5 FCC Red No. 21 Federal Communications Commission Record FCC 90R-62 
Before the 
Federal Communications Commission 
Washington, D.C. 20554 
MM Docket No. 88-342 
In re Applications of 
OCEAN PINES 
LPB 
BROADCAST 
CORP. 
Malcolm Kahn, 
George V. Delson, 
Allen Skolnick & 
Saul Hertzig d/b/a 
OCEAN PINES 
BROADCASTING 
COMPANY 
File No. BPH-870406KF 
File No. BPH-870406KH 
For Construction Permit for 
New FM Station, Channel 246A, 
Ocean Pines, Maryland 
Appearances 
Robert A. DePont, and Robert E. Levine on behalf of 
Ocean Pines LPB Broadcast Corp.; Henry A. Solomon on 
behalf of Malcolm Kahn, George V. Delson, Allen 
Skolnick & Saul Hertzig d/b/a Ocean Pines Broadcasting 
Company. 
DECISION 
Adopted: June 29, 1990; Released: October 10, 1990 
By the Review Board: MARINO (Chairman), 
BLUMENTHAL, and ESBENSEN. Board Member 
BLUMENTHAL issuing Concurring Statement; Board 
Member ESBENSEN issuing Separate Statement. 
Board Chairman MARINO: 
1. The two remaining applicants in this case both pro­
pose to establish a new FM station in Ocean Pines, Mary­
land (which, notably, is in close proximity to Fenwick 
Island, Delaware). In his Initial Decision (I.D.), 4 FCC 
Red 7767 (1989), Administrative Law Judge (AU) Ed­
ward J. Kuhlmann dismissed the application of Ocean 
Pines LPB Broadcast Corp. (Ocean Pines) pursuant to the 
Commission's inconsistent or conflicting application rule, 
47 CFR §73.3518, because Dr. Leonard P. Berger, Ocean 
Pines' sole stockholder, had been found in another pro­
ceeding, Key Broadcasting Corp., 3 FCC Red 6587, 6589 
(ALJ 1988), to be "the real-party-in-interest" and "in con­
trol" of an earlier-filed application to establish a new FM 
station at Fenwick Island, Delaware, and that the 1 mv/m 
contours of these two proposed facilities overlap each 
other. (See I.D., para. 45.) At oral argument in this pro­
ceeding held on April 25, 1990, Ocean Pines' new coun­
sel urged that two issues are dispositive here: First, 
whether the findings in the Key case, if affirmed by the 
Board, justify the AU's action dismissing Berger's ap­
plication; and second, whether Berger "has had a fair 
opportunity to litigate those issues." (Tr. 108-109). The 
Board will affirm the AU's dismissal of Ocean Pines' 
application for the reasons set out below. 
BACKGROUND 
2. On July 12, 1985, Fenwick Island Broadcast Cor­
poration and Leonard P. Berger, collectively doing busi­
ness as Fenwick Island Broadcast Limited Partnership I 
(Fenwick LP) filed an application for a new FM Station at 
Fenwick Island, Delaware. Berger held an 80% equity 
interest in Fenwick LP until April 2, 1987, shortly before 
he filed Ocean Pines' present application in this proceed­
ing on April 6, 1987. Key, 3 FCC Red at 6592, paras. 
60-62. 
3. In Key, the Fenwick LP application was consolidated 
for hearing with several competing applications, and the 
presiding ALJ there designated the following special issues 
for hearing: 
(a) To determine whether Leonard Berger, M.D., is 
the real party in interest to the application of 
Fenwick L.P.; 
(b) To determine whether, in light of Dr. Berger's 
interest in an application for a construction permit 
for a new FM broadcast station at Ocean Pines, 
Maryland, and the existence of an overlap of the 1 
mv/m contours of the Ocean Pines and Fenwick 
L.P. proposals, the continued prosecution of the 
Fenwick L.P. application violates the provisions of 
Section 73.3518 of the Commission's Rules, prohib­
iting inconsistent applications. 
Key, 3 FCC Red at 6587 para. 6. After a trial type hearing 
was held on these issues, the Key ALJ released his Initial 
Decision, there containing specific findings and conclu­
sions concerning the "real-party-in-interest" and the in­
consistent application issues. (See Key I.D., paras. 30-62; 
138-148). The "real-party-in-interest" issue was resolved 
against Fenwick LP, but that applicant was not disquali­
fied; instead, Fenwick LP was awarded "no decisive com­
parative credit for [its] flawed ownership proposals". See 3 
FCC Red at 6599. 
