204 F.3d 243 (D.C. Cir. 2000)
Herbert L. Schoenbohm, Appellantv.Federal Communications Commission, Appellee
No. 98-1516
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 18, 1999Decided February 29, 2000Rehearing En Banc Denied May 2, 2000.

Appeal of Orders of the Federal Communications Commission
Lauren A. Colby argued the cause and filed the briefs for  appellant.
James M. Carr, Counsel, Federal Communications Commission, argued the cause for appellee.  With him on the brief  were Christopher J. Wright, General Counsel, and Daniel M.  Armstrong, Associate General Counsel.  Pamela L. Smith,  Counsel, entered an appearance.
Before:  Sentelle, Henderson, and Garland, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Appellant Herbert Schoenbohm  operates an amateur radio station in the U.S. Virgin Islands.In 1992, he was convicted of a felony for fraudulently using  counterfeit access codes to obtain long distance telephone  services.1  In 1994, shortly before Schoenbohm's amateur  radio licenses were due to expire, he filed a renewal application with the Federal Communications Commission (FCC).


2
After a series of hearings, an administrative law judge  (ALJ) denied Schoenbohm's application.  On June 29, 1998,  the Commission affirmed the denial, finding that Schoenbohm's fraud conviction, "in combination with" his misrepresentations and lack of candor during the renewal proceedings,  justified nonrenewal.  Herbert L. Schoenbohm, 13 F.C.C.R.  15,028, 15,028 (1998) [hereinafter Decision].  Schoenbohm  filed a petition for reconsideration, reiterating arguments he  had previously made and asking for the first time that the  FCC investigate allegations that some of his detractors may  have had improper ex parte contacts with the ALJ.  See J.A.  at 77.  The FCC denied reconsideration, restating its previous justifications for nonrenewal and rejecting the request for  an inquiry into the ex parte allegations.  See Herbert L.  Schoenbohm, 13 F.C.C.R. 23,774, 23,777 (1998) [hereinafter  Reconsideration Order].


3
Schoenbohm contends that the denials of both his renewal  application and his petition for reconsideration were arbitrary  and capricious agency actions, in violation of the Administrative Procedure Act, 5 U.S.C.      706(2)(A).  We affirm the  FCC's refusal to renew Schoenbohm's radio licenses and  conclude that we are without jurisdiction to review the rejection of his petition for reconsideration.


4
* We begin with the FCC's denial of Schoenbohm's renewal  application.  Before reaching the merits of that decision,  however, we must resolve a preliminary question of jurisdiction.  The Commission argues that Schoenbohm did not  appeal from its original decision to deny his renewal application, but only from its order denying his petition to reconsider  that decision.  Denial of a petition for reconsideration, the  agency correctly notes, is generally nonreviewable unless the  request for reconsideration was based on new evidence or  changed circumstances.  See ICC v. Brotherhood of Locomotive Eng'rs, 482 U.S. 270, 279-80 (1987);  Southwestern Bell  Tel. Co. v. FCC, 180 F.3d 307, 311 (D.C. Cir. 1999);  see also  Entravision Holdings, LLC v. FCC, 202 F.3d 307, 311 (D.C. Cir.1999) (holding that nonreviewability  in this context means lack of jurisdiction).


5
It is true that the notice of appeal Schoenbohm filed in this  court characterizes his appeal as being from the order denying the petition for reconsideration.  See J.A. at 85.  It is also  true that in Southwestern Bell, where the petition for review  designated only the reconsideration order, we held both that  the reconsideration order was nonreviewable and that the  underlying order was not properly before us.  See Southwestern Bell, 180 F.3d at 313-14.  We did not, however, suggest  that the failure to designate an order in a petition for review  (or notice of appeal) is always fatal.  To the contrary, "we  said in Southwestern Bell Telephone Co. v. FCC [that] a party  may demonstrate its intention to appeal from one order  despite referring only to a different order in its petition for  review if the petitioner's intent 'can be fairly inferred' from  the petition or documents filed more or less contemporaneously with it."  Martin v. FERC, 199 F.3d 1370, 1372 (D.C.Cir. 2000) (quoting Southwestern Bell, 180 F.3d at 313 (quoting Brookens v. White, 795 F.2d 178, 180 (D.C. Cir. 1986))).


