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For Renewal of License of Station WEBY, Milton, Fla.


Docket No. 17613 File No. BR-2983




34 F.C.C.2d 1036




May 24, 1972 Released


 Adopted May 10, 1972




Donald E. Bilger and Michael L. Glaser (Bilger, Blair and Glaser) for Clayton Mapoles, tr/as Milton Broadcasting Company; Thomas B. Fitzpatrick and John F. Reilly for the Chief, Broadcast Bureau.




 [*1036]  1.  This proceeding involves the application of Clayton W. Mapoles tr/as Milton Broadcasting Company for renewal of the license for standard broadcast station WEBY, Milton, Florida.  It was initiated as the result of a complaint filed by John C. Boles, then a candidate for public office, charging that on the morning of April 22, 1966, an editorial attacking him was broadcast over station WEBY, and that the licensee failed to accord him broadcast time in which to respond.  Investigation of the complaint produced divergent accounts of what had occurred.  In a letter dated August 15, 1966, Mapoles responded to a Commission inquiry as follows (Bureau Exhibit No. 6):

I am enclosing copy of editorial that was broadcast April 22, 1966 at 6:45 AM.

As stated before, copy of this editorial and offer of equal time was made to Mr.  John Boles April 27, 1966.  You will note that equal time was offered free.  The editorial was one minute in length and we offered him the same time.  We also offered him additional time to be paid for at our regular commercial rate.

2.  Mapoles' enclosures included a copy of the letter he claimed was sent to Boles on April 27, 1966, and the purported editorial typed on WEBY's continuity form.  The enclosed letter stated:

April 27, 1966.

Mr. JOHN C. BOLES, Bagdad, Florida

DEAR MR. BOLES: In reply to your request for equal time on Radio Station WEBY, we will be glad to offer you time on April 29th or any other date that is convenient for you.

 [*1037]  Enclosed is copy of editorial that you requested.  There will be no charge to you for this reply.  However, we request that you limit your reply to one minute.

With best regards, I am





P.S. -- Enclosed is one of our rate cards and we will be glad to sell you any additional time that you desire.

The editorial copy included in Mapoles' response to the Commission reads: n1

n1 Except for the date, the portion above the line is part of the printed form.  There is also a marginal line to the left of the typed material with each space numbered from 1 to 20.


Continuity program:

WEBY sponsor:

Date: April 22, 1966

Copy by:

Time schedule:

Time given:


This is an editorial: The first senatorial district composed of Escambia and Santa Rosa Counties has four candidates seeking the post.  Two are from Santa Rosa County and two from Escambia.  First, we would like to point out that these two counties have two senators.  Already Escambia has one of the senators.  It is only fair that Santa Rosa County be given the opportunity to furnish the other.  This radio station is supporting former sheriff and State Representative, John Broxson.  In our opinion he is the only Santa Rosa candidate that can keep the senatorship in this county.  The other candidate from Santa Rosa County is John Boles of Bagdad.  As far as we know, Mr. Boles is a good man but is short on experience.  Furthermore, [sic] we don't believe he has any chance of making the second primary.  It has been rumored that Boles entered the campaign at the last minute to split the vote forcing Broxson into a second primary.  We predict that Boles will be eliminated in the first primary and then try to swing his few votes to the Escambia County candidate, Mr. M. B. Hopkins.  We do not believe that Boles' endorsement of Hopkins will change the election and that John Broxson will be the winner by several thousand votes.  This has been an editorial.

3.  Copies of this material were sent by the Commission to Boles who took issue with Mapoles' response.  He denied that he had been offered reply time and he charged that the copy of the editorial sent the Commission was not a copy of the editorial which had been broadcast.  According to Boles, he had taken notes of the broadcast and the following is the editorial which was broadcast (Broadcast Bureau Exhibit No. 18):

This morning we have received a letter that we would like to read to you concerning one of the Candidates for the newly reapportioned seat of the Florida Senate, quote --

The Voters of Santa Rosa and Escambia Counties are being asked to vote for John Boles.  Most people in this county know Mr. Boles by reputation, and because of this will not support him.  He has built his reputation over the years, and the people know him for what he is. is no good.  He is the black-sheep of his family.  His own mother would not vote for him.

The letter goes on: Mr. Boles has been in trouble all his life.  Fighting with his family.  Fighting with his own brothers.  Causing trouble wherever he goes.  His family and his brothers know him for what he is, a good for nothing, ne'er-do-well, a troublemaker.

Boles cannot change.  He will always be the wayward boy.  This is not the type of person that should represent us in Tallahassee.  He can only bring trouble and deceit to all the people as he has to his own family.

That is the letter.  It states the case -- the wayward boy trying to get the good citizens of this County to support him, when his family and his brothers will not support him.  But, yes, we would say that a forgiving mother would support her wayward son.

 [*1038]  4.  Since the two versions of what was broadcast and had occurred could not be reconciled, the renewal application was designated for hearing on the following issues:

(1) To determine the facts and circumstances surrounding the broadcast of editorial or other comments concerning John C. Boles over Station WEBY on April 22, 1966;

(2) To determine whether in written statements to the Commission the applicant or its agents, employees or representatives misrepresented facts to the Commission and/or lacked candor;

(3) To determine whether during April, 1966 the applicant complied with the fairness doctrine (a) by furnishing to persons attacked transcripts, recordings or summaries of personal attacks broadcast during presentation of views on controversial issues of public importance, together with offers of reasonable opportunity to respond over the applicant's facilities, and (b) by furnishing to candidates opposed in editorials broadcast by the station, transcripts, recordings or summaries of such editorials together with offers of reasonable opportunity for the candidates or their spokesmen to respond over the applicant's facilities;

(4) To determine whether the licensee operated its station in violation of the provisions of Section 73.112(a)(1)(iii);

(5) To determine whether in light of the evidence adduced under the foregoing issues, the applicant has the necessary qualifications to continue to be the licensee of Station WEBY;

(6) To determine whether in light of all the evidence a grant of the application for renewal of the license of Station WEBY would serve the public interest, convenience, and necessity.  (FCC 67-856, released August 1, 1967).

The burden of proceeding with the initial introduction of evidence with respect to Issues 1 through 4 was placed on the Bureau.

5.  Subsequent to the issuance of the designation order, on November 21, 1967, Mapoles filed a Petition for Extraordinary Relief in which he sought termination of the instant proceeding and authority to convey station WEBY to his wife.  In the petition Mapoles alleged that he was ill; that he was unable to participate actively in the operation of his radio station; and that he was unable to assist his counsel in the preparation for, or participation in, a hearing.  On January 25, 1968, Mapoles filed another Petition for Extraordinary and Other Relief, citing the same physical infirmities but this time seeking authority to convey station WEBY to Lawrence Hankins Locklin.  The Broadcast Bureau opposed the petition, contending that a serious question exists concerning the accuracy of Mapoles' representations about his health.  In an order released April 15, 1968, the Commission dismissed the first petition as moot, denied the second petition, and with respect to Mapoles' representations concerning his health stated as follows: (12 FCC 2d 354 at 357, fn. 3 (1968)).


