Schoebohm v. Fed. Commun. Comm'n, 98-1516

• Decision Date: 02 May 2000
• Docket Number: No. 98-1516,98-1516
• Citation: 204 F.3d 243
• Parties: (D.C. Cir. 2000) Herbert L. Schoenbohm, Appellant v. Federal Communications Commission, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 243

204 F.3d 243 (D.C. Cir. 2000)

Herbert L. Schoenbohm, Appellant v. Federal Communications Commission, Appellee

No. 98-1516

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 18, 1999

Decided February 29, 2000

Rehearing En Banc Denied May 2, 2000.

Appeal of Orders of the Federal Communications Commission

Lauren A. Colby argued the cause and filed the briefs for appellant.

James M. Carr, Counsel, Federal Communications Commission, argued the cause for appellee. With him on the brief were Christopher J. Wright, General Counsel, and Daniel M. Armstrong, Associate General Counsel. Pamela L. Smith, Counsel, entered an appearance.

Before: Sentelle, Henderson, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

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 application with the Federal Communications Commission (FCC).

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 Schoenbohm's fraud conviction, "in combination with" his misrepresentations 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 previous 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 Administrative Procedure Act, 5 U.S.C. 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 rejection 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 jurisdiction. The Commission argues that Schoenbohm did not appeal from its original decision to deny his renewal application, 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 Locomotive 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, 202 F.3d 307, 311 (D.C. Cir.1999) (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 denying 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 Southwestern 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 contemporaneously with it." Martin v. FERC, 199 F.3d 1370, 1372 (D.C.Cir. 2000) (quoting Southwestern Bell, 180 F.3d at 313 (quoting 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. 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 underlying 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." Southwestern Bell, 180 F.3d at 313.

Because Schoenbohm's intent to appeal the FCC's underlying 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 determine whether the decision was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. 706(2)(A). We review the factual findings upon which the decision was based to ensure that they were supported by "substantial evidence," id. 706(2)(E). See 47 U.S.C. 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 "something 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 substantial evidence." Id.

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

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 misconduct 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 license 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 observed, fraud "is a subject area the Commission has traditionally 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). According to appellant, he too established his rehabilitation.

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. 1.17; see also 47 U.S.C. 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...