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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
LONNIE L. KEENEY ) EB Docket No. 07-264
Amateur Radio Operator and Licensee of ) File No. EB-06-IH-2945
Amateur Radio Station KB9RFO
)
)
ORDER TO SHOW CAUSE
Adopted: November 20, 2007 Released: November 20, 2007
By the Chief, Enforcement Bureau:
I. introduction
1. By this Order to Show Cause, and pursuant to Sections 312(a) and (c)
of the Communications Act of 1934, as amended (the "Act"), the
Enforcement Bureau of the Federal Communications Commission (the "FCC"
or "Commission") hereby commences a hearing proceeding before an
administrative law judge. The purpose of this hearing is to determine
whether Lonnie L. Keeney, the licensee of Amateur Radio Station KB9RFO
(the "Station") and holder of an Amateur Radio Operator license, is
qualified to remain a Commission licensee, in light of a felony
conviction against him, and whether his license should be revoked.
II. background
2. The FCC granted Mr. Keeney a license for the Station on December 29,
1998. At all times while Mr. Keeney has been an amateur licensee, the
Commission has required that such licensees adhere to certain
standards that are set forth in the Commission's character policy
statement, which states that "evidence of any conviction for
misconduct constituting a felony will be relevant to our evaluation of
an applicant's or licensee's character."
3. In 2002, Mr. Keeney was charged in the Criminal Division of the Putnam
Circuit Court, State of Indiana, with two counts of child molestation
in violation of Indiana Code Section 35-42-4-3, a Class A felony, and
Section 35-42-4-3, a Class C felony. Pursuant to a plea agreement, Mr.
Keeney pled guilty to one count of felony child molestation, and, on
December 10, 2002, was sentenced by the Putnam Circuit Court to six
years of incarceration with the Indiana Department of Corrections. The
Court ordered that Mr. Keeney serve one year of the sentence with
credit for 35 days already served, and suspended the remaining five
years of that sentence, but placed Mr. Keeney on supervised probation
for five years. Mr. Keeney remains on probation.
III. discussion
4. Section 312(a)(2) of the Act provides that the Commission may revoke a
license for "conditions coming to the attention of the Commission
which would warrant it in refusing to grant a license or permit on the
original application." The character of the applicant is among those
factors that the Commission considers in its review of applications to
determine whether the applicant has the requisite qualifications to
operate the station for which authority is sought.
5. In assessing character qualifications in broadcast licensing matters,
the Commission considers, as relevant, "evidence of any conviction for
misconduct constituting a felony." As the Commission stated,
"[b]ecause all felonies are serious crimes, any conviction provides an
indication of an applicant's or licensee's propensity to obey the law"
and to conform to provisions of both the Act and the Commission's
rules and policies. The Commission has consistently applied these
broadcast character standards to applicants and licensees in the
Amateur Radio Service. Thus, felony convictions raise potential
questions regarding an amateur licensee's qualifications.
6. Mr. Keeney's felony conviction raises serious questions as to whether
he possesses the requisite character qualifications to be and to
remain a Commission licensee, and whether his captioned license should
be revoked. Before revoking a license, the Commission must serve the
licensee with an order to show cause why revocation should not issue,
and must provide the licensee with an opportunity for hearing.
Consequently, we hereby designate the matter for hearing before a
Commission administrative law judge to provide Mr. Keeney with an
opportunity to demonstrate why his license should not be revoked.
IV. ORDERING CLAUSES
7. ACCORDINGLY, IT IS ORDERED that, pursuant to Sections 312(a) and (c)
of the Communications Act of 1934, as amended, and authority delegated
pursuant to Sections 0.111, 0.311, and 1.91(a), of the Commission's
rules, Lonnie L. Keeney is hereby ORDERED TO SHOW CAUSE why his
authorization for Amateur Radio License KB9RFO should not be revoked.
Lonnie L. Keeney shall appear before an administrative law judge at a
time and place to be specified in a subsequent order and provide
evidence upon the following issues:
(a) to determine the effect of Lonnie L. Keeney's felony conviction(s) on
his qualifications to be and to remain a Commission licensee; and
(b) to determine, in light of the evidence adduced pursuant to the
foregoing issue, whether Lonnie L. Keeney is qualified to be and to remain
a Commission licensee; and
(c) to determine in light of the evidence adduced pursuant to the
foregoing issues, whether his Amateur Radio License KB9RFO should be
revoked.
8. IT IS FURTHER ORDERED that, pursuant to Section 312(c) of the
Communications Act of 1934, as amended, and Section 1.91(c) of the
Commission's rules, to avail himself of the opportunity to be heard
and the right to present evidence in the hearing in this proceeding,
Lonnie L. Keeney, in person or by his attorney, SHALL FILE with the
Commission, within thirty (30) days of the release of this Order to
Show Cause, a written appearance stating that he will appear on the
date fixed for hearing and present evidence on the issues specified
herein.
9. IT IS FURTHER ORDERED that, pursuant to Section 1.92(c) of the
Commission's rules, if Lonnie L. Keeney fails to timely file a written
appearance within the thirty (30)-day period, or has not filed a
petition to accept, for good cause shown, a written appearance beyond
the expiration of the thirty (30)-day period, the right to a hearing
shall be deemed to be waived. Where a hearing is waived, the presiding
administrative law judge shall, at the earliest practicable date,
issue an order terminating the hearing proceeding and certifying the
case to the Commission.
