**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In re Application of             | *  | Facility I.D. No. 65320      |
|                                  | *) |                              |
| **Texas Educational              | ** | NAL/Acct. No. MB200741410342 |
| Broadcasting**                   |    |                              |
|                                  | *  | FRN: 0008697245              |
| **Co-operative, Inc.**           | *) |                              |
|                                  | ** | File No. BRED-20050331BPC    |
| For Renewal of License for       |    |                              |
|                                  | *  |                              |
| Station KOOP(FM)                 | *) |                              |
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| Hornsby, Texas                   |    |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**AND**

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: July 13, 2007 Released: July 16, 2007**

By the Chief, Media Bureau:

**I. INTRODUCTION**

1.  The Commission has before it (1) the captioned application of Texas
    Educational Broadcasting Co-operative, Inc. (the "Licensee") for
    renewal of its license for noncommercial educational ("NCE") Station
    KOOP(FM), Hornsby, Texas (the "Station"), and (2) the Informal
    Objection ("Objection") to the application filed on April 1, 2005,
    by Mr. James R. Ellinger (the "Objector" or "Ellinger").[^1] In this
    *Memorandum Opinion and Order and Notice of Apparent Liability for
    Forfeiture ("NAL")* issued pursuant to Sections 309(k) and 503(b) of
    the Communications Act of 1934, as amended (the "Act"), and Section
    1.80 of the Commission's Rules (the "Rules"),[^2] by the Chief,
    Media Bureau by authority delegated under Section 0.283 of the
    Rules,[^3] we find that the Licensee apparently willfully and
    repeatedly violated Section 73.3527 of the Rules[^4] by failing to
    retain all required documentation in the KOOP(FM) public inspection
    file, and we find that the Licensee also violated the alien
    ownership provisions of Section 310(b)[^5] of the Act. Based upon
    our review of the facts and circumstances before us, we grant
    Ellinger's Objection in part; conclude that the Licensee is
    apparently liable for a monetary forfeiture in the amount of fifteen
    thousand dollars (\$15,000); and we grant the captioned KOOP(FM)
    renewal application.

**II. BACKGROUND**

2.  Section 73.3527 of the Rules requires a non-commercial broadcast
    licensee 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.[^6] Among the
    materials required for inclusion in the file are the station's
    quarterly issues/programs lists, which must be retained until final
    Commission action on the station's next license renewal
    application.[^7]

    3\. Section III, Item 3 of the KOOP(FM) license renewal application
    form, FCC Form 303-S, requests that the licensee certify that the
    documentation required by Section 73.3527 has been placed in its
    station's public inspection file at the appropriate times. The
    Licensee indicated "No" to that Item, explaining in an exhibit to
    the application that the issues/programs lists for 1997, 1998, 1999,
    and 2001 were missing from the public inspection file.[^8] The
    Licensee states, however, that it created the missing lists from
    archived materials and later placed them in the public file.[^9] The
    Licensee notes that the file is now current.[^10]

4\. In his Objection, Ellinger alleges violations by the Licensee of
Section 73.3527 of the Rules.[^11] Ellinger also alleges: (1) foreign
control of the license; (2) numerous "illegal" transfers of control of
the license; (3) violations of the Commission's underwriting rules; (4)
"financial misdeeds;" (5) failure to maintain financial records; (6)
character issues; (7) the Licensee has "no idea who is on the air;" (8)
fraud, theft and misappropriation of funds; (9) criminal activity in the
main studio and offices; and (10) airing of indecent and/or obscene
material.[^12] Ellinger argues that the KOOP(FM) application for renewal
of license should be denied.[^13] In its Opposition, the Licensee argues
that the Objection "is without merit."[^14]

**III. DISCUSSION**

5\. *Ellinger Objection.* Informal objections must, pursuant to Section
309(e) of the Act, provide properly supported allegations of fact that,
if true, would establish a substantial and material question of fact
that grant of the application would be *prima facie* inconsistent with
Section 309(k) of the Act,[^15] which governs our evaluation of an
application for license renewal. Specifically, Section 309(k)(1)
provides that we are to grant the renewal application 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 Act or the Rules; and (3)
there have been no other violations which, taken together, constitute a
pattern of abuse.[^16] 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."[^17]