5821 
4. In this proceeding, Ocean Pines' application was 
consolidated for hearing with several other competing 
applications by Hearing Designation Order released August 
3, 1988, 3 FCC Red 4641 (1988) (HDO). The HDO 
referred to the issue which had been designated in Key, 
and placed Berger on notice that if he received a con­
struction permit here "its grant shall be without prejudice 
to whatever action, if any, the Commission may deem 
appropriate in light of the outcome" of the Key case. Id., 
3 FCC Red at 4642. Thereafter, the ALJ in this proceed­
ing specified the following issues (I.D., para. 1): 
FCC 90R-62 Federal Communications Commission Record 5 FCC Red No. 21 
1. To determine whether the findings and conclu­
sions about the conduct of Leonard P. Berger, as a 
real-party-in-interest in Key Broadcasting Corpora­
tion, 3 FCC Red 6587 (ALJ 1988), should disqualify 
Ocean Pines LPB Broadcast Corp. 
2. To determine whether Ocean Pines LPB Broad­
cast Corp.'s application violates §73.3518 and 
should be dismissed. 
An appeal of the AU's designation of these issues was 
denied by the Board wherein we agreed that Ocean Pines 
should not be permitted to collaterally attack the findings 
in the earlier Key case. See Ocean Pines FM Partnership, 4 
FCC Red 3490, 3491 (Rev. Bd. 1989). 
5. Later, in his I.D., the ALJ reported that at the 
hearing in the instant proceeding (I.D., para. 45; emphasis 
added): 
Leonard Berger was provided with an opportunity 
to show why his representations in the Key Broad­
casting Corporation case should not disqualify him 
here. He chose not to introduce any new evidence on 
the issue. Instead, he urges that the decision in Key 
Broadcasting Corporation did not hold that the ap­
plicant Fenwick Island LP should be disqualified 
but that Leonard Berger should be considered an 
active partner in the applicant. 
After summarizing the critical findings in the Key case 
(I.D., paras. 43-44), the ALJ concluded here that while 
the natural inference and implication of the Key case "is 
that Leonard Berger misrepresented his role in Fenwick 
Island LP from the outset, the presiding officer [in Key ] 
did not disqualify Fenwick LP or consider whether the 
applicant should be disqualified." I.D. para. 46. 
6. In Key, the Section 73.3518 issue had been resolved 
in favor of the Berger applicant because: 
The issue was added on the strength of Dr. Berger's 
application filed for a frequency in Ocean Pines, 
Maryland. However, the Ocean Pines application 
was filed after the application for Fenwick Island 
was filed. If either of these two applications are 
inconsistent, it would have to be the Ocean Pines 
application and not the Fenwick Island application. 
The Section 73.3518 issue has to be and IS RE­
SOLVED in Fenwick L.P.'s favor. 
In addressing this issue here, the ALJ held that the find­
ings and conclusions in Key demonstrated that Berger's 
"proposal for Ocean Pines violates Section 73.3518." I.D. 
para. 46. The ALJ reasoned that (id., at paras. 47-48; 
emphasis added): 
Section 73.3518 provides that "[w]hile an applica­
tion is pending and undecided, no subsequent in­
consistent or conflicting application may be filed by 
or on behalf of or for the benefit of the same 
applicant, successor, or assignee." While Berger's 
Fenwick Island proposal has been pending, he ap­
plied for Ocean Pines. The 1 m VIm contours of the 
two proposals overlap. Although the names are dif­
ferent, control is exercised by Leonard Berger over 
both the Fenwick Island and Ocean Pines applicants. 
5822 
Key Broadcasting Corporation, 3 FCC Red 6587, 
6598 (1988). LPB 's claim that Berger deliberately 
sought to shed his ownership in Fenwick Island LP 
before he applied for Ocean Pines is beside the 
point since it has been found, after a hearing, that 
he did not. 
A majority interest in two applicants held by the 
same persons or entity violates the inconsistent ap­
plication rule. The Commission has held that under 
those circumstances the appropriate action to take is 
the dismissal of the latest filed application. Big Wyo­
ming Broadcasting Corp., 2 FCC Red 3493, 3494 
(1987), citing See Agnes J. Reeves Greer, 45 F.C.C. 
2272 (1965). LPB was aware at the outset that Leon­
ard Berger's application in this proceeding might be 
jeopardized by his actions in Fenwick Island. Be­
cause LPB's application violates §73.3518, it will be 
dismissed. 
DISCUSSION 
7. Real-Party-In-Interest-Issue: At the outset we are faced 
with a persistent contention that "the gravamen of the 
real-party-in-interest issue is intent to deceive" which 
Ocean Pines advanced in its exceptions, at oral argument 
(Tr. 118), and in a subsequent written Supplement filed 
May 18, 1990. It emphasizes the proposition that an intent 
to deceive, which lies at the core of all misrepresentation­
like issues, must be proven before an applicant may be 
disqualified on a real-party-in-interest issue, citing 
Tequesta Television, Inc., 64 RR 2d 497, 498 (Rev. Bd. 
1987), and also submits that this issue does "raise a char­
acter matter." Tr. 145-146. In sum, Ocean Pines urges 
that "in order to find conduct of the alleged real-party­
in-interest to be disqualifying, there must be findings of 
misrepresentation, intent to deceive, and/or lack of can­
dor; and, absent such findings, disqualification of the ap­
plicant would be improper." Supplement p. 3. Ocean 
Pines also points out that even counsel for its opponent in 
this case conceded at oral argument that the ALJ in Key 
did not make such findings. Tr. 142-144. 
