UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


SCHOENBOHM, HERBERT

v.

FCC


98-1516a

D.C. Cir. 2000


*	*	*


Garland, Circuit Judge: Appellant Herbert Schoenbohm  operates an
amateur radio station in the U.S. Virgin Islands.  In 1992, he was
convicted of a felony for fraudulently using  counterfeit access codes
to obtain long distance telephone  services.1 In 1994, shortly before
Schoenbohm's amateur  radio licenses were due to expire, he filed a
renewal applica- tion with the Federal Communications Commission


After a series of hearings, an administrative law judge  (ALJ) denied
Schoenbohm's application. On June 29, 1998,  the Commission affirmed
the denial, finding that Schoen- bohm's fraud conviction, "in
combination with" his misrepre- sentations and lack of candor during
the renewal proceedings,  justified nonrenewal. Herbert L. Schoenbohm,
13 F.C.C.R.  15,028, 15,028 (1998) [hereinafter Decision]. Schoenbohm 
filed a petition for reconsideration, reiterating arguments he  had
previously made and asking for the first time that the  FCC
investigate allegations that some of his detractors may  have had
improper ex parte contacts with the ALJ. See J.A.  at 77. The FCC
denied reconsideration, restating its previ- ous justifications for
nonrenewal and rejecting the request for  an inquiry into the ex parte
allegations. See Herbert L.  Schoenbohm, 13 F.C.C.R. 23,774, 23,777
(1998) [hereinafter  Reconsideration Order].


Schoenbohm contends that the denials of both his renewal  application
and his petition for reconsideration were arbitrary  and capricious
agency actions, in violation of the Administra-




__________

n 1 Schoenbohm was found guilty of violating 18 U.S.C.  s 1029(a)(1),
which provides that anyone who "knowingly and with  intent to defraud
produces, uses, or traffics in one or more counter- feit access
devices" commits a felony. The statute defines "access  device" as
"any card, plate, code, account number, ... or other  means of account
access that can be used ... to obtain money,  goods, services, or any
other thing of value." Id. s 1029(e)(1). An  access device is
"counterfeit" if it is "counterfeit, fictitious, altered,  or forged."
Id. s 1029(e)(2).


tive Procedure Act, 5 U.S.C. s 706(2)(A). We affirm the  FCC's refusal
to renew Schoenbohm's radio licenses and  conclude that we are without
jurisdiction to review the rejec- tion of his petition for
reconsideration.


I


We begin with the FCC's denial of Schoenbohm's renewal  application.
Before reaching the merits of that decision,  however, we must resolve
a preliminary question of jurisdic- tion. The Commission argues that
Schoenbohm did not  appeal from its original decision to deny his
renewal applica- tion, but only from its order denying his petition to
reconsider  that decision. Denial of a petition for reconsideration,
the  agency correctly notes, is generally nonreviewable unless the 
request for reconsideration was based on new evidence or  changed
circumstances. See ICC v. Brotherhood of Locomo- tive Eng'rs, 482 U.S.
270, 279-80 (1987); Southwestern Bell  Tel. Co. v. FCC, 180 F.3d 307,
311 (D.C. Cir. 1999); see also  Entravision Holdings, LLC v. FCC, No.
99-1025, slip op. at 4  & n.* (D.C. Cir. Feb. 11, 2000) (holding that
nonreviewability  in this context means lack of jurisdiction).


It is true that the notice of appeal Schoenbohm filed in this  court
characterizes his appeal as being from the order deny- ing the
petition for reconsideration. See J.A. at 85. It is also  true that in
Southwestern Bell, where the petition for review  designated only the
reconsideration order, we held both that  the reconsideration order
was nonreviewable and that the  underlying order was not properly
before us. See Southwest- ern Bell, 180 F.3d at 313-14. We did not,
however, suggest  that the failure to designate an order in a petition
for review  (or notice of appeal) is always fatal. To the contrary,
"we  said in Southwestern Bell Telephone Co. v. FCC [that] a party 
may demonstrate its intention to appeal from one order  despite
referring only to a different order in its petition for  review if the
petitioner's intent 'can be fairly inferred' from  the petition or
documents filed more or less contemporane- ously with it." Martin v.
FERC, 199 F.3d 1370, 1372 (D.C. 


Cir. 2000) (quoting Southwestern Bell, 180 F.3d at 313 (quot- ing
Brookens v. White, 795 F.2d 178, 180 (D.C. Cir. 1986))).


