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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Twenty-One Sound ) File No. EB-03-KC-082
Communications, Inc. ) NAL/Acct. No. 200332560030
Licensee, KKAC(FM) ) FRN 0006-1497-93
Vandalia, Missouri )
Adopted: December 6, 2004 Released: December
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of one thousand dollars
($1,000) to Twenty-One Sound Communications (``Twenty-One''),
licensee of Station KKAC(FM), Vandalia, Missouri, for willful and
repeated violation of Section 73.1125 of the Commission's Rules
(``Rules'').1 The noted violation involves Twenty-One's failure
to maintain a presence at its main studio.
2.On October 6, 2003, the Commission's Kansas City,
Missouri Office (``Kansas City Office'') issued a Notice of
Apparent Liability for Forfeiture (``NAL'') to Twenty-One for a
forfeiture in the amount of seven thousand dollars ($7,000).2
Twenty-One filed its response to the NAL on November 17, 2003 and
supplements thereto on December 9, 2003 and March 1, 2004.
2. On April 22, 2003, an agent from the Commission's
Kansas City Office attempted to inspect Station KKAC during
regular business hours. The studio building was locked and there
was no indication that anyone was present. There were no posted
business hours or telephone numbers to contact station personnel.
The agent obtained a contact telephone number for the owner of
Station KKAC from the Commission's antenna structure records. At
this telephone number, the agent reached Twenty-One's President,
Randy Wachter. The agent arranged to conduct an inspection of
the KKAC transmitter and studio in Vandalia, Missouri on the
3. On April 23, 2003, the agent conducted an inspection of
Station KKAC's studio and transmitter. At the time of the
inspection, the KKAC studio was closed to the public and no
station employees were present except Mr. Wachter, who met the
agent at the studio. The station appeared to be operated
unattended and employed no staff at the studio or transmitter
site. On May 21, 2003, the District Director of the Kansas City
Office sent a Letter of Inquiry to Twenty-One to follow-up on
issues raised during the inspection, to which Twenty-One
responded on June 10, 2003.
4. On July 22, 2003, the agent went to the KKAC studio
during regular business hours. The agent again found the studio
locked and unattended. On October 6, 2003, the Kansas City
Office issued a NAL for $7,000 to Twenty-One for apparently
willfully and repeatedly violating Section 73.1125 of the Rules.
In its response to the NAL, Twenty-One seeks cancellation of the
forfeiture based on it having a meaningful managerial presence,
its history of compliance, and its inability to pay the
5. The forfeiture amount in this case was proposed in
accordance with Section 503(b) of the Communications Act of 1934,
as amended (``Act''),3 Section 1.80 of the Rules,4 and The
Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture Guidelines.5 In
examining Twenty-One's response, Section 503(b) of the Act
requires that the Commission take into account 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.6
6. Section 73.1125 of the Rules 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.7 To fulfill this function, a station must,
among other things, maintain a meaningful presence at its main
studio.8 The Commission has defined a minimally acceptable
``meaningful presence'' as full-time managerial and full-time
staff personnel.9 The licensee need not have the same staff
person and manager at the studio, as long as there is management
and staff presence there during normal business hours.10
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.11 On April 22 and
23, and July 22, 2003, the investigating agent found Station
KKAC's main studio without staff or management presence during
normal business hours. On each of the three days, the agent
found the studio locked and unoccupied.
7. In its response to the NAL, Twenty-One contests the
NAL's finding that it repeatedly and willfully violated Section
73.1125 of the Rules arguing that its staffing of Station KKAC
was similar to that which was approved by the Commission in Jones
Eastern. We do not agree. The staffing proposal ultimately
approved by the Commission in Jones Eastern consisted of there
being a full-time office worker and a full-time chief engineer,
who would also act as the station's news director from 5:30 a.m.
