In the Matter of
JAMES A. KAY, JR.
Licensee of one hundred sixty
four Part 90 licenses in the
Los Angeles, California area
DOCKET FILE COpy ORIGINAL
To: The Honorable Richard L. Sippel, Administrative Law Judge
James A. Kay, Jr., by his attorneys, hereby respectfully reports to the presiding officer
on the status of the above captioned proceeding.
On January 12, 1995, Kay filed a number of pleadings concerning the instant matter.
With the Commission, Kay filed on January 12 an Application for Review of an Erratum
released over the signature of Ralph A. Haller, who was identified therein as Deputy Chief of
the Wireless Telecommunications Bureau. With the Commission, Kay also filed on January 12
a Motion to Enlarge, Change or Delete Issues.
With the presiding officer, Kay filed on January 12 a Motion for Modification or
Correction of Order, a Motion to Dismiss, and a Motion to Defer Proceedings.
No. 01 Copiesrec'd~
With both the presiding officer and with the Commission, Kay filed a Notice of
Appearance on January 12.
All of the pleadings which Kay filed on January 12 are still pending.
On January 20, 1995, Gary P. Schonman, who has stated that he is Bureau counsel for
the Wireless Telecommunications Bureau, and undersigned counsel conferred by telephone in
accord with the presiding officer's Order released on December 22, 1994 (the December 22
Order). Also on January 20, undersigned counsel delivered to Mr. Schonman the written
information required to be supplied on that date.
On January 18, Kay had filed with the presiding officer a request that the scheduling of
two events be suspended. On January 23, 1995, the presiding officer released an Order denying
the relief which Kay had requested on January 18. On January 23, Kay filed with the presiding
officer a Request for Permission to File Appeal, a Motion for Set Aside and Other Relief, and
a Motion to Disqualify Counsel. All of the pleadings which Kay filed on January 23 are still
In the conference held by attorneys for the parties on January 20, 1995 (the January 20
Conference), counsel conferred on each of the items set forth at paragraph four of the presiding
officer's December 22 Order. Kay expects to request that the Bureau admit to the genuineness
of certain documents and to answer interrogatories. Kay expects to depose the witnesses which
he expects to call and to depose the witnesses which the Bureau expects to call. To the extent
that a special request must be made of the presiding officer to depose a witness, Kay will make
such a request in a timely manner. Kay may request the disclosure of certain Commission
documents in accord with the Commission's Rules.
Kay expects to conduct discovery as to each of the issues designated by the Order to
Show Cause, Hearing Designation Order, and Notice of Opportunity for Hearing and Forfeiture
(HDO). Kay also expects to conduct discovery material to whether W. Riley Hollingsworth,
Terry L. Fishel, and/or Anne Marie Wypijewski violated any statute or Commission Rule in the
course of their investigation of Kay leading to the instant proceeding. Kay expects to conduct
such discovery by means of requests for admission of the genuineness of documents,
interrogatories, depositions, and such other methods as are permissible under the Commission's
Rules. Kay expects that his discovery may require up to 60 days from January 24, 1995.
During the January 20 Conference, undersigned counsel expressed the expectation that
some facts might be established by stipulation or official notice. However, undersigned counsel
noted that, because of the absence of allegations of fact in the HDO, it was not possible at that
time to enumerate a large number of such facts. Undersigned counsel has sent a written request
to Mr. Schonman for stipulation as to one matter of fact.
At present, Kay expects that he may call nine witnesses. Undersigned counsel had
informed Mr. Schonman during the January 20 Conference that he might call Kay. However,
in view of the Bureau's intention to call Kay, it would not appear to be necessary for
undersigned counsel to call Kay.
With respect to the issue designated at paragraph 1O(b) of the HDD, Kay may call Marc
Sobel as a witness. Sobel was present during the inspection which was reported at footnote four
to the HDD and may be asked to testify concerning that event.
Kay expects to call Paul Northup, Ben Sarfehnia, and Norm Kramer to testify as to his
character and reputation in the Los Angeles area radio communications business.
Kay expects to call W. Riley Hollingsworth, Terry L. Fishel, and Anne Marie
Wypijewski to testify as to violations of statute and Commission Rule which occurred during the
course of their investigation of Kay for purposes of demonstrating that misconduct by the
investigators has fatally tainted the instant proceeding.
Kay expects to call Sonja Colista to testify concerning Mr. Hollingsworth's inclination
to pursue his objectives and the relationship of that pursuit to his compliance with applicable
rules of law.
Kay expects to call Reed E. Hundt, Chairman of the Commission, to ascertain the reason
that his office has not yet acted on complaints which Kay has filed against Mr. Hollingsworth
and Mr. Fishel.
Kay expects to offer testimony in his direct case, if any, by oral testimony before the
presiding officer. To avoid undue inconvenience to the Chairman, Kay would be willing to offer
the Chairman's testimony by an alternative to requiring the Chairman to appear at hearing in Los
Angeles, provided that the parties can agree to an alternative method. Kay may also offer
documents for entry into evidence in support of his direct case. Kay expects to require two days
to present his direct case.
Depending on the information which is ascertained through discovery and depending on
the nature and facts of the case presented by the Bureau, Kay may present a rebuttal case. Mr.
Kay may call rebuttal witnesses as appears to be made necessary by the evidence presented by
Currently pending before the Commission is Kay's Motion to Enlarge, Change or Delete
Issues. Depending on the action taken on that filing, it may be necessary for Kay to revise all
or part of the expectations and intentions covered by the instant report.
JAMES A. KAY, JR.
Brown and Schwaninger
1835 K Street, N.W.
Washington, D.C. 20006
Dated: January 24, 1995
CERTIFICATE OF SERVICE
I hereby certify that on this twenty-fourth day of January, 1995, I served a copy of the
foregoing Status Report on each of the following persons by causing to be delivered to their
offices a copy thereof:
Gary P. Schonman, Attorney
Federal Communications Commission
Mass Media Bureau
2025 M Street, N.W.
Washington, D.C. 20554
W. Riley Hollingsworth*
Deputy Associate Bureau Chief
Office of Operations
Federal Communications Commission
1270 Fairfield Road
Gettysburg, Pennsylvania 17325
* By regular mail