6\. The Objection, as described above, contains a number of conclusory
allegations unsubstantiated by any extrinsic evidence. In many
instances, the Objection also fails to invoke any provision of the Act
or the Rules. For example, Ellinger states that "for years the Station
has violated the Commission's rules on 'calls to action' . . . to spend
money with local businesses" and has provided "excessive product/service
descriptions, and endorsements, in exchange for money and other forms of
support."[^18] Ellinger fails to provide any specific evidence regarding
announcements that would arguably violate the Commission's underwriting
rules for NCE stations. Ellinger also states that "\[t\]here have been
numerous accusations of serious crimes against a number of programmers
and board members at the station" and that "threats, thefts, and
intimidation are reportedly a common problem at the station."[^19]
Ellinger also alleges that station "programmers" have failed to maintain
control of the station, having "willed" their programs to other, unknown
individuals and that "the station has on a number of occasions, had no
idea who is on the air." Moreover, Ellinger states that "there have been
numerous accusations of financial improprieties at KOOP Radio."[^20]
Ellinger provides no specific instances of these charges or misconduct,
nor does he show that these issues relate to the Station's compliance
with the Act and the Rules. Additionally, Ellinger states that the
Station has failed to maintain or disclose its financial records.
Although he raises this contention in connection with a proceeding he
brought against the Licensee for the collection of money he claimed to
be due and owed to him,[^21] it is unclear what, if any, provisions of
the Act or the Rules are implicated in this charge. These unsupported or
irrelevant allegations will receive no further consideration. We thus
turn our attention to allegations that are properly supported,
acknowledged by the Licensee, or otherwise warrant deliberation.

7\. [Foreign Board Member]{.underline}. The Objector asserts that on at
least one occasion, at least one member of the Licensee's Board of
Trustees was a "foreign national."[^22] Ellinger does not identify that
person or indicate how that person's presence on the board violated any
provision of the Act. In response, the Licensee states that at the time
it filed the captioned application there was one alien on the board
representing 16.7 per cent of the voting control, which is within the
limits set by the foreign ownership restrictions of Section 310 of the
Act.[^23]

8\. We agree with the Licensee that Ellinger has not raised a
substantial and material question of fact calling for further inquiry
regarding the licensee's compliance with Section 310(b) of the Act.
Non-profit, non-stock, NCE broadcast licensees such as the Licensee here
are subject to the statutory requirements of Section 310(b) of the Act,
which prohibits foreign entities from owning or voting more than 20 per
cent of the capital stock of a broadcast licensee.[^24] The specific
citizenship requirements of Section 310(b) reflect a deliberate judgment
on the part of Congress to prevent undue foreign influence in
broadcasting.[^25] Thus, for the purpose of determining whether a
non-stock NCE applicant or licensee complies with the statutory foreign
ownership requirements, we first consider the citizenship of those
individuals who would have the ability, comparable to that of a
traditional owner, to influence or control the licensee. Foreign parties
may act as officers or directors of corporate licensees,[^26] and the
presence of one alien on the Licensee's six-member board does not
violate Section 310(b) of the Act.

9\. However, in this case, the Licensee admits that for two years prior
to filing its application for renewal there were *two* aliens serving on
its board, raising the Licensee's foreign voting interest above the 20
per cent benchmark.[^27] We find this to be an apparently willful and
repeated violation of Section 310(b)(3) of the Act. While we recognize
that non-stock, non-profit NCE entities such as the Licensee do not have
"owners" in the traditional sense, the record indicates that for a
period of time during the license period, the individuals who controlled
the Licensee exceeded the foreign ownership limits as set by Congress.
We believe that a forfeiture, rather than designation for evidentiary
hearing, is the appropriate sanction for this violation of Section
310(b) of the Act.[^28]

10\. This *NAL* is issued pursuant to Section 503(b)(1)(B) of the Act.
Under that provision, any person who is determined by the Commission to
have willfully or repeatedly failed to comply with any provision of the
Act or any rule, regulation, or order issued by the Commission shall be
liable to the United States for a forfeiture penalty.[^29] Section
312(f)(1) of the Act defines willful as "the conscious and deliberate
commission or omission of \[any\] act, irrespective of any intent to
violate" the law.[^30] The legislative history to Section 312(f)(1) of
the Act clarifies that this definition of willful applies to both
Sections 312 and 503(b) of the Act,[^31] and the Commission has so
interpreted the term in the Section 503(b) context.[^32] Section
312(f)(2) of the Act provides that "\[t\]he term 'repeated,' when used
with reference to the commission or omission of any act, means the
commission or omission of such act more than once or, if such commission
or omission is continuous, for more than one day."[^33]

