Felony Conviction: The Narrow Judge of Character

Jul 24, 2017
By: Jerry A. Goodson
In: Amateur Radio

The American Radio Relay League recently announced the Federal Communications Commission is adding "the felony question" to the amateur radio license application.  Should the FCC evaluate a person's character based on their criminal history?

In an article published by the American Radio Relay League titled Revised FCC Form 605 Will Ask Applicants “the Felony Question” [LINK], it's reported new applications for new licenses, as well as modifications and renewals will ask if the applicant has ever been convicted of or plead guilty to a felony.  Answering "no" means the application will be processed as normal.  Answering "yes" adds a whole new set of proverbial hoops for the applicant to jump through for the subjective consideration of granting the application.

The announcement led quickly to researching past cases on the FCC (the Commission) website.  The scope of this article only spans a few decades where archived information is readily accessible in searches on the web, particularly, the Commission website.

...the Commission sent a loud and clear message that they will
accept a decision from the ALJ as long as it is, "REVOKE!"

Based on historical data, it doesn't look good for convicted felons, and registered sex offenders need not apply.

Subjective Indifference

The first case, of note, was a petition filed by Bernard J. Parker K5BP in 2011.  Mr. Parker expressed concern over the commission's lack of screening and preclusion for convicted felons for obtaining and renewing an amateur radio license[PDF].  

Mr. Parker's petition to the Commission to ban all convicted felons from licensure centered around the appointment to lead amateur radio based volunteer emergency communications services such as RACES and ARES.  The individual, Lawrence D. Carpenter Jr. K5LD, is a convicted felon, and the Commission was made aware of that conviction in Mr. Parker's petition.

The petition wasn't made against the license held by Mr. Carpenter, specifically, but was made to the Commission to broadly disqualify all convicted felons from licensure.  The Commission dismissed the petition stating a felony conviction was only a consideration in determining whether an applicant meets their character standards.

Excerpt from the dismissal letter: [PDF]

The Commission has consistently applied character standards developed for broadcasters to applicants and licensees in the amateur radio service. The Commission's character policies provide that a felony conviction is relevant to the evaluation of a licensee's character qualifications, because felonies are serious crimes that reflect on a licensee's propensity to obey the law.

A search revealed no administrative hearings for an administrative law judge (ALJ) to determine if Mr. Carpenter possessed the required good character to keep his amateur radio license.

The Worst of the Worst

George E. Rodgers N3LR

The Commission has their go-to case when presented with felonies involving sex crimes against children.  

On April 26, 1994, George E. Rodgers plead guilty to and was convicted upon four counts of violating Section 6301(a) [corruption of minors] of the Pennsylvania Criminal Code and upon four counts of violating Section 3126(a)(l) [indecent assault] of the Pennsylvania Criminal Code. Commonwealth of Pennsylvania v. Rodgers, Docket No. 2300-93 (Court of Common Pleas, Chester County, Pa.). The record in that case indicates that Mr. Rodgers attracted his victims through a common interest in amateur radio and that each victim was assaulted while spending a night at Mr. Rodgers' home to use his amateur radio apparatus. On November 9, 1994, the Court sentenced Mr. Rodgers to consecutive terms of imprisonment of three to six months for each count. Additionally, the Court ordered Mr. Rodgers to pay fines totaling $200, costs, and restitution up to a total of $20,303 (to pay for therapy for his victims).

Mr. Rodgers was ordered before a hearing to determine if he possessed the character to renew his amateur radio license[TXT].  He didn't bother to show up, and his application was dismissed.  The order for the hearing is frequently referenced in subsequent orders for hearings from the Commission although this hearing never did take place.

No prudent person would believe an any ruling by an ALJ or the Commission would, or should, ever allow granting operating privileges to Mr. Rodgers.  He hadn't simply demonstrated predatory behavior, but he used amateur radio as a tool to carry out his crimes.

Travel and Financial Hardships Pertaining to Administrative Hearings

Jack R. Sharples

Jack Sharples of Edgewater, Florida, studied for, and passed the exam to obtain his technician license.  He is a convicted felon and registered child predator in the State of Florida.  Mr. Sharples submitted his application on June 3, 2005[PDF] Mr. Sharples had a felony conviction for LEWD,LASCIVIOUS CHILD Under 16; F.S. 800.04 (PRINCIPAL IN ATTEMPT) in 1996 and LEWD,LASCIVIOUS CHILD Under 16; F.S. 800.04 (PRINCIPAL) in 1999.

On June 27, 2007, Mr. Sharples withdrew his request for licensure due to financial concerns surrounding the required travel[PDF].  This occurred after a conference call where Mr. Sharples was told he would not have an appointed attorney, and that he would have to travel to Washington, D.C., from his home in Edgewater, Florida to attend the hearing.  Looking that address up on Google Maps shows the trip would have been 822 miles, and would have taken 11 hours and 55 minutes each way[Google Maps].