8. We do not have to reach these arguments because a 
review of the Initial Decisions in both Key and Ocean 
Pines, see paras. 5-6, supra, establishes that Berger was not 
disqualified on the real-party-in-interest issue. In his I.D. 
here, the AU did indicate that the implication of the Key 
conclusions "is that Leonard Berger misrepresented his 
role in the Fenwick LP application", but he also specifi­
cally recognized that the presiding ALJ in Key "did not 
disqualify" or even consider whether Fenwick LP "should 
be disqualified." I.D. at para. 46. Accordingly, the ALJ 
held that the Section 73.3518 issue was dispositive here. 
Thus, we do not have to reach the arguments concerning 
the nature of the real-party-in-interest issue which was of 
"no decisional significance." See Tri-State Broadcasting 
Co., Inc., 5 FCC Red 3727 para. 9 (Rev. Bd. 1990). 
9. Inconsistent Application Issue : Section 73.3518 is part 
of the Commission's processing rules and is designated to 
bar, at the threshold, an application which is inconsistent 
or in conflict with a previously filed application. Here, if 
the two applications are found to be under "common 
control" of Berger when his second (Ocean Pines) ap­
plication was filed, that latter application would violate 
the Commission's multiple ownership rules because of 
prohibited 1 mv/m overlap. Indeed, it is undisputed that 
the 1 mv/m service areas of the two stations would result 
5 FCC Red No. 21 Federal Communications Commission Record FCC 90R-62 
in substantial prohibited overlap. Further, Ocean Pines 
disputes at great length the determination that Berger, in 
fact, controlled the Fenwick application at all times, and 
especially after he decided to file the Ocean Pines applica­
tion. 
10. We agree with Ocean Pines that the Board is 
obliged to first decide whether the findings and conclu­
sions in Key are accurate (i.e., supported by a preponder­
ance of the evidence in that record). Exceptions were filed 
with the Board in Key, and that case was fully briefed and 
argued, but was not decided by the Board because the 
parties entered into a joint settlement agreement (which 
was approved and that proceeding terminated). See Key 
Broadcasting Corp., 5 FCC Red 1986 (Rev. Bd. 1990)(ap­
plication for review pending). However, our previous rul­
ing in this case (see Ocean Pines FM Partnership, supra, 4 
FCC Red at 3491 ), specifically indicated that the findings 
in Key would be binding here only if affirmed on appeal. 
Since the ALl's action dismissing Ocean Pines rested 
squarely on the findings and conclusions in Key, the 
Board must conduct its own review of the record to 
insure that it supports the AU's pivotal conclusion that 
"control is exercised by Leonard Berger over both 
Fenwick Island and Ocean Pines applicants." I.D. at para. 
47. 
11. Until the most recent oral argument in this case, 
Ocean Pines' initial counsel, Robert E. Levine, repre­
sented both Fenwick Island LP and Ocean Pines at both 
hearings and filed exceptions before the Board. Ocean 
Pines' exceptions, which he prepared, incorporated (Br. 
11, note 9) the more specific exceptions he had filed in 
the Key case. Since the Board had earlier heard oral 
arguments on those exceptions, and since consideration of 
those more specific exceptions will conduce to the proper 
dispatch of the Board's review of this case and fairness to 
an applicant whose application has been dismissed, we 
will review the record in the light of all exceptions. The 
following findings, which support the dismissal of the 
Ocean Pines application, are based largely upon the I.D. 
in Key, and have been slightly modified in the light of the 
exceptions and oral argument in both Key and Ocean 
Pines. The transcript citations contained in the following 
paragraphs (13-28) are to the Key proceeding. 
12. The original principals of Fenwick L.P. were Leon­
ard P. Berger, M.D., 80 percent limited partner, and 
Fenwick Island Broadcast Corporation, a Maryland cor­
poration, 20 percent general partner. The corporation's 
original shareholders, officers, and directors (as of July 
11, 1985) were: Sharon V. Lyon, President, Director and 
49 percent shareholder; Lester L. Green, Vice President, 
Treasurer, Director and 20 percent shareholder; Alfred J. 
Stewart, Secretary, Director and 20 percent shareholder; 
and Elijah Saunders, M.D., Vice President, Director, and 
11 percent shareholder. (Fenwick LP Exh. 1). 
13. Prior to becoming involved with Fenwick L.P., 
Berger was active in the cable television business (Tr. 599, 
601, 602), entering the cable television industry in 1971 as 
a founder, officer, director, and stockholder in Calvert, a 
Baltimore county cable system (Tr. 599). In 1978, he 
became President of Calvert (Tr. 601) and ran the com­
pany's day-to-day affairs (Tr. 619). Berger was also active 
in an unsuccessful applicant for a Baltimore city cable 
television franchise and ran that applicants' day-to-day 
affairs as well (Tr. 619). He met Green, one of the origi­
nal principals in Fenwick L.P., at the public hearings in 
connnection with the city cable franchise (Tr. 616-17). 