11\. The Commission's *Forfeiture Policy Statement* and Section
1.80(b)(4) of the Rules establish a base forfeiture amount of \$8,000
for an alien ownership violation.[^34] In determining the appropriate
forfeiture amount, we may adjust the amount upward or downward by
considering the factors enumerated in Section 503(b)(2)(D) of the Act,
including "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 such other matters as
justice may require."[^35] Because the Licensee spotted its error and
took corrective action *sua sponte*, we will reduce the proposed
forfeiture for its apparent violation of Section 310(b) of the Act from
the \$8,000 base amount to \$5,000.[^36]

12\. [Election Fraud/Unauthorized Transfer of Control]{.underline}. The
Objector also argues that "through a series of election frauds"
KOOP(FM)'s license "was illegally transferred among a number of
individuals a number of times."[^37] In opposition, the Licensee states
that its board members serve two-year terms and that the Commission
recognizes that non-profit boards experience transfers of control over
time.[^38] It also argues that it followed procedures established by the
Commission to deal with incremental board changes at NCE licensees. We
agree with the Licensee. The Commission has recognized that board
changes in a non-stock organization will not necessarily change the
nature of the organization or break continuity of control, especially if
the changes occur gradually as individuals serve out established terms
of office.[^39] In this case, on April 15, 2005, the staff granted an
application for an insubstantial transfer of control of the Station due
to a gradual board change in the Licensee.[^40] Accordingly, we find
that the Objector has failed to raise a substantial and material
question of fact on this issue.

13\. Moreover, the "election fraud" to which Ellinger refers was raised
in civil litigation. The Commission refrains from making decisions based
on mere allegations of misconduct, where those allegations are in the
process of being adjudicated by another agency or court.[^41] We find
that the ongoing civil dispute involving the Licensee and other parties
is properly addressed by the state court and is not within the scope of
this proceeding.[^42] Furthermore, as the Licensee reveals, the court
case was dismissed on May 21, 2001, for lack of prosecution.[^43] Thus,
there is no outstanding adverse adjudication against the Licensee on
"election fraud" and that allegation requires no further discussion.

14\. [Character and Criminal Issues]{.underline}. The Objector alleges
"criminal activity on the premises" of the Station, for which Ellinger
provides no details,[^44] and that a former company officer had been
accused of sexual assault.[^45] The Licensee acknowledges that the
Station, as police reports verify, was the victim of criminal activity
in the form of burglaries and thefts.[^46] We find the fact that the
Station was robbed or vandalized is not relevant to the issue of the
Licensee's qualifications.

15\. With respect to the charge that a former officer of the Licensee
had been accused of a serious crime, both the Objector and the Licensee
acknowledge that no formal charges were brought, and accordingly "there
\[was\] no conviction."[^47] Ellinger has failed to provide evidence
that any officer, director or board member of the Licensee was convicted
of a felony[^48] by a final adjudication order, which is generally
required by the Commission's *Character Policy Statement* for a felony
to be considered relevant to Commission licensing proceedings.[^49] The
allegations against the Licensee on this matter will be given no further
consideration in this proceeding.[^50]

16\. [Indecent/Obscene Material]{.underline}. Ellinger argues that the
Station has "aired recorded and spoken material that contains obscene
and/or indecent language."[^51] In particular, Ellinger states that the
Station airs an unspecified but allegedly "obscene" Madonna song to
introduce the Station's weekly program, "Outspoken."[^52] In opposition,
the Licensee argues that the Objector's claim lacks specificity and is
baseless because an "edited" version of the Madonna song in question,
removing a potentially offending word, is aired each week. [^53]

17\. The role of the Commission in overseeing program content is
limited. The First Amendment to the United States Constitution and
Section 326 of the Act, prohibit the Commission from censoring program
material or interfering with broadcasters' free speech rights.[^54] The
Commission does regulate broadcast content where federal statutes direct
it to do so. For example, Title 18 of the United States Code, Section
1464 prohibits the utterance of "any obscene, indecent or profane
language by means of radio communication."[^55] The Commission is
responsible for enforcing the statutory and regulatory provisions
restricting obscenity, indecency and profanity.[^56] Consistent with a
subsequent statute and court case,[^57] Section 73.3999 of the Rules
provides that radio and television stations shall not broadcast obscene
material at any time, and shall not broadcast indecent material during
the period 6 a.m. through 10 p.m.[^58] The Commission may impose a
monetary forfeiture, pursuant to Section 503(b)(1) of the Act,[^59] upon
a finding that a licensee has broadcast obscene, indecent or profane
material in violation of Section 1464 of the United States Criminal
Code[^60] and Section 73.3999 of the Rules. Thus, any consideration of
government action against allegedly indecent programming must take into
account the fact that such speech is protected under the First
Amendment, and demands that we proceed cautiously and with appropriate
restraint when considering enforcement action in such matters.[^61] In
this case, Ellinger has not provided us with sufficient information
regarding the details of what allegedly "indecent" material the Station
broadcast and its context, and his allegation is adequately rebutted by
the Licensee's submission of a recording of the song used, supported by
an affidavit from the station employee charged with overseeing the
project. We reject Ellinger's allegation that the Station broadcast
indecent material.

