United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 18, 2000 Decided June 16, 2000

No. 99-1198

[Contemporary Media, Inc., et al., ]{.smallcaps}

[Appellants]{.smallcaps}

v\.

[Federal Communications Commission, ]{.smallcaps}

[Appellee]{.smallcaps}

Appeal of an Order of the

Federal Communications Commission

*Howard J. Braun* argued the cause for appellants. With him on the
briefs were *Jerold L. Jacobs* and *Shelley Sadowsky.*

*Lisa A. Burns*, Counsel, Federal Communications Commission, argued the
cause for appellee. With her on the brief were *Christopher J. Wright*,
General Counsel, and *Daniel M. Armstrong*, Associate General Counsel.

Before: [Silberman]{.smallcaps}, [Henderson]{.smallcaps}, and
[Garland]{.smallcaps}, *Circuit Judges*.

Opinion for the Court filed by *Circuit Judge* [Garland]{.smallcaps}.

[Garland, ]{.smallcaps}*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 owner\'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. §
165(a), which requires FCC license applicants to maintain \"the
continuing accuracy and completeness 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 corporations.

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 corporations \... in
which he has ownership interests and corporate 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
licensees, 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 appropriate 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 accordance with law.\" Administrative Procedure Act
(APA), 5 U.S.C. § 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. § 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 factors in
evaluating character, and as a consequence its evaluations sometimes
yielded inconsistent results. *See Policy Regarding Character
Qualifications in Broadcast Licensing*, 87 F.C.C.2d 836, 836-37 (1981)
(notice of inquiry). The Commission responded to this problem in 1986
with the adoption of a comprehensive character policy statement. *See
Policy Regarding Character Qualifications in Broadcast Licensing*, 102
F.C.C.2d 1179 (1986) \[hereinafter *1986 Character Policy Statement*\].
The statement announced that the FCC\'s character 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 misconduct,\" 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. 3252, 3252 (1990) \[hereinafter *1990
Character Policy Statement*\]. It therefore amended that policy with a
new statement, which explained:

\[U\]pon further reflection, we believe a propensity to comply with the
law generally is relevant to the Commission\'s public interest analysis,
and that an applicant\'s or licensee\'s willingness to violate other
laws, and, in particular, 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 misconduct
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 convictions 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
\"continue\[d\] to believe that, where an applicant has allegedly
engaged 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 original).

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) (en banc).

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 reliability 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
foresee the variety of criminal behavior in which licensees or their
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,\"
*Contemporary 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 Statement*, 5 F.C.C.R. at
3252. n.5.

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 distinguishable. 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\[ \]
mitigating 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 scrutinizing the misconduct at issue,
the FCC concluded that it was \"extremely serious\" and involved
\"numerous acts.\" *Contemporary 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 very matter now
before us.

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
adjudicated misconduct. *See 1990 Character Policy Statement*, 5
F.C.C.R. at 3252. Regardless of whether it would be reasonable to erase
that line, it is not unreasonable to draw it.[^3]

**III**

Having found no merit to the licensees\' challenges to the FCC\'s
character policy itself, we now consider their challenges 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 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, capricious, an abuse of
discretion, or otherwise not in accordance with law,\" 5 U.S.C. §
706(2)(A), and that we must uphold its findings of fact if they are
supported by substantial evidence, *see id.* § 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 mitigating factors to
be considered in evaluating misconduct: \"the willfulness of the
misconduct, the frequency of the misconduct, 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 insubstantial.

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 sentence he received.
Furthermore, we do not regard a sentence 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 wisely, licensees do 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 argument. 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 other serious misconduct: namely, intentional
misrepresentations to the FCC regarding Rice\'s continued role.

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 participated 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 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 simultaneously 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 record 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
compliance is not alone sufficient to mitigate the overwhelming negative
weight of all the other evidence\" in this case. *Contemporary 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 applicant who deliberately makes misrepresentations or
lacks candor in dealing with the agency.\" *Schoenbohm v. FCC*, 204 F.3d
243, 247 (D.C. Cir. 2000); *see also FCC v. WOKO, Inc.*, 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 Commission that, subsequent to his
arrest, Rice was completely excluded from any further involvement in the
management and operation of the Licensees\' radio stations.\"
*Contemporary 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 Appellants at 25 (emphasis in original). They admit that this
distinction is \"subtle.\" *Id.* That is an understatement.

As previously recounted, in June 1991 the licensees reported 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 corporations.

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 permitted 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, stated:

*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 corporations* \... in
which he has ownership interests and corporate 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 musings.\" 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 26.

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 language 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, alone, was plainly false.[^5]

Moreover, even if we were to accept that the licensees effectively
advised the Commission that Rice was involved in consultation but had no
role in management, there is substantial evidence in the record that
Rice was involved in management as well. *Cf. WBER, Inc. v. FCC*, 420
F.2d 158, 164 (D.C. Cir. 1969) (holding that questions regarding
misrepresentations are factual questions subject to substantial evidence
review). As the ALJ stated:

Apart from Rice\'s consultative role, the evidence establishes 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
Licensees\' 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 tasks.

*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 conclusions 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 findings 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 Communications*, 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 of any intent on their part to mislead or
deceive the agency. The evidence discussed above, however, is more than
sufficient 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\' representations concerning
Rice\'s exclusion from non‑consultative (i.e., managerial and policy)
activities were themselves false. There is also substantial evidence
that the licensees\' management 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\'
misrepresentations warranted revocation.

**IV**

Finally, we turn to the licensees\' contention that the revocation of
their licenses and construction permits violates the Excessive Fines
Clause of the Eighth Amendment.[^7] In support 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. § 881(a)(4) and
(a)(7) of property used to facilitate drug transactions. *See* 509 U.S.
602, 604 (1993). *Austin* has no application here.

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 punishment, 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. at
614-20.

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 character 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 furnished is not a penal measure.\"
*Id.* Nor have the licensees cited anything in the legislative history
of the Federal Communications 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 Commission that the licensee is no
longer qualified to hold it. *See* 47 U.S.C. §§ 303(*l*), 308, 312;
*Contemporary Media*, 13 F.C.C.R. at 14,459-60. Revocation comes when
the Commission concludes that the licensee can no longer be trusted to
deal with 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 privileges \"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.

[^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 without
    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.

[^2]: In addition, the FCC explicitly reserved the option of expanding
    the range of relevant misconduct \"\[s\]hould \[its\] future
    experience 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.

[^3]: The licensees seek further support from *Alessandro Broadcasting
    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 *Alessandro,* 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 \[the shareholder
    was\] rehabilitated and \[had\] restored his civil rights.\" *Id.*
    at 11 n.13. None of those factors is present in this case.

[^4]: It goes without saying that Rice\'s forbearance while in prison is
    not indicative of rehabilitation at all.

[^5]: At oral argument, the licensees argued that their intention was
    only to indicate that there had been no change in Rice\'s
    \"ownership or managerial\" status. The quoted words, however, do
    not appear in the declaration, which was completely unqualified.

[^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 effects CDs.

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

[^7]: *See* [U.S. Const]{.smallcaps}. amend. VIII (\"Excessive bail
    shall not be required, nor excessive fines imposed\....\").