5823 
14. Berger and Dr. Elijah Saunders are "life-long" 
friends (Tr. 643). They met at age 15, and were college 
roommates and later classmates in medical school (Tr. 
643). Berger met Stewart, another original principal in 
Fenwick L.P., through Saunders (Tr. 617). Berger de­
scribes himself as a friend and advisor to Saunders and 
Green (Tr. 642). Berger "recommended" Saunders for the 
position of Vice President of the University of Maryland 
Hospital, a position which Saunders now holds (Tr. 643, 
798), and Berger speaks with Saunders frequently (Tr. 
643). 
15. Robert Levine, who also represented Calvert in its 
cable television business, periodically contacted Berger 
with information about "window openings" (Tr. 637), to 
apply for new broadcast facilities. Some two months prior 
to the tendering of Fenwick L.P.'s application, Levine 
informed Berger of an opportunity to apply for a new 
radio station in Fenwick Island (Tr. 638-39). Levine also 
explained to Berger the nature of minority preferences in 
the comparative hearing process (Tr. 639). Berger then 
informed Lyon, and they contacted Saunders, Stewart and 
Green about the Fenwick Island opportunity (Tr. 639). 
16. Berger testified that he brought together Lyon, 
Saunders, Stewart, Green, and himself as an applicant 
group for Fenwick L.P. because he wanted to "do some­
thing" for these people (Tr. 622-23). Prior to the filing of 
the application, Berger and the other principals agreed 
that Berger was to hold an 80% interest in Fenwick L.P. 
as a limited partner (Tr. 640). The remaining 20% was to 
be held by the other principals as shareholders in a 
corporate general partner (Tr. 640). 
17. After they had agreed, Berger discussed with Lyons 
that they were going to have to retain an engineer for 
Fenwick L.P. (Tr. 674-75). He did not confer with the 
other principals about this decision, nor did he apprise 
them of the financial arrangement arrived at with the 
engineer (Tr. 676-79). Significantly, Berger retained the 
engineer after the time that the principals agreed that he 
was to be a limited partner (Tr. 673-74). 
18. The engineer sent Berger a diagram of an appro­
priate site for the station (Tr. 672). Berger contacted a 
real estate agent to find a site, and then purchased an 
option on a transmitter site for Fenwick L.P. and agreed 
to make the site available to the partnership (Tr. 672). 
This is the same site specified in Berger's application in 
the instant proceeding (Tr. 671). 
19. Berger testified that he would own the transmitter 
site in the event the application was granted; while he 
"hopes" the partnership will pay him something for the 
site, he would not "take away" the site in the event they 
are unable to reimburse him for the cost (Tr. 686-87). 
The costs required to purchase the site option and the 
anticipated cost of exercising that option were above and 
beyond Berger's 80% contribution to the partnership (Tr. 
686). According to the minutes of the organizational 
meeting of the Board of Directors of Fenwick L.P.'s cor­
porate general partner, Saunders was obligated to contri ­
bute $110 as payment for 110 shares of stock (FIC Exh. 6, 
pgs. 5, 6). Lyon was obligated to contribute $490 for 490 
shares of stock (id .• p. 3). Green was obligated to contri ­
bute $200 for 200 shares of stock (id., p. 4). and Stewart 
was obligated to contribute $200 for 200 shares of stock 
(id., p. 5). 
20. Berger purportedly "resigned" from the Fenwick 
partnership on April 2, 1987, after deciding to apply for 
the FM station at issue here (Tr. 626, 688-89). He did so 
FCC 90R-62 Federal Communications Commission Record 5 FCC Red No. 21 
after being advised by Levine that, because of the Com­
mission's rules, he could not continue in Fenwick L.P. 
and prosecute an application for Ocean Pines, Maryland 
(Tr. 626). 
21. When Dr. Berger "withdrew" from Fenwick L.P., 
he sold his interest to Lyon for $10.00 and other consider­
ations" (Tr. 694 ). Berger described the "other consider­
ations" as his "right to apply for another license" (Tr. 
694), and believed this was fair because he was leaving 
"the partnership on its own" (Tr. 691). It is undisputed 
that Berger and Lyons have had a close personal relation­
ship since 1981. (Tr. 605-609, 710). Dr. Berger was di­
vorced in 1976 or 1977 (Tr. 598), and he first met Lyon 
on a trip to Florida in 1980 or 1981, when he went out 
with her on a blind date (Tr. 602). They shared a resi­
dence in Florida for six to twelve months in 1980 or 1981 
(Tr. 608-09). 