We deem it unnecessary at this time to comment upon the conflicting statements concerning Mapoles' health and activities which are contained in the pleadings before us.  Evidence concerning the accuracy of the assertions about Clayton Mapoles' health may be adduced and resolved at the hearing pursuant to Issue 2...

 [*1039]  6.  Prehearing conferences were held September 27, 1967 through October 4, 1968.  Hearing s were held for five days in Pensacola, Florida, and four days in Washington, and the record was closed on June 12, 1969.  A conference between the parties was held on September 24, 1969.  The record was reopened on September 25 at the request of the Broadcast Bureau for consideration of newly discovered evidence.  Further hearings were held in Pensacola on November 13, 1969, and in Washington on November 25, 1969, when the record was finally closed.

7.  In an Initial Decision released July 1, 1970, Hearing Examiner Herbert Sharfman, on the basis of a stipulation of the parties, resolved Issue 4 against Mapoles and held that WEBY had failed to note on the program logs that editorials were broadcast during the 6:45 a.m. programs on April 22, 23, 25-27, and 29, 1966, but were logged merely as "News" (I.D. par. 90).  n2 In addition to the logging violation, the Examiner found that Mapoles had committed one misrepresentation -- a statement to the Commission in a letter dated July 5, 1966, that "Mr. Boles never replied to our offer or made a visit to our studios." n3 The Examiner otherwise absolved Mapoles of the charges relating to his obligations under the fairness doctrine and his lack of candor to the Commission.  The Examiner concluded that in light of the single misrepresentation and the logging violations that a short term renewal (1 year) of the license for WEBY would be appropriate. 

n2 The parties stipulated as follows with respect to Issue 4: "It is stipulated that Ben Henry Pooley broadcast editorials over Radio Station WEBY during the 6:45 a.m. news program on April 22, 23, 25, 26, 27, and 29, 1966, contrary to the provisions of Section 73.112(a)(1)(iii) of the Commission's Rules; no entries were made on WEBY's program logs for the above days indicating that editorials were broadcast during those news programs.  The programs in question were logged as 'News.'"

n3 In this letter Mapoles stated in part that:

"On or about April 24th, we received a letter from Mr. John C. Boles requesting equal time on radio WEBY.  On April 27th, we wrote Mr. Boles, offering equal time on any issue that he wished to discuss.  We also sent Mr. Boles one of our rate cards and invited him to use WEBY during his unsuccessful candidacy for state senator.

"Mr. Boles never replied to our offer or made a visit to our studios...

It is now undisputed that Boles appeared at the station on the morning of April 29, 1966 and requested an opportunity to broadcast his response.

8.  Mapoles filed limited exceptions, n4 generally supporting the Examiner's findings and his conclusion that the record does not warrant a denial of WEBY's renewal application.  Asserting, however, that the record does not establish that the sole misrepresentation found by the Examiner was willful, Mapoles contends that his application should be renewed for a full three (3) year term. 

n4 The exceptions and a brief in support thereof were filed on September 8, 1970.  The Broadcast Bureau filed exceptions and a supporting brief on the same date.  A reply to the Bureau's exceptions and brief was filed by Mapoles on October 9, 1970.

9.  The Broadcast Bureau asserts that the Examiner erred in failing to conclude that Mapoles knowingly and deliberately made gross misrepresentations concerning the content of the April 22, 1966, editorial, and his offer of rebuttal time.  It further argues that Mapoles' representations concerning his health were lacking in candor and were intended to mislead the Commission.  The Bureau also contends that the Examiner committee two serious errors of law: (1) in his interpretation and application of the burden of proof in a renewal proceeding; and (2) in absolving Mapoles of responsibility for violation of the fairness doctrine and the related personal attack doctrine on the ground that Boles was an "agent provocateur" who provoked the  [*1040]  editorial and therefore was not in need of or entitled to protection.  In light of these alleged errors the Bureau requests that the Examiner be reversed and that the renewal application be denied.

10.  First we shall consider the questions raised concerning Mapoles' health and whether, in pleadings filed with the Commission, Mapoles was guilty of a lack of candor, the willful concealment of material facts and/or affirmative misrepresentations.  The Initial Decision contains a detailed account of the evidence adduced on the subject of Mapoles' physical condition (I.D. pars. 51-78), and on the basis thereof, the Examiner concluded that Mapoles was "far from a well man" (I.D. par. 99) and that he was guilty of no significant misconduct in connection with his representations to the Commission on matters pertaining to his health (I.D. pars. 100-101).  The evidence is conflicting but the record does contain support for findings that during the period in question Mapoles had diabetes and certain other ailments, that he was under the care of physicians from time to time, and that his activities had been curtailed to some extent.  Unquestionably, Mapoles is not in good health.  Nevertheless, we find that Mapoles' affidavit dated April 18, 1968, attached to his May 7, 1968, petition for reconsideration, to the effect that "during the past three years he has been confined to his home and to bed rest during the major portion of the time, almost all day every day" was an exaggeration.  Although in November, 1967 Dr. Fred M. West advised Mapoles to retire, he did not advise that he should confine himself to his bed or to his home (I.D. pars. 52, 55).  Dr. Rufus Thames testified that Mapoles' diabetes could be controlled by oral medication and diet and he did not thing that Mapoles should "withdraw completely from business life" (I.D. par. 60).  Other witnesses testified to activities by Mapoles which are inconsistent with the degree of physical incapacity claimed by the licensee.  The exaggeration indicated herein is not to be condoned.  Nevertheless, in view of the general state of his health we do not consider this particular statement, in and of itself, as a factor which should be accorded significant weight in resolving the question of the licensee's character qualifications.  However, Mapoles' failure to include certain documentary evidence bearing on his health in pleadings filed with the Commission is a far more serious matter.

11.  To substantiate the allegations concerning his poor physical condition in his petitions filed on November 21, 1967, and January 25, 1968, for special relief from the hearing required by our designation order, Mapoles submitted to the Commission portions of a medical report from the Duke University Medical Center.  The complete report consisted of a 4 page statement but only pages 3 and 4 of the report were attached to the pleadings.  Present counsel assumes responsibility for the failure to include the first two pages since they were contained in the office files of the law firm then representing Mapoles and he had access to them.  At that time Mapoles was represented by the law firm of Smith, Pepper, Shack & L'Heureux, and Vincent Pepper of that firm was in operational charge of the case.  However, present counsel Donald E. Bilger was then also associated with the firm and he was responsible for the preparation of the pleadings in question and signed the pleadings.  Copies of the same pages of the report were introduced into evidence at the hearing as Mapoles Exhibit No. 9, but as of July 12,  [*1041]  1968, the firm of Bilger and Glaser represented Mapoles.  Mr. Bilger continued as the attorney handling the matter.  After the close of the record, Commission counsel noticed that two pages were missing and he obtained a complete copy of the Duck University medical report from one of Mapoles' doctors.  It was then discovered that in addition to the two missing pages, a forwarding letter from Dr. MacDonald Dick had been omitted.  The record was reopened and the missing pages of the report and the forwarding letter from Dr. Dick were introduced into evidence (Bureau Exhibit Nos. 34-36).

