March 11, 2010 – Amateur Radio Enforcement
FCC fails in attempt revoke ham license
At issue was question of licensee’s character
The FCC wanted to revoke the General Class amateur radio license of David Titus (Seattle, Wash.) on grounds that he was not fit to be a Commission licensee. Titus has held KB7ILD for more than twenty years. He also operates a radio repeater on 444.375 MHz. His license expired on June 8, 2009, but his timely filed renewal was held up by the FCC’s Enforcement Bureau due to questions about his character.
There was no complaint about Titus’ radio knowledge, ability or competency …only his character qualifications and his past history of convictions on sex crimes against minors that occurred between 1986 and 1993. The FCC felt this should disqualify him from holding an Amateur Radio station license.
On January 30, 2007, the Enforcement Bureau issued a “Show Cause Order” that began a proceeding to revoke Titus’ Amateur Radio license. The burden of proof was assigned to the Bureau and hearings were conducted in mid 2008 and early 2009.
Testimony determined that Titus grew up with an abusive father, was raped by a babysitter at age 6 and became aware that he was gay at age 13. He became interested in CB and ham radio and was first licensed as a Novice (with the call sign KB7ILD) at age 14 (1988).
At age 11, (1985) Titus was found guilty of indecency with an 8-year-old boy which resulted in his confinement. Between the ages 13 and 14, he was assigned to a youth facility for one-year for treatment as a sex offender. A year later, Titus pled guilty to taking indecent liberties with a 12-year-old boy. At age 18, as an adult, Mr. Titus pled guilty to one felony count of communication with an 11-year-old boy for immoral purposes. He was sentenced to 25 months.
Titus fulfilled all his sentences and paid all fines and penalties and has not been accused or charged with any other sex offense since he was 18, he is now age 40. In 1995, at age 20, the Seattle police classified Mr. Titus as a Level 2 sex offender — meaning he was only a “moderate risk” to re-offend — and was required to register as a sex offender. His classification was later raised to Level 3 “high risk.” But no rational explanation was shown for assigning a higher classification to Titus.
Appearance before Administrative Law Judge
A psychologist’s expert opinion concluded that Titus had demonstrated the past 15 years that his former predispositions towards young boys were in remission, was not in need of treatment for sexual deviancy and that he is not likely to re-offend. Titus, now 35, testified that he has not had sexual contact with any minor since he was charged with felony child abuse in 1993 at the age of 18 and that he is no longer sexually attracted to children.
Ten character witnesses complimented Mr. Titus’ 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. Each presented written testimony on his behalf. Several of the witnesses are active in Amateur Radio and approved of his on-the-air conduct.
One radio club, the Lake Washington Ham Club, however, was concerned since ham radio is an activity in which youths participate through such organizations as the Boy Scouts and community and school radio clubs. LWHC said that a convicted sex offender, who is licensed, could use his Amateur Radio to contact children for immoral purposes. Their concern was heightened by the fact that Titus also operates a wide area “repeater” station. But there was no evidence of Titus ever mentoring a minor or communicating with a minor through Amateur Radio or on his repeater frequency.
Conclusions of law
The Administrative Law Judge agreed that a licensee’s character is relevant in determining qualifications for continuing to hold an FCC license. “In determining character, prior felony convictions must be considered.” Titus’ misconduct consists of two felony child molestation judgements as a juvenile (ages 11 and 15), and one adult (age 18) felony conviction for communicating with a minor for immoral purposes. “Evidence of all felonies must be considered in evaluating character.”
Willfully taking advantage of a child for sexual purposes, by anyone 18 years of age or older, is an act that the Presiding Judge considered to be “shockingly evil.” However, under the laws of the United States, including the Administrative Procedure Act and the Communications Act, the government must prove by a preponderance of evidence that a person convicted of conduct that occurred 18 years ago probably cannot be rehabilitated.
Judge Sippel said “The Bureau has failed to prove that any conduct of Titus from the time of his release from prison in 1995 to the present shows any prognostication that is based on substantial evidence of probable recidivism.”
“To the contrary, Mr. Titus presented expert psychologist testimony that he now has no attraction to minors and there is no probability of his repeating his past misconduct in the future. This constitutes convincing proof of rehabilitation. The Bureau, however, failed to offer opposing proof of a qualified expert. So while Mr. Titus has satisfactorily proven his rehabilitation, the Bureau has not met its burden to prove non-rehabilitation by a preponderance of evidence.”