6
Here, Schoenbohm's intent to appeal from the underlying  decision (as well as from the denial of reconsideration) is  fairly inferable from the "concise statement of reasons,"  required by 47 U.S.C.      402(c), that he filed together with his  notice of appeal.  That statement expressly lists each of his  challenges to the underlying decision, including arguments  that the FCC erred in relying on his criminal conviction and  in finding that he lacked candor in his testimony before the  agency.  It also separately challenges the agency's refusal to  investigate his allegations of improper ex parte contacts with  the ALJ.  See J.A. at 85-86.  Schoenbohm's ancillary filing  therefore makes this case like Damsky v. FCC, in which we  recently inferred an appellant's intent to appeal an underlying  decision from the fact that her concise statement of reasons  challenged the substantive merits of that decision.  See 199  F.3d 527, 533 (D.C. Cir. 2000);  see also Martin, 199 F.3d at  1373 (holding that petitioner's intent to seek review of underlying order was fairly inferable from his contemporaneously  filed motion for stay).  At the same time, it makes this case  unlike Southwestern Bell, where there was no such challenge  in any filing "prior to the brief filed in this court."  Southwestern Bell, 180 F.3d at 313.


7
Because Schoenbohm's intent to appeal the FCC's underlying decision can reasonably be inferred from his concise  statement of reasons, and because for the same reason the  FCC "cannot claim that any notice defects surprised or  misled it with regard to the issues [appellant] intended to  raise on appeal," we conclude that we have jurisdiction to  review the FCC's decision to deny renewal of Schoenbohm's  amateur radio licenses.  Damsky, 199 F.3d at 533.

II

8
We review the merits of the FCC's decision only to determine whether the decision was "arbitrary, capricious, an  abuse of discretion, or otherwise not in accordance with law,"  5 U.S.C.      706(2)(A).  We review the factual findings upon which the decision was based to ensure that they were  supported by "substantial evidence," id.      706(2)(E).  See 47  U.S.C.      402(g);  Damsky, 199 F.3d at 533.  "Substantial  evidence," in turn, is defined as "such relevant evidence as a  reasonable mind might accept as adequate to support a  conclusion."  Consolo v. Federal Maritime Comm'n, 383 U.S.  607, 620 (1966) (quoting Consolidated Edison Co. v. NLRB,  305 U.S. 197, 229 (1938)).  Because this standard is "something less than the weight of the evidence, ...  the possibility  of drawing two inconsistent conclusions from the evidence  does not prevent an administrative agency's finding from  being supported by substantial evidence."  Id.


9
In the following sections, we apply these principles to each  of Schoenbohm's challenges to the FCC's refusal to renew his  radio licenses.


10
* Schoenbohm's first contention is that it was arbitrary and  capricious for the FCC to deny renewal based on his criminal  conviction.  In 1990, the Commission modified its "character"  policy to provide that "evidence of any conviction for misconduct constituting a felony will be relevant to our evaluation of  an applicant's or licensee's character."  Policy Regarding  Character Qualifications in Broadcast Licensing, 5 F.C.C.R.  3252, 3252 (1990) (footnote omitted) [hereinafter Character  Policy].  Such evidence is relevant, the FCC said, because it  aids the Commission in ascertaining whether a licensee will  "deal truthfully with the Commission and ... comply with  [its] rules and policies."  Id. (quoting 102 F.C.C.2d 1179,  1190-91 (1986)).  Rather than establish a " 'hierarchy' of  felonies that might arise in individual cases," the Commission  examines the impact of a conviction on a case-by-case basis.Id.


11
There is nothing unreasonable about the FCC's conclusion  that Schoenbohm's felony conviction was relevant to his license renewal.  A conviction for fraudulent conduct plainly  calls into question a licensee's ability to act in a manner  consonant with FCC regulations.  As the Commission observed, fraud "is a subject area the Commission has traditionally considered to be pertinent to its evaluation of a licensee's  character."  Decision, 13 F.C.C.R. at 15,038. Schoenbohm  argues, however, that the Commission acted arbitrarily in  judging his conviction not just relevant, but sufficient to  justify denial, since in other cases it has renewed a license or  granted a permit despite an applicant's felony conviction  when the applicant showed evidence of rehabilitation.  See,  e.g., Richard Richards, 10 F.C.C.R. 3950 (Rev. Bd. 1995);Alessandro Broad. Co., 99 F.C.C.2d 1 (Rev. Bd. 1984).  According to appellant, he too established his rehabilitation.


