**DA 04-1816**

**Released: June 28, 2004**

**FEDERAL COMMUNICATIONS COMMISSION**

**445 12^th^ STREET, S.W.**

**WASHINGTON, DC 20554**

June 21, 2004

***In Reply Refer to:***

1800B3-SS

NAL/Acct No.: MB20041810066

FRN: 0003754934

**[CERTIFIED MAIL -- RETURN RECEIPT REQUESTED]{.underline}**

James P. Riley, Esq.

Fletcher, Heald & Hildreth, PLC

1300 North 17^th^ Street, 11^th^ Floor

Arlington, VA 22209

In re: KUOA(AM), Siloam Springs, AR

KUOA Incorporated

Facility ID: 35729

File No. BR-20040128ADF

Dear Mr. Riley:

This letter refers to the captioned application of KUOA Incorporated
("KUOA") for renewal of license for station KUOA(AM), Siloam Springs,
Arkansas. For the reasons set forth below, we issue a NOTICE OF APPARENT
LIABLILITY FOR A FORFEITURE to KUOA for violation of the Commission's
rule regarding a broadcast station's public inspection file, 47 C.F.R
Section 73.3526, and we grant the KUOA(AM) license renewal application.

*Public file rule violation*. Section III, Item 3 of the license renewal
application form, FCC Form 303-S, requests that the licensee certify
that the documentation required by Section 73.3526 or 73.3527, as
applicable, has been placed in the station's public inspection file at
the appropriate times. KUOA indicated "No" to that certification, filing
an amendment to its Exhibit explaining that the complete issues/program
lists from October 10, 1996, through January 10, 2003, were not placed
in the public file.[^1] KUOA states that the issues/programs lists for
2003 have been re-created and that steps have been taken to assure that
in the future all quarterly lists are timely prepared and placed in the
public file.

Section 73.3526 of the Commission's Rules requires broadcast licensees
to maintain a public inspection file containing specific types of
information related to station operations. The purpose of this
requirement is to provide the public with timely information at regular
intervals throughout the license period.[^2] In this regard, where
lapses occur in maintaining the public file, neither the negligent acts
nor omissions of station employees or agents, nor the subsequent
remedial actions undertaken by the licensee, excuse or nullify a
licensee's rule violation*.*[^3]

Section 503(b) of the Communications Act, 47 U.S.C. § 503(b) and Section
1.80(a) of the Commission's rules, 47 C.F.R. § 1.80(a), each state that
any person who willfully or repeatedly fails to comply with the
provisions of the Communications Act or the Commission's rules shall be
liable for a forfeiture penalty. For purposes of Section 503(b) of the
Communications Act, the term "willful" means that the violator knew it
was taking the action in question, irrespective of any intent to violate
the Commission's rules.[^4] A continuing violation is "repeated" if it
lasts more than one day.[^5]

The Commission's Forfeiture Policy Statement sets a base forfeiture
amount of \$10,000 for public file violations.[^6] In this case, the
violations were admitted to the Commission in the context of the license
renewal application, and the licensee has attempted to correct the
violations that occurred during its ownership tenure and has instituted
measures to prevent its recurrence. On the other hand, the violation
continued for nearly seven years, encompassing almost the whole license
period. Considering the record as a whole, we believe that a \$10,000
forfeiture is appropriate for the violation in this case.[^7] We will,
however, reduce the forfeiture to \$9,000 due to the licensee's
voluntary disclosure of the violation.[^8]

*License renewal application*. In evaluating an application for license
renewal, the Commission's decision is governed by Section 309(k) of the
Communications Act. That section provides that if, upon consideration of
the application and pleadings, we find that (1) the station has served
the public interest, convenience, and necessity; (2) there have been no
serious violations of the Communications Act or the Commission's Rules;
and (3) there have been no other violations which, taken together,
constitute a pattern of abuse, we are to grant the renewal
application.[^9] If, however, the licensee fails to meet that standard,
the Commission may deny the application -- after notice and opportunity
for a hearing under Section 309(e) of the Act -- or grant the
application "on terms and conditions that are appropriate, including a
renewal for a term less than the maximum otherwise permitted."[^10]

The public inspection file rule serves the critical function of making
available to the public important information regarding programs that
provided a station's most significant treatment of community issues
during the license term. On balance, however, we find that KUOA's
violation of Section 73.3526 does not constitute a "serious violation"
of the Commission's rules warranting designation for evidentiary
hearing. Moreover, we find no evidence of violations that, when
considered together, evidence a pattern of abuse.[^11] Further, we find
that station KUOA(AM) served the public interest, convenience, and
necessity during the subject license term. We will therefore grant the
license renewal application below.[^12]

*Conclusion/Actions*. For the reasons set forth above, and pursuant to
Section 503 (b) of the Communications Act of 1934, as amended, 47 U.S.C.
Section 503(b), and Sections 0.283 and 1.80 of the Commission's Rules,
47 U.S.C. Sections 0.283 and 1.80, KUOA Incorporated is hereby advised
of its apparent liability for a forfeiture of \$9,000 for willfully and
repeatedly violating Section 73.3526.