22. Lyon was later hired by Calvert, Berger's cable 
television company, in 1980 or 1981 as Director of Ad­
vertising Sales (Tr. 610). Berger sold his interests in Cal­
vert in September 1983; the sale was finalized in 
February, 1984 (Tr. 610), and he thereafter established a 
permanent residence in Ocean City, Maryland in 1984 
(Tr. 611). 
23. In February, 1985, Lyon moved to Ocean City and 
was hired by the Sheraton Fontainebleau Inn & Spa (Tr. 
611; Fenwick L.P. Exh. 2, p. 2), which is controlled and 
owned by Berger (Tr. 612, 743). When Lyon moved to 
Ocean City to work for the Sheraton, she resided tem­
porarily with Berger (Tr. 612). She currently resides in a 
condominium owned by Berger (Tr. 610, 742). 
24. Berger considers himself to be a wealthy man (Tr. 
684), while Lyon is from a family of average means (Tr. 
711). During their relationship, he has given Lyon mone­
tary gifts when she was in need of money (Tr. 683, 
730-31). Berger has also given her non-monetary gifts on 
many occasions (Tr. 731, 733-34, 736). Lyon testified that, 
on at least several occasions, these non-monetary gifts 
have been worth more than $6,000 (Tr. 731). 
25. The hearing fee assessed by the Commission in the 
Fenwick case was due on July 22, 1987. See Hearing 
Designation Order, DA 87-746, released July 1, 1987 at 
para. 19. Lyon testified that she "hinted" to Berger that 
she deserved a $6,000 bonus (Tr. 745-46) and she was 
aware that the Commission's hearing fee was $6,000 (Tr. 
746). 
26. Berger gave Ms. Lyon $6,000, in July of 1987. (Tr. 
682-3), and it was conceeded that he was aware of the 
Commission's $6,000 hearing fee requirement since he 
had been informed of the requirements by Levine in 
connection with his application for the Ocean Pines sta­
tion (Tr. 685). 
27. Berger is uncertain whether he has made other gifts 
to Lyon during the time in which the Fenwick L.P. 
application was pending before the Commission (Tr. 684), 
but Berger further testified that, if Lyon approached him 
today for money he would probably give her the money 
again (Tr. 688), and that he had in the past, and would in 
the future, give her advice about the Fenwick application. 
(Tr. 695). 
28. In sum, the crucial determinations in Key estab­
lished that Berger, after assembling the principals in the 
Fenwick Island application and agreeing to be a limited 
partner, maintained firm control over the venture. 
Levine, who Berger described a "my lawyer" and "a very 
5824 
good friend" (Tr. 648), was retained to represent both 
Berger's Fenwick Island and Ocean Pines applicants. 
Berger selected Fenwick Island's engineer, and purchased 
an option on a transmitter site which was to be used by 
both the Fenwick Island and the Ocean Pines applicants. 
Since 1981, Berger had maintained a close personal and 
business relationship with Lyon, his "protegee," providing 
her with jobs, housing, as well as substantial gifts of 
money and jewelry, and, later in 1987, transferred his 
80% interest in the Fenwick Island application to her for 
insignificant consideration. Perhaps most significant was 
the fact that after Berger withdrew from the Fenwick 
application, Lyon obtained the $6,000 hearing fee directly 
from Berger as well as the fact that he had not in the past, 
and would not in the future, insulate himself from her 
management of the Fenwick application. These objective 
indicators of control (and the AU's opportunity to ob­
serve the witnesses who testified in the Fenwick Island 
case) support the AU's Key conclusion that (I.D. at para. 
147): 
. it was Dr. Berger alone who has been the life 
blood of Fenwick L.P.'s entire proposal. In April of 
1987, Dr. Berger decided to apply for a frequency in 
Ocean Pines, Maryland, and upon counsel's advice, 
withdrew from Fenwick L.P. But there is no evi­
dence indicating that Dr. Berger has extricated him­
self from his position of control in relation to this 
application nor that his interest will not continue 
through Ms. Lyon in the future. On the contrary, 
the record indicates that even after his withdrawal 
from Fenwick L.P., Dr. Berger has continued to be 
involved with the activities and decisions made by 
the partnership. He has provided Ms. Lyon with the 
$6,000 hearing fee in order that Fenwick L.P. could 
continue in this proceeding. He has stated his will­
ingness to continue to provide funds to Ms. Lyon 
for use in this proceeding. He owns the option to 
purchase Fenwick L.P. transmitter site .... There 
can be no doubt that Dr. Berger potentially and 
even now controls the operation of Fenwick L.P. 
There is ample proof that Ms. Lyon and Dr. 
Saunders are too beholden to Dr. Berger to be 
considered independent of his control. It must be 
concluded that Dr. Berger is the real party in inter­
est. 
