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


CONTEMPORARY MEDIA

v.

FCC


99-1198a

D.C. Cir. 2000


*	*	*


Garland, Circuit Judge: Three radio licensees appeal the  Federal
Communications Commission's (FCC's) revocation of  their licenses and
construction permits, as well as its denial of  their application for
a new station. The FCC took those  actions after the licensees' sole
owner and president was  convicted of sexually abusing children, and
after the licensees  made misrepresentations to the Commission about
the own- er's continued involvement in station affairs. In the end,
the  case is no more difficult than this recitation of the facts 
suggests, and we therefore affirm the FCC in all respects.


I


The appellant licensees own and operate five radio stations  in
Missouri and Indiana, hold two construction permits for  radio
stations in Missouri, and have an application pending  for another
Missouri station. Michael Rice is the sole share- holder, president,
and treasurer of all three licensees and  serves on each licensee's
board of directors. In November  1990, Rice was arrested for criminal
conduct involving sexual  acts with a teenager. In April of the
following year, he was  formally charged with three felony counts of
sexual assault on  an individual between fourteen and sixteen years of
age. The  prosecutor subsequently amended the charges to include 
eight felony counts of sexual assault on individuals between  fourteen
and sixteen years of age, and four felony counts of  forcible sodomy
of individuals under fourteen years of age.  The sexual abuse involved
five children and occurred between  December 1985 and October 1990.
Two days after the  charges were filed, Rice checked himself into a
St. Louis  hospital for in-patient psychiatric treatment.


In June 1991, two of the licensees filed reports notifying  the FCC of
the charges against Rice. The reports were filed  pursuant to 47
C.F.R. s 165(a), which requires FCC license  applicants to maintain
"the continuing accuracy and complete-


ness of information furnished" in pending applications. Each  report
stated that:


Since Mr. Rice's hospitalization on April 3, 1991, he has  had
absolutely no managerial, policy, or consultative role  in the affairs
of the three broadcast corporations in which  he has ownership
interests and officer positions. In  other words, pending a resolution
of the referenced  criminal charges, Mr. Rice is being completely
insulated  and excluded from any involvement in the managerial, 
policy, and day-to-day decisions involving any of the four  licensed
stations and three construction permits held by  the three


J.A. at 15-16, 120 (citation omitted). In October 1991, Rice  was
discharged from the hospital. On May 14, 1992, one of  the licensees
filed another report with the FCC, stating:


There has been no change in Mr. Rice's status with [the  reporting
licensee] or in the status of the proceedings  against him.... Mr.
Rice is no longer hospitalized, but  he continues to be treated by his
physicians as an  outpatient, and he continues to have no managerial
or  policy role in the affairs of the three broadcast corpora- tions
... in which he has ownership interests and corpo- rate positions.


Id. at 126-27 (citation omitted).


On August 31, 1994, Rice was convicted of all twelve felony  counts
against him: four counts of forcible sodomy, six counts  of deviate
sexual assault in the first degree, and two counts of  deviate sexual
assault in the second degree. The court  sentenced him to a total of
eighty-four years in prison.  Because the sentences were set to run
concurrently, his  maximum term of confinement amounted to eight
years.  Rice began his incarceration on September 30, 1994, and is 
currently eligible for release.


On October 10, 1995, the FCC ordered an evidentiary  hearing at which
the licensees were directed to show cause  why their licenses and
construction permits should not be  revoked and their pending
application denied. The central 


issues at the hearing were: (1) the effect of Rice's felony 
convictions on the basic character qualifications of the licen- sees,
and (2) whether the licensees had misrepresented to the  FCC that,
subsequent to his arrest, Rice had been excluded  from the management
and operation of the stations. After  the hearing, the Administrative
Law Judge (ALJ) concluded  that revocation of the licensees'
authorizations was appropri- ate due to the egregious nature of Rice's
misconduct and to  the misrepresentations made by the licensees in
their reports  to the Commission. The FCC affirmed.