Mr. Sharples didn't simply not show up.  In fact, he was quite diligent in communicating with the ALJ and the Commission.  In response to the order for the hearing issued on May 30, 2007, he wrote this letter on June 19, 2007[PDF]:

My name is Jack Sharples and I applied for a New License in the Amateur Radio Service. I received your notice of concerns and the scheduled review of my request.

My interest in having the Amateur Radio Service License is for a couple of reasons.

1. I live in Florida and as you know we have been having a lot of hurricans over the last couple of years. Due to my Sexual Predator Title I am limited to the amount of places I can go in a Hurricane. If my home was to lose power, this Amateur Radio Service License would be my only link to the outside world. I hope you can understand my concerns.

2. I am disabled and in case of emergency I would be able to use this to call or help (911) or a friend or contact who ever is on the radio at that time to call for help for me.

3. I have friends who use the Amateur Radio Service and my friends are really the only ones I have an interest in speaking with on the Radio Service. I am not interested in speaking or meeting any children under the age of 18. My main use will be to speak with the people who already exist in my life and in addition to the friends use for emergencies and Hurricanes.

My interest in using the Amateur Radio Service is purely honorable. I have learned my lesson and I learned it the very hard way. What I did in the past was terribly wrong and I deeply regret the stupid decisions I made in my past. I have learned my lesson and I have not been in any trouble for over 7 years.

If you give me this Amateur Radio Service License, I welcome you to listen in on my calls, monitor my calls or record my calls. I have nothing to hide. You will not find I use the Radio Service in any illegal manner. If you feel after monitoring me for a length of time that I am using this Radio Service License in a bad way then please revoke my license.

I think you for your time and consideration. I understand your concerns and I hope you will understand my reasons and that I am a reformed citizen of the United States.

Jack Sharples

Records indicating any reasoning for a 2-year delay between Mr. Sharples' application and hearing order were not located.  Public searches revealed Mr. Sharples moved from Florida to Tennessee, and produced no results for any additional offenses.

Robert Landis N6FRV

Robert Landis of Riverside, California, received his amateur radio license in April, 1999. In 1991, he was convicted on two counts of a lewd act with a child under the age of fourteen years old. He was sentenced to eleven years in prison and fined $10,000. After serving his sentence, he was involuntarily committed to a mental institution where he was confined when a complaint was sent to the Commission regarding his felony convictions and confinement in 2005.

He hand-wrote a letter to the ALJ and mailed it via the United States Postal Service.  The letter has been transcribed as:

Honorable Arthur Steinberg,

This is in response to the show cause order and your order released August 7, 2006. Your honor, let me first state that I am ignorant of the rules under 47 CFR. The legal library we have at this hospital does not have this title. I can only pray that your honor understands.

I do not have access to a fax machine. I contacted the A.R.R.L. and they suggested I write a letter to you.

I am in a state hospital (Atascadero State Hospital) I was first admitted on/in June, 1997. I been here since except for a couple of trips to my county for a commitment hearing (trial). My parole ended in 2000 (I was released from prison in 1997). I received my discharge papers a month after my discharge date of January 2000. I was/am an involuntary civil commitment under California's [SVPA?].

My original station was in Riverside whenI was sentenced to prison in 1991 That Riverside address was my station and station mailing address until my mothers death. I submitted a change of address making this hospital my mialing address. My equipment was moved to my father's address for storage. I haven't used my equipment (or any other) since 1991.

I can't understand why the Commission fells I don't have the "character" to maintain a license. I've never used my radio for illegal activities. I've done a lot of volunteering with the county radio club. I was helping the county fire as a back up communications if it came to that. I was a volunteer with the Dept. of Forestry, as a VIP; Volunteers in Provention. As far as my radio usage, I was as professional as I could be. I've never received any complaints from the ham community. Sometimes I've gotten compliments.

This crime I was accused of in 1991 was a false claim. Today, I'm trying to prove my innocents in that case. I understand that the case will not be retried.

Also, this crime is 15 years old. Time does change a person and I am not the same today as I was then.

I have never lied to the Commission. I take pride in my license and did not ever want to jeapardize it. The license was the result of a lot of hard work and expense for me.

I pray that your honor doesn't find reason to revoke my license. I had so many plans made after my release which included amateur radio.

Just for information, I now use a wheelchair. I'm older now and I'm falling apart.

One other thing, I am a veteran of the Vietnam War. I was a crew chief on Huey Helecopters in a MEDEVAC unit. I've received the Distinguished Flying Cross for Heroism along with the Air Medal with "V" Device standing for valor. This shold be a look into my character. I have good characteristics. I've tried so hard these last 15 years to put an end to any negative characteristics I had. I am a completely changed man now. I've seen and admitted my bad things and have changed for the better. I pray you understand this.