29. Thus, the record before us fully supports the con­
clusion that the limited partnership in Fenwick was a 
"sham" when measured by any of the legal standards 
which have been utilized in the past. See Metroplex Com­
munications, Inc., 4 FCC Red 8149 (Rev. Bd. 1989), rev. 
denied, FCC 90-294, released September 19, 1990. More 
importantly, all of the objective indicators require us to 
affirm the AU's findings that Berger was "the real-party­
in-interest" and "in control" of the Fenwick application 
from the beginning, and was still in control of that ap­
plication when he filed the instant Ocean Pines applica­
tion. It is undisputed that the proposed service areas of 
these two applications substantially overlap in violation of 
the Commission's multiple ownership rules, and the in­
consistent applications rule. Controlling Commission 
precedent establishes, as the Administrative Law Judge 
correctly concluded, that the inconsistent application rule 
was violated when the Ocean Pines application was filed, 
see Margaret Escriva, 4 FCC Red 5294 (1989), and that the 
5 FCC Red No. 21 Federal Communications Commission Record FCC 90R-62 
appropriate remedy is the dismissal of the ~ater-filed 
Ocean Pines application. Big Wyoming Broadcasting Corp., 
2 FCC Red 3493, 3494 (1987). 
30. Collateral Estoppel: At oral argument, new counsel 
for Berger argued that, if the Board affirms the findings in 
the Fenwick Island case, those findings cannot be applied 
against Berger here because Levine did not formally re­
present Berger in the Fenwick Island _hearing. _Howev~r, 
the record establishes that Berger was giVen specific notice 
of the issues to be tried in both cases (supra, paras. 3-4); 
Levine was counsel of record in both cases; and Berger 
considered Levine "my" lawyer, and was satisfied with 
Levine's joint representation of his common interests. 
Accordingly, as a factual matter, there is no reason why 
the Board should modify its previous ruling that Berger 
should not have been permitted to relitigate the facts 
established in the Fenwick Island case "where the parties 
and issues are similar or interrelated." See Ocean Pines, 
supra 4 FCC Red at 3491. 
31. Departing significantly from the exceptions filed by 
Ocean Pines' erstwhile counsel, its current counsel at oral 
argument contended that the adverse ~eal-party-in-i~terest 
findings of Key cannot be held agamst Berger m the 
instant case, because Berger was not a "party" to the Key 
case and had no opportunity to fully litigate that issue. 
See Tr. 109, 120-132, 150-154. In other words, while this 
precise legal argument was not made_ specifically in Oce~n 
Pines' original exceptions (and might therefore be Ig­
nored, see 47 CFR § 1.277(a)), current counsel essentially 
argues that the doctrine of collateral esto~pel can~ot ?e 
used to hold the Key findings and conclusiOns agamst It, 
because Berger was not a "party" in Key, merely a wit­
ness. 
32. We made clear in our interlocutory Ocean Pines 
order that, inasmuch as a full evidentiary hearing had 
been held in Key to determine whether Berger was a 
real-party-in-interest there, the ALJ here need not 
relitigate those findings in this proceeding, because we 
would rule on the exceptions in Key going toward those 
findings. See 4 FCC 2d at 3491. However, as indicated, 
Key was settled before we ruled on those exceptions. 
Consequently, our review of Ocean Pines' instant excep­
tions has necessarily required that we give a de novo 
review to the record in Key, and to all of the exceptions 
filed in that case. We have done so and are in accord with 
the Key ALJ that Berger was not only a real-part1-in­
interest in that case, but actually controlled the applicant 
fronted by Lyon. 
33. Notwithstanding, new counsel maintained at oral 
argument that collateral estoppel was unavailable, and: as 
a result, Berger was, by virtue of our pnor Ocean Pmes 
order, denied an opportunity to adequately challenge the 
adverse findings in Key. Just prior to our 1989 Ocean 
Pines order, we had reviewed the leading authorities at 
length in Montgomery County Media Network, 4 FCC Red 
3749 (Rev. Bd. 1989), and set out the following 
prequisites to the application of collateral estoppel: 
(1) an issue identical to one that was previously 
litigated and that was essential to the previous de­
cision; 
(2) the prior adjudication must have reached the 
stage of being a final judgment on the merits; 
(3) the party to be estopped must have been a party 
to the prior litigation, or in privity with such a 
party; 
(4) the estopped party must have had a full and fair 
opportunity to litigate the issue in the prior pro­
ceeding. 
In Montgomery County, we held that because the subject 
applicant had merely been a discredited. witness in a 
different case, collateral estoppel was unavailable and that 
the applicant's conduct would have to be relitigated in a 
second proceeding. 
34. At the oral argument, counsel urged, in essence, 
that Berger's posture in Key was identical to that of the 
witness in Montgomery County, and that he was not "a 
party to the prior litigation, or in privity with such a party 
.... " We find this eleventh-hour argument to be hollow, 
at best. Unlike Montgomery County, the issue in Key was 
whether, in fact, Berger yet remained a real-party-in-inter­
est, despite his alleged withdrawal. The ALJ ther~ found, 
and we here affirm, that Berger was and remamed the 
real-party to, and in control of, the Key application. 