II


The licensees' appeal raises a number of challenges, which  we address
in turn. First, they challenge the legality of the  character policy
upon which the FCC's decision was based.  We must sustain that policy
unless we find it to be "arbitrary,  capricious, an abuse of
discretion, or otherwise not in accor- dance with law." Administrative
Procedure Act (APA), 5  U.S.C. s 706(2)(A); see ACLU v. FCC, 823 F.2d
1554, 1574  (D.C. Cir. 1987).1


Section 308(b) of the Federal Communications Act provides  that "[a]ll
applications for station licenses, or modifications or  renewals
thereof, shall set forth such facts as the Commission  by regulation
may prescribe as to the citizenship, character,  ... and other
qualifications of the applicant to operate the  station." 47 U.S.C. s
308(b). For many years, the FCC had  no express policy concerning the
character qualifications of its  applicants; the Commission considered
a wide range of fac- tors in evaluating character, and as a
consequence its evalua-




__________

n 1 The licensees rely on our decision in Bechtel v. FCC, 10 F.3d  875
(D.C. Cir. 1993), which stated that agencies must be prepared to 
defend the underlying validity of policy statements because those 
statements "are exempt from the Administrative Procedure Act's 
notice-and-comment requirements and hence may take effect with- out
the rigors--and presumed advantages--of that process." Id. at  878
(citation omitted). Because we conclude that the FCC did  adequately
justify its policies in the decision under review, Bechtel  does not
affect our analysis.


tions sometimes yielded inconsistent results. See Policy Re- garding
Character Qualifications in Broadcast Licensing, 87  F.C.C.2d 836,
836-37 (1981) (notice of inquiry). The Commis- sion responded to this
problem in 1986 with the adoption of a  comprehensive character policy
statement. See Policy Re- garding Character Qualifications in
Broadcast Licensing,  102 F.C.C.2d 1179 (1986) [hereinafter 1986
Character Policy  Statement]. The statement announced that the FCC's
char- acter analysis would focus on "misconduct which violates the 
Communications Act or a Commission rule or policy, and ...  certain
specified non-FCC misconduct which demonstrate[s]  the proclivity of
an applicant to deal truthfully with the  Commission and to comply
with [its] rules and policies." Id.  at 1190-91. The relevant non-FCC
misconduct was limited to  adjudicated cases involving: fraudulent
representations to  government agencies, criminal false statements or
dishonesty,  and broadcast-related violations of antitrust laws or
other  laws concerning competition. See id. at 1195-1203. The  FCC
noted, however, that "there may be circumstances in  which an
applicant has engaged in nonbroadcast misconduct  so egregious as to
shock the conscience and evoke almost  universal disapprobation." Id.
at 1205 n.60. "Such miscon- duct," the Commission stated, "might, of
its own nature,  constitute prima facie evidence that the applicant
lacks the  traits of reliability and/or truthfulness necessary to be a
 licensee, and might be a matter of Commission concern even  prior to
adjudication by another body." Id.2 The 1986  statement also listed
mitigating factors that the Commission  would consider in evaluating
specific acts of misconduct. See  id. at 1227-28.


In 1990, the FCC determined that its 1986 policy had taken  "an overly
narrow view of the range of misconduct that  should be relevant in
licensing decisions." Policy Regarding  Character Qualifications in
Broadcast Licensing, 5 F.C.C.R. 




__________

n 2 In addition, the FCC explicitly reserved the option of expand- ing
the range of relevant misconduct "[s]hould [its] future experi- ence
indicate that [it had] erred ... in narrowing the range of non- FCC
misconduct to be considered for character purposes." 1986  Character
Policy Statement, 102 F.C.C.2d at 1208 n.75.