- 9:30 a.m. and 3:30 p.m. - 6:30 p.m. Monday through Friday.12
Because the full-time chief engineer was also charged with
managerial duties, e.g., doubling as the station's news director,
his presence during specified hours satisfied the requirement of
there being a full-time managerial presence at the main studio.13
In this case, Station KKAC's owner and two full-time employees
used the studio as a home base, spent the bulk of their time away
from the studio selling advertising, and checked back in at the
end of each day to check up on things, write up orders and
produce ads.14 There were also two volunteers who assisted the
station, though apparently, not with any set schedule. Station
KKAC's staffing on April 22, April 23, and July 22, 2003 left the
station unattended during normal business hours. All of the
employees came in in the morning, left for most of the day, and
came back, at some point, at the end of the day. There was
apparently no set schedule according to which the main studio
would be staffed and on April 22, and 23, there were no hours
posted to indicate to the public when it could expect to find the
studio accessible.15 Further, in Jones Eastern it is true that
the Commission stated that management personnel would not be
required to remain ``chained to their desks.'' However, this can
not be construed to endorse Twenty-One's staffing of Station KKAC
whereby all of the employees and volunteers ``chose to not be
chained to their desks,''16 thereby not leaving the station
attended by anyone at all, not even a staff person. Therefore,
we find that Twenty-One's staffing of Station KKAC violated
Section 73.1125 of the Rules on April 22, April 23, and July 22,
8. In determining whether a violation of the Commission's
Rules was willful, the issue is whether the person ``knew he was
doing the act in question, regardless of whether there was any
intent to violate the law.''17 Here, Twenty-One chose to have
its employees out of the main studio for the bulk of their day,
leaving the studio unstaffed for long periods of time. Twenty-
One chose not to have its employees in the studio on some type of
schedule which would provide for the requisite staffing of the
main studio during regular business hours. Accordingly, we
conclude that Twenty-One's violation of Section 73.1125 of the
Rules was willful.18 Moreover, as we have found that Twenty-One
violated Section 73.1125 of the Rules on April 22, April 23, and
July 22, 2003, the violation was also repeated.19
9. Twenty-One claims to have a history of overall
compliance with the Commission's Rules and seeks cancellation of
the forfeiture on that basis. However, we find this not to be
this case. In 1996, Twenty-One was the subject of a license
revocation proceeding in which the station license for Station
KFPS(AM), which was owned by Twenty-One, was cancelled because
the station had been off the air for more than one year. Thus,
Twenty-One does not have a history of compliance with the
Commission's Rules. Moreover, even if Twenty-One did have a
history of overall compliance with the Commission's Rules,
reduction of the forfeiture, not cancellation, would be
appropriate. However, as stated above, because we do not find
Twenty-One to have a history of overall compliance, no reduction
10. Finally, Twenty-One seeks cancellation of the
forfeiture because of its inability to pay and submits federal
tax returns for 1999, 2000, 2001 and 2002 in support of its
request. Upon review of the financial documentation, we find
that a reduction of the forfeiture to $1,000 is appropriate.
11. Twenty-One has not provided information indicating that
its main studio is now staffed in accordance with Section 73.1125
of the Rules. Accordingly, we require, pursuant to Section
308(b) of the Act,20 that Twenty-One report to the Enforcement
Bureau no more than thirty (30) days following the release of
this Order how it has achieved compliance with Section 73.1125 of
the Rules for its main studio. Twenty-One's report must be
submitted in the form of an affidavit signed by an officer or
director of Twenty-One.
II. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,21 Twenty-One Sound Communications, Inc. IS LIABLE FOR
A MONETARY FORFEITURE in the amount of one thousand dollars
($1,000) for its willful and repeated violation of Section
73.1125 of the Rules at station KKAC-FM.
14. IT IS FURTHER ORDERED that, pursuant to Section 308(b)
of the Act, Twenty-One must submit the report described in
paragraph 12, above, within thirty (30) days following the
release of this Order, to the Federal Communications Commission,
Enforcement Bureau, Spectrum Enforcement Division, 445 12th
Street, SW, Room 7-A728, Washington, DC 20554, Attention:
Jacqueline Ellington, Esq.
15. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.22
Payment of the 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 Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be sent to Bank One/LB
73482, 525 West Monroe, 8th Floor Mailroom, Chicago, IL 60661.
Payment by wire transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number 1165259. Requests
for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.23
16. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Twenty-One Sound Communications, Inc. and its
counsel Lee J. Peltzman, Esq., Shainis & Peltzman, Chartered,
1850 M Street, NW, Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
1 47 C.F.R. § 73.1125.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332560030 (Enf. Bur., Kansas City Office, released October 6,
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
6 47 U.S.C. § 503(b)(2)(D).
7 Main Studio and Program Origination Rules, 2 FCC Rcd 3215,
3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
9 Jones Eastern of the outer Banks, Inc., 6 FCC Rcd 3615, 3616
(1991), clarified, 7 FCC Rcd 6800 (1992).
10 Id., 6 FCC Rcd at 3616 n.2; 7 FCC Rcd at 6800 n.4.
11 Id., 7 FCC Rcd at 6802.
12 Id., at 6800.
13 Id., at 6801.
14 NAL response at page 4.
15 On July 22, 2003, there was a sign posted listing contact
names and telephone numbers for studio information.
16 NAL response at page 5.
17 Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999); Southern California
Broadcasting Co., 6 FCC Rcd 4387, 4388 (1991).
18 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,'
... means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act....'' See Southern California Broadcasting Co. at
19 As provided by 47 U.S.C. § 312(f)(2), a continuous violation
is ``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Co. supra.
20 47 U.S.C. § 308(b).
21 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
22 47 U.S.C. § 504(a).
23 See 47 C.F.R. § 1.1914.