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WASHINGTON, DC, Aug 5, 1999--When the fight by Herbert L. Schoenbohm, KV4FZ, to retain his Amateur Radio license reaches federal court this fall, the FCC will argue for an outright dismissal. In its brief in the case--now scheduled for oral arguments before the US Court of Appeals for the District of Columbia Circuit on October 18--the FCC maintains that Schoenbohm is asking the court to review an order that's not subject to review.
Following Schoenbohm's 1992 conviction for fraudulently procuring long distance telephone service by using illicitly obtained access codes, the FCC in 1994 designated his Amateur Radio license renewal application for hearing. An Administrative Law Judge denied his renewal application saying that Schoenbohm's felony conviction "reflects adversely on his propensity to obey the law."
The FCC also says that Schoenbohm, now 59, solicited others, using Amateur Radio, to make ex parte presentations on his behalf, in violation of FCC rules and that he subsequently "engaged in misrepresentation and lacked candor" in testifying about his felony fraud conviction and his solicitation of ex parte presentations. The FCC said his behavior, in combination with his fraud conviction, justifies denying his amateur renewal application.
Schoenbohm appealed every step of the administrative process. Last summer, the FCC upheld the supplemental initial decision of an administrative law judge denying Schoenbohm's renewal application. The FCC affirmed that finding last October 6. Schoenbohm has moved the matter into the courts by appealing the FCC order denying his reconsideration petition.
The FCC argues, however, that Schoenbohm--of Kingshill, Virgin Islands--is asking the court "to review an order that is unreviewable." The FCC says the courts have held "that an appeal from an agency order denying reconsideration is not reviewable unless the appeal rests on new evidence or changed circumstances."
In its brief, the FCC contends that Schoenbohm's appeal is not based on either, so "his claims are unreviewable."
Following his conviction, Schoenbohm served two months house arrest plus two years of probation and paid a $5000 fine. He maintains that the FCC should renew his license because his conviction was several years ago, his sentence light, and he's had a spotless record and been fully rehabilitated. The FCC disagrees. "Schoenbohm's record since his conviction has not been 'spotless,' but includes testimony before the Commission that was false and lacking in candor," the FCC argues in its appeal brief.
The FCC also turns away arguments by Schoenbohm that the FCC should have reopened the proceeding to look into Schoenbohm's claims that the Administrative Law Judge in the case may have received improper ex parte presentations by parties opposing Schoenbohm's license renewal. Those claims, the Commission argues, not only were untimely but "based entirely on hearsay, rumor, and innuendo."
A brief filed May 10 on Schoenbohm's behalf by his attorney Lauren A. Colby contends that the Commission's actions to deny Schoenbohm's license renewal were "arbitrary and capricious and inconsistent with well-established precedents." Among other things, Colby argues in his pleading that Schoenbohm's criminal conviction does not merit denial of his license renewal and that the FCC has "previously renewed the licenses of convicted murders and marijuana distributors," that Schoenbohm did not violate FCC ex parte rules, and that he did not lie to the Commission. Colby asks the court to remand the case to the FCC with instructions to grant the renewal.
Schoenbohm's Amateur Radio license expired in 1995, and his call sign no longer appears in the FCC database. However, he has been allowed to continue operating as KV4FZ until his administrative and judicial appeals are exhausted.
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