3252, 3252 (1990) [hereinafter 1990 Character Policy State- ment]. It
therefore amended that policy with a new state- ment, which


[U]pon further reflection, we believe a propensity to  comply with the
law generally is relevant to the Commis- sion's public interest
analysis, and that an applicant's or  licensee's willingness to
violate other laws, and, in partic- ular, to commit felonies, also
bears on our confidence that  an applicant or licensee will conform to
FCC rules and  policies.... Thus, evidence of any conviction for mis-
conduct constituting a felony will be relevant to our  analysis of an
applicant's or licensee's character.


Id. The FCC further stated that although "not all convic- tions for
serious crimes are equally probative" of propensity  to obey the law,
it would not "establish a 'hierarchy' of  felonies that may arise in
individual cases." Id. Rather, the  Commission would analyze
misconduct on a case-by-case basis  through the examination of
mitigating factors. As in 1986,  the Commission stated that for
non-FCC conduct it generally  would consider only adjudicated cases.
However, it "contin- ue[d] to believe that, where an applicant has
allegedly en- gaged in nonbroadcast misconduct 'so egregious as to
shock  the conscience and evoke almost universal disapprobation,' 
such conduct 'might be a matter of Commission concern even  prior to
adjudication by another body.' " Id. at 3252 n.5  (quoting 1986
Character Policy Statement, 102 F.C.C.2d at  1205 n.60).


The licensees' challenge to the legitimacy of the current  character
policy is threefold. First, they contend that there  is "no
justification for license revocation based on non-FCC- related
criminal misconduct of a licensee's principal, even if  such
misconduct was 'egregious.' " Br. of Appellants at 17.  According to
the licensees, such revocation is particularly  inappropriate in this
case because "there was no nexus  between Mr. Rice's sexual misconduct
and the Licensees'  broadcast activities." Id. at 16 (emphasis in


We disagree, both as a general matter and with regard to  the specifics
of this case. As to the former, it should be noted 


that the FCC's policy is not automatically to disqualify a  license
holder or applicant who commits a felony, but rather  to consider the
felony as a relevant factor in evaluating  propensity to obey the law.
See 1990 Character Policy  Statement, 5 F.C.C.R. at 3252. We see
nothing irrational in  the conclusion that a violation of the criminal
laws is relevant  to that evaluation and to the issue of character in
general.  See generally DiCola v. FDA, 77 F.3d 504, 507-08 (D.C. Cir. 
1996). The FCC relies heavily on the honesty and probity of  its
licensees in a regulatory system that is largely self- policing. See
Leflore Broad. Co. v. FCC, 636 F.2d 454, 461  (D.C. Cir. 1980)
("[E]ffective regulation is premised upon the  agency's ability to
depend upon the representations made to  it by its licensees....").
Under such a regime, a felony  conviction--any felony conviction--is
certainly a factor to be  considered. It may not necessarily be a
dispositive factor,  and all such convictions may not be equally
probative--as the  FCC recognizes. See 1990 Character Policy
Statement, 5  F.C.C.R. at 3252. But it is hard to see the argument
that a  felony conviction is not relevant at all.


In this case, moreover, the argument is particularly weak.  It is
hardly irrational to conclude that if an individual is  unwilling to
obey the law with respect to such patently  criminal behavior as
sexual assault on children, he will be  equally unwilling to obey FCC
rules that require openness  and honesty with the Commission. Indeed,
as discussed  below, that connection was borne out in this case.
Because  the policy of considering felonious misconduct was clearly 
permissible as applied to the licensees, they cannot succeed in  their
attempt to challenge it on its face. Cf. Romer v. Evans,  517 U.S.
620, 643 (1996); Steffan v. Perry, 41 F.3d 677, 693  (D.C. Cir. 1994)