12.  The missing pages of the report dated September 7, 1965, contained a summary of Mapoles' medical history as given by him to Dr. Dick and included such notations as "in point of fact, he 'feels fine' having spent the night in Durham with a good sleep" and that he "considers self healthy"; although the report also mentioned that Mapoles "has slept poorly for 3 years." Mr. Bilger's only explanation for not including these two pages is that he "gave the secretary the enclosures, one of which was the Duke University Report --, instructed her to proof read it and paginate it -- and did not catch the pagination" (Tr. 876; I.D. par. 72).  Such a casual attitude with respect to the accuracy and completeness of vital parts of a document submitted in support of a crucial statement in a pleading hardly comes up to the exacting standards which we expect a practitioner before the Commission to meet.  It is incumbent upon the attorney to personally check the pleadings and all attachments so that his signature constitutes the "certificate by him that he has read the document" as provided by Section 1.52 of the Rules, and we demand full compliance therewith.  Neither are we satisfied with Mapoles' excuse that he returned the pleadings to his counsel without reexamining the Duke medical report for completeness.  Counsel's error and his assumption of blame for the incomplete report do not relieve the licensee of his duty to provide complete and accurate information to the Commission, and he cannot escape responsibility for any deficiencies or inaccuracies in the pleadings submitted on this ground.  Cf.  Lorain Community Broadcasting Co., et al., 18 FCC 2d 686, 688 (1969); See also Asheboro Broadcasting Company, 20 FCC 2d 1, 3 (1969). Although not accorded substantial weight, the omission of the two pages must be taken into account in the resolution of the issues before us where, as here, the omitted pages have a material bearing on the representations advanced in the pleadings.

13.  Of greater concern to us, however, is the failure to submit to the Commission the forwarding letter from Dr. Dick; and here Mapoles does not obtain the benefit of even a partial insulation against blame by an attorney's admission of oversight.  Present counsel does not have and did not recall seeing a copy of the letter but suggested only that it might have been sent by Mapoles to prior counsel and was lost.  However, at the hearing Mr. Pepper testified that the letter is not contained in that portion of the file relating to WEBY which is still in the possession of his law firm, that he has never seen such a letter, and that he was not aware of its existence during the period that his firm represented Mapoles (Tr. 883-884).  Dr. Dick's letter dated September 15, 1965, contains the following relevant and material information:

...  [*1042]  As I said before, I think that your general condition is good, that you will do well but I do not approve of the regime you follow and I don't believe you do either.  When you change that, I think that things are going to go much better and I see no reason why diabetes is going to be a great problem with you except in the matter of self-discipline (e.g. regular play as well as work) which is always difficult.

14.  We view with no little concern Mr. Bilger's statement at the hearing (Tr. 878) that even if he had seen the Dr. Dick letter he would not have filed it because he does not deem it to be relevant.  If the record established that Mr. Bilger knowingly withheld such pertinent information from the Commission, we believe that counsel would be subject to censure, if not more drastic action.  However, we are not faced with that problem since we are satisfied on the basis of Mr. Pepper's testimony that Mapoles did not turn the Dr. Dick letter over to his attorneys.  In light of the surrounding circumstances, Mapoles' failure to bring the contents of that letter to the attention of the Commission must be considered as a significant factor in determining whether he possesses the character qualifications necessary to continue as a Commission licensee.

15.  The medical data attached to the aforementioned pleadings was submitted in support of Mapoles' contention that "his illness may become terminal" if required to prepare for and attend a renewal hearing.  Like evidence was introduced at the hearing to give credence to Pooley's statement that he executed an affidavit on September 30, 1966, setting forth erroneous information with respect to the contents of the April 22 editorial because of his concern for Mapoles' health.  n5 Thus there was a strong motive for Mapoles to withhold from the Commission the Dr. Dick letter which characterized his "general condition" as "good".  The Examiner recognized the existence of this motive but hesitated "to deduce from the existence of a motive that fact of concealment of the letter" and he concluded that "from the entire record it has not been established that Mapoles knowingly failed to disclose the Dick letter" (I.D. par. 101).  We do not share the Examiner's hesitation to draw inferences adverse to Mapoles on the basis of his conduct as reflected in this record.  As a broadcast licensee, Mapoles had an affirmative duty to bring to the Commission's attention all of the evidence in his possession which had a reasonable bearing on the disposition of his request for relief.  By failing to produce the forwarding letter of Dr. Dick for examination by the Commission, Mapoles demonstrated, at the least, an unpardonable lack of candor and a gross disregard of his responsibilities as a broadcast licensee, which must be accorded decisional significance in our disposition of this case. 

n5 In this affidavit, Pooley stated that the editorial submitted by Mapoles to the Commission was the one which was broadcast on April 22, 1966.  It is conceded that the affidavit was false.

16.  With regard to the Bureau's contentions that the Examiner committed substantial errors of law, we shall consider first its arguments concerning the burden of proof.  In D & E Broadcasting Co., 1 FCC 2d 78 (1965), the Commission held that "as a matter of fairness" the Bureau should make the initial presentation where issues  [*1043]  involving serious misconduct are included in a designation order "for the limited purpose of delineating the facts in issue and of informing the applicant of the precise factual questions it will be required to resolve." Consistent with the policy thus enunciated, the designation order directed the Bureau to proceed with the initial introduction of evidence as to Issues 1 through 4, but nothing therein contained affected the overall burden imposed upon the renewal applicant by Section 309(e) of the Communications Act to establish that a grant of his application will serve the public interest.  In fact, the Commission has consistently held that even where the burden of making the initial presentation in a renewal hearing is placed upon the Bureau or an intervenor, "the applicant has the ultimate burden of establishing that it possesses the requisite qualifications to be a licensee and that the public interest would be served by a grant of its renewal application," Kaye Broadcasters, Inc., 26 FCC 2d 459, 462 (1970).

17.  The Initial Decision in this case is replete with statements which disclose that the Examiner imposed upon the Bureau, rather than upon the applicant, the ultimate burden of proof.  Thus the Examiner noted that "as this is a misrepresentation matter, and as a license and a livelihood are at stake... [he] has applied a stringent test to the evidence -- and has not too easily allowed himself to be persuaded that evidence is damaging" (I.D. par. 96).  He further stated that if "Mapoles' guilt [had] been established almost to a mathematical certainty" as in WMOZ, Inc., et al., 36 FCC 202, a case cited by the Bureau at which the same Examiner presided, he "would have no alternative but to apply the same sanction [denial of renewal] he found appropriate in that case".  Despite the Examiner's assurances that he did not mean that proof of facts "demands almost celestial attestation," and that he was not following "so lofty a standard here" (I.D. par. 102), we believe that too "lofty a standard" was applied.  He further stated that he was "more sympathetic to Mapoles' case than the Bureau" (I.D. par 102); and while the facts in WMOZ "with melancholy force compelled the decision", he was "reluctant... to destroy a man except on extremely persuasive proof" which was not present here (I.D. par. 103).  Consistent with his imposition of this extreme and improper burden upon the Bureau, he rejected contentions advanced by the Bureau because the argument, although "appealing," left a "nagging uncertainty" (I.D. par. 92); or it was "attractive but not convincing" (I.D. par. 93).

