John Garziglia, Esquire

Peter Gutmann, Esquire

Womble Carlyle Sandridge & Rice, PLLC

1401 I Street NW

Seventh Floor

Washington, DC 20005

John S. Neely, Esquire

Miller and Neely, PC

6900 Wisconsin Avenue

Suite 704

Bethesda, MD 20815

In re: **WKVE(FM), Semora, NC**

**Facility ID No. 26296** Southern Entertainment Corporation

Application for Renewal of License

> File No. BRH-20030801AJL

Dear Counsel,

We have before us an Application for Renewal of the License of WKVE(FM)
("Application") filed by Southern Entertainment Corporation ("Southern")
on August 1, 2003.[^1] Also before us is a Petition to Deny the
Application ("Petition"),[^2] filed by Piedmont Broadcasting Corporation
("Piedmont") on November 3, 2003. Southern filed an Opposition to the
Petition ("Opposition") on December 3, 2003.[^3]

Southern's Application was filed on August 1, 2003.[^4] In its Petition,
Piedmont challenges the Application, making three claims that are
warranting consideration:[^5] 1) Southern failed to file a Biennial
Ownership Report in 2003; 2) Southern failed to properly maintain its
public inspection file; and 3) Southern changed its answer to Section
III, Question 3 of its Application in an amendment in order to
demonstrate compliance with the Commission's public inspection file
rules, even though WVKE(FM)'s file was not in fact compliant with the
rules.

**Discussion.** *Procedural Issues.* Piedmont's Motion sought additional
time to file its Reply to Opposition to Petition to Deny because one of
the critical pieces of information -- Southern's purported 2003
Ownership Report -- had only recently become publicly available,[^6] and
Piedmont requested additional time to investigate the pleading's
accuracy. Southern opposed the Motion, arguing that assuming *arguendo*
the Ownership Report was only publicly available as of November 17,
Piedmont still had more than 30 days to review the Report and prepare
its Reply and should not be granted additional time.

We will grant Piedmont's motion and accept its Reply. Pursuant to
Section 1.45 of the Commission's rules, Southern's Opposition was due on
November 13, 2003, and Piedmont's Reply would be due on November 18,
2003.[^7] Southern did not file its opposition until December 3, 2003 --
Commission records do not reveal a motion for extension of time from
Southern \-- and Piedmont filed its Motion more than two weeks later, on
December 19, 2003, not submitting the actual Reply until January 6,
2004. Southern is correct that requests for extension of time are not
routinely granted,[^8] and Piedmont may have had sufficient opportunity
to examine WKVE(FM)'s November 2003 ownership report after Southern's
opposition alerted it of that filing. However, in order to develop a
fuller understanding of the record, and to attempt to resolve finally
the longstanding dispute regarding WKVE(FM), we will accept and consider
both Southern's and Peidmont's untimely responsive pleadings.[^9]
However, in light of our action below, we do not believe that the public
interest warrants consideration of any pleadings beyond Piedmont's
reply. We will therefore deny the Southern and Piedmont motions and
dismiss Southern's "Response to Reply to Opposition to Petition to Deny
and Piedmont's "Opposition to Response to Reply to Opposition to
Petition to Deny" as unauthorized.[^10]

*Southern's 2003 Biennial Ownership Report*. In its Petition, Piedmont
claims that Southern never filed a Biennial Ownership Report for 2003
("2003 Report") with the Commission. However, the 2003 Report was filed
on August 1, 2003, in accordance with the requirements of Section
73.3615 of the Commission's rules.[^11] The 2003 Report was correctly
filed with the Commission, and Piedmont's claim regarding the 2003
Report is without merit.[^12]

In its Reply, Piedmont claims that the information contained in the 2003
Report is inaccurate. Piedmont claims that Sam Cooper, listed as a 50%
shareholder and director of Southern in the 2003 Report, actually sold
his entire ownership in Southern to James Hill in 1998; therefore,
states Piedmont, Southern's 2003 ownership report is false,[^13] and it
conceals an unauthorized transfer of control of station WKVE in
violation of Section 310(d) of the Communications Act. Piedmont supports
its claim with an affidavit from Frank Wimmer, Piedmont's Vice
President, to the effect that he received a voicemail message from Sam
Cooper at 4:13 p.m. on December 9, 2003 stating that he had "sold
\[his\] interest in the Southern Entertainment Corporation to Jim
Hill[^14] and an application was filed with the FCC after that."[^15]
Mr. Wimmer also recounts several subsequent phone calls with Mr. Cooper
"during which he \[Mr. Cooper\] said that he was still trying to find
the papers demonstrating that he had sold his interest to Mr. Hill in
1998."[^16]