Second, the licensees argue that the FCC's character policy  is
arbitrary and capricious because it does not provide any  criteria for
determining which non-FCC-related misconduct is  sufficiently serious
to affect a licensee's propensity for relia- bility in its dealings
with the agency. Given the myriad  forms of criminal misconduct, the
FCC's decision is not  unreasonable. The Commission cannot be required
to fore- see the variety of criminal behavior in which licensees or


owners may partake. And once again, whatever the issue  with respect to
crimes that might be regarded as being on the  boundary of
"egregiousness," the reasonableness of the  FCC's decision in the
instant case is clear. There is no  question but that the crimes at
issue here are, as the FCC  found, "characterized by moral turpitude"
to such an extent  that they "fall[ ] in the category of those that
'shock the  conscience' and summon almost universal disapproval," Con-
temporary Media, Inc., 13 F.C.C.R. 14,437, 14,444 (1998)--a  category
that the FCC expressly warned would be the subject  of special agency
concern. See 1990 Character Policy State- ment, 5 F.C.C.R. at 3252.


The licensees' third contention is that the FCC's character  policy is
inconsistent with the precedent of both this circuit  and the
Commission itself. The licensees cite Wilkett v. ICC,  in which this
court reversed a license revocation based on the  sole proprietor's
convictions for second-degree murder and  conspiracy to distribute a
controlled substance. See 710 F.2d  861 (D.C. Cir. 1983). That case,
however, is readily distin- guishable. In Wilkett, the court's
analysis focused on the fact  that the Interstate Commerce Commission
had "disregarded  its own standards for evaluating [licensee]
fitness." Id. at  864. The court found that the Commission had failed
to  "carefully scrutinize[ ] the past violations and consider[ ] miti-
gating circumstances," as it had in "numerous cases" in the  past. Id.
Here, by contrast, the FCC not only gave careful  consideration to
Rice's crimes, but it did so pursuant to and in  accordance with its
published character policy. After scruti- nizing the misconduct at
issue, the FCC concluded that it was  "extremely serious" and involved
"numerous acts." Contem- porary Media, 13 F.C.C.R. at 14,444. Then, as
discussed  below, the Commission closely evaluated the licensees'
claims  of mitigation and reasonably rejected them. Moreover, the 
convictions were not the sole ground for the revocation  decision as
they were in Wilkett; here the licensees were also  found to have
violated the Commission's candor requirements  in connection with the


The licensees also cite Kravis Co., 11 F.C.C.R. 4740 (1996),  in which
the FCC renewed radio licenses despite the fact that  the company's
president and sole shareholder had been  charged with possession and
exhibition of child pornography.  As the Commission explained in its
decision below, however,  in that case neither a conviction nor a
judgment of guilt had  been entered against the defendant; instead,
the court had  placed him on probation pursuant to the state's
deferred  judgment procedure, which permitted the expungement of the 
charges after successful completion of a probation period.  See
Contemporary Media, 13 F.C.C.R. at 14,442-43. As  noted above, the
FCC's character policy states that the  Commission generally will
consider only instances of adjudi- cated misconduct. See 1990
Character Policy Statement, 5  F.C.C.R. at 3252. Regardless of whether
it would be reason- able to erase that line, it is not unreasonable to


III


Having found no merit to the licensees' challenges to the  FCC's
character policy itself, we now consider their chal- lenges to the
application of that policy in this case. The  licensees argue that
even if the character policy is legitimate,  the Commission erred both
in failing to consider numerous  mitigating factors that are relevant
under the policy, and in  concluding that the licensees misrepresented
Rice's continued 




__________

n 3 The licensees seek further support from Alessandro Broad- casting
Co., in which the FCC determined that no demerit was  warranted for an
applicant whose majority shareholder had been  convicted of
second-degree murder. See 99 F.C.C.2d 1 (1984).  That decision,
however, was rendered before the Commission's 1990  character policy
statement gave import to felonies unrelated to  dishonesty or
broadcast-industry conduct. Moreover, in Alessan- dro, the agency
noted that "the crime was an isolated event that  occurred in the
remote past and the state authorities connected  with [the] conviction
... [had] determined officially that [the share- holder was]
rehabilitated and [had] restored his civil rights." Id. at  11 n.13.
None of those factors is present in this case.


involvement in station affairs. We address each argument  below. Once
again, we are mindful that we must sustain the  FCC's order unless the
challenged action is "arbitrary, capri- cious, an abuse of discretion,
or otherwise not in accordance  with law," 5 U.S.C. s 706(2)(A), and
that we must uphold its  findings of fact if they are supported by
substantial evidence,  see id. s 706(2)(E); Damsky v. FCC, 199 F.3d
527, 533 (D.C.  Cir. 2000).


