Federal Communications Commission Record FCC 95D-06
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10 FCC Red No. 13 Federal Communications Commission Record FCC 95D-06 (1) To determine whether Nicholas B. Mangione Before the made material misrepresentations with respect to his Federal Communications Commission involvement in the management of WCBM and the Washington, D.C. 20554 proposed management of WCBM Maryland, Inc. (2) To determine from the evidence adduced pursu ant to Issue (1) above, whether WCBM Maryland, Inc. possesses the basic qualifications to be the li MM Docket No. 90-125 censee of the facilities sought herein. In re Applications of The MO&O placed the burden of going forward with the evidence under Issue (1) upon Mount Vernon Broadcasting BENNETT GILBERT File No. BR-88083OUA ("MVB") and the burden of proof under Issue (2) upon GAINES. INTERLOCUTORY Bennett Gilbert Gaines ("Gaines") and WCBM Maryland. RECEIVER FOR MAGIC 680, INC. 2. A prehearing conference was held on February 11, 1994. Hearing sessions on the remanded issues were held For Renewal of License for on August 1, 2 and 3, 1994. Station WCBM(AM), 3. By Memorandum Opinion and Order, FCC 94M-531, Baltimore, Maryland released September 19, 1994, the Presiding Judge added the following issues in response to MVB©s motion: BENNETT GILBERT File No. BAL-881117EB GAINES, INTERLOCUTORY (1) To determine whether Bennett Gilbert Gaines and/or WCBM Maryland, Inc. neglected their pro- RECEIVER FOR MAGIC 680, INC. grams(s) of equal employment opportunity or en (Assignor) gaged in a pattern of employment discrimination at WCBM from 1989 to the present; and (2) To determine whether WCBM Maryland, Inc. will, if its assignment application is granted, institute WCBM MARYLAND. INC. and carry out an effective program of affirmative (Assignee) action at radio station WCBM; (3) To determine whether WCBM Maryland. Inc. For Consent to the Assignment of engaged in improper ex pane communications in this License of Station WCBM(AM) proceeding; and Baltimore, Maryland (4) To determine, in light of the evidence adduced pursuant to the foregoing issues, whether Bennett MOUNT VERNON File No. BP-880901AD Gilbert Gaines and WCBM Maryland. Inc. are quali BROADCASTING fied to be licensees of the Commission. Baltimore, Maryland The burdens of proceeding and proof on these issues were For a Construction Permit placed upon WCBM Maryland (Id.). for a New AM Station on 680 kHz at 4. Hearing sessions on the issues added by the Presiding Judge were held on December 14, 15, and 16, 1994 and on Baltimore, Maryland January 10, 1995. At the conclusion of the January 10, 1995 hearing session, the record was closed (Tr. 3517). See Order, FCC 95M-18, released January 25, 1995. Appearances Kathryn R. Schmeltzer, Esq., Gregory L. Masters, Esq. and Martin R. Leader, Esq. on behalf of WCBM Maryland, FINDINGS OF FACT Inc.; Barry Wood, Esq. on behalf of Mount Vernon Broad casting; Gary P. Schonman, Esq. and Charles Dziedzic, Esq. Remand and Misrepresentation Issue on behalf of the Mass Media Bureau. 5. The issue was specified because of the apparent discrepancy between Nicholas B. Mangione, Sr.©s SUPPLEMENTAL INITIAL DECISION OF ("Mangione") deposition testimony taken on October 12, ADMINISTRATIVE LAW JUDGE JOHN M. FRYSIAK 1990, and the subsequent sworn testimony by two former employees. According to the Commission: Issued: June 13,1995; Released: June 20,1995 Mangione represented while under oath that he had spent between 30 and 60 hours a week ©physically© at the station. Deposition at 107. He further indicated PRELIMINARY STATEMENT that he was spending time at WCBM because he likes 1. This proceeding is on remand following the Commis ©to be around the people out there, so [he] . can sion©s release of its Memorandum Opinion and Order learn the business . .© Deposition at 66. ("MO&O"), 9 FCC Red 533 (1994), in which it remanded the proceeding on its own motion on the following issues: 6589 FCC 9SD-06 Federal Communications Commission Record 10 FCC Red No. 13 Remand Order, 9 FCC 534. By comparison, the Commis 9. Thomas P. Nowicki. Ill (a/k/a Scan Casey) sion observed: ("Nowicki") is currently employed at WCBM(AM). He began working at the station in November 1988. Between Myron Laufer, a former employee of WCBM. tes November 1988 and October 1990, the relevant period in tified that during his 11 month tenure as General question, Nowicki worked normal business hours, Monday Manager of WCBM he saw Mangione fewer than 10 through Friday. He also occasionally worked some week times, that Mangione attended only one meeting at ends (WCBM Phase II Ex. 3, pp. 1-2). Nowicki frequently the station, that for one period he did not see saw Mangione or Mangione©s