18\. [Public Inspection File Rule Violation.]{.underline} The Objector
has charged, and the Licensee has acknowledged, that during periods
within the license term, the Station's public inspection file did not
contain many of the items required to be retained in the file by Section
73.3527 of the Rules. In this regard, where lapses occur in maintaining
the public file, neither the negligent acts or omissions of station
employees or agents, nor the subsequent remedial actions undertaken by
the licensee, excuse or nullify a licensee's rule violation.[^62]

19\. The Commission's *Forfeiture Policy Statement* and Section
1.80(b)(4) of the Rules establish a base forfeiture amount of \$10,000
for violation of the public file rule**.**[^63] In determining the
appropriate forfeiture amount, as stated earlier, we may adjust the
amount upward or downward by considering the factors enumerated in
Section 503(b)(2)(D) of the Act, including "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 such other matters as justice may require."[^64]

20\. In this case, although the Licensee has admitted to the violations,
it did so only in the context of the question contained in its license
renewal application that compelled such disclosure. Moreover, the
violations were extensive, occurring over a four-year period and
involving at least 16 missing issues/programs lists. Even if the lists
were eventually created and tardily placed in the public file, as the
Licensee contends, the record is clear that the public could not view
issues/programming lists for half the license period. Considering the
record as a whole, we believe that a \$10,000 forfeiture, rather than
designation of the Station's license renewal application for evidentiary
hearing, is appropriate for the violations in this case. Accordingly, we
will grant Ellinger's objection in part and find that the Licensee is
apparently liable for a forfeiture in the amount of \$10,000 for its
apparent willful and repeated violation of Section 73.3527.

21\. *License Renewal Application.* In evaluating an application for
license renewal, the Commission's decision is governed by Section 309(k)
of the Act.[^65] 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 Act or the Rules; and (3) there have been no
other violations which, taken together, constitute a pattern of abuse,
we are to grant the renewal application.[^66] 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."[^67]

22\. We find that the Licensee's violations of Section 310(b) of the Act
and Section 73.3527 of the Rules do not constitute "serious violations"
warranting designation for evidentiary hearing. Moreover, we find no
evidence of violations that, when considered together, evidence a
pattern of abuse.[^68] Further, we find that NCE Station KOOP(FM) served
the public interest, convenience, and necessity during the subject
license term. We will therefore grant the license renewal application
below.

**IV. ORDERING CLAUSES**

23\. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's Rules, that Texas Educational Broadcasting Co-operative,
Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the
amount of fifteen thousand dollars (\$15,000) for its apparent willful
and repeated violation of Section 73.3527 of the Commission's Rules and
of Section 310(b) of the Communications Act of 1934, as amended.

24\. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
Rules, that, within thirty (30) days of the release date of this *NAL,*
Texas Educational Broadcasting Co-operative, Inc. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.

25\. Payment of the proposed forfeiture must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Acct. No. and FRN No.
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, at P.O. Box 358340, Pittsburgh,
Pennsylvania 15251-8340. Payment by overnight mail may be sent to Mellon
Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, Pennsylvania
15251. Payment by wire transfer may be made to ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6106.

26\. The response, if any, must be mailed to Office of the Secretary,
Federal Communications Commission, 445 12^th^ Street, S.W., Washington
D.C. 20554, ATTN: Peter H. Doyle, Chief, Audio Division, Media Bureau,
and MUST INCLUDE the NAL/Acct. No. referenced above.

27\. The Commission will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless the respondent
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 respondent'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.

28\. Requests for full payment of the forfeiture proposed in this *NAL*
under the installment plan should be sent to: Associate Managing
Director-Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.[^69]

29\. Accordingly, IT IS ORDERED that the March 29, 2004, informal
objection filed by Mr. James R. Ellinger against the captioned
application of Texas Educational Broadcasting Co-operative, Inc. IS
GRANTED to the extent indicted and IS DENIED in all other respects.