A


The FCC's character policy sets forth a number of mitigat- ing factors
to be considered in evaluating misconduct: "the  willfulness of the
misconduct, the frequency of the miscon- duct, the currentness of the
misconduct, the seriousness of  the misconduct, the nature of the
participation (if any) of  managers or owners, efforts made to remedy
the wrong,  overall record of compliance with FCC rules and policies,
and  rehabilitation." 1990 Character Policy Statement, 5 F.C.C.R.  at
3252. Although the FCC credited the licensees' record of  regulatory
compliance, it rejected all of the other potential  bases for
mitigation. We agree with the FCC's judgment;  indeed, it is hard to
regard most of the licensees' contrary  arguments as anything but


First, the licensees note that although Rice could have been  sentenced
to eighty-four years in prison, he was instead  sentenced to
concurrent terms of "only" eight years. Br. of  Appellants at 21. We
do not understand the argument. We  have no idea, and the licensees
have offered none, as to why  the state court showed such mercy.
Indeed, we have no idea  whether it did show mercy--that is, whether
the court had  sentencing discretion, or whether Rice's crimes were
subject  to state sentencing laws or guidelines that dictated the sen-
tence he received. Furthermore, we do not regard a sen- tence of
"only" eight years as indicating that Rice's felonies  were somehow
"less serious," or that the sentencing court  found them so. And
finally, we do not understand how the  repeated sexual assault of five
children could be regarded as  anything less than egregious; perhaps


not suggest what misconduct they would regard as more  serious than
that described in this record.


Second, the licensees argue that they were entitled to  benefit from
the "participation of management or owners"  mitigation factor. Again,
we do not understand the argu- ment. Although it is true that no other
"owner" participated  in Rice's misconduct, it is only true because
there is no other  owner: Rice owns all of the equity in each of the
licensees.  Nor was Rice a minor player in management; he was the 
president of all of the licensees and sat on the board of  directors
of each. And while the other corporate managers  did not participate
in the sexual assaults for which Rice was  convicted, they did--as we
discuss below--participate in oth- er serious misconduct: namely,
intentional misrepresenta- tions to the FCC regarding Rice's continued


Third, the licensees appeal to the "rehabilitation" factor,  observing
that the record contains no evidence of criminal  activity subsequent
to October 1990, and claiming that Rice's  sexual misconduct ceased on
that date. The lack of further  misconduct after October, however, is
hardly coincidental. In  November, Rice was arrested on the assault
charges. His  forbearance from criminal activity during the period in
which  he awaited trial and was subject to the conditions of pretrial 
release is hardly indicative of rehabilitation.4 Moreover,  again as
discussed below, the evidence shows that he partici- pated in
intentional misrepresentations to the FCC during  this supposed
rehabilitation period.


Fourth, the licensees point to Rice's "reputation in the  community,"
noting that "four individuals who have known  Mr. Rice personally
and/or professionally for many years"  submitted statements attesting
to his good character and  reputation. Br. of Appellants at 22. The
ALJ properly  refused to credit these statements, however, since only
one  mentioned Rice's felony conviction and none expressed any 
familiarity with its details. We cannot fault the FCC for  concluding
that those who vouched for Rice's character while 




__________

n 4 It goes without saying that Rice's forbearance while in prison  is
not indicative of rehabilitation at all.


evidencing little if any knowledge of his egregious acts cannot  be
regarded as credible on the subject.


