commission and in hearing  xztestimony. Ultimately, the facts established that Chameleon had not "lost" the Bay City site but had  xvoluntarily abandoned it. Similarly, the ALJ concluded that Chameleon acted deceptively after Werlinger  xlearned that the Division would not grant an STA because it proposed new construction. The ALJ  xconcluded that Werlinger concocted a scheme of constructing a tower and falsely claiming that it was an  xexisting tower. In the ALJ's view, Chameleon compounded this conduct with false and candorless  x1statements in response to the Division's inquiry and by being unwilling at the hearing to take responsibility for its deceptive conduct. 12 FCC Rcd at 1935861  2938.   x16. Now before the Commission are the Exceptions and Brief of Chameleon Radio Corporation, filed November 4, 1997, and the Mass Media Bureau's Reply to Exceptions, filed November 19, 1997.  S - III. DISCUSSION ă   x17. In its exceptions, Chameleon raises two principal points. First, Chameleon faults the ALJ for  xrejecting evidence concerning the merit of its programming. Chameleon contends that its international,  xethnic, and religious programming has provided a unique public service to the Houston community.  xjSecond, Chameleon disputes the ALJ's conclusion that Chameleon cannot be trusted. Chameleon asserts  xthat a "complete review" of its Proposed Findings of Fact and Conclusions of Law establishes that  xkWerlinger acted in good faith, providing "ample and open" responses to the Commission. Chameleon  xymaintains that, at most, it should pay a $50,000 forfeiture. The Mass Media Bureau supports the Initial Decision. "=',l(l(,,+"Ԍ  "ԙx18. Chameleon's assertions regarding its programming may be disposed of quickly, since the  xALJ's rejection of this evidence is clearly consistent with Commission policy. The Commission has a  x.longstanding policy that meritorious programming does not mitigate serious deliberate misconduct such  Sg- xas misrepresentation. See, e.g., KQED, Inc., 5 FCC Rcd 1784, 1785  6 (1990), and cases cited therein.  xSimilarly, Werlinger's purportedly "long and unblemished" record before the Commission does not  S- xmitigate the serious misconduct found in this case. See KOZN FM Stereo 99, Ltd., 59 RR 2d 628, 629  x 6 (1986). We are also not convinced to alter the outcome by Chameleon's assertion that "Chameleon's  xactions beginning in April, 1995 were all aimed at preserving this unique and singular programming  xservice within the community." Exceptions at 4  11. We reject any suggestion that the "ends justifies  xthe means" in this regard. As the many cases cited by the ALJ (12 FCC Rcd at 19361  37) thoroughly explain, honesty and trustworthiness are fundamental obligations of Commission licensees.   x19. Turning to the question of Chameleon's conduct, Chameleon's exceptions contain several  xzgeneralized assertions without specific reference to the evidentiary record or the ALJ's initial decision (Exceptions at 4  1213, 7  20):  S - ` XxX` ` . . . Chameleon demonstrated throughout the process while (sic) it  ` Uaggressively held [its] line on matters before the Commission and spared  ` 7no effort to present its case to the Commission staff. Bad actors do not  ` present themselves in person not once, but five times before Commission  `  staff to plead their case and ask for help. And in all but the final ruling, the STA in question was reinstated and continued.x` B* * * *  ` uXxX` ` With two notable exceptions . . . every Commission staff member  ` Gcontacted by Chameleon during the course of the now two and a half years since the STA was granted has worked to settle the case.x` C* * * *  ` XxX` ` . . . a complete review of both Chameleon's Findings of Fact and  ` fConclusions of Law and Reply Comments provides a view of the  ` situation regarding the KFCC STA much different from that presented by  ` vthe Commission staff. Mr. Werlinger was both aggressive and  ` challenging in his response [to Commission staff members]. However,  ` rather than attempting to conceal and mislead, Mr. Werlinger provided ample and open responses to the staff throughout the process.x` These exceptions do not conform to 47 C.F.R.  1.277(a), which provides that:  ` XxX` ` The consolidated supporting brief and exceptions to the initial decision  ` . . ., including rulings upon motions or objections, shall point out with  ` )particularity alleged material errors in the decision or ruling and shall  ` contain specific references to the page or pages of the transcript of  ` Vhearing, exhibit or order if any on which the exception is based. Any objection not saved by exception filed pursuant to this section is waived.x`  xMoreover, the rule does not permit citation to or incorporation by reference of earlier filed pleadings, such"p&,l(l(,,0*"  S- xas proposed findings and conclusions, as an alternative to specific references in the exceptions.WX! yOh-ԍ Nevertheless, we have examined Chameleon's proposed findings of fact and conclusions of law and its reply to the extent that Chameleon relies on specific portions of these documents in its exceptions. We find that these references provide no reason to materially alter our analysis of the exceptions.W See  S- xUnited Broadcasting Co., 93 FCC 2d 482, 505 n.97 (1983). Thus, the generalized, unsupported  xcontentions above provide no basis to question the ALJ's findings and conclusions, which contain a  x?thorough analysis of Chameleon's conduct amply supported by record evidence and Commission precedent.   