Please contact me at the address, or phone number, at the top of the letter

If you need witnesses to my character please inform my as to this.

My family can be reached at 951)737-2118 or by mail at:

Samuel Landis
313 E. Francis St
Corona, CA 92879

My dad is also a license holder as KC6MOG.

Please inform me if there is anything you need from me.

I can not attend this hearing due to hospital restrictions not allowing me to travel without escort with I can not afford, I also can not afford an attorney.

Thank you for listenning to me. With warmest regards.

//signed Robert D. Landis//
Patient - A.S.H.

Under the License Revocation heading in section VII of the revoction order issued by the Commission, it is stated:

The Commission's character policies provide that any felony conviction is a matter predictive of licensee behavior and is directly relevant to the functioning of the Commission's regulatory mission. Mr. Landis's egregious convictions and continued confinement require the finding that Mr. Landis does not possess the requisite qualifications to be and to remain a Commission licensee. Accordingly, we conclude, as a matter of law, that Mr. Landis's above-captioned license should be revoked.

Public record searches reveal Mr. Landis is still involuntarily confined in spite of completing his original sentence, and produced no results for any additional offenses.   No evidence was found that tied amateur radio to any of the offenses either directly or peripherally.

Lonnie Keeney KB9RFO

Lonnie Keeney of Greencastle, Indiana, Mr. Keeney was first licensed in 1998, and upgraded to general class in 2000.   In 2002, he was charged with two counts of child molestation.  He took a plea deal, and plead guilty to one count of felony child molestation.  He served roughly one year in prison, and was serving out the rest of his total five-year suspended sentence on probation.  

In Novemeber of 2007, a show cause order was issued for Mr. Keeney to appear in Washington, D.C., to determine if he possessed good character to keep his license.  Google Maps shows the trip from his residence to Washington, D.C., to be 631 miles, and would take 10 hours and 39 minutes [Google Maps].

-----Original Message-----
From: kb9rfo@broadreach.net [mailto:kb9rfo@broadreach.net]
Sent: Tuesday, January 22, 2008 7:11 PM
To: Richard Sippel
Subject: EB Docket No. 07-264 File No. EB-06-IH-2945

A prehearing conference is scheduled for January 29, 2008, concerning whether or not I should be allowed to keep my amateur radio license KB9RFO. All I can do is plead with you to let me keep my license, I have always tryed to uphold the amateur rules and regulations concerning amateur radio and would like to continue to do so. I have voluntarily discontinued use of my amateur radio priviledges until I can find out what the out come will be, I do not want to operate, and will not operate illegally. As far as my character, yes I did something wrong and I admitted what I did and went to prison for it, since then I have been enrolled and actively participate in sexual therapy classes, which have made me realize things I didn't even know about myself. I always have felt my character was very good, always trying to obey all laws, the only other problems I have had, is traffic violations with a motor vehicle, you are welcome to check my driving record if you please. I am fifty years old and would enjoy spending the rest of my life communicating via amateur radio.
Another question I have, if you do take my license away will it be for the rest of my life, or could I get it back after a period of time. I can not afford to travel to Washington D.C. for the prehearing or for a trial, please accept my correspondences concerning this matter, I also asked a few others to write to FCC concerning my character.

Respectfully Submitted
Lonnie Keeney KB9RFO

Mr. Keeney's email was filed with the case, but was not considered an "appearance" under the rules set forth by the Commission.  The case was dismissed, and Mr. Keeney's license was revoked.  

Mr. Keeney came off of probation in 2008, and unsuccessfully petitioned the Commission for reconsideration in 2009.  A public records search revealed Mr. Keeney was convicted of Possession of Child Pornography in 2011, and was ordered to serve 1 year in prison plus 2 years suspended.  No evidence was found that tied amateur radio to any of the offenses either directly or peripherally.

How Good is Good Enough?

The common factors concerning the show cause orders issued to George Rodgers, Jack Sharples, Robert Landis, and Lonnie Keeney are that none of them retained legal counsel and none of them attended the 6administrative hearings in which they were ordered to appear.  Understandably, all of those cases yielded the same results: no applications were granted.  

Search results indicated there were two show cause hearings in regards to amateur radio license matters for convicted felons.

David L. Titus KB7ILD

David L. Titus of Seattle, Washington, is a convicted felon and registered sex offender.  Mr. Titus retained legal counsel and successfully argued his case before the ALJ, who ruled in his favor.  An article published on W5YI.org website[LINK] outlined the proceedings very well.  There are numerous documents published on the Commission's website pertaining to this case.

Ten character witnesses presented written testimony on Mr. Titus's behalf attesting to his character, including: a clergyman, a police officer, a corrections officer, a school counselor, a government contractor, a Red Cross worker, a lab engineer, and Mr. Titus' mother.  Several of the witnesses are active in the Amateur Radio Service.

