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                           Before the
                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               )
Flourissant, Missouri


                        FORFEITURE ORDER

     Adopted:  December 6, 2004              Released:  December 
     8, 2004    

By the Assistant Chief, Enforcement Bureau:

  I.   INTRODUCTION

     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.     

II.          BACKGROUND

     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 
following day.  

     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 
forfeiture.                

I.   DISCUSSION

     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, 
2003.  

     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 
is warranted.

     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, 
2003).  
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).
8 Id.
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 
4388.
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.