car at the radio station be Mangione for 2 or 3 months, and that Mangione did tween November 1988 and October 1990 (WCBM Phase II not average 30 hours per week at WCBM during the Ex. 3, p. 1; Tr. 2692). Sometimes Mangione would discuss period that Laufer was General Manager. Mount Ver- station-related matters with Nowicki. At other times, non Rebuttal Exh. 1 at p. 4. Bernard McCain, an Mangione would simply pop his head in Nowicki©s studio other former employee, testified that, although he for a moment (Tr. 2692, 2698). According to Nowicki, worked at WCBM from October 1988 to March Mangione attended station meetings every calendar quarter 1990, he never saw Mangione at the station more (Tr. 2703). than once a week and that there were longer periods 10. Frank Luber ("Luber") also is currently employed at than a week when he never saw Mangione at the WCBM(AM). Luber started working at the radio station in station. Mount Vernon Rebuttal Exh. 2 at p. 3. October 1988 and October 1990, Luber recalls seeing Mangione at WCBM(AM) on many occasions. Luber fre Remand Order, 9 FCC Red 534. The Commission deter quently met with Mangione to discuss station-related busi mined that, because Mangione had not been afforded an ness during the relevant time period (WCBM Phase II Ex. opportunity to explain or otherwise address the apparent 7, pp. 1-2; Tr. 2710-2711). When he was in Florida, discrepancy, a further evidentiary hearing was necessary. Mangione spoke on occasion with Luber by telephone about station matters (Tr. 2713). Although Mangione was 6. According to his testimony at the remand hearing, at WCBM(AM) more often during the station©s start-up Mangione sometimes spent between 30 and 60 hours a period, he often worked on station-related business by tele week on average physically at the station between October phone during the latter part of the relevant time period. 1988 and November 1990 (Tr. 2588). Mangione explained There was never a lengthy period when Mangione was not that when he first began working at WCBM(AM) he spent at the station (Tr. 2721). a lot of time at the station learning all facets of the radio broadcasting business. The amount of time that Mangione 11. Between October 1988 and October 1990, Joe physically spent at the station gradually diminished as he Armacost ("Armacost") worked as a producer at came to feel that he had things at WCBM(AM) under WCBM(AM). Although his regular shift was 5:00 a.m. to control (Tr. 2588). 11:00 a.m., Armacost often remained at the station until approximately noon or 1:00 p.m. Armacost believes 7. that During the first four or five months that he was during the relevant period. Mangione spent a considerable running WCBM(AM), Mangione worked at the station be amount of time at WCBM(AM). although Mangione©s time tween 30 and 60 hours a week (Tr. 2596). Thereafter. at the station varied from day-to-day (WCBM Phase II Ex. Mangione concedes, he was not always physically at 5, p. 1). Armacost is unable to categorically state that he WCBM(AM) when he worked on station-related matter saw Mangione at WCBM(AM) during the relevant period (Tr. 2642). Between 1988 and 1990. most of the meetings between 30 and 60 hours per week (Tr. 2758-2759). that Mangione attended concerning WCBM(AM) were con ducted at the station. However, some meetings concerning 12. Gary St. Our ("St. Our") has been employed at WCBM(AM) were conducted away from the radio station WCBM since October 1988. During the period from Octo (Tr. 2612-1613). Mangione is unable to locate any of his ber 1988 through October 1990, St. Our worked the 10:00 calendars in which he referenced his appointments and a.m. to 6:00 p.m. shift, although from 3:00 p.m. to 6:00 meetings between 1988 and 1990 (Tr. 2607, 2615). p.m. each day he was in a studio where he was unable to Mangione believes the calendars were destroyed in 1993 or observe persons elsewhere at the radio station (WCBM 1994 yafter the conclusion of a tax audit (Tr. 2617). Phase II Ex. 6, p. 1; Tr. 2770). According to St. Our, Mangione also worked on station-related business while Mangione was physically at the station virtually every day, vacationing in Florida during periods in 1988, 1989, and in excess of 30 hours per week, during the first few months 1990 (Tr. 2664-2672). of the relevant time period. Beyond the first few months, St. Our believes Mangione visited the station less frequent 8. Mangione was asked twice at his deposition about the ly, perhaps several times per week (Tr. 2771-2772, 2774). extent of his work on behalf of WCBM(AM). Mangione was asked initially how many hours per week he spent on 13. Thomas © A. Marr ("Marr") has worked at station affairs, to which he responded "sometimes 40, WCBM(AM) since October 1988.