The evidence proffered by Piedmont in support of its claim that Mr.
Cooper sold his 50% interest in Southern in 1998 is inadmissible, and we
reject it. Initially, Mr. Wimmer's affidavit recounting a voice mail
allegedly left by Mr. Cooper in December of 2003 must be rejected, as it
is clearly not the "best evidence" of the content of that message. The
best evidence rule provides that the original of a \"writing, recording,
or photograph\" is required to prove the contents thereof.[^17]
Additionally, Mr. Wimmer's recounting his alleged subsequent
conversations with Mr. Cooper constitute hearsay. Although hearsay that
is relevant and material is admissible in administrative proceedings if
it bears satisfactory indicia of reliability,[^18] the weight to be
accorded it depends on its truthfulness, reasonableness, and
credibility.[^19] A prime indicium of probity is whether the declarant
is a disinterested witness.[^20] Mr. Wimmer, Vice President of Piedmont,
which has been involved in longstanding administrative litigation with
the past and present owners of WKVE(FM), in not in any way a
"disinterested witness." His accounts of his alleged conversations with
Mr. Cooper are properly excluded. In light of these conclusions,
Piedmont has provided no authenticated evidence to support its claim
that the 2003 Report was false or inaccurate. We therefore reject that
argument, as well as the false certification and unauthorized transfer
of control arguments based on the premise that the 2003 Report was
false.

*Public inspection file rule violation*: Section 73.3526 of the
Commission's rules requires each commercial broadcast station to
maintain a public inspection file containing materials related to the
station's operation.[^21] In its Petition, Piedmont claims that several
items were missing from WKVE(FM)'s public inspection file when Mr.
Wimmer went to view the file. Piedmont states that the file contained no
ownership reports dated after 1995,[^22] no copy of the pending renewal
application or any documentation related to pre-filing announcements,
and no copy of "The Public and Broadcasting" procedural manual.[^23] In
its Opposition, Southern admits that "The Public and Broadcasting"
manual was missing from the public inspection file as of November 1,
2003, and claims that the manual has been replaced.[^24]

When lapses occur in the maintenance of the public inspection file,
neither negligent behavior of station employees, nor subsequent remedial
actions, excuse the rule violation*.*[^25] Substantial compliance with
Commission public inspection file requirements is not achieved by
reconstruction at a later date.[^26] However, an incomplete public
inspection file does not necessarily raise substantial and material
questions related to a license renewal application.[^27] "In and of
itself, a violation of the 'public file' rules should, on the surface,
not be so repugnant as to require a severe sanction."[^28] Moreover, in
its Opposition, Southern admits its failure and states that the problem
has been corrected.[^29]

We emphasize that we do not in any way condone Southern's noncompliance
with our rules. In this case, however, Southern has admitted to the
violation in its Opposition[^30] and has corrected the violation. Given
the specific violations (both admitted and alleged) and the fact that
they do not appear willful, we do not find the problems with WKVE(FM)'s
public inspection file to be of such significance as to deny the
Application or to issue a forfeiture. In light of these facts, we
believe that an admonishment is appropriate.[^31]

*Misrepresentation in Section III, Question 3 of Southern's Amendment to
its Application*. Piedmont also claims that when Southern amended its
Application on October 14, 2003, to change its answer to Section III,
Question 3 of the renewal application, it misrepresented the
completeness of its public inspection file within the amendment.[^32]
Southern does not address the misrepresentation claim in its Opposition.

However, on December 4, 2003, Southern again amended its Application. In
this amendment, Southern admitted its failure to maintain a complete
public inspection file, stating that "The Public and Broadcasting"
manual was missing from the file at a point.[^33] Southern also stated
that it was "unable to certify with absolute certainty that the
documentation required...has been placed in the station's public
inspection file at exactly the appropriate time over the entire license
period."[^34] By filing an additional amendment to an amended
application, an applicant in effect replaces its first amended
application with a new amended application.[^35] Accordingly, we will
consider Southern's renewal application in light of the December 2003
amendment. Therefore, Piedmont's misrepresentation argument concerning
the language in the original Application and the language in the October
2003 amendment is moot.

