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URL 20: Czarra’s Maneuver 1—All About Don Hendon

URL 20: Czarra’s Maneuver 1—All About Don Hendon (In Chapter 32, page 155) (711 words) (cum 12,823 words)

1. The Review Board has before it a contingent motion to add an ex parte issue against Las Vegas Valley Broadcasting Company (Valley, the challenging group), filed March 6, 1973, by Western Communications Inc. (Western, or Donrey); a request for proceeding pursuant to Section 1.1251(a) to determine whether sanctions should be imposed on Valley for making, encouraging, or soliciting unauthorized ex parte presentations or failing to report such presentations, filed March 6, 1973,by Western; and a request to withdraw pleadings, filed April 2, 1973, by Western. (Footnote 1)

2. These pleadings are all related in that they arise from the conduct of Donald W. Hendon, a witness in the above-captioned proceeding. Western alleges that Hendon is an interested party within the meaning of the Commission’s Rules, that he communicated directly by letter with Commissioner Nicholas Johnson and attempted to speak personally with the Commissioner and other Commission decision-making personnel without proper service or notice upon Western or other parties to the proceedings as required by the Rules. Western contends that since Hendon has been in close communication with Valley and was called by Valley as its witness in this proceeding, should the Commission not grant its motion for a separate proceeding under Section 1.1251(a), an issue to determine whether Valley improperly solicited Hendon’s ex parte participation in this proceeding and the effect of this solicitation on Valley’s qualifications to be a Commission licensee should be added to the proceeding.

3. At a hearing session in this proceeding held in Las Vegas on March 15, 1973, Hendon appeared as a witness. After Hendon’s direct testimony and cross-examination, it was agreed by all parties to this proceeding, including the witness, that his testimony would be sealed, and not relied upon by any of the parties or the Presiding Judge for proposed findings and conclusions or the Initial Decision. (Footnote 2) Western thereupon filed its request to withdraw its contingent motion to add an ex parte issue. (Footnote 3) Since neither the proponent nor the other parties to this proceeding wish to pursue the contingent motion to add an ex parte issue, and since it does not appear that any useful purpose would be served by adding the issue, Western’s request to withdraw pleadings will be granted, and the motion will be dismissed.

4. Western’s request to institute a proceeding pursuant to Section 1.1251(a), which was informally referred to the Review Board, is based entirely upon the conduct of Hendon. It is conceded by all concerned that Hendon wrote the letters complained of. However, the matters alleged by Western do not raise questions concerning Valley’s involvement in Hendon’s conduct. The facts that Hendon, an interested citizen who had become concerned with operating practices of three of the Las Vegas television stations, including KORK-TV, would be called as a witness by Valley, that he may have discussed KORK-TV’s operation with counsel for Valley, or that he had a greater knowledge of the status of this proceeding than might normally be expected, do not justify the inference which Western would have us draw from those circumstances. Nor has Western submitted affidavits of persons with knowledge of the facts, or other evidence, which warrant addition of the requested issue. In the absence of such evidence, we must conclude that Western’s request for a Section 1.1251(a) proceeding is based wholly upon conjecture and surmise, and must therefore be denied.

5. Accordingly, it is ordered, that Valley’s motion for leave to file comments, filed April 17, 1973, is granted; that Western’s motion to withdraw pleadings, filed April2, 1973, is granted, its contingent motion to add an ex parte issue, filed March 6, 1973,is dismissed, and is request for proceeding pursuant to Section 1.1251(a), filed March 6, 1973, is denied.

Footnotes:

1. The Board also has before it a letter, dated March 29, 1973, from counsel for Valley concerning Western’s contingent motion to add ex parte issues; a motion for leave to file comments, and comments supporting Western’s request to withdraw pleadings, filed April 17, 1973, by Valley; and a reply to comments, filed April 18, 1973 by Western.

2. Memorandum, FCC 73M-453, released April 13, 1973.

3. The request to withdraw pleading was filed pursuant to oral agreement of the parties at the time the Judge sealed Hendon’s testimony.

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