There, as here, Berger's applicant was represented at hear­
ing by "my attorney" (see supra para. 28); Berger was 
given an opportunity in Key to give full evidence in 
defense of the real-party-in-interest issue; he does not 
claim that any pertinent evidence was omitted; he was 
given an opportunity by the ALJ in the i~stant proceed­
ing to present additional explanatory ~videnc~ ~n the 
issue (but declined, see supra para. 5); and his mstant 
exceptions challenge fully and vigorously the adverse con­
clusions against him in Key. And, from the outset of the 
instant proceeding, Berger was acutely aware of the 
adverse Key conclusions, as well the potentially fatal im­
pact on the basic qualifications of Ocean Pines. 
5825 
35. We hold that Berger was, at a minimum, "in priv­
ity" with the discredited Key applicant, and that collateral 
estoppel applies. Berger had every opportunity to present 
his evidence in support of his version of his relationship 
to Lyon and the Key applicant to the FCC, and convinced 
neither the Key ALJ nor this Board that Berger was not 
the de facto party in control of the Key applicant. We 
therefore affirm the dismissal of Ocean Pines' application 
and the grant of the application of Ocean Pines Broad­
casting Company. 2 
36. ACCORDINGLY, IT IS ORDERED, That the ap­
plication of Ocean Pines LPB Broadcast Corp. 
(BPH-870406KF) IS DISMISSED with prejudice, that the 
application of John Hopkins Broadcasting IS DIS­
MISSED, pursuant to 47 CFR 1.276(c) and that the ap­
plication of Ocean Pines Broadcasting Company 
(BPH-870406KH) IS GRANTED. 
FEDERAL COMMUNICATIONS COMMISSION 
Joseph A. Marino 
Chairman, Review Board 
FCC 90R-62 Federal Communications Commission Record 5 FCC Red No. 21 
FOOTNOTES 
1 At hearing, Ocean Pines did offer revised Exhibit 4A, a letter 
from Dr. Berger to Ms. Lyons dated April 2, 1987, announcing 
his resignation from the Fenwick Island application, but this 
cumulative evidence was properly rejected by the AU because it 
did not materially add to the factual record in Key. 
2 The release of our Decision in this case was held in abeyance 
pending final settlement of Key. Had Key not settled, we would 
have addressed the exceptions directly therein. 
CONCURRING STATEMENT 
OF 
BOARD MEMBER NORMAN B. BLUMENTHAL 
I reach the same destination as the majority Decision, 
but would do so via a slightly different route. 
Ex necessitate (Key Broadcasting Corp, 3 FCC Red 6587 
(ALJ 1988), settled before we addressed the exceptions), 
we have here reviewed the Key record and exceptions to 
determine whether the ALJ there erred in finding Dr. 
Leonard P. Berger to be a real-party-in-interest to the 
applicant Fenwick Island Broadcast Limited Partnership I, 
and not merely the (80%) "passive limited partner" he 
claimed initially to be. The majority Decision here finds 
that the Key ALJ was manifestly correct in his adverse 
ruling under that critical issue. 
Having found -- after a thoroughgoing review of the Key 
record, the Key initial decision, the exceptions thereto, 
and the Ocean Pines LPB exceptions to the instant initial 
decision that rehash at length the Key real-party-in-inter­
est evidence -- that Dr. Berger was not merely a party to 
his Key application but the controlling party, I would 
disqualify his instant applicant, Ocean Pines LPB, on that 
basis alone. The law has long held that real-party-in­
interest issues are basic qualifying issues, not comparative 
ones, see Massilon Broadcasting Co., Inc., 22 RR 218, 
220-221 (1968); see also Rayne Broadcasting Co., Inc., 5 
FCC Red 3350, 3353 (Rev. Bd. 1990); Tequesta Television, 
Inc., 2 FCC Red 7324, 7325 (Rev. Bd. 1987), 1 and Dr. 
Berger is therefore ineligible to receive this Ocean Pines 
construction permit. 2 
In short, the record in Key corroborates this: Dr. 
Berger, deploying his inamorata as a distaff front, applied 
for an FM permit in Fenwick Island. He shortly thereafter 
filed for this permit in Ocean Pines. If he were deemed a 
cognizable party to both applications, a cross-ownership 
rule conflict stood squarely in his path. While he pu­
tatively "withdrew" from his 80% equity interest in his 
Fenwick Island applicant, he maintained his de facto in­
terest by and through Lyons, who needed, inter alia, his 
funding to pay even the hearing fee. His is not the first 
applicant to lurk behind his woman's petticoat, see, e.g., 
N. E.O. Broadcasting Co., 103 FCC 2d 1031 (Rev. Bd. 
1986), review denied, 1 FCC Red 380 (1986); see generally 
Richard E. Batt, II, 4 FCC Red 4924, 4329-4330 (Rev. Bd. 
1989), review denied, 5 FCC Red 2508 (1990), but the 
precedent does not make more palatable the practice. 