18.  Manifestly, the Examiner, influenced by his "sympathy" for Mapoles, imposed upon the Bureau the duty to "convince" him with proof that would meet his "stringent test" and which would leave no "nagging uncertainty" that Mapoles' renewal application must be denied.  He did not apply the statutory standard which places upon the renewal applicant the burden of establishing that a renewal will serve the public interest and his failure to do so was a serious error.  While we understand the Examiner's sympathy for the licensee, we cannot abdicate our responsibility to protect the public interest because of sympathy.  If an applicant for renewal fails to sustain the burden specified by Section 309(e) of the Act of establishing that he possesses the requisite qualifications to continue as a broadcast licensee, the application must be denied.  It may be that a livelihood is  [*1044]  at stake here, as the Examiner states.  However, if a license is denied by reason of the licensee's wrongdoing, the possible loss of his livelihood cannot serve to immunize him against the consequences of such wrongful acts.

19.  Also, in agreement with the Bureau, we conclude that the Examiner erred in his interpretation and application of the Commission's fairness and personal attack doctrines.  In his Initial Decision, the Examiner made the following statement in regard to the violation charged (I.D. par. 89):


Issue 3 can be disposed of quickly.  This was not the case of an attack upon an unsuspecting person, but one in which the "victim" had planned the onslaught and knew its details, and instigated proceeding which involved his enemies.  The fairness and personal attack doctrines are not designed for the protection of agents provocateurs.  Even had Mapoles done nothing, Boles could not have invoked the Commission's rules for a protection he did not need and did not merit.

20.  The instigation to which the Examiner had reference relates to political advertisements placed in a local newspaper by Boles which contained personal attacks against Pooley and Mapoles.  Although the Examiner recognized that nothing "akin to the defense of entrapment is available in Commission proceedings," he nevertheless considered Boles' conduct in the nature of an entrapment, stating that this was not "an ordinary case of a man's asking time to reply to a personal attack," since Boles had "inserted provocative ads in the local paper, assailing Pooley and Mapoles" (I.D. par. 85).  Even assuming that Pooley had good cause to be provoked by the advertisements, the broadcast of the Pooley editorial imposed upon the licensee the obligation to provide Boles with a transcript, recording, or summary of the editorial and/or personal attack and to offer him a reasonable opportunity to respond over the licensee's facilities.  n6 Whether the subject of the broadcast had provoked the attack upon him is irrelevant.  There is no basis for the "agents provocateur" theory expounded by the Examiner, and even Mapoles' attorney disavowed reliance on the theory during oral argument (Tr. 914, 934).  The purpose of the personal attack doctrine is not to protect persons from abuse, but "to enable the listening public to hear expositions of the various positions taken by responsible individuals and groups in important disputed issues.  Editorializing by Broadcast Licensees, 13 FCC at 1249; see also Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969); Brandywine-Main Line Radio Inc., 24 FCC 2d 18, 27 (1970). We further held in Brandywine that licensees may not avoid their obligations under the personal attack doctrine merely "because they anticipated that those attacked would not be sufficiently alarmed to desire reply time" (24 FCC 2d at 27) and, because of like public interest considerations, we hold here that Mapoles may not avoid his obligations under the said principle merely because Boles' newspaper advertisement had incensed Pooley.  Our concern is with the public interest, not the private quarrel among the parties. 

n6 Since Mapoles previously had been the subject of similar charges, which were in that case not sustained, he was thoroughly familiar with his obligations to Boles and he does not claim otherwise.  See Mapoles Broadcasting Co., FCC 62-501, 23 RR 586, released May 14, 1962.

 [*1045]  21.  These basic legal errors appear to have colored the Examiner's judgment concerning the credibility of the witnesses, the weight to be accorded their testimony, his analysis of the evidence, and his ultimate findings of fact and conclusions.  He accepted Mapoles' version of what had occurred despite the existence of substantial, probative and, in some instances, unrebutted evidence to the contrary.  He credited fully the testimony of Mapoles and Pooley even though it was conceded that the wrong editorial had been sent to the Commission, Pooley had executed and submitted to the Commission a false affidavit, and Mapoles had made at least one misrepresentation to the Commission.  On the other hand, the Examiner cast aspersions on Boles' integrity (See I.D. par. 88) despite the fact that in every instance where Boles' and Mapoles' stories differed during the course of the initial investigation of this matter (e.g. the text of the editorial broadcast on April 22, 1966, and Boles' appearance at the station on April 29, 1966) Boles was proven to be correct.  While we are reluctant to overturn the findings of a hearing examiner, particularly where, as here, many of his findings are based on his assessment of the credibility of the witnesses, we would be derelict in our statutory duty to act in the public interest if we were to accept findings which are patently in conflict with what we find to be the facts as established by the record.  See Federal Communications Commission v. Allentown Broadcasting Corp., 349 U.S. 358 (1955); N.L.R.B. v. Jackson Maintenance Corporation, 283 F 2d 569 (2d Cir. 1960). To the substantial extent indicated herein, therefore, we shall substitute our findings and conclusions for those of the Examiner.

22.  Clayton Mapoles, the licensee of station WEBY, and Ben Henry Pooley, the announcer who broadcast the editorial in question, were close friends, political allies, and working companions for many years.  For about 10 years, from 1957 through 1967, Pooley broadcast a live 15 minute news program over WEBY, daily at 6:45 a.m. The usual procedure was for the regular announcer to tape the Pooley news program which was then rebroadcast at 8:00 a.m. During the period relevant to this proceeding, Robert Smith was the announcer on duty at the time of the live broadcast.  Boles, who in April, 1966 was a candidate for public office, placed two political advertisements in the local newspaper attacking both Mapoles and Pooley.  The advertisements, which Pooley read either the evening of April 21st or the morning of the 22nd, angered him and, in spite of orders from Mapoles not to editorialize, n7 Pooley responded on his April 22 news program with a blistering attack on Boles.  Although Pooley generally left the draft of his broadcast with the secretary for retyping and filing, it appears that this practice was not followed on the morning of April 22nd, and the draft was not placed in the station files. 

n7 Mapoles had ordered Pooley not to editorialize unless a copy was submitted to Mapoles in advance, and not to editorialize at all unless it was "absolutely necessary." Pooley, however, did not clear the Boles editorial with Mapoles and continued thereafter to editorialize.  Mapoles, in turn, did not complain to Pooley about the violations of his instructions.

23.  Boles was apparently expecting some sort of response from Pooley on the morning broadcast since he was listening to WEBY, prepared to take notes of Pooley's comments.  The text of Boles' transcribed notes of the editorial is set forth in paragraph 3 above.  Evidence obtained  [*1046]  by the Bureau overwhelmingly established that the wording of the April 22, 1966, Pooley editorial was substantially as stated by Boles and not as originally represented by Mapoles (par. 2, supra) and, at the hearing, Mapoles made no pretense that this was not so.  Rather, as will be developed herein, he claimed that his error had been inadvertent.  The critical question, therefore, is not whether Mapoles submitted erroneous information to the Commission concerning the contents of the broadcast -- he unquestionably did -- but whether his conduct was excusable, as he claims, or was such as to reflect adversely on his character qualifications to continue as a Commission licensee.  Before disposing of this major issue, a number of subsidiary issues must first be resolved.