12
The FCC's policy does acknowledge rehabilitation as a  mitigating factor in assessing an applicant's character.  See  Character Policy, 5 F.C.C.R. at 3252 & n.4.  Here, however,  the FCC found that Schoenbohm demonstrated an absence of  rehabilitation by making deliberate misrepresentations and  displaying a lack of candor during the renewal proceedings.See Decision, 13 F.C.C.R. at 15,038.  Moreover, because  these occurred in the course of the agency's own proceedings,  they were a rationale for nonrenewal that went beyond the  felony conviction alone.  See id.  Commission regulations  forbid applicants from "mak[ing] any misrepresentation or  willful material omission bearing on any matter...."  47  C.F.R.      1.17;  see also 47 U.S.C.      312(a)(1).  A licensee's  complete candor is important to the FCC because "effective  regulation is premised upon the agency's ability to depend  upon the representations made to it by its licensees."  Leflore  Broad. Co. v. FCC, 636 F.2d 454, 461 (D.C. Cir. 1980);  see  also Character Policy, 5 F.C.C.R. at 3253.  Accordingly, it is  well recognized that the Commission may disqualify an applicant who deliberately makes misrepresentations or lacks candor in dealing with the agency.  See 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).  The FCC's findings with respect to Schoenbohm's  misrepresentations and lack of candor are therefore more  than sufficient to distinguish this case from the precedents he  cites.

B

13
Schoenbohm does not dispute that if he had made misrepresentations to the Commission, that fact, together with his  fraud conviction, would have justified nonrenewal.  Instead,  he disputes that he made any misrepresentations.  The FCC  found to the contrary in connection with two aspects of his  presentations to the Commission.


14
First, the Commission determined that Schoenbohm made  misrepresentations and lacked candor in testifying about the  nature of his prior felony.  As the Third Circuit noted in  affirming his conviction, Schoenbohm was found guilty of  violating 18 U.S.C.      1029(a)(1) because he "used a counterfeit access device."  United States v. Schoenbohm, No.  93-7516, 31 F.3d 1175, slip op. At 3 (3d Cir. Apr. 18, 1994) (emphasis added).Schoenbohm effectively conceded this in his first written  submission to the Commission, stating that he was "convicted  for defrauding a telephone resale service provider by ...making unauthorized long distance calls."  Schoenbohm  Aff.  at 1 (Aug. 8, 1995) (J.A. at 160).  In subsequent presentations, however, Schoenbohm described his conviction differently.  In a July 18, 1995 affidavit he said:


15
I did not steal any money or cause the account of any subscriber to be debited.  I was convicted solely of having knowledge in my mind of certain telephone codesof which 4 of the 6 digits were said to be similar to those that could be used to make long distance calls without paying for them.


16
Schoenbohm Aff. at 2 (J.A. at 185) (emphasis added).  And in  oral testimony before the Commission, he characterized his  conviction as based on his possession of "numbers in my  mind," rather than on the performance of any unlawful act. Decision, 13 F.C.C.R. at 15,031 (quoting Tr. at 38).


17
On the basis of this evidence, the FCC found that Schoenbohm had intentionally portrayed his crime in a misleading  manner in order to minimize its significance.  Schoenbohm  maintains that he was not attempting to mislead, but rather  was simply trying to explain that his crime involved numeric  codes rather than mechanical devices.  Although that is not an impossible reading of his testimony, it was certainly reasonable for the FCC to reach a contrary conclusion.


18
The FCC also found that Schoenbohm misrepresented the  facts and lacked candor in connection with an inquiry the ALJ  made into whether he had attempted to violate the agency's  ex parte rules--by urging others to ask the Virgin Islands'  congressional delegate to intervene with the FCC on his  behalf.2  The ex parte rules prohibit a party in specified  proceedings (including the proceedings at issue here) from  making written presentations to the Commission without  serving them on the other parties, and from making oral  presentations without notice and an opportunity for the others to be present.  See 47 C.F.R.        1.1202, 1.1208.  They  also provide that "[n]o person shall solicit or encourage others  to make any presentation which he or she is prohibited from  making...."  Id.      1.1210.


19
In a radio conversation with another amateur operator,  Schoenbohm was tape recorded as saying:


20
I'm not allowed under ex-parte rules to ask for assistance of ... people in political positions but other people if they feel that government is overbearing or I'm being treated unfairly, have every right to point this out to their elected representatives .