Here, Schoenbohm's intent to appeal from the underlying  decision (as
well as from the denial of reconsideration) is  fairly inferable from
the "concise statement of reasons,"  required by 47 U.S.C. s 402(c),
that he filed together with his  notice of appeal. That statement
expressly lists each of his  challenges to the underlying decision,
including arguments  that the FCC erred in relying on his criminal
conviction and  in finding that he lacked candor in his testimony
before the  agency. It also separately challenges the agency's refusal
to  investigate his allegations of improper ex parte contacts with 
the ALJ. See J.A. at 85-86. Schoenbohm's ancillary filing  therefore
makes this case like Damsky v. FCC, in which we  recently inferred an
appellant's intent to appeal an underlying  decision from the fact
that her concise statement of reasons  challenged the substantive
merits of that decision. See 199  F.3d 527, 533 (D.C. Cir. 2000); see
also Martin, 199 F.3d at  1373 (holding that petitioner's intent to
seek review of under- lying order was fairly inferable from his
contemporaneously  filed motion for stay). At the same time, it makes
this case  unlike Southwestern Bell, where there was no such challenge
 in any filing "prior to the brief filed in this court." South-


Because Schoenbohm's intent to appeal the FCC's underly- ing decision
can reasonably be inferred from his concise  statement of reasons, and
because for the same reason the  FCC "cannot claim that any notice
defects surprised or  misled it with regard to the issues [appellant]
intended to  raise on appeal," we conclude that we have jurisdiction
to  review the FCC's decision to deny renewal of Schoenbohm's  amateur
radio licenses. Damsky, 199 F.3d at 533.


II


We review the merits of the FCC's decision only to deter- mine whether
the decision was "arbitrary, capricious, an  abuse of discretion, or
otherwise not in accordance with law,"  5 U.S.C. s 706(2)(A). We
review the factual findings upon 


which the decision was based to ensure that they were  supported by
"substantial evidence," id. s 706(2)(E). See 47  U.S.C. s 402(g);
Damsky, 199 F.3d at 533. "Substantial  evidence," in turn, is defined
as "such relevant evidence as a  reasonable mind might accept as
adequate to support a  conclusion." Consolo v. Federal Maritime
Comm'n, 383 U.S.  607, 620 (1966) (quoting Consolidated Edison Co. v.
NLRB,  305 U.S. 197, 229 (1938)). Because this standard is "some-
thing less than the weight of the evidence, ... the possibility  of
drawing two inconsistent conclusions from the evidence  does not
prevent an administrative agency's finding from  being supported by


In the following sections, we apply these principles to each  of
Schoenbohm's challenges to the FCC's refusal to renew his  radio


A


Schoenbohm's first contention is that it was arbitrary and  capricious
for the FCC to deny renewal based on his criminal  conviction. In
1990, the Commission modified its "character"  policy to provide that
"evidence of any conviction for miscon- duct constituting a felony
will be relevant to our evaluation of  an applicant's or licensee's
character." Policy Regarding  Character Qualifications in Broadcast
Licensing, 5 F.C.C.R.  3252, 3252 (1990) (footnote omitted)
[hereinafter Character  Policy]. Such evidence is relevant, the FCC
said, because it  aids the Commission in ascertaining whether a
licensee will  "deal truthfully with the Commission and ... comply
with  [its] rules and policies." Id. (quoting 102 F.C.C.2d 1179, 
1190-91 (1986)). Rather than establish a " 'hierarchy' of  felonies
that might arise in individual cases," the Commission  examines the
impact of a conviction on a case-by-case basis.  Id.


There is nothing unreasonable about the FCC's conclusion  that
Schoenbohm's felony conviction was relevant to his li- cense renewal.
A conviction for fraudulent conduct plainly  calls into question a
licensee's ability to act in a manner  consonant with FCC regulations.
As the Commission ob- served, fraud "is a subject area the Commission
has tradition-


ally considered to be pertinent to its evaluation of a licensee's 
character." Decision, 13 F.C.C.R. at 15,038. Schoenbohm  argues,
however, that the Commission acted arbitrarily in  judging his
conviction not just relevant, but sufficient to  justify denial, since
in other cases it has renewed a license or  granted a permit despite
an applicant's felony conviction  when the applicant showed evidence
of rehabilitation. See,  e.g., Richard Richards, 10 F.C.C.R. 3950
(Rev. Bd. 1995);  Alessandro Broad. Co., 99 F.C.C.2d 1 (Rev. Bd.
1984). Ac- cording to appellant, he too established his


