7 FCC Red No. 3 Federal Communications Commission Record FCC 92-31 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of WXIA-TV Complaint No. 91070126 MEMORANDUM OPINION AND ORDER Adopted: January 22, 1992; Released: January 29, 1992 By the Commission: Commissioner Quello not partici­ pating. I. INTRODUCTION 1. In this Memorandum Opinion and Order. we deny Complainants' motion to disqualify Commissioner James H. Quello from participating in the above-captioned com­ plaint proceeding. 1 II. BACKGROUND 2. Complainants are nine political candidates who ran for office in the state of Georgia in 1986 or 1990.2 Com­ plainants have filed a formal complaint before the Com­ mission alleging that the licensee of Station WXIA-TV violated the "lowest unit charge" requirement of Section 315(b) of the Communications Act of 1934, as amended, in the 1986 and 1990 Georgia election campaigns. In their complaint, they request that the Commission audit WXIA­ TV's records for these years, revoke the license of WXIA­ TV, assess forfeitures against WXIA-TV. and order WXIA-TV to refund overcharges to the candidates. The complaint is pending before the Commission. 3. On October 21, 1991. Complainants requested that Commissioner Quello voluntarily withdraw from partici­ pation in the complaint proceeding. or. alternatively, that the Commission disqualify him from participation. Com­ plainants asserted that Commissioner Quello had made certain public remarks which indicate bias (or an appear­ ance of bias) against their claim. 3 Specifically. Complain­ ants argued that Commissioner Quello "has already made up his mind on the issues of liability and damages for violations of § 3 l 5(b) ... "4 4. In response, Commissioner Quello requested the General Counsel's opinion as to whether he was required to recuse himself from the proceeding. The General Counsel issued a letter stating that. in his view. Commis­ sioner Quello was not required to recuse himself because the Commissioner's remarks merely expressed his view that the Commission, not the courts, should adjudicate complaints alleging violation of the lowest unit charge requirement.5 Commissioner Quello subsequently issued a separate opinion in which he declined voluntarily to recuse himself from the proceeding.6 Complainants then renewed their request that Commissioner Quello be dis­ qualified. 925 III. DISCUSSION 5. The test for disqualification of a Commissioner on the grounds of prejudice or appearance of prejudice in an adjudicatory proceeding is whether "a disinterested ob­ server may conclude that [the decisionmaker] has in some measure adjudged the facts as well as the law of a particu­ lar case in advance of hearing it." Cinderella Career and Finishing Schools, Inc. v. FTC. 425 F.2d 583. 590-591 (D.C. Cir. 1970) (Cinderella). Similarly. section l 9.735-20la of the Commission's rules requires an em­ ployee, inter alia, to avoid any action which might result in or create the appearance of losing complete indepen­ dence or impartiality. 47 C.F.R. § 19.735-20la. As dis­ cussed below, we conclude there is no basis for disqualification under the Cinderella test. Having made that determination, we also believe there is no violation of the Commission's rules. 7 6. We believe that a disinterested observer could not conclude that Commissioner Quello has in any way ad­ judged the facts as well as the law of the pending com­ plaints against WXIA-TV.8 As a preliminary matter, we note that Commissioner Ouello does not mention WXIA­ TV or the specific complaints in any of the quoted re­ marks cited by Complainant. Further. it is apparent from both the speeches and the quotations in Broadcasting re­ ferred to by the Complainant that the import of Commis­ sioner Quello 's remarks was a concern that alleged violations of section 315(b) should be adjudicated by the FCC. not the courts. Read in context. a disinterested observer would thus readily conclude that the specific remarks to which complainants object relate only to the appropriate forum for resolution of the lawsuits pending in court. and not to the merits of particular complaints or the specific complaint against WXIA-TV.9 Finally. we do not believe a disinterested observer would conclude that Commissioner Quello's statement that "[c[andidates have even challenged license renewals over allegations of lowest unit charge violations" would in any way suggest that he has adjudged the facts as well as the law re~arding wheth­ er WXIA-TV has violated section 315(b). 0 We do not think a mere reference to non-renewal as a potential sanction is sufficient to cause a disinterested observer to tie Commissioner Ouello ·s remarks to a particular case. Further, even assuming that this remark reflected a pre­ conception as to whether, as a general legal matter. non­ renewal is a proper remedy for section 315(b) violations. such a preconception as to the law would not require disqualification. 11 7. Accordingly, IT IS ORDERED that Complainants' motion for disqualification of Commissioner James H. Quello from participating in this proceeding IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Donna R. Searcy Secretary FCC 92-31 Federal Communications Commission Record FOOTNOTES 1 Before the Commission are Complainants' Demand for Voluntary Withdrawal or, in the Alternative, Motion to Recuse (Motion), received October 21, 1991, a Memorandum filed by Complainants in support thereof on the same day. and Com­ plainants' Opposition to "Opinion of Commissioner James H. Ouello" and Renewal of Complainants' Motion to Recuse (Re­ newal), dated November 26, 1991. 2 The Complainants are the following candidates: Roy Barnes, Johnny Isakson. Lauren McDonald, Zell Miller, Andrew Young. Pierre Howard, Warren Evans, Tim Ryles, and Mack Mattingly. 3 On October 2. 1991, Commissioner Ouello spoke before the American Women in Radio and Television. Inc. and the Ken­ tucky Broadcasters Association (October 2 speech). On October 11, 1991. Commissioner Ouello spoke before the Minnesota Broadcasters Association (October 11 speech). Broadcasting mag­ azine contained two articles in its October 7. 1991 issue, entitled "FCC Moves to Stem Lowest Unit Lawsuits" and "Ouello Urges Leniency in Overcharge Cases," which included quotations from Commissioner Ouello. Complainants rely on these two speeches and two articles as the basis for their disqualification request. 4 Memorandum at 3. 5 See Letter of November 7, 1991 from Robert L. Pettit, General Counsel to Commissioner James H. Ouello. 6 Opinion of Commissioner James H. Quello (Opinion). Pub­ lic Notice No. 20642, released November 14. 1991. The General Counsel's letter is attached as an appendix to Commissioner Ouello's Opinion. If a disinterested observer could not conclude that Commis­ sioner Quello in some way had prejudged the case, then we also believe there would be no appearance of loss of impartiality under our rules. Further, contrary to Complainant's claims. our rules were not intended to impose a requirement of impartiality that is in any way more stringent than that imposed by the courts. ~ As a point of clarification, we also note that a decision­ maker's preconceptions as to the law, standing alone. do not invalidate agency action or require disqualification. See FTC v. Cement Institute, 333 U.S. 683, 702-03 ( 1948); City of Charlottes­ ville v. FERC, 774 F.2d 1205. 1212 (D.C. Cir. 1985). It is also noteworthy that even judges are free to decide cases involving policy questions on which they previously have expressed a view. See Association of National Advertisers. Inc. v. FTC. 627 F.2d 1151. 1171 n.51 (D.C. Cir. 1979); see also C & W Fish Co., Inc. v. Fox. 931 F.2d 1556, 1565 (D.C. Cir. 1991); In the Matter of a Petition for Investigation of Alleged Violations of the Commis­ sion's Rules, 6 FCC Red 4762 (1991). 4 See Memorandum at 2. quoting October 2 speech at 3. October 11 speech at 4; Memorandum at 2. quoting October l l speech at 5-6; Memorandum at 3. quoting Broadcasting maga­ zine. "FCC Moves to Stem Lowest Unit Lawsuits." 10 See Memorandum at 6, quoting October 2 speech at 3, October 11 speech at 4. 11 See cases cited in note 8, supra. 926 7 FCC Red No. 3