FEDERAL COMMUNICATIONS COMMISSION FCC 97-395
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In re
GERARD A. TURRO
For Renewal of License
for FM Translator Stations
W276AQ(FM), Fort Lee, NJ and
W232AL(FM), Pomona, NY
MONTICELLO MOUNTAINTOP
BROADCASTING, INC.
Order to Show Cause Why the
Construction Permit for FM Radio
Station WJUX(FM), Monticello, NY,
Should Not be Revoked
MEMORANDUM OPINION AND ORDER
Adopted: November 17, 1997 Released: November 18, 1997
By the Commission: Chairman Kennard not participating.
1. This order grants the Petition for Special Authority to Take Deposition, filed June26, 1997 by Gerard A. Turro (Turro), thereby authorizing Turro to take the oral deposition of
the Commission field engineer responsible for conducting on-site inspections of station
WJUX(FM), of Turro's studios in Dumont. New Jersey and of Turro's Fort Lee, New Jersey
translator facility. Turro may depose the Commission employee regarding Issues 1 through 3
and 5 through 7, which were specified against the above-captioned licensees by Hearing
Designation Order, Order Show Cause gNotice_QfOpportunitvfHearing, 12 FCC Rcd6264 (1997).' In granting this Petition, we emphasize the special circumstances prevailing
'The designated issues seek to determine: whether Turro's operation of his translator stations violated
certain Commission rules (Issue I) ; whether Turro engaged in an unauthorized transfer of control or otherwise
assumed control over station WJUX(FM, Monticello. New York (Issue 2); whether Turro misrepresentated facts
and/or lacked candor concerning the operation of his translator stations (Issue 3): whether MonticelloMountaintop Broadcasting Inc. (MMB1) violated the main studio rule (Issue 5): whether MMBI engaged in an
MM Docket No. 97-122
File Nos. BRFT-970129YC
BRFT-970129YD
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here and reiterate that Commission personnel are generally to be questioned by written
interrogatory
BACKGROUND
2 Gerard Turro is the licensee of FM Translator Stations in Fort Lee, New Jersey and
in Pomona, New York. Pursuant to a Program Affiliation Agreement with Monticello
Mountaintop Broadcasting Inc. (MMBI), Turro provides "Jukebox Programming" that is
broadcast on a full-time basis on MMBI's full-service FM station WJUX in Monticello, New
York. Turro and MMBI are also parties to rebroadcast agreements whereby station WJUX's
programming is broadcast over Turro's two FM translator stations.
3. The Commission received a complaint that the operations of station .WJUX(FM)
and of Turro's two FM translator stations, as well as the business relationships between Turro
and MMBI, violated Commission rules and policies relating to FM translator stations. This
prompted an investigation into the relationship of Turro and his FM translator stations with
MMBI, the licensee of station WJUX(FM). As part of this investigation, a Commission field
engineer conducted inspections of station WJUX(FM), of Turro's Fort Lee FM translator
station, and of his Dumont, New Jersey studio. Based upon the field engineer's observations
during the on-site inspections, which appeared to conflict with the responses of Turro and
MMBI to Letters of Inquiry subsequently directed to them, the Commission designated this
proceeding for hearing. It specifically found: (1) that Turro apparently violated section
74.1231(b) of the rules regarding the requirement that a translator station directly receive and
retransmit the primary signal that it carries; (2) that MMBI apparently violated the
Commission's rules and policies regarding a broadcast station's main studio, which require the
maintenance of a main studio within its principal community contour; and (3) that MMBI
apparently abdicated control of, and Turro apparently assumed control of, station WJUX(FM),
in violation of section 3 10(d) of the Communications Act and section 73.3540(a) of the rules.
The Commission also found a substantial and material question of fact as to whether Turro
and MIvIBI have misrepresented material facts or lacked candor concerning the operations of
station WJtJX(FM) and Turro's FM translator stations.