FOOTNOTES TO CONCURRING STATEMENT 
1 Ocean Pines LPB's exceptions rely on Tequesta for the 
proposition (in its view) that, since the Key AU did not find 
misrepresentation or lack of candor on the part of Dr. Berger, 
Berger cannot be considered unqualified to control a license, 
despite the adverse real-party-in-interest conclusions in Key. I 
5826 
read Tequesta differently: There, in approving a settlement, the 
Board (of which I was definitely not a panel member) noted that 
although the AU had below rejected the "integration" credit of 
one of the settling applicants, he had not added a real-party­
in-interest issue against, and therefore did not formally dis­
qualify, that applicant. The Tequesta Board, decrying a tendency 
in some contemporary cases to reach de facto control solely 
through the comparative issue of "integration," enjoined our 
AU's to add, where appropriate, discrete real-party-in-interest 
issues so that the culpable applicant was not simply deprived of 
"integration" credit, but subject to basic disqualification. The 
Key AU effectively comported with the Tequesta ideal. He 
added a specific real-party-in-interst issue and resolved it ad­
versely to what was plainly, in fact, Dr. Berger's applicant. 
Tequesta, as I read it, provides little succor for Ocean Pines 
LPB. 
In a supplement to its exceptions, Ocean Pines LPB argues 
further that, despite his adverse conclusions, the Key AU did 
not disqualify Dr. Berger's applicant, and that its opponent here 
concedes that Dr. Berger was not found to have been untruth­
ful. However, we have the public interest to protect and I agree 
with the initial decision in the instant case that a necessary 
implication of Key "is that Leonard Berger misrepresented his 
role in the Fenwick LP application" (see ante, para. 8). That is 
also the legal implication of Tequesta. But above and beyond the 
"implications" of the adverse Key conclusions, are facts that 
reveal glaringly Dr. Berger's several attempts at deception in the 
Fenwick Island case: first, when he claimed to be merely a 
"passive" investor, with Lyons an independent agent in full 
control; and, second, when he alleged to have "withdrawn" (for 
$10) as a principal, so as not to conflict impermissibly with this 
Ocean Pines application. In suggesting that Lyons would unilat­
erally control the Fenwick Island facility, while he controlled a 
competing station just down the beach, Dr. Berger plainly in­
tended to deceive, and the record underlying the real-party­
in-interest issue proves conclusively that Dr. Berger's was one 
and the same as the Lyons' share. I see neither innocence nor 
candor in his conduct in these companion cases. 
2 As the majority Decision explains, with my endorsement, 
Ocean Pines LPB's new counsel (with "the brimming vitality of 
a fresh paladin," San Joaquin Television Improvement Corp., 96 
FCC 2d 617, 618 (Rev. Bd. 1984)) raised for the first time at oral 
argument the claim that collateral estoppel does not lie because 
Dr. Berger was not a "party" in the Key case. Procedural 
estoppel aside, this argument is not without seductive qualities, 
but is beneath the surface specious to the point of hubris. In 
Key, Dr. Berger was on clear notice that if he was found to be a 
party there, his instant application was subject to summary 
dismissal under the cross-ownership rules. He was thus more 
than a mere witness; he was defended by "his" lawyer (in that 
case and this) to whom he paid good money; and he lost the 
vital issue by overwhelming evidence. To now claim that Dr. 
Berger was not a "party" or "in privity" with Lyons in Key, or 
that the defense of that issue was somehow handicapped, is 
perhaps a colorable "lawyers argument," but nothing more. 
Substantively and procedurally, Dr. Berger had every reasonable 
opportunity to prove to the FCC that he did not control his Key 
applicant; he does not here claim any additional evidence or 
testimony; he has had his say in two sets of exceptions; he has 
had a de novo review of the record; and he now has a unani­
mous Board agreeing with the Key AU on the pivotal issue. We 
need not hold another hearing to "make the rubble bounce." 
5 FCC Red No. 21 Federal Communications Commission Record 
SEPARATE STATEMENT 
OF 
BOARD MEMBER ERIC T. ESBENSEN 
Hair-splitting technicalities aside, the Board has af­
firmed the real-party-in-interest conclusions of the Initial 
Decision in Key Broadcasting Corp., 3 FCC Red 6587 
(1986), and determined that Berger's instant application 
for Ocean Pines, Maryland to be inconsistent with 47 
CFR §73.3518. 
I respectfully submit that, irrespective of the theory of 
the disqualification of Berger's Ocean Pines LPB Broad­
cast Corporation, such disqualification is the mandatory 
result. Thus, I specifically agree with the Concurring 
Statement that a real-party-in-interest issue, by its very 
nature, is a basic qualifying issue in which the element of 
deception is necessarily subsumed. Rayne Broadcasting 
Co., Inc., 5 FCC Red 3350, 3353 (Rev. Bd. 1990) (Board 
declares "could not grant" application in the face of "real­
party-in-interest" issue "without determining whether [ap­
plicant] is basically qualified"). 
5827 
FCC 90R·62