24.  Immediately after the broadcast, Boles called Clayton Mapoles and asked Mapoles why Pooley was allowed to slander him over the radio.  Since Mapoles had not heard the Pooley broadcast, he referred Boles to his son, Byrd Mapoles, who was the station manager.  Also early that morning, an unidentified woman awakened Byrd Mapoles with a telephone call complaining about the editorial.  Byrd immediately called the station and was told by Smith that Pooley had broadcast a "strong editorial about John Boles." Smith was instructed not to rebroadcast the editorial at 8:00 a.m. Byrd then called Clayton Mapoles and told him that he had received a call from a woman who had said Pooley's editorial was "pretty rough." Byrd further advised his father that he therefore called the station and had the editorial stopped so that it would not be rebroadcast at 8:00 a.m. and he wanted Mapoles to know what he had done.  Mapoles told Byrd that it "was all right" (Tr. 488).

25.  At 9:00 a.m. on the same morning Boles called Byrd Mapoles and requested time to reply on the Friday, April 29, 1966, 6:45 a.m. news broadcast.  Byrd Mapoles at first refused Boles' request and then said he would think about it.  Later that day Boles sent Clayton Mapoles a registered letter requesting: (1) a verbatim copy of the editorial broadcast; (2) a copy of the letter Pooley referred to in the editorial; and (3) time to reply on the Friday, April 29, 1966, 6:45 a.m. news broadcast.  The letter was signed for by Clayton Mapoles.  Upon receipt of Boles' letter, Mapoles did not attempt to ascertain the contents of the broadcast from his good friend Pooley, the one who drafted and broadcast the editorial; or from Smith, the announcer on duty at that time of the morning; or from Howell, the announcer who relieved Smith and was on duty when Pooley's program would ordinarily have been rebroadcast.  Neither did he contact any of these individuals to obtain the necessary information before responding to the Commission's inquiry by his August 15, 1966 letter which transmitted the wrong editorial.  Instead, according to his own testimony, he examined the station's editorial file and found an "undated" editorial which referred to Boles and assumed it was the one broadcast on April 22nd because it was the only "editorial in the files that mentioned John Boles' name" (Tr. 490).

26.  Despite the complaint by Boles that he had been slandered, the telephone information received by Mapoles from his son that the Pooley editorial was "pretty rough," and the fact that Boles expressly requested a copy of the letter to which Pooley had referred in his editorial, Mapoles proclaims as an unintentional and inadvertent error  [*1047]  his assumption that the bland, innocuous editorial set forth in paragraph 2 above which made no reference to a letter received by Pooley was the one broadcast on April 22nd.  The Examiner accepted Mapoles' explanation and belittled the objections of the Bureau that a good faith error was unlikely in light of the surrounding circumstances because of the significance which he attached to the absence of affirmative evidence "that any Milton resident -- Robert Smith, Howell, or even Boles himself had told Mapoles the true contents of the April 22 editorial" (I.D. par. 83).  In our view the Examiner's statement represents a complete distortion of the obligations of a broadcast licensee.  There was no duty on the party of the community in general of Smith, Howell or Boles in particular to rush to Mapoles' rescue to prevent him from submitting false information in an answer to a Commission inquiry.  The obligation was upon Mapoles to take affirmative steps to ascertain the true facts and to supply accurate information to the Commission.  His utter failure to employ even minimal precautions to insure that false representations were not made to the Commission would alone raise a substantial question as to whether the licensee possesses those qualifications which are essential to favorable action on his renewal application.  However, we prefer to rest our ultimate conclusion on the basis of all of the evidence of record.

27.  As set forth above (par. 2), Mapoles claims that in a letter dated April 27, 1966, he offered free reply time to Boles.  The latter denies that he ever received such an offer.  The Examiner held that the April 27 letter was written and that it was mailed (I.D. par. 87), but the reasoning process by which he arrived at this conclusion requires close and careful scrutiny.

28.  Again we are met by conflicting and involved factual allegations and testimony and a baseless downgrading by the Examiner of probative evidence which did not accord with his conclusions.  Mapoles asserts that upon receipt of Boles' letter, he typed a draft of a reply and gave it to his secretary for typing, that she typed the letter and he signed it, and that the secretary in the ordinary course of her duties must have mailed it.  The secretary recalled typing the letter but she had no recollection of mailing it to Boles (I.D. par. 34).  With this state of the record, it becomes very significant that an original (Mapoles Exhibit No. 6) as well as a carbon copy (Bureau Exhibit No. 29) of the alleged letter to Boles was found in the station's files, and that the carbon copy sent to the Commission with Mapoles' August 15, 1966, letter (Bureau Exhibit No. 6 page 2) was not typed at the same time as the other two.  These facts were established at the hearing by the clear, convincing, and unrebutted testimony of Gordon R. Stangohr, a witness with impressive credentials as a questioned documents analyst.  This witness testified that numerous similarities existed in the crowding of letters in certain words in both the original and carbon copy of the letter found in the station's files and concluded on the basis thereof and certain other matters set forth in his analysis that both had been prepared at the same time.  He also testified that these similarities did not appear in the same words in the carbon copy sent to the Commission but that there was a crowding of letters in certain other words in the copy sent to the Commission which did not appear in the other two  [*1048]  copies.  Therefore, he concluded that the copy sent to the Commission was prepared at a different time than the other two.

29.  The Examiner accorded no significant weight to Stangohr's testimony but relied exclusively on the testimony of the secretary to Mapoles' counsel that a lack of alignment may result even between an original and a carbon copy of copies made on the same run (I.D. par. 50).  This led the Examiner to state that the "time has not come when a man's license depends, even in part, on a congruence of slight slippage between an original and a carbon copy" (I.D. par. 95).  Ignored completely by the Examiner was the testimony of Stangoher concerning the numerous similarities in the crowding of letters between the original and carbon found in the station's files and the numerous differences between those copies and the copy sent to the Commission which had nothing to do with alignment and which could not possibly have resulted from "slippage".  Manifestly, the secretary's testimony constituted no refutation of Stangohr's testimony, and we find that an original and a copy of the letter allegedly sent to Boles reposed in the station's files, and that the carbon copy sent to the Commission was typed at a different time.  n8

n8 Why Mapoles caused the letter to be retyped when a carbon copy was then in his files is unclear, but we do not consider the matter to be of decisional significance.

30.  Mapoles explains the file original as resulting from his secretary's failure to make a carbon copy of the letter sent to Boles so that a duplicate original was typed for the file.  Conceivably, this could have been the situation but another reasonable inference, and one which is more consistent with what thereafter occurred, is that the original of the letter remained in the station's files because no offer was mailed to Boles.  It seems unlikely that a letter mailed in this small community would not be delivered, and Boles denies receiving any offer of reply time.  Nevertheless, the Examiner concluded that the letter had been mailed and received by Boles and in doing so he placed great reliance upon the alleged "coincidence of Boles' appearance at the station on the day suggested in the letter" (I.D. par. 87).  It was no coincidence.  April 29 was the date which Boles had specified in his letter to Mapoles as the one on which he wished to broadcast his reply.  If boles had received the letter he would have shown it to Smith as proof that he had permission to broadcast his reply and he would have complained that the copy of the editorial sent him was not the one broadcast by Pooley -- as he did later to the Commission when he did receive a copy.