*License Renewal Application*. In evaluating an application for license
renewal, the staff's decision is governed by Section 309(k) of the
Communications Act of 1934, as amended. This section provides that if,
upon consideration of a renewal 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
violations that, taken together, show a pattern of abuse, we will grant
the renewal application.[^36]

The Commission's public inspection file rules serve the critical
function of making available to the public important station
information, including ownership, community service, "The Public and
Broadcasting" manual, etc.[^37] Though Southern admittedly failed to
constantly maintain a copy of the manual in WKVE(FM)'s file, on balance,
we do not find its violation of Section 73.3526 to be a serious
violation. As to Piedmont's other above-referenced allegations (no
pending renewal and no pre-filing announcements), we remind Southern
that its public inspection file should be organized so that the public
can access and readily locate items in the file.[^38] WKVE(FM)'s staff
should also continue to make itself available for questions about the
file, pursuant to Section 73.3526(c)(2)(iii) of the Commission's rules.

Moreover, we find no evidence of violations that, when considered
together, evidence a pattern of abuse.[^39] Further, we find that
WKVE(FM) served the public interest, convenience, and necessity during
its past license term. We will therefore grant the Application below.

*Conclusions/Actions*. In light of the above discussion, Southern
Entertainment Corporation IS HEREBY ADMONISHED for its apparent
violation of 47 C.F.R. § 73.3526, and we caution the licensee to be and
remain more diligent in the future regarding the completeness of
WKVE(FM)'s public inspection file.

Additionally, Piedmont Broadcasting Corporation's December 19, 2003
Motion for Extension of Time IS GRANTED, and its January 6, 2004, Reply
IS ACCEPTED to the extent indicated herein. Southern's January 22, 2004,
Motion for Leave to File Response to Reply to Opposition to Petition to
Deny IS DENIED, and its Response to Reply to Opposition to Petition to
Deny IS DISMISSED. Similarly, Piedmont's February 4, 2004, Motion for
Leave to File Opposition to Response to Reply to Opposition to Petition
to Deny IS DENIED, and its Opposition to Response to Reply to Opposition
to Petition to Deny IS DISMISSED. Finally, Piedmont's August 1, 2003,
Petition to Deny the Application for Renewal of the License IS DENIED,
and the Application of Southern Broadcasting Corporation (File No.
BRH-20030801AJL) for Renewal of the License of WKVE(FM), Semora, North
Carolina, IS GRANTED.

> Sincerely,

Peter H. Doyle, Chief

> Audio Division
>
> Media Bureau

cc: James K. Edmundson, Esquire

1818 N Street NW

Suite 700

Washington, DC 20036

[^1]: File No. BRH-20030801AJL.

[^2]: Section 73.3516 of the Commission's rules states that a petition
    to deny an application for renewal of a license will be considered
    timely filed if it is filed by the end of the first day of the last
    full calendar month of the expiring license term. 47 C.F.R. §
    73.3516(e). Since the first day of the last month of the license
    term fell on a nonbusiness day, Piedmont's Petition was timely
    filed. *Id*. Moreover, Piedmont's stations are in competition with
    WKVE(FM), and competitors have standing as parties in interest.
    *Waterman Broadcasting*, 17 FCC Rcd 15742, 15744 n.2 (2002), *citing
    FCC v. Sanders Brothers Radio Station*, 309 U.S. 470 (1940). For the
    above reasons, Piedmont has standing as a party in interest to file
    a Petition to Deny.

[^3]: Piedmont filed a Motion for Extension of Time ("Motion") to file a
    Reply to the Opposition on December 19, 2003. Southern filed an
    Opposition to the Motion on December 24, 2003. Piedmont, claiming
    that it received no response regarding the Motion from the staff,
    filed its Reply to Opposition on January 6, 2004. Southern
    thereafter filed a Motion for Leave to File a Response to Reply to
    Opposition ("Motion for Leave") on January 22, 2004, and submitted a
    Response to Reply to Opposition along with its Motion for Leave.
    Piedmont then filed a Motion for Leave to File Opposition to
    Response to Reply to Opposition on February 4, 2004, submitting the
    referenced pleading simultaneously.

[^4]: According to Section 73.3539 of the Commission's rules, an
    application for renewal of a license must be filed the first day of
    the fourth full month prior to the expiration of the license.
    Section 73.1020 of the rules states that North Carolina stations'
    licenses expire on December 1, 2003. Therefore, Southern's August 1,
    2003, filing was timely.