The FCC's policy does acknowledge rehabilitation as a  mitigating
factor in assessing an applicant's character. See  Character Policy, 5
F.C.C.R. at 3252 & n.4. Here, however,  the FCC found that Schoenbohm
demonstrated an absence of  rehabilitation by making deliberate
misrepresentations and  displaying a lack of candor during the renewal
proceedings.  See Decision, 13 F.C.C.R. at 15,038. Moreover, because 
these occurred in the course of the agency's own proceedings,  they
were a rationale for nonrenewal that went beyond the  felony
conviction alone. See id. Commission regulations  forbid applicants
from "mak[ing] any misrepresentation or  willful material omission
bearing on any matter...." 47  C.F.R. s 1.17; see also 47 U.S.C. s
312(a)(1). A licensee's  complete candor is important to the FCC
because "effective  regulation is premised upon the agency's ability
to depend  upon the representations made to it by its licensees."
Leflore  Broad. Co. v. FCC, 636 F.2d 454, 461 (D.C. Cir. 1980); see 
also Character Policy, 5 F.C.C.R. at 3253. Accordingly, it is  well
recognized that the Commission may disqualify an appli- cant who
deliberately makes misrepresentations or lacks can- dor in dealing
with the agency. See Swan Creek Communi- cations, Inc. v. FCC, 39 F.3d
1217, 1221-24 (D.C. Cir. 1994);  Garden State Broad. Ltd. v. FCC, 996
F.2d 386, 393-94 (D.C.  Cir. 1993). The FCC's findings with respect to
Schoenbohm's  misrepresentations and lack of candor are therefore more
 than sufficient to distinguish this case from the precedents he 


B


Schoenbohm does not dispute that if he had made misrep- resentations to
the Commission, that fact, together with his  fraud conviction, would
have justified nonrenewal. Instead,  he disputes that he made any
misrepresentations. The FCC  found to the contrary in connection with
two aspects of his  presentations to the Commission.


First, the Commission determined that Schoenbohm made 
misrepresentations and lacked candor in testifying about the  nature
of his prior felony. As the Third Circuit noted in  affirming his
conviction, Schoenbohm was found guilty of  violating 18 U.S.C. s
1029(a)(1) because he "used a counter- feit access device." United
States v. Schoenbohm, No.  93-7516, slip op. at 3 (3d Cir. Apr. 18,
1994) (emphasis added).  Schoenbohm effectively conceded this in his
first written  submission to the Commission, stating that he was
"convicted  for defrauding a telephone resale service provider by ... 
making unauthorized long distance calls." Schoenbohm Aff.  at 1 (Aug.
8, 1995) (J.A. at 160). In subsequent presenta- tions, however,
Schoenbohm described his conviction differ- ently. In a July 18, 1995


I did not steal any money or cause the account of any  subscriber to be
debited. I was convicted solely of  having knowledge in my mind of
certain telephone codes  of which 4 of the 6 digits were said to be
similar to those  that could be used to make long distance calls
without  paying for them.


Schoenbohm Aff. at 2 (J.A. at 185) (emphasis added). And in  oral
testimony before the Commission, he characterized his  conviction as
based on his possession of "numbers in my  mind," rather than on the
performance of any unlawful act.  Decision, 13 F.C.C.R. at 15,031
(quoting Tr. at 38).


On the basis of this evidence, the FCC found that Schoen- bohm had
intentionally portrayed his crime in a misleading  manner in order to
minimize its significance. Schoenbohm  maintains that he was not
attempting to mislead, but rather  was simply trying to explain that
his crime involved numeric  codes rather than mechanical devices.
Although that is not 


an impossible reading of his testimony, it was certainly rea- sonable
for the FCC to reach a contrary conclusion.


The FCC also found that Schoenbohm misrepresented the  facts and lacked
candor in connection with an inquiry the ALJ  made into whether he had
attempted to violate the agency's  ex parte rules--by urging others to
ask the Virgin Islands'  congressional delegate to intervene with the
FCC on his  behalf.2 The ex parte rules prohibit a party in specified 
proceedings (including the proceedings at issue here) from  making
written presentations to the Commission without  serving them on the
other parties, and from making oral  presentations without notice and
an opportunity for the oth- ers to be present. See 47 C.F.R. ss
1.1202, 1.1208. They  also provide that "[n]o person shall solicit or
encourage others  to make any presentation which he or she is
prohibited from  making...." Id. s 1.1210.