31.  On the morning of April 29, 1966, Boles went to the studio of WEBY in the hope of being allowed to respond to Pooley's editorial.  Robert Smith, who was on duty, told Boles that he did not have authority to let Boles on the air and that Boles would have to get permission from Byrd Mapoles.  The testimony is conflicting as to the telephonic conversation between Boles and Byrd Mapoles which then took place.  Smith testified that Byrd told Boles that a copy of any proposed broadcast would have to be submitted to the station 24 hours in advance of air time.  In contrast Boles testified that Byrd Mapoles told him that he had checked the FCC rules and regulations and that "he did not own me a damn thing." We deem it unnecessary for our purposes  [*1049]  here to resolve this conflict since it is undisputed that Boles did not get on the air on April 29, the last Friday before the primary, and he never replied to Pooley's editorial over WEBY.  The sequence of events set forth are clearly inconsistent with the finding that the April 27 letter was sent to Boles.  Had Mapoles granted Boles permission to appear on Pooley's program, the licensee most certainly would have advised Pooley of Boles' likely appearance, but the record discloses that no such conversation took place (Tr. 511).  Manifestly, the announcer Smith had no inkling that such an offer had been made by Mapoles, or he would not have deemed it necessary to refer the matter to the station manager, Byrd Mapoles.  Moreover, it is likewise evident that Byrd had not been informed of any offer or he would have responded differently when Boles telephoned him from the station on that morning.  No mention was made by Byrd in that conversation of a letter offering reply time.  Furthermore, the April 27 letter made no reference to any 24-hour notice of the contents of Boles' propsed reply -- the condition which Byrd allegedly imposed in that conversation -- and it is not likely that he would have added new conditions to an offer made by the owner and licensee of the station.  It is inconceivable that Mapoles would send a letter offering Boles reply time on April 29 and not inform even one of these individuals that he had done so.

32.  One other circumstance provides persuasive evidence that no offer of reply time to Boles was made.  In a letter to the Commission dated July 5, 1966, Mapoles stated that he had offered Boles equal time but that he did not reply to the offer or come to the station.  Byrd Mapoles made a statement on January 10, 1967, to Commission personnel investigating the Boles complaint to the effect that he had also offered reply time provided Boles furnished a copy of his proposed broadcast 24 hours in advance but that "he never came back nor did he call back." In the face of the unassailable evidence to the contrary, Mapoles now concedes that Boles came to the station on April 29 and that these statements were false; and the Examiner found Mapoles' statement to be a willful misrepresentation.  The only reasonable explanation for this false representation is that Mapoles intended to conceal from the Commission the fact that the April 27 letter had never been mailed, since he knew he would be unable to provide the Commission with an acceptable story explaining why Boles did not broadcast his reply on the morning of April 29 if he had been offered reply time and had appeared at the station on the morning specified in the letter.  The conclusion is inescapable that no offer of reply time was made to Boles and that Mapoles' statements in his July 5, 1966, and August 15 letters that such an offer had been made were willful misrepresentations to the Commission.

33.  Finally, we come to the very serious charge advanced by the Bureau that the editorial sent to the Commission on August 15, 1966, was not a copy of one prepared by Pooley and found by Mapoles in the station's editorial file as claimed by Mapoles, but that his entire story was a fabrication to conceal from the Commission the fact that the personal attack upon Boles had been made and that the licensee had not afforded the subject of the attack an opportunity to broadcast a response.  Before proceeding with the discussion of this issue, we  [*1050]  believe it would be helpful to summarize the findings and conclusions we have thus far reached herein:

(a) The editorial sent to the Commission by Mapoles on August 15, 1966, was not the editorial broadcast on April 22, 1966, and the licensee failed to take reasonable steps to ascertain the true facts or to employ even minimal precautions to insure that false representations were not made to the Commission (pars. 25 and 26, supra).

(b) Mapoles falsely represented to the Commission that he had offered Boles time to broadcast a reply by a letter dated and mailed on April 27, 1966 (pars. 28-32, supra).

(c) Mapoles falsely represented to the Commission that Boles did not reply to the offer and did not come to the station (pars. 7 and 32, supra).

(d) The licensee's conduct with respect to Pooley's broadcast constituted a violation of the Commission's fairness and personal attack doctrines (pars. 20 and 22, supra).

(e) Mapoles demonstrated a lack of candor and a serious and unacceptable disregard of his resonsibilities as a broadcast licensee when he did not disclose to the Commission the existence of the Dr. Dick letter.  In this connection we also consider as unfavorable factors, but to a lesser degree, his failure to submit all four pages of the Duke University medical report and his exaggerated representation to the Commission that for a substantial period during the preceding three years he had been confined to his bed and his home (pars. 10-15, supra).

(f) The licensee violated Section 73.112(a)(1)(iii) of the Rules by failing to note on the station's logs that editorials had been broadcast and by logging the programs instead as "News" (par. 7, supra).

34.  Whether the violation of the fairness and personal attack doctrines, the logging violation, and the one misrepresentation found by the Examiner would be sufficient to warrant a denial of the renewal application we need not decide.  We do hold, however, that the said violations together with the additional misrepresentations, lack of candor, and the gross negligence of the licensee in responding to Commission inquiries, which are established by this record, are sufficient, without more, to preclude a finding that a renewal of Mapoles's license would be in the public interest.  So that no issues in this proceeding remain unanswered, we shall consider the matter of the authorship of the editorial sent to the Commission, allegedly broadcast April 22, 1966, which was later admitted not to have been broadcast on that date.  However, in light of the misconduct shown, we do not feel impelled, as did the Examiner, to resolve all doubts, no matter how insubstantial, in favor of the licensee.

35.  In our view the timing and manner in which certain testimony and documents were introduced at the hearing has an important bearing on the resolution of the questions relating to the authorship of the editorial and Mapoles' good faith in his presentations to the Commission with respect thereto.  Therefore we shall go into some detail both as to the evidence and the events which occurred at the hearing.

 [*1051]  36.  As previously set forth, in answer to the Commission's August 2, 1966, inquiry, Mapoles submitted the text of an editorial which had not been broadcast on the critical date.  n9 In support of his claim that he acted in good faith in sending that editorial to the Commission.  Mapoles testified that among the documents in the station's editorial folder which had been drafted by Pooley he found an undated one which mentioned Boles and that he (Mapoles) had good reason to believe that this undated document was the editorial broadcast by Pooley on April 22 because it was the only one which referred to Boles.  Pooley likewise testified that any such document found by Mapoles was not likely to have been dated since it was his general practice not to put dates on the rough draft editorials he typed for his broadcasts (Tr. 357, 362) and that, in any event, the editorial could not have borne the date of April 22, 1966 "because it wasn't used on that date" (Tr. 363).  Also, both Mapoles and Pooley testified at the hearing that before Pooley executed his September 30, 1966, affidavit, which had been requested by the Commission's letter of September 22, 1966, Pooley inspected the station's file, located this undated copy of the editorial in the folder, and advised Mapoles that it was the one he broadcast on April 22 (Tr.362, 511).  It is undisputed that the editorial was not broadcast on the aforementioned date, so the document, if there was one, must have been undated (since any date would have been one other than April 22, 1966) if Mapoles' testimony is to be accepted.  Thus, crucial to Mapoles' contention that such a document existed and that he acted in good faith and without intent to deceive the Commission is the existence of an undated draft of an editorial prepared by Pooley containing the text set forth in paragraph 2, above. 

n9 There was evidence that the editorial had had been broadcast at all, but we make no finding with respect thereto, since the matter is irrelevant to the question under consideration.