One recognized mitigating factor is a substantial lapse of time since the violation. In this case, the crimes in question were committed 18 years ago when Titus was 11, 15 and 18 years of age. “The evidence supports the conclusion that Mr. Titus is now attracted to adults and is no longer attracted to minors. Substantial credible evidence shows Titus to be rehabilitated. He now is a 35-year-old adult whose last conviction was adjudicated while he was only 18 years old. The fact that he has lived in the community for 15 years without being charged with a crime is substantial and reliable evidence of his rehabilitation.”
“An overall record of compliance with Commission rules and policies is relevant in assessing character. Mr. Titus has held an Amateur Radio license for 20 years, and there is no credible or reliable evidence even suggesting that he ever has used or ever would dare to use ham radio communication as a means to contact minors for illicit purposes.” Judge Sippel wrote in his opinion.
In an Order released March 9, 2010, FCC Chief Administrative Law Judge Richard L Sippel ruled that, based on the evidence, “… the Enforcement Bureau failed to carry its burden of proof” and “ordered that the Amateur Radio Operator License of Amateur Radio Station KB7ILD held by Mr. David L. Titus shall not be revoked.”
The FCC has reversed the decision of an Administrative Law Judge (ALJ) who ruled in 2010 that David Titus, KB7ILD, of Seattle, Washington, could keep his Amateur Radio license in the wake of his conviction for a sex-related crime 17 years earlier. In his March 9, 2010, Initial Decision, ALJ Richard L. Sippel determined that Titus “has been a law-abiding member of his community for many years” and, based on evidence that Titus and witnesses on his behalf had presented, ordered that Titus’s amateur license not be revoked. Sippel also ruled that the FCC’s Enforcement Bureau had failed to meet the burden of proof necessary for revocation. He determined that Titus had shown remorse and been rehabilitated, and that the Enforcement Bureau had presented no credible evidence to indicate that Titus should be categorized as a high-risk sex offender. In a November 5 Decision in the proceeding (EB Docket 07-13), the FCC reversed Sippel’s decision.
“We find that the ALJ erred in holding that the Enforcement Bureau failed to meet its burden of demonstrating that Titus is currently unqualified to remain a Commission licensee,” the Decision said, “inasmuch as the ALJ failed to consider relevant convictions for sex offenses and failed to give appropriate deference to the judgment of local law enforcement authorities that Titus is a convicted sex offender who poses a high risk to the safety of the community.”
In January 2007 the FCC issued a show-cause Order and designated for hearing the issue of whether Titus was qualified to remain a licensee in light of a 1993 felony conviction for “communicating with a minor for immoral purposes.” TheCommunications Act provides that the FCC may revoke any license, if conditions come to its attention that would have warranted a denial of the licensee’s original application. The Commission has said in the past that felony convictions, “especially those involving sexual offenses involving children,” raise questions regarding a licensee’s character qualifications.
Titus’s General class license expired in 2009, and the FCC had deferred action on his renewal application while the revocation proceeding was still in play. The FCC also dismissed Titus’s 2010 reply to the Enforcement Bureau’s exceptions in the matter, because they were filed 5 days late. The FCC said Sippel should have given more weight to incidents in 2002 and 2004 that, while not resulting in conviction, “prompted the Seattle Police Department to raise Titus’s assessed risk level from moderate to high.”
“After a review of the record and the relevant case law, we find that the ALJ committed several errors in reaching his ultimate finding that [the Enforcement Bureau] did not meet its burden of proving that Titus lacks the requisite character qualifications to be an FCC license,” the Commission concluded. “In particular, we hold that the ALJ erred in failing to consider Titus’s two juvenile convictions and failed to give adequate weight to the State of Washington’s determination that Titus is a high-risk sex offender.” The FCC pointed out that Titus was confined for more than 1 year for each of his juvenile offenses, and they demonstrate that Titus’s “single adult felony conviction was not an isolated offense and is therefore all the more egregious and disqualifying.”
The FCC said that given “known risks of Amateur Radios in the hands of sex offenders, such misconduct is prima facie disqualifying, and has resulted in the loss of licenses in past cases.”
“In focusing on the impact of Titus’s misconduct on his qualifications to hold an Amateur Radio license,” the FCC concluded, “we would be remiss in our responsibilities as a licensing authority if we continue to authorize Titus to hold an Amateur Radio license that could be used to put him in contact with children.”
See also: FCC-14-177A1.pdf