In a radio conversation with another amateur operator,  Schoenbohm was
tape recorded as saying:


I'm not allowed under ex-parte rules to ask for assistance  of ...
people in political positions but other people if  they feel that
government is overbearing or I'm being  treated unfairly, have every
right to point this out to  their elected representatives.


J.A. at 175. He also told the other operator:


I'm not permitted at this time because of ex-parte rules  to make any
requests of political intervention. Other  people could do it if they
are so disposed but I can't do it.  Go ahead.


Id. Schoenbohm then spelled out the congressional dele- gate's name,
and provided an address and telephone number  at which he could be
reached. Id.




__________

n 2 This inquiry is distinct from the inquiry Schoenbohm himself 
requested, which would have investigated whether opponents of his 
application had engaged in ex parte communications with the ALJ.  See
discussion infra Part III.


When asked to explain this conversation, Schoenbohm told  the ALJ that
he intended only to share his newly acquired  knowledge regarding the
ex parte rules, and that he did not  intend to encourage an ex parte
solicitation on his behalf.  See Herbert L. Schoenbohm, 11 F.C.C.R.
1146, 1148-49 (1996)  (initial decision of ALJ). Later, he submitted
an affidavit  reiterating that he was simply "expounding on [his]
newly  discovered knowledge of the ex parte rules," and was not 
asking anyone to make a contact. Schoenbohm Aff. p 8 (Feb.  1997)
(J.A. at 191). Once again, although it is not impossible  that
Schoenbohm intended to do no more than declare his  understanding of
the law, the record provides substantial  evidence to support the
FCC's finding that this explanation  was less than candid, and that he
was in fact trying to solicit  others to make ex parte submissions on


Schoenbohm further contends that because there is no  evidence that any
ex parte contacts actually occurred, he "is  being punished simply for
uttering words to a friend in the  course of a private amateur radio
conversation." Schoen- bohm Br. at 13-14. This, he argues, violates
the First  Amendment. He is wrong for two reasons. First, the agen-
cy's ex parte rules do not interfere with Schoenbohm's right  to
discuss the proceedings with others; they merely require  that
communications with the agency be on the record. As  the FCC correctly
concluded, "rules intended to protect the  integrity of the
administrative process by requiring that  presentations to the agency
be made on the record and that  solicitations of such presentations be
limited to requests for  on-the-record presentations d[o] not violate
the First Amend- ment." Reconsideration Order, 13 F.C.C.R. at 23,775;
see  California Motor Transp. Co. v. Trucking Unlimited, 404  U.S.
508, 513 (1972) (stating that although the First Amend- ment protects
the right of access to agencies and courts, it  does not immunize from
proscription "practice[s] which may  corrupt the administrative or
judicial processes"); cf. Nation- al Soc'y of Prof'l Eng'rs v. United
States, 435 U.S. 679, 697  (1978) (noting that although "an injunction
against price  fixing abridges the freedom of businessmen to talk to


another about prices," the First Amendment does not make it  impossible
to enforce the antitrust laws).


Moreover, and more fundamentally, the FCC did not deny  Schoenbohm's
renewal application because he violated, or  attempted to violate, the
ex parte rules. Nor did it do so  because of what he said to his
fellow radio operator. Rather,  the FCC denied the application because
Schoenbohm made  misleading statements to the agency itself, and it is
well  established that the First Amendment does not protect mis-
representations made in administrative adjudications. See  California
Motor Transp., 404 U.S. at 512-13.


For the foregoing reasons, we conclude there was substan- tial evidence
to support the FCC's findings that Schoenbohm  made misrepresentations
and lacked candor in his testimony  regarding both his felony
conviction and his efforts to induce  ex parte communications with the
Commission. We further  conclude that the FCC acted reasonably in
deciding that  Schoenbohm's "lack of candor and misrepresentation
along  with the felony conviction together" justified nonrenewal of 
his licenses. Decision, 13 F.C.C.R. at 15,038.