[^5]: Piedmont makes other claims in its Petition: 1) WKVE(FM) has no
    license to renew because the permit underlying the license is
    invalid; 2) the Chief, Audio Division, previously erred in finding
    Southern to be an innocent party that would be injured if the
    applications filed by Southern's predecessor, HarryCo, were denied
    and HarryCo's permits were canceled; 3) Southern was not entitled to
    the equitable relief granted by the Chief, as it held a 24% interest
    in HarryCo and had "unclean hands" as a result of this connection
    with HarryCo; and 4) Southern has unresolved character issues,
    including questionable accounting by its predecessor, involvement in
    an allegedly forged lease, and manipulation of the dates on letters
    from community members attesting to WKVE(FM)'s service to the
    community of Semora. As all of these issues have been considered and
    resolved by the Commission, they will not be further examined in
    this letter. *Applications for Station WKVE, Semora, North
    Carolina*, 18 FCC RCD 23411 (2003).

[^6]: Piedmont states that apparently the 2003 ownership report became
    available only on November 17, 2003, after Piedmont filed its
    Petition to Deny.

[^7]: Under Section 1.4(h) of the rules, Piedmont would be accorded
    three additional days -- until November 21, 2003 \-- to file its
    Reply.

[^8]: 47 C.F.R. § 1.46.

[^9]: *Family Vision Ministries, Inc.*, 18 FCC Rcd 1418 n. 2 (2003).

[^10]: In its Reply, Piedmont claims that the representation of the
    owners of Southern's shares made in the 2003 Report is incorrect.
    Piedmont's Reply to the Opposition at 3-4. Section 1.45(c) of the
    Commission's rules states that "\[t\]he reply shall be limited to
    matters raised in the opposition\[\]...." We believe that Piedmont's
    argument is sufficiently related to matters raised in Southern's
    Opposition -- *i.e.¸*that the allegedly missing 2003 Ownership
    Report for WKVE had in fact been filed -- that the charge does not
    constitute "new matter" inappropriately raised in a Reply pleading.

    On the other hand, the public interest is also served by the
    rejection of the further, unauthorized pleadings, as consideration
    of the numerous later pleadings in this case would unduly hinder the
    process of resolving the longstanding dispute here. Expeditious
    Commission proceedings are in the public interest. *1998 Biennial
    Regulatory Review*, 14 FCC Rcd 17525, 17544 (1999). *See also
    Amendment of Part 25 of the Commission's Rules*, 12 FCC Rcd 915, 916
    (1997).

[^11]: File No. BOA-20030801AJJ. 47 C.F.R. § 73.3615 requires ownership
    reports to be filed on the date the license renewal application is
    due and biannually on the anniversary date of the license renewal
    thereafter. Therefore, Southern's ownership report was timely filed.

[^12]: ^?^ In its Petition, Piedmont only alleges that this Report does
    not exist; no representation-of-ownership claim was made. As stated
    in Note 5 of this letter, allegations relating to deception in the
    2003 Report or the lack of ownership reports from 1999 and 2001 were
    made by Piedmont only in its Reply.

[^13]: Because Mr. Cooper had no interest in Southern since 1998,
    Piedmont speculates that, had biennial ownership reports been filed
    for 1999 and 2001, they also would have been false.

[^14]: Jim Hill is listed in the 2003 Report as Southern's other 50%
    stockholder, President, and Director.

[^15]: Piedmont Reply, Declaration Under Penalty of Perjury of Frank
    Wimmer.

[^16]: *Id*.

[^17]: Fed.R.Evid. 1002. *See, e.g., United States v. Morales-Madera*,
    352 F. 3d 1, 9 (1^st^ Cir. 2003) (best evidence rule requires
    production of the tape rather than transcript); *David N. Smith*, 34
    F.C.C.2d 741, 742 ¶5 (1972). Additionally, although Mr. Wimmer's
    statement appears to quote the voicemail message, this purported
    transcript of the tape is not authenticated and Southern provides no
    other indicia of validity or reliability.

[^18]: *Echostar Communications Corportaion v. FCC*, 292 F.3d 749 (D.C.
    Cir. 2002); *Johnson v. United States,* 628 F.2d 187 (D.C. Cir.
    1980) ("*Johnson*").

[^19]: *See Johnson,* 628 F.2d at 190-91. *See also Wine Country Radio*,
    11 FCC Rcd 2333, 2334 (1996) ("*Wine Country*").

[^20]: *Johnson* and *Wine Country, id.*

[^21]: 47 C.F.R. § 73.3526.

[^22]: ^?^ 47 C.F.R. § 73.3526 requires that only the most recent,
    complete ownership report be retained in the public inspection file.
    Therefore, this claim is without merit.

[^23]: Piedmont's Petition at 7-8, Frank M. Wimmer's Declaration Under
    Penalty of Perjury. 47 C.F.R. §§ 73.3526(e)(2), (5), and (8) require
    the above-referenced items, with the exception of the old ownership
    reports, to be in the station's public inspection file.