37.  At the hearing session on October 31, 1968, Mapoles testified that upon receipt of one of the letters from the Commission requesting further information, he spoke to a number of people in an effort to determine whether the editorial which he found in the station files was the one broadcast.  Although he did not specifically identify the September 22, 1966, letter, which called his attention to the Boles version of what had been broadcast and requested an affidavit from Pooley, as the one to which he referred, the evidence indicated that this was so.  Thus, he testified at the hearing that he spoke to the people in the community "along about the same time" as he obtained the affidavit from Pooley (Tr. 496; see also Tr. 650); and in his letter forwarding the affidavit to the Commission he expressly stated that "I have personally checked into this matter and Mr. Boles is completely in error...." (Bureau Exhibit No. 9 and Tr. 496).  With respect to the procedure he followed to obtain the views of the listeners, he testified that "I had the editorial and let them read it and I asked them if they had heard it and they said they had" (Tr. 494); although the listeners he spoke to were unable to recall the date on which they had heard it.  n10

n10 A typed original (Bureau Exhibit No. 26) of the copy of the editorial sent by Mapoles as an attachment to his August 15, 1966, letter to the Commission was found in the station files by Commission personnel investigating this case.  Since the interviews concerning which Mapoles testified occurred in September, the original of the attachment must have been in the station files when they occurred.  The significance of this evidence will become more apparent as we proceed with our discussion concerning the developments in this case.

 [*1052]  38.  When asked by Bureau counsel what happened to the Pooley editorial which he had found in the station's folder, Mapoles replied that he "turned it over to Mr. Pepper, my lawyer who was representing me at the time." (Tr. 506).  Bureau counsel thereafter contacted Mr. Pepper with respect to this document, and the latter, apparently not wishing to become involved in a case in which he no longer was the attorney, turned the document over to Mr. Bilger.  Mapoles resisted the introduction of the document into evidence with every means at his command.  First he advanced the attorney-client privilege as a ground for his refusal to produce the document, but this contention was rejected, and properly so, by the Examiner and, upon appeal by the Review Board (16 FCC 2d 820, released March 12, 1969).  Objection to the introduction of the document into evidence was then interposed on the ground that the Bureau had failed to established that the document turned over by Mr. Pepper to Mr. Bilger was the only document of this nature which had been given by Mapoles to Mr. Pepper.  The Bureau disposed of this objection by calling Mr. Pepper as a witness.  Mr. Pepper testified that while he could not recall from which of four possible sources he obtained the document, he was certain that he "received it from Mr. Clayton Mapoles, Mr. Byrd Mapoles, Mr. Ben Henry Pooley, or I took it out of the file myself with the permission of one of the three" (Tr. 580) when he visited the station on September 19, 1967, in connection with the preparation of this case for hearing (Tr. 580).  He further testified that all three were present at various times during his meeting there and that the file to which he had reference was a manila file which contained typed copies of editorials.  Further, with respect to the document which he had turned over to Mr. Bilger, he testified unequivocally and without reservation that he did not come into possession of any other document which purported to be either an editorial or a draft editorial involving Boles (Tr. 581); that he did not receive any documents at the station other than those about which he testified (Tr. 590); and that neither before nor after his September 19, 1967, visit to the station did he receive any editorial concerning Boles other than the one he surrendered to Mr. Bilger (Tr. 595).  Since Mapoles had acknowledged giving the alleged Pooley editorial to Mr. Pepper, the document surrendered by Mr. Pepper to Mr. Bilger was accepted into evidence over Mapoles' objection (Bureau Exhibit No. 28, Tr. 584-589).

39.  The reason for Mapoles' strenuous objections to the production of this document and its introduction into evidence then became apparent.  The document is dated.  It contains the date April 22, 1966, which both Pooley and Mapoles testified could not possibly have been on the purported Pooley "original" (see par. 36, supra) and which is wholly inconsistent with Mapoles' excuse of a good faith mistake.  Furthermore, the style, manner of typing and other characteristics of the exhibit differ in such material respects from Pooley's style that it was immediately apparent that Pooley had not typed the document.  Pooley's drafts were in capital letters and he made corrections by typing asterisks over words he wished to delete whereas the document produced at the hearing was typed with lower case as well as capital  [*1053]  letters and cross outs and corrections were made in ink.  n11 That Pooley was not the draftsman of this document was conceded at the hearing.  Consequently, unless there is a very plausible explanation for this dated document which was prepared by someone other than Pooley and which is the only editorial mentioning Boles which was turned over to Mr. Pepper, the foundation for Mapoles' assertion of a good faith error has been destroyed. 

n11 A more detailed statement of the differences between Pooley's style and that of the draftsman of the document is set forth in paragraph 45 of the Initial Decision.

40.  At the hearing session on May 21, 1969, Mapoles for the first time testified that he did not use the Pooley "original" when he questioned people in the community in order to determine whether the editorial had been broadcast, but used a copy thereof prepared by himself (Tr. 641, 642).  Fearing that the "original" might be lost, he stated, he typed a copy which he conformed to Pooley's draft even to the point of including words which were deleted, and, in places, substituting other words for those deleted as Pooley had done.  We agree with the Bureau that this explanation is ludicrous.  Words deleted from the draft would not be heard by listeners of the radio broadcast, and Mapoles' explanation for this slavish adherence to the form of the purported "original" -- an adherence which was not in fact met, as the form of the copy is different than Pooley's form -- strains credulity to the breaking point.  The breaking point is definitely reached when we consider that at the time Mapoles prepared this document (see par. 37, supra), the original of the typed copy sent to the Commission on August 15, 1966, was contained in the station's files.  By the use of this typed copy, the Pooley "original," if there was one, could have remained safely at the station and the people contacted would be viewing all they needed to make a determination without the inked deletions and corrections included by Mapoles.