Finally, the licensees complain that the FCC failed to  award
mitigation credit for the measures they took to prevent  Rice from
engaging in future misconduct, while simultaneous- ly allowing him to
"rehabilitate" himself through gainful  employment. The licensees
emphasize that they adopted  resolutions prohibiting Rice from having
any "managerial,  policy, or consultative role" in their affairs, but
that they also  permitted him some "limited participation" in
accordance with  his physician's recommendations. Id. at 23-24. The
problem  with this argument is that the FCC concluded it was factually
 untrue, finding that Rice participated extensively in station 
affairs even after the resolutions were passed and that the  licensees
intentionally misrepresented that participation. As  discussed in Part
III.B below, we find substantial evidence to  support the FCC's
findings in this regard. The actions taken  by the licensees,
therefore, become elements of aggravation  rather than mitigation.


In sum, we find no error in the FCC's evaluation of  possible
mitigating factors. The FCC considered each of the  relevant factors
set forth in its character policy, and it  reasonably rejected all
save one--the licensees' "overall rec- ord of compliance with FCC
rules and policies." We agree  with the Commission's conclusion that
"[t]he fact that the  Licensees have had a good overall record of FCC
rule compli- ance is not alone sufficient to mitigate the overwhelming
 negative weight of all the other evidence" in this case. Con-
temporary Media, 13 F.C.C.R. at 14,445.


B


At oral argument, the licensees conceded that if we were to  sustain
the FCC's finding of intentional misrepresentation,  that alone would
be sufficient ground for the revocation of  their licenses. That
concession was plainly correct, as "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."
Schoenbohm v. FCC, 204  F.3d 243, 247 (D.C. Cir. 2000); see also FCC


329 U.S. 223, 225-27 (1946); Swan Creek Communications,  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). We now turn to an
examination of that issue.


The ALJ found, and the FCC affirmed, that the licensees 
"misrepresented and lacked candor in reporting to the Com- mission
that, subsequent to his arrest, Rice was completely  excluded from any
further involvement in the management  and operation of the Licensees'
radio stations." Contempo- rary Media, 13 F.C.C.R. at 14,454; see
Contemporary Media,  Inc., 12 F.C.C.R. 14,254, 14,295 (1997) (initial
decision of  ALJ). The licensees counter by claiming that they never 
promised "to completely exclude Mr. Rice from having any  involvement
in their stations' activities, only to exclude him  from having any
involvement in the management, policy, and  day-to-day decisions
involving the stations." Br. of Appel- lants at 25 (emphasis in
original). They admit that this  distinction is "subtle." Id. That is


As previously recounted, in June 1991 the licensees report- ed to the
FCC that:


Since Mr. Rice's hospitalization on April 3, 1991, he has  had
absolutely no managerial, policy, or consultative  role in the affairs
of the three broadcast corporations in  which he has ownership
interests and officer positions.  In other words, pending a resolution
of the referenced  criminal charges, Mr. Rice is being completely
insulated  and excluded from any involvement in the managerial, 
policy, and day-to-day decisions involving any of the four  licensed
stations and three construction permits held by  the three


J.A. at 15-16, 120 (citation omitted) (emphasis added). There  is no
dispute that from April until October 1991, the period of  his
hospitalization, Rice had no involvement with the stations.  The
licensees concede, however, that several weeks after  Rice's release
from the hospital, their vice-president permit- ted him to undertake a
number of station-related tasks, which  they describe as "occasional
and isolated technical projects."  Br. of Appellants at 26.
Nonetheless, the next report to the  FCC, filed on May 14, 1992,


There has been no change in Mr. Rice's status with [the  reporting
licensee] or in the status of the proceedings  against him.... Mr.
Rice is no longer hospitalized, but  he continues to be treated by his
physicians as an  outpatient, and he continues to have no managerial
or  policy role in the affairs of the three broadcast corpora- tions
... in which he has ownership interests and corpo- rate positions.


J.A. at 126-27 (citation omitted) (emphasis added).