[^24]: Southern's Opposition at 3. Southern also claims that the other
    allegedly missing documents were in the public inspection file but
    were not seen by Wimmer perhaps "because he failed to review the
    entire Public File carefully" and "rejected several offers \[by WKVE
    staff\] to assist in looking for a particular document." *Id*. In
    its Reply, Piedmont does not press the issue of the WKVE(FM) public
    file's deficiencies. We will, therefore, assume for the purposes of
    this decision that the WKVE(FM) public inspection file did not
    contain "The Public and Broadcasting" -- the omission admitted by
    Southern \-- and that the other material was present in the file.

[^25]: *See Padre Serra Communications, Inc.*, 14 FCC Rcd 9709, 9714
    (1999), *citing Gaffney Broadcasting, Inc*., 23 F.C.C.2d 912, 913
    (1970) and *Eleven Ten Broadcasting Corp*., 33 FCC 706 (1962).

[^26]: *See* *Pacifica Foundation*, 95 F.C.C.2d 750, 763 (1983).

[^27]: ^?^ *See Letter to Kathleen N. Benfield, Glenn C. Benfield, and
    M. Anne Swanson, Esq.* 13 FCC Rcd 4102, 4106 (1997), *citing*
    [*Kaye-Smith Enterprises*, 71 F.C.C.2d 1402, 1413
    (1979)](http://web2.westlaw.com/find/default.wl?DB=1017&SerialNum=1979026341&FindType=Y&ReferencePositionType=S&ReferencePosition=1413&AP=&RS=WLW4.06&VR=2.0&FN=_top&SV=Split&MT=Westlaw),
    *aff\'d* [90 F.C.C.2d 27
    (1982)](http://web2.westlaw.com/find/default.wl?DB=1017&SerialNum=1982034209&FindType=Y&AP=&RS=WLW4.06&VR=2.0&FN=_top&SV=Split&MT=Westlaw).

[^28]: [*Catoctin Broadcasting* *Corp. of New York*, 2 FCC Rcd 2126,
    2137](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=1987184646&FindType=Y&ReferencePositionType=S&ReferencePosition=2137&AP=&RS=WLW4.06&VR=2.0&FN=_top&SV=Split&MT=Westlaw)
    (Rev.Bd. 1987), *aff\'d* [4 FCC Rcd
    2553,](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=1989191542&FindType=Y&AP=&RS=WLW4.06&VR=2.0&FN=_top&SV=Split&MT=Westlaw)
    *recon. denied* [4 FCC Rcd 6312
    (1989)](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=1989192464&FindType=Y&AP=&RS=WLW4.06&VR=2.0&FN=_top&SV=Split&MT=Westlaw)
    (the applicant for renewal did not allow members of the public to
    view the public inspection file, among other serious file
    violations, and its renewal application was denied).

[^29]: Southern's Opposition at 3, Bob Donaghey's Statement.

[^30]: ^?^ Southern also acknowledged its failure to properly maintain
    the file at appropriate times in a December 4, 2003, amendment to
    its Application.

[^31]: *See Tabback Broadcasting Company*, 15 FCC Rcd 11899, 11900
    (2000).

[^32]: ^?^ Piedmont's Petition at 8-9.

[^33]: Southern's December 4, 2003, Amendment to Application for Renewal
    of the License of WKVE(FM), Exhibit 11.

[^34]: *Id*.

[^35]: *See Columbia Communications Corp.*, 16 FCC Rcd 10867, 10877
    (2001).

[^36]: 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 Order*,
    "Implementation of Sections 204(a) and 204(c) of the
    Telecommunications Act of 1996 (Broadcast License Renewal
    Procedures)," 11 FCC Rcd 6363 (1996).

[^37]: 47 C.F.R. § 73.3526.

[^38]: 47 C.F.R. § 73.3526(c)(2)(iii).

[^39]: ^?^ For example, we do not find that WKVE(FM)'s operation was
    "conducted in an exceedingly careless, inept and negligent manner
    and that the licensee is either incapable of correcting or unwilling
    to correct \[any\] operating deficiencies." *Heart of the Black
    Hills Stations*, 32 F.C.C.2d 196, 198 (1971). "\[T\]he number,
    nature and extent" of Southern's violations also do not indicate
    that "the licensee cannot be relied upon to operate \[WKVE(FM)\] in
    the future in accordance with the requirements of its licenses and
    the Commission's Rules." *Id*. at 200.