David Ortiz Radio Corporation, Appellant, v. Federal Communications Commission, Appellee, 79 F.3d 169 (D.C. Cir. 1996)

This case was heard on the record from the Federal Communications Commission and on the briefs and arguments of counsel. The court has accorded the arguments full consideration and has determined that the issues presented occasion no need for a published opinion. See D.C. Cir. Rule 36(b). It is therefore

ORDERED that the decision of the Commission be affirmed. David Ortiz Radio Corporation (Ortiz Radio) and Ramon Rodriguez & Associates, Incorporated (RRAI) each applied for a construction permit for a new FM broadcast station in Puerto Rico. After a comparative hearing an Administrative Law Judge (ALJ) declared RRAI the winner, granting RRAI's application and denying Ortiz Radio's. The Federal Communications Commission affirmed. We remanded for the agency to hold an evidentiary hearing on whether RRAI had engaged in disqualifying conduct, specifically: (1) whether RRAI misrepresented to the Commission the availability of its proposed transmitter site and (2) whether a principal of RRAI wrongly held himself out to be an employee of the Commission. David Ortiz Radio Corp. v. FCC, 941 F.2d 1253 (D.C. Cir. 1991). On remand the ALJ held an evidentiary hearing, resolved both issues--as well as a misrepresentation issue regarding Ortiz Radio--favorably to RRAI and, consequently, reaffirmed that RRAI's application should be granted. The full Commission affirmed and Ortiz Radio appeals. We conclude that the agency's findings, based in large measure on witness credibility, are supported by substantial evidence and that its decision is not otherwise deficient.

The clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 41(a) (1).