21
J.A. at 175.  He also told the other operator:


22
I'm not permitted at this time because of ex-parte rules to make any requests of political intervention.  Other  people could do it if they are so disposed but I can't do it . Go ahead.


23
Id.  Schoenbohm then spelled out the congressional delegate's name, and provided an address and telephone number  at which he could be reached.  Id.


24
When asked to explain this conversation, Schoenbohm told  the ALJ that he intended only to share his newly acquired  knowledge regarding the ex parte rules, and that he did not  intend to encourage an ex parte solicitation on his behalf. See Herbert L. Schoenbohm, 11 F.C.C.R. 1146, 1148-49 (1996)  (initial decision of ALJ).  Later, he submitted an affidavit  reiterating that he was simply "expounding on [his] newly  discovered knowledge of the ex parte rules," and was not  asking anyone to make a contact.  Schoenbohm  Aff. p 8 (Feb.  1997) (J.A. at 191).  Once again, although it is not impossible  that Schoenbohm intended to do no more than declare his  understanding of the law, the record provides substantial  evidence to support the FCC's finding that this explanation  was less than candid, and that he was in fact trying to solicit  others to make ex parte submissions on his behalf.


25
Schoenbohm further contends that because there is no  evidence that any ex parte contacts actually occurred, he "is being punished simply for uttering words to a friend in the  course of a private amateur radio conversation."  Schoenbohm Br. at 13-14.  This, he argues, violates the First  Amendment.  He is wrong for two reasons.  First, the agency's ex parte rules do not interfere with Schoenbohm's right  to discuss the proceedings with others;  they merely require  that communications with the agency be on the record.  As  the FCC correctly concluded, "rules intended to protect the  integrity of the administrative process by requiring that  presentations to the agency be made on the record and that  solicitations of such presentations be limited to requests for  on-the-record presentations d[o] not violate the First Amendment."  Reconsideration Order, 13 F.C.C.R. at 23,775;  see  California Motor Transp. Co. v. Trucking Unlimited, 404  U.S. 508, 513 (1972) (stating that although the First Amendment protects the right of access to agencies and courts, it  does not immunize from proscription "practice[s] which may  corrupt the administrative or judicial processes");  cf. National Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 697  (1978) (noting that although "an injunction against price  fixing abridges the freedom of businessmen to talk to one another about prices," the First Amendment does not make it  impossible to enforce the antitrust laws).


26
Moreover, and more fundamentally, the FCC did not deny  Schoenbohm's renewal application because he violated, or  attempted to violate, the ex parte rules.  Nor did it do so  because of what he said to his fellow radio operator.  Rather,  the FCC denied the application because Schoenbohm made  misleading statements to the agency itself, and it is well  established that the First Amendment does not protect misrepresentations made in administrative adjudications.  See  California Motor Transp., 404 U.S. at 512-13.


27
For the foregoing reasons, we conclude there was substantial evidence to support the FCC's findings that Schoenbohm  made misrepresentations and lacked candor in his testimony  regarding both his felony conviction and his efforts to induce  ex parte communications with the Commission.  We further  conclude that the FCC acted reasonably in deciding that  Schoenbohm's "lack of candor and misrepresentation along  with the felony conviction together" justified nonrenewal of  his licenses.  Decision, 13 F.C.C.R. at 15,038.

III

28
Following the FCC's original decision denying his license  renewal on June 29, 1998, Schoenbohm petitioned the agency  for reconsideration.  In addition to restating his previous  arguments, he asked for the first time that the Commission  investigate whether amateur operators who disliked him had  themselves communicated with the ALJ ex parte, seeking to  have his application denied.  In support of this request,  Schoenbohm stated that on January 17, 1998 he had made a  tape recording of a conversation between two amateur operators which, he asserted, indicated that his detractors were  making calls to the ALJ.  See Pet. for Recons. pp 5, 6 (J.A. at  77).


