Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-03-DL-228
SM Radio, Inc. ) NAL/Acct. No.200332500011
Licensee of KUOL(AM) in San ) FRN 0010045532
Marcos, Texas )
McAllen, Texas )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 19, 2003
By the Enforcement Bureau, Dallas Office:
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find SM Radio Inc. (``SM''),
licensee of radio station KUOL, San Marcos, Texas,
apparently liable for a forfeiture in the amount of seven
thousand dollars ($7,000) for willful violation of Section
73.1125 of the Commission's Rules (``Rules'').
Specifically, we find SM apparently liable for failure to
maintain a main studio presence in the community of license.
2. On October 28, 2003, an agent from the FCC
Enforcement Bureau's Dallas Field Office (``Dallas Office'')
attempted an inspection of AM broadcast station KUOL in San
Marcos, Texas. A building located at the station's tower
site appeared to be the studio for KUOL however the building
was locked, unattended, and appeared to be abandoned.
Further investigation revealed SM had no other physical
presence in San Marcos, TX. A notice was posted on the
door of KUOL's studio that listed the names and telephone
numbers for the Station Manager and Chief Engineer. These
personnel could not be reached at the telephone numbers
provided and there was no listing for them in local
telephone directories. The notice further stated that the
control point and EBS equipment for station KUOL was located
in the Hays County Law Enforcement Center. The Law
Enforcement Center advised the Dallas FCC agent station KUOL
removed their equipment 10 or 12 years ago.
3. On October 28, 2003, Mr. Gilbert Martinez,
technical representative for SM advised the Dallas FCC agent
that the building at the tower site served as KUOL's main
studio. Additionally, Mr. Martinez stated the only station
personnel in San Marcos, Texas, was Mr. Mendoza, an unpaid
volunteer from a local church. Mr. Martinez further stated
that Mr. Mendoza was available to travel to the tower
site/studio and perform a variety of tasks if requested.
4. On October 28, 2003, the agent from the Dallas
Office contacted the San Marcos Area Chamber of Commerce and
requested information on AM broadcast station KUOL. The
Chamber of Commerce was un-aware KUOL was operating in San
Marcos, TX. The Chamber of Commerce provided a copy of the
San Marcos Telephone Directory, the Mid-Cities Regional
Telephone Directory, and a listing of the radio stations
operating in the San Marcos, TX area. None of these
documents contained a listing for radio station KUOL or SM
Radio, Inc. A telephone number for broadcast station KUOL
was located in the Broadcasting & Cable Yearbook 2003-2004.
The telephone number (956-686-6382) is answered in McAllen,
TX area approximately 250 miles south of San Marcos.
5. On December 16, 2003, the Dallas FCC agent
telephoned directory assistance and requested telephone
numbers for radio station KUOL and SM Radio, Inc. A
telephone number was provided for radio station KUOL as 512-
396-1470. When attempting to contact radio station KUOL at
this number, a recording advises the telephone number has
been disconnected or is not in service.
6. Section 73.1125 requires the licensee of a
broadcast station to maintain a main studio at one of the
following locations: (1) within the station's community of
license; (2) at any location within the principal community
contour of any AM, FM or TV broadcast station licensed to
the station's community of license; or (3) within twenty
five miles from the reference coordinates of the center of
its community of license. In adopting the main studio
rules, the Commission stated that the station's main studio
must have the capability to serve the needs and interests of
the residents of the station's community of license.1 To
fulfill this function, a station, among other things, must
maintain a meaningful presence at its main studio.2 The
Commission has defined a minimally acceptable ``meaningful
presence'' as full-time managerial and full-time staff
personnel.3 The licensee need not have the same staff
person and manager at the studio, as long as there was
management and staff presence there during normal business
hours.4 Although management personnel need not be ``chained
to their desks'' during normal business hours, they must
``report at the main studio on a daily basis, spend a
substantial amount of time there and ... use the studio as a
home base.''5 On October 28, 2003, SM failed to maintain a
main studio in the community of license for AM broadcast
station KBRN or at any of the other permissible locations
discussed above. Additionally there was no managerial or
staff presence in the community of license.