x20. Similarly, Chameleon asserts generally, with reference only to its proposed findings and  xconclusions, that the STA here was treated differently from the one granted to KVCI(AM). The ALJ,  xhowever, amply distinguished the two matters. 12 FCC Rcd at 19354  15, n.9. Moreover, Chameleon's  xexceptions do not explain how the alleged inconsistencies negate the egregious misconduct found by the ALJ.   x21. Chameleon's exceptions do not specifically address the ALJ's findings and conclusions with  xregard to Chameleon's claims that it had "lost" the Bay City site. That misconduct is disqualifying by  x[itself. By failing to file exceptions on this point, under 47 C.F.R.  1.277(a), it has waived any objection to the ALJ's conclusion that Chameleon made misrepresentations and lacked candor in this regard.   ?x22. Chameleon's exceptions address the matter of its proposed tower in somewhat greater detail,  xalthough again without any specific reference either to the evidentiary record or the ALJ's initial decision.  x[Chameleon alleges that Vu erred in his interpretation of Commission policy regarding the construction of  S- x[new towers.! yO-ԍ Chameleon also criticizes a second staff member, but includes no specific allegations in its exceptions. Whether or not Vu's understanding of Commission policy was correct, however, does not  x=justify Werlinger's course of conduct. As the ALJ found, Werlinger clearly understood from Vu that the  x/STA would not be granted if construction of a new tower was required. Werlinger, however, did not  x.discuss his disagreement with Vu with any other member of the Division's staff or with any other office  xwithin the Commission. Instead, after failing to convince Vu that the requested STA should be granted,  xWerlinger decided to "work around" this policy and build a new tower at the Harris County site, falsely  xclaiming it was an existing tower. 12 FCC Rcd at 1935556  18. Misrepresentation and lack of candor  S- x=cannot be justified as the only avenues by which to express disagreement with the staff. See Exceptions at 5  16. As noted above, honesty and reliability are fundamental obligations of a licensee.   x23. Similarly, Chameleon's exceptions claim that Werlinger's actions were only a good faith  x>attempt to conform to Vu's mistaken policy. Chameleon contends that the tower's construction was  S- xcomplete "before its use was presented to Mr. Vu"Xx! yO -ԍ Chameleon is apparently referring to the fact that the tower was constructed after Werlinger spoke to Vu but before Chameleon filed the May 2, 1995 amendment to its STA request referring for the first time to an "existing" tower. and that "No use of the tower was made for broadcast  xuse and no construction of the folded unipole antenna was attempted prior to the grant of the original STA  xjon May 5, 1995." The ALJ, however, concluded that Werlinger's actions were motivated by an intent to  x=conceal material facts from the Commission because he knew that the Commission would deny the STA  xLif the facts were known. 12 FCC Rcd at 1935960 at  33. Chameleon provides no basis to overturn this conclusion, which is based on detailed findings supported by record evidence. "n,l(l(,,!"Ԍ S-w IV. ORDERING CLAUSES ă   ^x24. ACCORDINGLY, IT IS ORDERED, That the Exceptions and Brief of Chameleon Radio  xCorporation, filed November 4, 1997, ARE DENIED and the Initial Decision of Administrative Law Judge Joseph Chachkin, FCC 97D11 (Sept. 18, 1997), 12 FCC Rcd 19348 (1997) IS AFFIRMED.   x25. IT IS FURTHER ORDERED, That pursuant to 47 U.S.C.  312, the license of Chameleon  xRadio Corporation to operate station KFCC(AM), Bay City, Texas, IS REVOKED; and that Chameleon  xRadio Corporation IS AUTHORIZED to continue to operate station KFCC(AM) until 12:01 a.m. June 4,  x1998 to enable the licensee to conclude station affairs, PROVIDED, HOWEVER, that if the licensee seeks  x>reconsideration or judicial review of our action revoking its license, it is authorized to operate station KFCC(AM) until final disposition of all administrative and/or judicial appeals. x25. IT IS FURTHER ORDERED, That this proceeding IS TERMINATED. x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Magalie Roman Salas x` `  hh@Secretary