Accordingly, IT IS ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within thirty days of the release of this Notice, KUOA SHALL
PAY to the United States the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.

Payment of the forfeiture may be made by credit card through the
Commission\'s Revenue and Receivables Operations Group at (202) 418-1995
or 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 FCC
Registration Number ("FRN") (0003754934) and the NAL/Acct. No.
(MB20041810066) referenced above.

The response, if any, must be mailed to Peter H. Doyle, Chief, Audio
Division, Media Bureau, Federal Communications Commission, 445 12^th^
Street, S.W., Room 2-A360, Washington, D.C. 20554 and MUST INCLUDE the
NAL/Account number referenced in the caption of this document
(MB20041810066) and the FCC Registration Number (FRN) (0003754934)
referenced above.

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 submitted.

Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Chief, Credit and
Debt Management Center, 445 12th Street, S.W., Washington, D.C.
20554.[^13]

Finally, IT IS ORDERED, that the application (File No. BR-20040128ADF)
of KUOA Incorporated for renewal of license for station KUOA(AM), Siloam
Springs, Arkansas, IS GRANTED.

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

cc: KUOA Incorporated

[^1]: KUOA indicates that "information relating to the licensees'
    efforts to provide programming covering local issues" was placed in
    the station's public file, but this information "did not, in most
    cases, include sufficient information to comply with the
    Commission's rules." June 4, 2004, amendment at Exhibit 1.

[^2]: *Cf*. *Letter to Kathleen N. Benfield from Linda B. Blair, Chief,
    Audio Services Division* (April 3, 1997), 13 FCC Rcd 4102 (1997)
    *citing License Renewal Applications of Certain Commercial Radio
    Stations,* 8 FCC Rcd 6400 (1993).

[^3]: *See Padre Serra Communications, Inc.*, 14 FCC Rcd 9702 (1999),
    citing *Gaffney Broadcasting, Inc*., 23 F.C.C.2d 912, 913 (1970) and
    *Eleven Ten Broadcasting Corp*., 33 F.C.C. 706 (1962).

[^4]: *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387,
    4387-4388 (1991).

[^5]: *Id*. at 4388.

[^6]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Commission's Rules*, 12 FCC Rcd 17087, 17113
    (1997), *recon. denied* FCC 99-407 (released December 28, 1999).

[^7]: *See Dick Broadcasting Company, Inc. of Tennessee*, 19 FCC Rcd
    6319 (Mb 2004); Pacific *Spanish Network, Inc.,* 14 FCC Rcd 10021
    (MMB1991); *Padre Serra Communications, Inc.* at 9706; and *Dick
    Broadcasting*, DA 04-967 (rel. Apr. 8, 2004).

[^8]: *See Surrey Front Range Limited Partnership*, 7 FCC Rcd 6361 (FOB
    1992) (voluntary disclosure constitutes a downward adjustment
    criterion).

[^9]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read as
    described by Section 204(a) of the Telecommunications Act of 1996,
    Pub. L. No. 104-104, 110 Stat. 56 (1996). S*ee Order, Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, 11 FCC Rcd 6363 (1996).

[^10]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^11]: For example, we do not find here that the licensee\'s station
    operation \"was conducted in an exceedingly careless, inept and
    negligent manner and that the licensee is either incapable of
    correcting or unwilling to correct the operating deficiencies.\"
    *See Heart of the Black Hills Stations*, 32 F.C.C.2d 196, 198
    (1971). Nor do we find on the record here that \"the number, nature
    and extent\" of the violations indicate that \"the licensee cannot
    be relied upon to operate WJJS-FM in the future in accordance with
    the requirements of its licenses and the Commission\'s Rules.\"
    *Heart of the Black Hills Stations*, 32 F.C.C.2d at 200. *See also
    Center for Study and Application of Black Economic Development*, 6
    FCC Rcd 4622 (1991), *Calvary Educational Broadcasting Network,
    Inc*., 7 FCC Rcd 4037 (1992).

[^12]: *See* 47 U.S.C. § 309(k).

[^13]: *See* 47 C.F.R. § 1.1914.