30\. IT IS FURTHER ORDERED pursuant to Section 309(k) of the
Communications Act of 1934, as amended, that the license renewal
application of Texas Educational Broadcasting Co-operative, Inc. for NCE
Station KOOP(FM), Hornsby, Texas (File No. BRED-20050331BPC) IS GRANTED.

31\. IT IS FURTHER ORDERED that copies of this *NAL* shall be sent, by
First Class and Certified Mail, Return Receipt Requested, to Texas
Educational Broadcasting Co-operative, Inc., P.O. Box 2116, Austin,
Texas 78768, and to its counsel, Melodie A. Virtue, Esquire, Garvey,
Schubert, Barer, 1000 Potomac Street, N.W., Fifth Floor, Washington, DC
20007, and to Mr. James R. Ellinger, P.O. Box 49492, Austin, Texas
78765.

FEDERAL COMMUNICATIONS COMMISSION

Monica Shah Desai Chief, Media Bureau

[^1]: Ellinger did not serve the Licensee or its counsel with a copy of
    the Objection. The Licensee filed an Opposition on September 7,
    2005, and a Supplement to its Opposition on September 9, 2005.

[^2]: 47 U.S.C. §§ 309(k), 503(b); 47 C.F.R. § 1.80.

[^3]: *See* 47 C.F.R. § 0.283.

[^4]: *See* 47 C.F.R. § 73.3527.

[^5]: *See*47 U.S.C. § 310(b).

[^6]: *Cf*. *Letter to Kathleen N. Benfield from Linda B. Blair, Chief,
    Audio Services Division*, 13 FCC Rcd 4102 (MMB 1997) (citing
    *License Renewal Applications of Certain Commercial Radio Stations,*
    Memorandum Opinion and Order, 8 FCC Rcd 6400 (MMB 1993)).

[^7]: *See* 47 C.F.R. 73.3527(e)(8).

[^8]: *See* captioned application at Exhibit 11.

[^9]: *See id.*

[^10]: *Id.*

[^11]: Ellinger Objection at 2. Elllinger alleges that "for much of the
    time," the KOOP(FM) public inspection file has not been available to
    members of the public \[and\] has had incomplete and missing
    sections of required content." *Id.* Ellinger provides no evidence,
    anecdotal or otherwise, to support the claim that the KOOP(FM)
    public inspection file was unavailable for viewing by members of the
    public. He references a civil suit he brought against the licensee,
    *See Ellinger v. Texas Educational Broadcasting Co-operation, Inc.*,
    Cause No. 065523, (Small Claims Court, Travis County, Texas), but
    the material provided by Objector contains no mention of the
    unavailability of the Station's public inspection file.

[^12]: *Id.* at 1-3.

[^13]: *Id.* at 3.

[^14]: Licensee Opposition at 9.

[^15]: *See, e.g., WWOR-TV, Inc*., Memorandum Opinion and Order, 6 FCC
    Rcd 193, 197 n.10 (1990), *affirmed sub nom.* *Garden State
    Broadcasting L.P. v. FCC*, 996 F.2d 386 (D.C. Cir. 1993), *rehearing
    denied* (Sep. 10, 1993); *Area Christian Television, Inc.,*
    Memorandum Opinion and Order, 60 RR2d 862, 864 (1986) (informal
    objection must contain adequate and specific factual allegations
    sufficient to warrant the relief requested).

[^16]: 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). *See Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^17]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^18]: Objection at 1.

[^19]: *Id.* at 2. Regarding crimes committed against Station personnel,
    the Licensee correctly argues that the Objector "does not specify
    theft of what property or what . . . threats \[were made\] by what
    parties against any other parties, or how that reflects adversely on
    the character of the licensee." Opposition at 6.

[^20]: Objection at 2. As part of his claim of financial improprieties
    at KOOP(FM), Ellinger also alleges that "\[t\]he station has failed
    to provide timely and accurate financial information to the Internal
    Revenue Service." *Id.* Again, Ellinger provides no factual basis
    for this contention.

[^21]: *See Ellinger v. Texas Educational Broadcasting Co-operation,
    Inc.*, *supra*, Plaintiff's First Amended Petition, appended to
    Objection as an unnumbered Exhibit. This dispute between the parties
    over finances and access to records is contractual and private in
    nature. As such, it is beyond the Commission's authority and is
    appropriately left for a determination by a court of competent
    jurisdiction. *See John F. Runner, Receiver (KIBF),* Memorandum
    Opinion and Order, 36 RR2d 773 (1976). For instance, the Commission
    has repeatedly "held that private contractual disputes are more
    appropriately resolved by local courts of competent jurisdiction,
    because the Commission usually lacks the expertise, the resources,
    and the jurisdiction to adjudicate such matters fully." *See, e.g.,
    O.D.T. International,* Memorandum Opinion and Order, 9 FCC Rcd 2575,
    2576 ¶ 9 (1994). Accordingly, to the extent that Objector points to
    *Ellinger v. Texas Educational Broadcasting Co-operation, Inc*. as
    evidence of actionable financial misconduct at the Station, we
    reject that contention.