DISCUSSION
4. In its Petition for Special Authority to Take the Deposition of Serge Loginow, Jr.,
flied June 26, 1997, Turro seeks permission to take the oral deposition of the field engineer
identified by the Bureau as the only member of the Commission's staff with personal
knowledge of the facts recited in the HDO or of the field inspections conducted of these
stations and of Turro's Dumont, New Jersey studio. Turro relies on the determination of
unauthorized transfer of control or abdicated control over WJUX(FM) (Issue 6) and whether MMBI
misrepresented facts andlor lacked candor concerning the operation of station WJUX(FM) (Issue 7).
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Administrative Law Judge Authur I. Steinberg that the deposition of Mr. Loginow is
reasonably calculated to lead to the discovery of admissible evidence under Issues I through 3
and 5 through 7 and that orally deposing him is an appropriate means of discovery under the
circumstances of this case. Memorandum Opinion aOrder, FCC 97M-1 12 (rel. June 22,
1997). MMBI, the licensee of WJUX(FM) supports Turro's request to take Loginow's oral
deposition. It urges that an oral deposition is the only way for the parties to explore
adequately the testimony that Mr. Loginow might give, that such exploration is critical to
both Turro and MMBI, and that disallowing the pre-trial oral examination of Loginow would
make this proceeding fundamentally unfair.
5. The Mass Media Bureau filed an opposition to Turro's request on July 3, 1997,
urging that Mr. Loginow should be questioned by written interrogatories rather than through a
time-consuming and burdensome deposition. It submits that there has been no showing that
written interrogatories are an inadequate means of discovering information known to the
Commission. It claims that MMBI's pleading aptly illustrates, through a series of questions,
that written interrogatories directed to Loginow would be an efficient, adequate means of
discovery under the circumstances here. In reply, Turro urges that newly revealed information,
consisting of potentially exculpatory material prepared by Loginow but not addressed in the
HDO, confirms that it is essential that it be afforded an opportunity to take Loginow1s oral
deposition.
6. On September 16, 1997, Turro filed a Supplement to Petition for Special Authority
to Take the Deposition of Serge Loginow, Jr., in which it urges that further developments
emphasize the need for an oral deposition of Mr. Loginow. Turro asserts that Mr. Loginow
was at all times relevant a Commission employee, who conducted and reported on his
inspections and monitoring as part of his employment at the direction of the Mass Media
Bureau. Nonetheless, Turro states that, in response to a request for admissions of fact based
	
on information from Mr. Loginow, the Bureau variously responded "Unknown to the Bureau"
and "Neither admit nor deny. The Bureau has no first-hand knowledge. The Bureau has no
knowledge whether Loginow has such knowledge." Turro argues that the Bureau has
attempted to curtain discovery by refraining from seeking answers from Mr. Loginow and by
then merely saying that it does not know the answers known only to Mr. Loginow. In its
response filed on September 24, 1997, the Bureau contends that it has disclosed and made
available all materials relevant to this case and that there has been no prejudice to Turro's
discovery rights. Inasmuch as the Bureau filed supplemental responses to Turro's request for
admissions of fact on October 15, 1997, and Turro has filed no further objection in this
regard, these contentions have no further relevance to the pending request to take Mr.
Loginow's deposition.
7. While it is rare that we are willing to authorize oral depositions, we conclude that
it is appropriate to authorize Turro to depose Mr. Loginow by oral examination at this time.
Section 1.311 (b)(2) of the Commission's rules, 47 C.F.R. § 1.311 (b)(2), provides that
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Commission personnel may not be deposed for purposes of discovery except on special order
of the Commission, but may be questioned by written interrogatories under section 1.323."
As the Commission observed in adopting its discovery procedures, "At any one time, there
are numerous hearing cases pending before the Commission. A multiplicity of demands on
the Commission's limited staff would seriously interfere with its capacity to discharge its
regular duties. The Commission is in this respect in a different position from that of private
parties who will normally be called upon to give depositions only in the single case in which
they are participating." Report g4.Order_QL
Provide for Discovery Procdures, 11 FCC 2d 185, 188 para. 9 (1968) ("Report g4Order").