41.  The Examiner appears to have attached considerable importance to the absence of a notice, since presumably Mapoles could have requested his friend Pooley to prepare the editorial for him.  It must be stressed, however, that on August 15, 1966, when Mapoles mailed the editorial to the Commission, he did not know that Boles had taken notes of the broadcast and that, with the aid of these notes, he would be able to establish beyond the shadow of a doubt the true text of the April 22 Pooley editorial.  Also he may not have realized that the Bureau would be able to so definitely prove that he, not Pooley, was the draftsman.  In our view, carelessness resulting from Mapoles' failure to anticipate the investigation which was conducted by the Commission is at least as reasonable an explanation for not requesting Pooley to draft an editorial.  After the investigation, it was too late to remedy the damage caused by his carelessness.  Whatever his reason for not going to Pooley, the fact remains that no Pooley "original" was ever produced and the only document which has been located is the one typed by Mapoles.  In this connection, we deem it to be of some significance that the copy of the editorial sent to the Commission on August 15, 1966, contains the April 22, 1966, date and misspelled the word "Furthermore" as does the document typed by Mapoles (which according to Mapoles' testimony at the hearing was not even in existence at the time), whereas Mapoles has insisted throughout that his secretary  [*1054]  typed that information from the Pooley "original." Conceivably the secretary could have added the date on her own and Pooley might have misspelled the word "Furthermore" in a document which Mapoles copied as typed.  We deem a more reasonable explanation, and one more consistent with the numerous acts of misconduct committed by Mapoles, to be that the document sent to the Commission was copied from Mapoles' draft and not from a document prepared by Pooley.  On the basis of the record as a whole, we find as wholly unworthy of belief Mapoles' explanation for the typed copy of the editorial which was represented to the Commission as containing the text of Pooley's April 22 broadcast.  We find and conclude, instead, that Mapoles fabricated this document and his story with respect thereto for the purpose of deceiving the Commission.  His representations to the Commission with regard to this document were willfully and knowingly false and they were made for the purpose of concealing from the Commission that a personal attack had been made on Boles and that the licensee had violated the Commission's personal attack and fairness doctrines.  Clearly Mapoles lacks the character qualifications to continue as a Commission licensee, and his renewal application must be denied.

42.  Accordingly, IT IS ORDERED, That the application of Clayton Mapoles, tr/as Milton Broadcasting Company, for renewal of license for Station WEBY, Milton, Florida, IS DENIED; and

43.  IT IS FURTHER ORDERED, That Clayton Mapoles, tr/as Milton Broadcasting Company, IS AUTHORIZED to continue to operate the station until 12:01 a.m., July 3, 1972, to enable the licensee to conclude the station's affairs; PROVIDED, HOWEVER, That if the licensee seeks judicial review of our Decision, he is authorized to continue to operate Station WEBY until thirty (30) days after the final disposition of such appeal.








I concur in both these actions -- not because I have any reservation about the results but, rather, to spotlight an underlying issue of the greatest significance.

As a matter of principle, I believe that the Commission must always proceed with an almost exaggerated degree of caution when it reverses or substantially modifies a Hearing Examiner's initial decision.  We of course have that appellate obligation and where the facts warrant, as in the present cases, we must and will exercise it.

At the same time, the burden is very definitely on the Commission when it does choose to override the Examiner's judgment.  In many revocation and renewal proceedings, the element of credibility is critical -- and it is the Examiner, not the Commission, who has personally observed the witnesses' demeanor, heard their testimony, and ruled on the admissibility of evidence.  He, not the Commission, has an over-all "feel" for the case.

But, to repeat, the appellate obligation is the Commission's.  As in my view it has been here, that obligation must be implemented with the ultimate degree of care and deliberation.



Ruling on Exceptions of Clayton W. Mapoles



1, 2

Denied.  The record established willful misrepresentations


and a lack of candor by the licensee warranting the


denial of the renewal application.

Rulings on Exceptions of the Broadcast Bureau



1, 4, 6, 9, 12, 13, 14,

Denied.  The matters raised in the exceptions


are not

15, 16, 17, 18, 19,

of decisional significance.



2, 3

Granted in part and denied in part.  The evidence indicates


that Kay Murray had a recollection of typing a letter


to Boles in April 1966 "or thereabouts".  Other requested


findings have been included in par. 28, and footnote 11


to par. 37 of our "Decision." The exception is otherwise


denied since the additional findings requested are not


of decisional significance.


Granted.  The examiner's characterization of the witness


was unwarranted.  Also it is irrelevant and not of deci-


sional significance.


Granted.  The record clearly establishes that during No-


vember 1967, Smith told Byrd what had happened on


Apr. 22, 1966.


Granted.  The attachment erroneously omitted the date


Apr. 22, 1966, which appears on Bureau Exhibit 28.


Granted.  See pars. 28, 29 of our "Decision."


Denied.  Insofar as is decisionally significant, the hearing


examiner's statement concerning Dr. Thames' testimony


is substantially correct.


Denied but only because we have not relied upon adverse


inferences from the failure of a party to call persons as


witnesses in reaching our ultimate findings and conclu-


sions.  However, the examiner did misstate the law.


There are situations where an adverse inference from


the failure to call a witness is warranted, and in such


situations the adverse inference is not precluded because


the witness, if called, might thereby be subjected to a


"possible incriminating concession" or because "chivalry


is not dead" (I.D. par. 80) as the examiner seems to hold.


Granted.  Footnote 67 is


speculative and not supported


by the evidence of record.


Granted.  The findings complained


of resulted from an


erroneous shift of the burden


of proof to the Bureau.  See


pars. 16, 17, 18, and 26 of


our "Decision."


Granted.  Although Clayton


Mapoles was not in good health


at the time Pooley executed


the affidavit, he was not so


ill as to warrant a finding


that Pooley and the others


acted as they did to "protect


a sick man" (I.D. par. 84


(b)).  Rather, the evidence


indicates that the Pooley


affidavit was intended to


mislead, and to conceal material


information from, the Commission.


Granted.  Par. 85 of the "Initial


Decision" is speculative,


prejudicial and immaterial;


and it reflects the failure of


the examiner to understand


property the thrust of the


fairness doctrine.


Granted.  Pars. 86 and 87


are conjectural.  The findings


therein are unsupported by


probative evidence of record


and reflect the examiner's


failure to assess property the


testimony against the licensee.


Granted.  Probative and substantial


evidence of record sup-


ports a finding that Mapoles


did not mail to Boles an


offer of reply time.


Granted.  Par. 89 is a misstatement


of the fairness doctrine.


See pars. 19 and 20 of our


"Decision." To the extent ap-


plicable the requested findings


are contained in pars. 28


through 32 of our "Decision."

29, 30

Granted.  The statements


of the examiner in par. 92 con-


cerning the misspelling of


the word, furthermore, and his


statements in par. 93 concerning


the absence of a motive


for Mapoles' alleged drafting


of a false editorial, are con-


jectural, and constitute


an erroneous application of the


burden of proof, and are


inconsistent with the evidence


of record as a whole.  See


pars. 16 and 41 of our "Deci-




Granted.  Par. 94 is conjectural


and par. 95 improperly dis-


regards the testimony of


the Bureau's expert witness.

32, 35, 36

Granted.  The examiner misstated


the law concerning the


burden of proof in renewal




Granted.  The examiner's


finding that Mapoles found an


editorial which he innocently


assumed was the one broadcast


by Pooley on Apr.


22, 1966, is not supported by the


facts of record.


Granted in part and denied


in part.  See pars. 10 through 15


of our "Decision." The


record establishes that Mapoles


was ill, but it does not


sustain a finding that he was bed-


ridden.  The omission of


part of the Duke report and the


Dr. Dick letter reflect


adversely on Mapoles' character


qualifications to continue


as a Commission licensee.


Granted in substance.  We


have found willful misrepresen-


tations and a lack of candor


by the licensee requiring the


denial of his renewal application.


Granted in substance.  We


have reversed the examiner and


are denying Mapoles' renewal



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