FCC Upholds Decision to Revoke Amateur License of Convicted Indiana Ham
Lonnie L. Keeney, KB9RFO, of Greencastle, Indiana, filed a Petition for Reconsideration in March 2010, asking that the FCC re-evaluate the revocation of his Amateur Radio license. Keeney -- who in 2002 was convicted of child molestation, a Class C felony -- was found by the FCC in February 2010 to be “lack[ing] the requisite character qualifications to be and remain a Commission licensee.” Keeney appealed the decision, and on May 24, the FCC denied his Petition via an Order on Reconsideration, affirming the revocation of his Amateur Radio license
On November 20, 2007, the Chief of the FCC’s Enforcement Bureau, pursuant to delegated authority, designated Keeney’s case for hearing before an Administrative Law Judge (ALJ). Issues were specified to determine whether Keeney is qualified to be and remain a Commission licensee in light of his felony conviction for child molestation, and, if not, whether his license for Amateur Radio license KB9RFO should be revoked.
Via an Order to Show Cause, Keeney was directed to file a written appearance -- either in person or by his attorney -- with the Commission within 30 days, stating his intention to appear for the hearing and present evidence on the specified issues. He was informed that if he failed to file a timely written appearance, his right to a hearing would be waived pursuant to Section 1.92(c) of the Commission’s rules, and the Presiding Administrative Law Judge would issue an order terminating the hearing and certifying the case to the Commission for resolution.
The ALJ issued a Memorandum Opinion and Order (MM&O), holding that Keeney failed to file a written appearance and that his representations in an e-mail to the presiding judge “clearly established an intent not to appear on the date fixed for hearing and not to present evidence on the issues specified in the Order to Show Cause. The ALJ concluded that Keeney had waived his right to a hearing and, accordingly, terminated the proceeding and certified the case to the Commission.
According to the Order on Reconsideration, the ALJ specifically considered and detailed in the MO&O the content of Keeney’s written communications to the Commission since the issuance of the Order to Show Cause, including his arguments that he could not afford to attend a hearing and that his character had been rehabilitated by his jail time and his efforts to rebuild his reputation. The Enforcement Bureau then released the Revocation Order, finding Keeney “to be unqualified on the basis of his felony conviction and revoking his Amateur Radio license. The order cited and referred to the MO&O’s discussion of Mr Keeney’s earlier arguments.”
In his Petition for Reconsideration, Keeney requested that he be permitted to keep his Amateur Radio license. Keeney stated in his Petition that he has no money to defend himself at a hearing, that his license is important to him, that he previously used his amateur station to provide services to his community, that he participates as a volunteer in a jail ministry and that he is trying to rebuild his reputation in the face of a lifelong requirement to register as a sex offender.
Sections 1.106(b) and (c) of the Commission’s rules provide that a Petition for Reconsideration will be entertained only if it relies on newly discovered facts or if consideration of the facts relied on is in the public interest. Based on similar cases before the FCC, the Commission has found that “the additional information offered must relate to changed circumstances or previously unknown facts, or additional public interest reasons must compel consideration...the strict limitation on reconsideration based on new evidence is intended to promote orderly adjudicative processes and administrative finality.” The FCC would also “permit a Petition for Reconsideration that relies on facts not previously presented only when the facts relate to events which have occurred or circumstances have changed since the last opportunity to present such matters and could not, through the exercise of ordinary diligence, have been learned prior to such opportunity...or the public interest requires consideration of the facts.”
According to the Order on Reconsideration, the FCC’s Enforcement Bureau carefully reviewed Keeney’s Petition and “conclude[d] that it does not satisfy the requirements of Sections 1.106(b) and (c). Specifically, Mr Keeney has provided no newly discovered facts or information that would, in the public interest, warrant reconsideration of the Order of Revocation. Indeed, the information Mr Keeney presents in his Petition for Reconsideration is of the kind that was already presented to the ALJ and described in the MO&O and Revocation Order. Furthermore, even assuming, arguendo, that Mr Keeney did present a basis for reversing the Order of Revocation, the relief to which he would be entitled would be a new hearing proceeding on his qualifications, not, as he seeks, authority to keep his Amateur Radio license.”
The FCC -- pursuant to Sections 4(i) and 405 of the Communications Act, as amended and Section 1.106 of the Commission’s Rules -- denied Keeney’s request to have his Amateur Radio license reinstated, concluding that he failed to establish a basis for reconsideration of the Order of Revocation and the relief he seeks under the circumstances presented is inconsistent with the Commission’s procedural rules.