The Commission further noted that "the written interrogatory may well be the most useful of
the several procedural devices, since a party may, in one set of interrogatories, obtain an
answer to each of his questions from the person best able to furnish it, without time-
consuming questioning to determine in advance the particular staff member wh has
knowledge of the facts." Report
	
Order at 188 para. 9. Thus, Section 1.311(b)(2) was
intended to address the interests of Commission personnel as well as parties seeking to
discover information from them.
8. As the Bureau urges, Section 1.311(b)(2) contemplates that Commission personnel
generally will be questioned by written interrogatories rather than by oral depositions.
Nevertheless, an oral deposition is appropriate under the extraordinary circumstances of this
case. The FCC field engineer's observations and inspection are critical to the determination of
five of the seven issues designated for hearing. The Bureau, in response to Turro's First Set
of Interrogatories, has identified Serge Loginow as the field engineer who conducted the
inspections of Turro's Fort Lee translator station, of Turro's Dumont, New Jersey studio, and
of MMBI's Monticello full-service station. The Bureau has also identified Mr. Longinow as
the only Commission employee with personal knowledge of the inspections, and as a Bureau
witness, who "will testify about the inspections he conducted." Memorandum Opinion g
Order. FCC 97M-1 12 ¶ 3, citing Answers to Interrogatories. Moreover, this is a hearing to
determine whether Turro is qualified to retain two licenses and whether MMBI will be
permitted to retain its Monticello license. With almost every decisional issue turning on the
inspector's personal observations, and in view of such severe potential consequences, we
believe that circumstances warrant allowing Turro the opportunity to orally examine Mr.
Loginow.
9. In two other cases, the Commission has considered requests for a special order
authorizing oral depositions of its employees. In Scripps Howard Broadcasting Company, 9
FCC Rcd 4880 (1994), the Commission held that it would not entertain requests to depose
Commission personnel for discovery purposes concerning matters related to their employment
at the Federal Communications Commission, in the absence of an affirmative finding by the
presiding Administrative Law Judge that the proposed examination was relevant to a
designated issue in the proceeding. Here, the AU has made an affirmative finding of
relevancy which is not disputed by the Bureau. As the AU noted, the specification of Issues
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1 through 3 against Tares and Issues 5 through 7 against MMBI was largely based on theinspections conducted by Mr. Loginow.
10. In Rainbow Broadcasting g., 11 FCC Rcd 8927 (1996), a case that had been
remanded by the D.C. Circuit with instructions to make a specific factual determination,2 theCommission found that oral depositions would "lead to the discovery of evidence that is
admissible," and it would expedite the resolution of the proceeding. Here, those
circumstances exist, perhaps to an even greater extent than in Rainbow. As noted above,Loginow's personal observations during the inspections formed the basis for specifying all of
the substantive issues, including the misrepresentation/lack of candor issues. However,
Loginow's personal observations are, as the ALl found, more readily discoverable through an
oral deposition than through written interrogatories. And, because an oral deposition provides
an opportunity for immediate follow-up questions, it is potentially more efficient than the
series of written interrogatories that might ultimately be required to elicit the same
information from Loginow. In light of the unusual circumstances set forth above, and in
order to insure the prompt and efficient resolution of this proceeding, we conclude that it is
appropriate to allow the taking of Loginows deposition at this time.
11. Such deposition should be scheduled as soon as possible to permit full exploration
of any new areas of inquiry revealed by Loginow's deposition testimony. The scope of thedeposition should, of course, be limited to the designated issues. We are confident, moreover,
that the presiding AU, in accordance with his broad discretion under 47 C.F.R. § 1.3 13, will
take any action that would be appropriate to avoid any demands on Loginow that would
significantly interfere with his ability to discharge his regular duties.
12. ACCORDINGLY, IT IS ORDERED That the Petition for Special Authority to
Take the Deposition of Serge Loginow, Jr., filed June 26, 1997 and Supplemented September16, 1997 by Gerard A. Turro IS GRANTED, and that the Oral Deposition IS AUTHORIZED
to the extent reflected herein.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary
2Broadcasting Company y.Q, 59 F. 3rd 1365 (D.C. Cir. 1995).
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