7. Section 73.1125(e) of the Rules6 requires each
AM, FM, TV and Class A TV broadcast station to maintain a
local or toll-free telephone number in its community of
license. On October 28, 2003, SM failed to make a local or
toll-free telephone number available for broadcast station
KUOL or SM Radio, Inc., in San Marcos, TX. A telephone
number was obtained for station KUOL on December 16, 2003,
however the telephone number was disconnected or not in
8. Based on the evidence before us, we find SM
willfully7 violated Section 73.1125 of the Rules by failing
to maintain a main studio.
9. Pursuant to Section 1.80(b)(4) of the Rules,8 the
base forfeiture amount for violation of main studio rule is
$7,000. In assessing the monetary forfeiture amount, we
must also take into account the statutory factors set forth
in Section 503(b)(2)(D) of the Communications Act of 1934,
as amended (``Act''), which include the nature,
circumstances, extent, and gravity of the violation, and
with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and other such
matters as justice may require.9 Considering the entire
record and applying the factors listed above, this case
warrants a $7,000 forfeiture.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,10 and Sections 0.111, 0.311 and
1.80 of the Rules,11 SM Radio, Inc., is hereby NOTIFIED of
this APPARENT LIABILITY FOR A FORFEITURE in the amount of
seven thousand dollars ($7,000) for willful violation of
Section 73.1125 of the Rules for failing to maintain a main
studio in the community of license.
11. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, SM Radio, Inc., SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
12. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission, to the Forfeiture
Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois 60673-7482.
The payment should note the NAL/Acct. No. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.12
13. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Spectrum Enforcement Division and MUST INCLUDE THE NAL/Acct.
No. referenced above.
14. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of inability
to pay unless the petitioner submits: (1) federal tax
returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted
accounting practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately reflects the
petitioner's current financial status. Any claim of
inability to pay must specifically identify the basis for
the claim by reference to the financial documentation
15. Under the Small Business Paperwork Relief Act of
2002, Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the
FCC is engaged in a two-year tracking process regarding the
size of entities involved in forfeitures. If you qualify as
a small entity and if you wish to be treated as a small
entity for tracking purposes, please so certify to us within
thirty (30) days of this NAL, either in your response to the
NAL or in a separate filing to be sent to the Spectrum
Enforcement Division. Your certification should indicate
whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the
list provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this
Notice of Apparent Liability. This information will be used
for tracking purposes only. Your response or failure to
respond to this question will have no effect on your rights
and responsibilities pursuant to Section 503(b) of the
Communications Act. If you have questions regarding any of
the information contained in Attachment A, please contact
OCBO at (202) 418-0990.
16. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and Certified Mail Return
Receipt Requested to SM Radio, Inc., P.O. Box 252, McAllen,
FEDERAL COMMUNICATIONS COMMISSION
James D. Wells
Dallas Office, Enforcement Bureau
1 Main Studio and Program Origination Rules, 2 FCC Rcd 3215,
3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
3 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615,
3616 (1991), clarified, 7 FCC Rcd 6800 (1992).
4 Id., 6 FCC Rcd at 3616 n.2; 7 FCC Rcd at 6800 n.4.
5 Id., 7 FCC Rcd at 6802.
6 47 C.F.R. § 73.1125(e).
7 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed
under Section 503(b) of the Act, provides that ``[t]he term
`willful', when used with reference to the commission or
omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any
intent to violate any provision of this Act . . ..'' See
Southern California Broadcasting Co., 6 FCC Rcd 4387-88
8 47 C.F.R. § 1.80(b)(4).
9 47 U.S.C. § 503(b)(2)(D).
10 47 U.S.C. § 503(b).
11 47 C.F.R. §§ 0.111, 0.311, 1.80.
12 See 47 C.F.R. § 1.1914.