[^22]: Ellinger Objection at 1.

[^23]: Licensee Opposition at 3; *see also* 47 U.S.C. § 310.

[^24]: [47 U.S.C. §
    310(b)(3)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&fn=_top&sv=Split&tc=-1&findtype=L&docname=47USCAS310&db=1000546&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).
    If either the foreign ownership or voting interest in an applicant
    or licensee exceeds the 20 per cent benchmark, we are required by
    law to revoke the license or refuse to grant the license
    application. [*In the Matter of Request for Declaratory Ruling
    Concerning the Citizenship Requirements of Sections 310(b)(3) and
    (4) of the Communications Act of 1934, as amended, Declaratory
    Ruling,* 103 FCC 2d 511, 517-18, ¶ 12 &
    n.3](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&referencepositiontype=S&serialnum=1985033064&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=517&db=0001017&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)3,
    520, ¶ 16 (1983) (*Wilner and Scheiner I*), *clarified upon
    reconsideration*, [1 FCC Rcd 12
    (1986)](http://web2.westlaw.com/find/default.wl?rs=WLW7.04&serialnum=1986029210&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).
    The Commission has applied the strictures of [Section
    310(b)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&fn=_top&sv=Split&tc=-1&findtype=L&docname=47USCAS310&db=1000546&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    to a variety of non-corporate entities, including unincorporated
    associations and partnerships. [*Id.* at 514-15, ¶ 7, 516, ¶
    10](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&referencepositiontype=S&serialnum=1985033064&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=514&db=1017&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^25]: [*Wilner and Scheiner I*, 103 FCC2d at 517, ¶
    11](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&referencepositiontype=S&serialnum=1985033064&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=517&db=1017&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^26]: Telecommunications Act of 1996, [Pub. L. No. 104-104, § 403(k),
    110 Stat. 56
    (1996)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&fn=_top&sv=Split&tc=-1&findtype=l&docname=UU(I1B66F88393-AE454DAD819-2337A0CBA6A)&db=1077005&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw);
    *In the* [*Matter of Amendment of Parts 20, 21, 22, 24, 26, 80, 87,
    90, 100, and 101 of the Commission\'s Rules to Implement Section
    403(k) of the Telecommunications Act of 1996,* Order, 11 FCC Rcd
    13072
    (1996)](http://web2.westlaw.com/find/default.wl?rs=WLW7.04&serialnum=1996298167&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    (*Citizenship Requirements Order*). Prior to enactment of the
    Telecommunications Act of [1996, Section
    310(b)(3)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&fn=_top&sv=Split&tc=-1&findtype=L&docname=47USCAS310&db=1000546&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    precluded a license from being granted to a corporation with any
    foreign officers or directors, and [Section
    310(b)(4)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&fn=_top&sv=Split&tc=-1&findtype=L&docname=47USCAS310&db=1000546&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    provided that the Commission could deny an application or revoke a
    license where any officer of the parent corporation is a foreign
    party. [*Citizenship Requirements,* Order, 11 FCC Rcd at 13073, ¶
    2](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&referencepositiontype=S&serialnum=1996298167&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=13073&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^27]: Opposition at 3, n.5. *See* KOOP(FM)'s 2003 Biennial Ownership
    Report (File No. BOA-20030327AHH) reporting two aliens on its board
    for the period between September 2002 and January 2004 and between
    April 2004 and October 2004. Licensee states that the issue was
    spotted and corrected by the Licensee by the removal of one alien
    board member in October 2004. *See* File No. BOS-20050502AAA.

[^28]: *See Mario Laredo,* Order to Show Cause and Notice of Apparent
    Liability, 11 FCC Rcd 18010, 18011 (1996) and *KOZN FM Stereo 99,*
    Order to Show Cause and Notice of Apparent Liability, 59 RR2d 628
    (1986) (notices of apparent liability issued for willful and
    repeated violations of Section 310(b) of the Act).

[^29]: 47 U.S.C. § 503(b)(1)(B). *See also* 47 C.F.R. 1.80(a)(1).