According to the licensees, Rice's conceded involvement in  "technical
projects" is consistent with this representation  because that
involvement did not comprise managerial or  decision-making activities
but rather "mere opining and mus- ings." Br. of Appellants at 28. The
key point that the  "hypertechnical" FCC overlooked, they claim, is
that the May  1992 report deleted the word "consultative" from the
list of  roles from which the June 1991 report had said Rice was 
being excluded. Id. at 26. In their eyes, this "critical  distinction"
between the two reports should have put the  Commission on notice that
Rice had moved from having no  role to having an "opining and musing"
role. Id. at 27.  Indeed, the licensees maintain that this distinction
rendered  their representations "fully forthcoming" and candid. Id. at


By this time, it should be quite clear who is being "hyper- technical."
Only a side-by-side, line-by-line comparison of the  two
filings--conducted with some skepticism of the licensees' 
candor--would have detected the subtle difference in lan- guage upon
which the licensees now rely. In 1992, however,  the FCC had no reason
to conduct such a forensic comparison  of the two representations,
particularly in light of the May  report's opening declaration that
"[t]here has been no change  in Mr. Rice's status." That declaration,


Moreover, even if we were to accept that the licensees  effectively
advised the Commission that Rice was involved in 




__________

n 5 At oral argument, the licensees argued that their intention  was
only to indicate that there had been no change in Rice's 


consultation but had no role in management, there is substan- tial
evidence in the record that Rice was involved in manage- ment as well.
Cf. WBER, Inc. v. FCC, 420 F.2d 158, 164  (D.C. Cir. 1969) (holding
that questions regarding misrepre- sentations are factual questions
subject to substantial evi- dence review). As the ALJ stated:


Apart from Rice's consultative role, the evidence estab- lishes that,
after his release from the hospital in October  1991, Rice was also
involved in at least some of the  programming matters and personnel
decisions of the  Licensees, rejected offers to purchase one of the
Licen- sees' construction permits, invited an offer to purchase a 
station once it went on the air, suggested the trade of  specific
broadcast properties, and directed the group  program director and two
of the general managers of the  Licensees' stations to perform certain


Contemporary Media, 12 F.C.C.R. at 14,298.


The licensees contend that there was only "conflicting"  evidence on
these matters, pointing out that their witnesses  disputed much of the
testimony upon which the ALJ's conclu- sions were based. As a
consequence, they argue, "[w]itness  credibility findings played a
predominant role in the ALJ's  and the FCC's adverse rulings under the
misrepresentation  issue." Br. of Appellants at 30. It is true, of
course, that  when witnesses present conflicting testimony an agency's
 decision must be based on an evaluation of their credibility.  Under
our precedents, however, we defer to credibility find- ings affirmed
by the Commission unless they are "patently  unsupportable." E.g., SL
Communications, Inc. v. FCC, 168  F.3d 1354, 1357 (D.C. Cir. 1999).
That is not the case here.


Finally, the licensees contend that "intent to deceive" is a  necessary
element of proving misrepresentation or lack of  candor in FCC
proceedings, see Swan Creek Communica- tions, 39 F.3d at 1222; Fox
River Broad., Inc., 93 F.C.C.2d  127, 129 (1983), and that there is no
credible record evidence 




__________

n "ownership or managerial" status. The quoted words, however, do  not
appear in the declaration, which was completely unqualified.


of any intent on their part to mislead or deceive the agency.  The
evidence discussed above, however, is more than suffi- cient to
support the Commission's finding that there was an  intent to deceive.
As we have stated before, "the fact of  misrepresentation coupled with
proof that the party making it  had knowledge of its falsity [is]
enough to justify a conclusion  that there was fraudulent intent."
Leflore Broad. Co., 636  F.2d at 462. The licensees concede that they
intentionally  deleted the word "consultative" from the 1992 filing,
and we  cannot credit the claim that they did not realize the
resulting  report would affirmatively mislead the agency as to Rice's 
resumption of such activities. Moreover, as noted above,  there is
substantial evidence that the licensees' representa- tions concerning
Rice's exclusion from non-consultative (i.e.,  managerial and policy)
activities were themselves false.  There is also substantial evidence
that the licensees' manage- ment knew the representations were false,
since management  was on the receiving end of Rice's directives.6
Accordingly,  we uphold the FCC's finding of intent to deceive, and
with it  the Commission's determination that the licensees' misrepre-
sentations warranted revocation.