29
The FCC rejected Schoenbohm's request for an inquiry on  two grounds.  First, the agency held it untimely because it  was based neither on changed circumstances nor on newly  discovered facts.  As the FCC noted, Schoenbohm's request relied on a conversation he had taped more than six months  before the Commission's decision on his renewal application.  See Reconsideration Order, 13 F.C.C.R. at 23,775.  Second,  the FCC rejected Schoenbohm's request on the ground that  the tape-recorded conversation "d[id] not provide probative  evidence that anyone contacted or attempted to contact [the  ALJ], let alone that any such contact reached the Judge."Id. at 23,776.  Schoenbohm's allegation, the FCC said, was  based "solely on hearsay, speculation, and rumor."  Id.


30
In ICC v. Brotherhood of Locomotive Engineers (BLE), the  Supreme Court held that an agency's denial of a petition for  reconsideration is nonreviewable unless the petition was  based on "new evidence or changed circumstances."  482 U.S.  at 284.  Included within the ambit of nonreviewable decisions  were those concerning matters that, even though "newly  raised," were "previously available."  Id. at 283.  The Court  treated nonreviewability under such circumstances as jurisdictional, see id. at 287, a point this circuit confirmed in  Entravision Holdings, LLC v. FCC, LLC v. FCC, 202 F.3d 311, 312 n.*.


31
Schoenbohm does not contend that his petition for reconsideration was based on "new evidence" in the sense of  evidence not "previously available" to him.  To the contrary,  it is apparent on the face of the petition that the evidence  upon which he relied--the tape recording of an amateur radio  transmission--was previously available.  As the FCC noted,  the petition states that Schoenbohm made the recording on  January 17, 1998--six months before the FCC rendered its  original decision on his renewal application.  Schoenbohm  could have, and under FCC rules should have, submitted this  evidence prior to that decision.3  He failed to do so, and on appeal does not respond to the FCC's contention that this  omission deprives us of jurisdiction.  This is not a case,  therefore, in which nonreviewability  means that "petitioner  will have been deprived of all opportunity for judicial consideration ... of facts which, through no fault of his own, the  original proceeding did not contain."  BLE, 482 U.S. at 279.Here, the fault is solely that of petitioner, and because his  petition was not based on new evidence or changed circumstances, we are without jurisdiction to review its denial.4

IV

32
The FCC's decision denying appellant's application for  renewal of his amateur radio licenses is affirmed.  Insofar as  appellant also appeals from the FCC's refusal to reconsider  that decision, we dismiss that appeal for lack of jurisdiction. See BLE, 482 U.S. at 284, 287;  Entravision Holdings, 202 F.3d at 312 n.*.



Notes:


1
 Schoenbohm was found guilty of violating 18 U.S.C.       1029(a)(1), which provides that anyone who "knowingly and with  intent to defraud produces, uses, or traffics in one or more counterfeit access devices" commits a felony.  The statute defines "access  device" as "any card, plate, code, account number, ... or other  means of account access that can be used ... to obtain money,  goods, services, or any other thing of value."  Id.      1029(e)(1).  An  access device is "counterfeit" if it is "counterfeit, fictitious, altered,  or forged."  Id.      1029(e)(2).


2
 This inquiry is distinct from the inquiry Schoenbohm himself  requested, which would have investigated whether opponents of his  application had engaged in ex parte communications with the ALJ.See discussion infra Part III.


3
 See 47 C.F.R.      1.1214 ("Any party to a proceeding ... who has  substantial reason to believe that any violation of [the ex parte  rules] has been solicited, attempted, or committed shall promptly  advise the Office of General Counsel in writing of all the facts and  circumstances which are known to him or her.");  see also 47 C.F.R.       1.65(a) ("Each applicant is responsible for the continuing accuracy  and completeness of information furnished in a pending application  or in Commission proceedings involving a pending application....Whenever there has been a substantial change as to any other  matter which may be of decisional significance in a Commission  proceeding involving the pending application, the applicant shall as  promptly as possible ...  submit a statement furnishing such  additional or corrected information as may be appropriate....").


4
 In this case, little turns on whether we hold that the court lacks  jurisdiction, or whether we consider the issue on the merits.  Even  if we were to consider the merits, BLE instructs that we must  uphold an agency's decision to deny reconsideration unless there  was the clearest abuse of discretion.  See 482 U.S. at 278;  see also  Southwestern Bell, 180 F.3d at 311;  Beehive Tel. Co. v. FCC, 180  F.3d 314, 319-20 (D.C. Cir. 1999).  It would be difficult to find such  an abuse in a case like this, where the agency's denial was based  both on the unexcused untimeliness of the appellant's submission  and on its lack of probative support.