[^30]: 47 U.S.C. § 312(f)(1).

[^31]: *See* H.R. Rep. No. 97-765, 97^th^ Cong. 2d Sess. 51 (1982).

[^32]: *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991).

[^33]: 47 U.S.C. § 312(f)(2).

[^34]: *See Forfeiture Policy Statement and Amendment of Section 1.80(b)
    of the Rules to Incorporate the Forfeiture Guidelines*, Report and
    Order, 12 FCC Rcd 17087, 17113-15 (1997) *("Forfeiture Policy
    Statement"),* *recon. denied*, 15 FCC Rcd 303 (1999); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section I.

[^35]: 47 U.S.C. § 503(b)(2)(D); *see also Forfeiture Policy Statement,*
    12 FCC Rcd at 17100; 47 C.F.R. § 1.80(b)(4).

[^36]: *See Mario Laredo* and *KOZN FM Stereo 99, supra; see also The
    Seven Hills Television Company,* Memorandum Opinion and Order, 3 FCC
    Rcd 826 (1988) (renewal application granted, subject to several
    conditions intended to ensure future compliance with alien ownership
    statute). Because the Licensee's ownership report revealed
    KOOP(FM)'s improper foreign voting interest and because the Licensee
    recognized that it violated the Act and took steps to correct
    matters, we do not think that the imposition of "conditions" in
    addition to the forfeiture amount is warranted in this case.

[^37]: Ellinger Objection at 1. Ellinger references the allegations of
    election fraud made in a civil lawsuit, *Zakes v. Texas Educational
    Broadcasting Co-Operative, Inc.,* Cause No. 98-13691, Travis (Texas)
    County District Court (1998).

[^38]: Licensee Opposition at 3.

[^39]: *See Non-Stock Corporations,* Notice of Inquiry, 4 FCC Rcd 3403,
    3405-07 (1989).

[^40]: *See* File No. BTCED-20050331BNW; *see also* at Exhibit 4.

[^41]: *See* [*Policy Regarding Character Qualifications in Broadcast
    Licensing*, Policy Statement and Order, 5 FCC Rcd 3252, 3252-53
    (1990)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&referencepositiontype=S&serialnum=1990195416&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=3252&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw),
    *recon. granted in part*, [6 FCC Rcd 3448
    (1991)](http://web2.westlaw.com/find/default.wl?rs=WLW7.04&serialnum=1991224073&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    (citing [*Policy Regarding Character Qualifications in Broadcast
    Licensing*, 102 FCC 2d 1179, 1204-05
    (1986)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&referencepositiontype=S&serialnum=1986029359&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=1204&db=0001017&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw)
    ("*Character Policy Statement*")). Non-FCC misconduct is considered
    to have been "adjudicated" when the "ultimate trier of fact" renders
    its decision. Generally, the "ultimate trier of fact" is that
    tribunal whose factual findings are not subject to review *de novo*.
    *Id*. at n. 62. *See also* *Policy Regarding Character
    Qualifications in Broadcast Licensing*, Policy Statement and Order,
    5 FCC Rcd 3252, 3254 n.6 (1990), and *GAF Broadcasting Company,
    Inc.*, Memorandum Opinion and Order, 8 FCC Rcd 5496, 5499 (2003).

[^42]: *See, e.g.,* [*Kidd Communications*, Memorandum Opinion and
    Order, 19 FCC Rcd 13584, 13589
    (2004)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.04&referencepositiontype=S&serialnum=2004708016&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=13589&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Westlaw).

[^43]: *See* Licensee Opposition at 4 and Exhibit 5.

[^44]: Objection at 2. Ellinger states that "there has been \[a\]
    considerable amount of criminal activity, over many years, at the
    KOOP Office/Studios. It is not uncommon to hear Austin residents say
    they would not feel comfortable or safe at the KOOP office/studios."
    *Id.*

[^45]: *Id.* Ellinger states that an Austin resident "publicly accused
    Eduardo Vera, who was then claiming to be 'President' of KOOP, of
    sexual assault." *Id.* The Licensee indicates that Mr. Vera became
    its President after the incident allegedly occurred on November 26,
    1995, but has not held that office since January 2004. Opposition at
    8.

[^46]: Opposition at 6, 7.

[^47]: *Id.* at 8.

[^48]: Ellinger submits a statement, not made under penalty of perjury,
    by a woman who claims that she was sexually assaulted by KOOP(FM)
    board member Eduardo Vera, but the woman admits that she "never
    filed charges." *See* Statement of Patricia Moore dated December 10,
    2001.

