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.


                            Before the
                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                     )


                                 Released: December 19, 2003

By the Enforcement Bureau, Dallas Office:

                         I.  INTRODUCTION

     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.

                         II.  BACKGROUND

     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.
                      III.  DISCUSSION

     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 
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, 
TX. 78502.   


                         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).

2 Id.

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.