10. IT IS FURTHER ORDERED that, pursuant to Section 312(d) of the
Communications Act of 1934, as amended, and Section 1.91(d) of the
Commission's rules, the burden of proceeding with the introduction of
evidence and the burden of proof with respect to all of the issues
specified above shall be on the Enforcement Bureau.
11. IT IS FURTHER ORDERED that a copy of this ORDER TO SHOW CAUSE shall be
sent, by Certified Mail, Return Receipt Requested, to Lonnie L. Keeney
at 181 S. Co. Rd. 100E, Greencastle, IN 46135.
12. IT IS FURTHER ORDERED that a copy of this ORDER TO SHOW CAUSE, or a
summary thereof, shall be published in the Federal Register.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith Chief, Enforcement Bureau
See 47 U.S.C. S:S: 312(a) & (c).
See Policy Regarding Character Qualifications in Broadcast Licensing,
Amendment of Part 1, the Rules of Practice and Procedure, Relating to
Written Responses to Commission Inquiries and the Making of
Misrepresentation to the Commission by Applicants, Permittees, and
Licensees, and the Reporting of Information Regarding Character
Qualifications, Policy Statement and Order, 5 FCC Rcd 3252, 3252 (1990)
("1990 Character Order"). The Commission has consistently applied these
broadcast character standards to applicants and licensees in the Amateur
Radio Service. See, e.g., Schoenbohm v. FCC, 204 F.3d 243, 246-49 (D.C.
Cir. 2000), cert. denied, 531 U.S. 968 (2000) (affirming the Commission's
denial of an amateur radio operator's license renewal application based on
the licensee's felony conviction for computer fraud, as well as its lack
of candor regarding such conviction) ("Schoenbohm").
On May 24, 2002, an Information and Probable Cause hearing was held in the
Putnam Circuit Court, State of Indiana, wherein the Court found probable
cause to charge Mr. Keeney with violation of Sections 35-42-4-3 and
35-42-4-3(b) of the Indiana Code. See Ind. Code S:S: 35-42-4-3 ("A person
[`at least 21 years of age'] who, with a child under fourteen (14) years
of age, performs or submits to sexual intercourse or deviate sexual
conduct commits child molesting . . . a Class A felony . . .".),
35-42-4-3(b) ("A person who, with a child under fourteen (14) years of
age, performs or submits to any fondling or touching, of either the child
or the older person, with intent to arouse or to satisfy the sexual
desires of either the child or the older person, commits child molesting,
a Class C felony."). See State of Indiana vs. Lonnie L. Keeney, No.
67C01-0205-FA67 (Putnam Cir. May 24, 2002) (Information) (unpublished).
See State of Indiana vs. Lonnie L. Keeney, No. 67C01-0205-FA67 (Putnam
Cir. December 10, 2002) (Order On Sentencing Hearing) (unpublished). See
also State of Indiana vs. Lonnie L. Keeney, No. 67C01-0205-FA (Putnam Cir.
May 12, 2003) (Probation Order) (unpublished).
See id.
Mr. Keeney was placed on probation from May 12, 2003 until May 12, 2008.
See id.
47 U.S.C. S: 312(a)(2).
See 47 U.S.C. S: 308(b).
See 1990 Character Order, supra note 2.
See id.
See Schoenbohm, 204 F.3d at 247. See also Roger Thomas Scaggs, Order to
Show Cause, 18 FCC Rcd 24367 (EB 2003) (finding that an amateur radio
operator licensee's murder conviction raised a material question of fact
regarding his character and qualifications to remain a Commission
licensee); George E. Rodgers, Hearing Designation Order, 10 FCC Rcd 3978
(WTB 1995) (finding that an amateur radio operator licensee's felony
conviction for indecent assault upon and corruption of minors raised a
material question of fact regarding his character and qualifications to
remain a Commission licensee); Thomas M. Haynie, Order to Show Cause and
Suspension Order, 7 FCC Rcd 4994 (FOB 1992), affirmed and licenses
revoked, 7 FCC Rcd 7291 (PRB 1992) (revoking general radiotelephone
operator, amateur advanced class radio and amateur radio station licenses
on the basis of licensee's felony conviction for intentional interference
with satellite communications); Jerry E. Gastil, Order to Show Cause, 4
FCC Rcd 3977 (PRB, FOB 1989) (finding that a general radio operator and
amateur radio station licensee's felony conviction for interfering with
governmental radio communications raised serious questions regarding his
character and qualifications to remain a Commission licensee).
The facts of Mr. Keeney's felony convictions are res judicata and will not
be retried in this hearing.
See 47 U.S.C. S: 312(c).
See 47 U.S.C. S:S: 312(a) and (c).
See 47 C.F.R. S:S: 0.111, 0.311 and 1.91(a).
See 47 C.F.R. S: 1.91(c).
See 47 C.F.R. S: 1.92(a).
See 47 C.F.R. S: 1.92(c).
See 47 U.S.C. S: 312(d).
See 47 C.F.R. S: 1.91(d).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 07-4675
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Federal Communications Commission DA 07-4675