[^49]: *Character Policy Statement*, 102 FCC 2d at 1205 (subsequent
    history omitted).

[^50]: Because the alleged conduct occurred more than 10 years ago, we
    would not likely consider it even if the officer in question was
    still affiliated with the Station or the Licensee. *See Character
    Policy Statement,* 102 FCC 2d at 1229 (10-year limit applies even to
    past conduct indicating a flagrant disregard of the Commission's
    regulations and policies).

[^51]: Ellinger Objection at 3.

[^52]: *Id.*

[^53]: The song is entitled "Human Nature." In its Supplement, the
    Licensee attaches a CD copy of the "edited" version of the Madonna
    song used to introduce its weekly "Outspoken" program. The
    Supplement supports an affidavit from KOOP(FM)'s Promotions Director
    Lonny Stern that the "Hip-Hop" remix of the song actually used at
    the beginning of "Outspoken" was edited with the potentially
    indecent term removed and replaced with a "hammer" sound effect.
    Licensee Opposition at 8; *see also* Declaration under penalty of
    perjury by KOOP(FM) Promotions Director Lonny Stern at Exhibit 7.

[^54]: U.S. [Const.]{.smallcaps}, amend. I; 47 U.S.C. § 326.

[^55]: 18 U.S.C. § 1464.

[^56]: Federal courts consistently have upheld Congress's authority to
    regulate the broadcast of indecent speech, as well the Commission's
    interpretation and implementation of the governing statute. *FCC v.
    Pacifica Foundation*, 438 U.S. 726 (1978). *See also Action for
    Children's Television v. FCC*, 852 F.2d 1332, 1339 (D.C. Cir. 1988)
    ("*ACT I*"); *Action for Children's Television v. FCC,* 932 F.2d
    1504, 1508 (D.C. Cir. 1991)*, cert. denied,* 503 U.S. 914 (1992)
    ("*ACT II*"); *Action for Children's Television v. FCC,* 58 F.3d 654
    (D.C. Cir. 1995) (*en banc*), *cert. denied,* 516 U.S. 1043 (1996)
    ("*ACT III*").

[^57]: Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106
    Stat. 949 (1992), *as modified by ACT III,* 58 F.3d 654.

[^58]: *See* 47 C.F.R. § 73.3999.

[^59]: *See* 47 U.S.C. § 503(b)(1). *See also* 47 U.S.C. § 312(a)(6)
    (authorizing license revocation for indecency violations).

[^60]: 18 U.S.C. § 1464.

[^61]: *ACT I,* 852 F.2d at 1344 ("Broadcast material that is indecent
    but not obscene is protected by the First Amendment; the FCC may
    regulate such material only with due respect for the high value our
    Constitution places on freedom and choice in what people may say and
    hear."); *id.* at 1340 n.14 ("The potentially chilling effect of the
    FCC's generic definition of indecency will be tempered by the
    Commission's restrained enforcement policy.").

[^62]: *See Padre Serra Communications, Inc.*, Letter, 14 FCC Rcd 9709
    (MMB 1999)(citing *Gaffney Broadcasting, Inc*., Memorandum Opinion
    and Order, 23 FCC 2d 912, 913 (1970) and *Eleven Ten Broadcasting
    Corp*., Notice of Apparent Liability, 33 FCC 706 (1962)); *Surrey
    Front Range Limited Partnership*, Letter, 7 FCC Rcd 6361 (FOB 1992).

[^63]: *See Forfeiture Policy Statement,* 12 FCC Rcd at 17113-15; 47
    C.F.R. § 1.80(b)(4), note to paragraph (b)(4), Section I.

[^64]: 47 U.S.C. § 503(b)(2)(D); *see also Forfeiture Policy Statement,*
    12 FCC Rcd at 17100; 47 C.F.R. § 1.80(b)(4).

[^65]: 47 U.S.C. § 309(k).

[^66]: 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). *See Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^67]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^68]: 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*, Decision, 32 FCC 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 \[the station\] in the future in
    accordance with the requirements of its licenses and the
    Commission\'s Rules.\" *Heart of the Black Hills Stations*, 32 FCC
    2d at 200. *See also Center for Study and Application of Black
    Economic Development*, Hearing Designation Order, 6 FCC Rcd 4622
    (1991), *Calvary Educational Broadcasting Network, Inc*., Hearing
    Designation Order, 7 FCC Rcd 4037 (1992).

[^69]: *See* 47 C.F.R. § 1.1914.