IV


Finally, we turn to the licensees' contention that the revo- cation of
their licenses and construction permits violates the 




__________

n 6 To take just a few examples:


Rice informed [vice president] Cox that he wanted Rhea [the  general
manager of two of his radio stations] fired, and Cox  told Rhea that
he was being fired because of Rice's displeasure  ... ; Cox told Rhea
that Rice wanted [radio announcer] Steel  fired after Steel changed
[his station's] reporting status in a  trade publication; after Rice
asked Rhea for information about  the cost of the Satellite Music
Network, Cox told Rhea that  Rice thought [one of the stations] could
be programmed for less  money by bringing in Rice's own music; and
Leatherman [the  general manager of another licensee station]
responded to Cox  after Rice asked him about the need for sound


Contemporary Media, 13 F.C.C.R. at 14,458.


Excessive Fines Clause of the Eighth Amendment.7 In sup- port of this
contention, the licensees cite Austin v. United  States, which held
that the Excessive Fines Clause applies to  forfeitures under 21
U.S.C. s 881(a)(4) and (a)(7) of property  used to facilitate drug
transactions. See 509 U.S. 602, 604  (1993). Austin has no application


In Austin, the Court held that the central question under  the
Excessive Fines Clause is whether the government action  at issue is
"punishment for some offense." Id. at 609-10; see  United States v.
Bajakajian, 524 U.S. 321, 327-28 (1998). In  concluding that the
forfeitures in that case constituted pun- ishment, the Court focused
on the historical understanding of  forfeiture as a penal measure, an
understanding reflected in  prior Supreme Court precedents and in the
legislative history  of the forfeiture statute. See Austin, 509 U.S.


These considerations do not apply to the case at bar.  First, the
Court's precedents do not reflect an understanding  that FCC license
revocations or nonrenewals based on char- acter considerations
constitute punishment. To the contrary,  in FCC v. WOKO, the Court
rejected just such a claim. See  329 U.S. at 228. There, an FCC
licensee who had made  misrepresentations to the agency contended that
the resulting  nonrenewal order "inflict[ed] a penalty, that the
motive [was]  punishment." Id. The Court disagreed, stating: "A denial
 of an application for a license because of the insufficiency or 
deliberate falsity of information lawfully required to be fur- nished
is not a penal measure." Id. Nor have the licensees  cited anything in
the legislative history of the Federal Com- munications Act to suggest
that Congress had a punitive  purpose.


The FCC revokes a license not to punish a licensee for its  conduct,
but because that conduct indicates to the Commis- sion that the
licensee is no longer qualified to hold it. See 47  U.S.C. ss 303(l),
308, 312; Contemporary Media, 13 F.C.C.R.  at 14,459-60. Revocation
comes when the Commission con- cludes that the licensee can no longer
be trusted to deal with 




__________

n 7 See U.S. Const. amend. VIII ("Excessive bail shall not be 
required, nor excessive fines imposed....").


it honestly, to follow its regulations, and to operate in the  public
interest. See, e.g., Syracuse Peace Council v. FCC, 867  F.2d 654, 659
n.2 (D.C. Cir. 1989); Leflore Broad. Co., 636  F.2d at 461-62. While
the revocation of FCC license privi- leges "may hurt and ... may cause
loss," WOKO, 329 U.S. at  228, it does not implicate the Excessive
Fines Clause of the  Eighth Amendment.


V


For the foregoing reasons, we affirm the decision and order  of the
Federal Communications Commission.