Mr. Titus's case offered the glimmer of hope to licensees that were convicted felons and registered sex offenders.  It was a good demonstration that if an appearance was made by respondents or their legal counsel, the ALJ would truly judge each case on its merits.  This was a win!

...until it wasn't.

The Commission refused to accept the ALJ's decision, and ultimately dismissed Mr. Titus' renewal application, allowing his license to expire.[PDF]

There are over one hundred filings in this case, and it is quite apparent the Commission's Enforcement Bureau (EB) is on a mission to keep Mr. Titus from prevailing in any and all proceedings.  The examples of dramatic adjectives and adverbs in the EB's 4-page objection[PDF] over a late response is a clear display of not only attempting to show Mr. Titus as lazy, but also a miscreant.  By reading the objection, one would believe the late-filing was just as egregious as the original sex crimes committed by the respondent so long ago.  Furthermore, reading the Commission's decision to reverse the ALJ's ruling outlined numerous failures of the ALJ, Richard L. Sippel, and rather projected him to be completely incompetent as an administrative law judge.

The Good Felon

Kevin D. Mitnick N6NHG

Kevin Mitnick of Las Vegas, Nevada, was arrested and jailed in 1995 in connection with criminal computer activity he committed since 1992 until his arrest. He plead guilty to numerous felony counts of wire and security fraud. Mr. Mitnick was a fugitive from justice for around two years, and sat on the FBI's "Most Wanted" during that time.

Source: https://mitnicksecurity.com

At one time, Mr. Mitnick was branded "the world's most famous hacker."  He was still incarcerated in 1999 when he filed to renew his amateur radio license.  His renewal application was held pending the outcome of an administrative hearing to determine if he possessed the good character to remain a licensee.

Mr. Mitnick wasn't required to travel to Washington, D.C.  He was, instead, allowed to "appear" by way of telephone conference call.  Even with the allowance of such a provision not seen granted in all of the other previous cases researched, Mr. Mitnick filed an objection to the ALJ's requirement that his identity be verified by a notary public.  The ALJ's response to the objection was that the provision is a grant and not a right, therefore, the ALJ retained the authority to issue such restrictions.

There were also late filings in the case, and the reason presented by Mr. Mitnick was that he was really busy with writing his book, "The Art of Deception," and was on a very strict deadline from the publisher.  

The judgment of Mr. Mitnick's character wasn't weighted solely on his criminal past and convictions, but rather on his current success.  The ALJ granted Mr. Mitnick's application, and he is still licensed, today.[PDF]

No Pulse on Character Standards

Only a few more cases were found in a cursory search of filings with the Commission in regards to convicted felons retaining their licenses, but their disposition mirrored the first four cases presented in this article.  Only the last two cases presented were found to have gone all the way to a formal hearing.   With only the results of two hearings, and an affirmative finding from the ALJ on both cases (although the Commission reversed the ALJ's decision in regards to David Titus), it's impossible to gauge how well convicted felons will fare when they are all compelled to reveal their status as such.  In the case of sex offenders, the Commission sent a loud and clear message that they will accept a decision from the ALJ as long as it is, "REVOKE!"

What is still unclear is if the Commission will order hearings for every applicant that responds to the "felony question" in the affirmative.  As demonstrated in the petition filed by Bernie Parker, just because the Commission becomes aware a licensee is a convicted felon doesn't necessarily mean an order to show cause will be issued.  

No Record of Bad Character

Any operator that has scanned around 14.313MHz would testify there are transmissions that violate FCC Part 97.  Transmissions are frequently long, without proper identification, and profane and vulgar.  This isn't a recent development, either.  This kind of activity has purportedly been going on for over twenty years.  Visiting the Commission's Amateur Radio Service Enforcement Actions page[LINK] reveals a very disproportionate list of actions in regards to the amount of offending transmissions on that frequency, alone.  Very few, if any, of the operators on that frequency have felony convictions, yet very little enforcement action is taken against those same offending operators.

There are much better operators that have felony convictions than the likes of the "lids" that engage in tom-foolery on 14.313MHz and a few other select HF frequencies.  There are plenty of candidates to evaluate "character" beyond those who simply have a criminal record.

The ARRL's Official Observer Program[LINK] needs to be strengthened, and more aggressive enforcement action needs to be taken on poor operators who have demonstrated, on the air, their bad character.  

Polarization:  The Parting Shot

This issue has been thrust to the forefront in the Amateur Radio Service community now that it has been announced all applicants will be compelled to ask "the felony question."  There have been several discussions in the past, and even a petition filed with the Commission regarding the matter.  A small sample of such polarization can be found in the QRZ.com forums[LINK].

There are better ways the Commission could, and should judge character beyond an applicant's criminal record.

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