III


Following the FCC's original decision denying his license  renewal on
June 29, 1998, Schoenbohm petitioned the agency  for reconsideration.
In addition to restating his previous  arguments, he asked for the
first time that the Commission  investigate whether amateur operators
who disliked him had  themselves communicated with the ALJ ex parte,
seeking to  have his application denied. In support of this request, 
Schoenbohm stated that on January 17, 1998 he had made a  tape
recording of a conversation between two amateur opera- tors which, he
asserted, indicated that his detractors were  making calls to the ALJ.
See Pet. for Recons. pp 5, 6 (J.A. at  77).


The FCC rejected Schoenbohm's request for an inquiry on  two grounds.
First, the agency held it untimely because it  was based neither on
changed circumstances nor on newly  discovered facts. As the FCC
noted, Schoenbohm's request 


relied on a conversation he had taped more than six months  before the
Commission's decision on his renewal application.  See Reconsideration
Order, 13 F.C.C.R. at 23,775. Second,  the FCC rejected Schoenbohm's
request on the ground that  the tape-recorded conversation "d[id] not
provide probative  evidence that anyone contacted or attempted to
contact [the  ALJ], let alone that any such contact reached the
Judge."  Id. at 23,776. Schoenbohm's allegation, the FCC said, was 
based "solely on hearsay, speculation, and rumor." Id.


In ICC v. Brotherhood of Locomotive Engineers (BLE), the  Supreme Court
held that an agency's denial of a petition for  reconsideration is
nonreviewable unless the petition was  based on "new evidence or
changed circumstances." 482 U.S.  at 284. Included within the ambit of
nonreviewable decisions  were those concerning matters that, even
though "newly  raised," were "previously available." Id. at 283. The
Court  treated nonreviewability under such circumstances as juris-
dictional, see id. at 287, a point this circuit confirmed in 
Entravision Holdings, LLC v. FCC, No. 99-1025, slip op. at 4  n.*.


Schoenbohm does not contend that his petition for recon- sideration was
based on "new evidence" in the sense of  evidence not "previously
available" to him. To the contrary,  it is apparent on the face of the
petition that the evidence  upon which he relied--the tape recording
of an amateur radio  transmission--was previously available. As the
FCC noted,  the petition states that Schoenbohm made the recording on 
January 17, 1998--six months before the FCC rendered its  original
decision on his renewal application. Schoenbohm  could have, and under
FCC rules should have, submitted this  evidence prior to that
decision.3 He failed to do so, and on 




__________

n 3 See 47 C.F.R. s 1.1214 ("Any party to a proceeding ... who has 
substantial reason to believe that any violation of [the ex parte 
rules] has been solicited, attempted, or committed shall promptly 
advise the Office of General Counsel in writing of all the facts and 
circumstances which are known to him or her."); see also 47 C.F.R.  s
1.65(a) ("Each applicant is responsible for the continuing accuracy 
and completeness of information furnished in a pending application 


appeal does not respond to the FCC's contention that this  omission
deprives us of jurisdiction. This is not a case,  therefore, in which
nonreviewability means that "petitioner  will have been deprived of
all opportunity for judicial consid- eration ... of facts which,
through no fault of his own, the  original proceeding did not
contain." BLE, 482 U.S. at 279.  Here, the fault is solely that of
petitioner, and because his  petition was not based on new evidence or
changed circum- stances, we are without jurisdiction to review its


IV


The FCC's decision denying appellant's application for  renewal of his
amateur radio licenses is affirmed. Insofar as  appellant also appeals
from the FCC's refusal to reconsider  that decision, we dismiss that
appeal for lack of jurisdiction.  See BLE, 482 U.S. at 284, 287;
Entravision Holdings, No.  99-1025, slip op. at 4 n.*.




__________

n or in Commission proceedings involving a pending application.... 
Whenever there has been a substantial change as to any other  matter
which may be of decisional significance in a Commission  proceeding
involving the pending application, the applicant shall as  promptly as
possible ... submit a statement furnishing such  additional or
corrected information as may be appropriate....").


4 In this case, little turns on whether we hold that the court lacks 
jurisdiction, or whether we consider the issue on the merits. Even  if
we were to consider the merits, BLE instructs that we must  uphold an
agency's decision to deny reconsideration unless there  was the
clearest abuse of discretion. See 482 U.S. at 278; see also 
Southwestern Bell, 180 F.3d at 311; Beehive Tel. Co. v. FCC, 180  F.3d
314, 319-20 (D.C. Cir. 1999). It would be difficult to find such  an
abuse in a case like this, where the agency's denial was based  both
on the unexcused untimeliness of the appellant's submission  and on
its lack of probative support.