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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554



In the Matter of                 )
                                )
Twenty-One Sound                 )        File Number EB-05-KC-017
Communications, Inc.             )
Licensee, KNSX(FM)               )      NAL/Acct. No. 200532560002
Facility ID: 68579               )
Steelville, MO                   )                                                 
Florissant, MO                   )    FRN: 0009075656

                    

                  MEMORANDUM OPINION AND ORDER

Adopted:  November 16, 2005                  Released:   November 
18, 2005

By the Assistant Chief, Enforcement Bureau:

I.  INTRODUCTION

     1.   In this Memorandum Opinion and Order (``Order''), we 
          deny the petition for reconsideration filed by Twenty-
          One Sound Communications, Inc. (``Twenty-One Sound'') 
          of the Forfeiture Order issued July 27, 2005.1  The 
          Forfeiture Order imposed a monetary forfeiture in the 
          amount of $18,000 on Twenty-One Sound for the willful 
          and repeated violation of Sections 11.35(a), 
          73.1125(a), and 73.3526(a) of the Commission's Rules 
          (``Rules'').2  The noted violations involved Twenty-
          One Sound's failure to maintain Emergency Alert System 
          (``EAS'') equipment in operational readiness 
          condition, failure to maintain a main studio in 
          compliance with the Rules, and failure to maintain a 
          complete public inspection file.  

II.  BACKGROUND

     2.   On March 1, 2005, an agent with the Kansas City Office 
          of the Federal Communications Commission's 
          (``Commission'') Enforcement Bureau (``Kansas City 
          Office'') inspected the main studio for Station 
          KNSX(FM), an unmarked guard shack at the entrance to a 
          gated residential area near the station's transmitter 
          site.3  The residential community paid the salaries 
          for the guards and made sure that the guard shack was 
          staffed by at least one guard twenty-four hours per 
          day.  There was no microphone or transmission or 
          production equipment of any kind in the guard shack.  
          When asked to demonstrate control over the KNSX 
          transmitter, the guard on duty stated that he could 
          not control the transmitter from the guard shack.  The 
          guard on duty stated, in the presence of the station 
          owner, that he was not part of the station's 
          management.  The agent observed that the public file 
          in the guard shack did not contain any ownership 
          reports or issues programs lists after December 24, 
          2003.  The file contained a station license that 
          expired on February 1, 2005 and did not include a 
          license renewal application or license renewal.    

     3.   Also on March 1, 2005, the agent inspected the 
          unattended KNSX transmitter site and observed that the 
          sole EAS unit for the station was installed there.  
          The EAS unit was found in manual operating mode and, 
          as installed, was incapable of automatically 
          retransmitting messages and tests.  The station had 
          been receiving EAS activations, but a review of the 
          station logs for the two-month period prior to the 
          inspection confirmed that the station had not 
          retransmitted any activation it had received and had 
          not transmitted several required weekly EAS tests.  
          The owner also admitted that he did not contact the 
          local or state EAS coordinator to determine which 
          stations he had been assigned to monitor, and, as a 
          result, was only monitoring one of the three approved 
          stations.
   
     4.   On April 12, 2005, the Kansas City Office issued a 
          Notice of Apparent Liability for Forfeiture to Twenty-
          One Sound in the amount of twenty-five thousand 
          dollars ($25,000) for the apparent willful and 
          repeated violation of Sections 11.35(a), 73.1125(a) 
          and 73.3526(a) of the Rules.4  On June 6, 2005, 
          Twenty-One Sound submitted a response to the NAL 
          requesting cancellation or reduction of the proposed 
          forfeiture.5  On July 27, 2005, the Enforcement Bureau 
          released the Forfeiture Order.  The Enforcement Bureau 
          reduced the forfeiture amount from $25,000 to $18,000, 
          because it concluded the station's public file was 
          incomplete, rather than unavailable.  The Enforcement 
          Bureau received Twenty-One Sound's petition for 
          reconsideration on August 26, 2005, requesting further 
          reduction or cancellation of the forfeiture.  

III.  DISCUSSION

     5.   The forfeiture amount in this case was assessed in 
          accordance with Section 503(b) of the Act, 6 Section 
          1.80 of the Rules,7 and The Commission's Forfeiture 
          Policy Statement and Amendment of Section 1.80 of the 
          Rules to Incorporate the Forfeiture Guidelines.8  In 
          examining Twenty-One Sound's petition, 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 any other such matters 
          as justice may require.9  

     6.   In its petition for reconsideration, Twenty-One Sound 
          alleges that it did not violate Section 11.35 of the 
          Rules, because its EAS system was not operational for 
          less than 60 days, between January 1, 2005 and the 
          inspection on March 1, 2005.  We disagree with Twenty-
          One Sound's assertions.  Section 11.35(b) of the Rules 
          is not a free 60-day pass to operate without 
          functional EAS equipment.  Section 11.35(b) of the 
          Rules states that, if equipment becomes defective, a 
          broadcast station may operate ``without the defective 
          EAS equipment pending its repair or replacement for 60 
          days without further FCC authority.''  That section 
          also requires the broadcast station to log when the 
          defective equipment was removed from service and when 
          it was restored to service.  Thus, the 60 days 
          referenced in Section 11.35(b) begin ``only after the 
          defective equipment has been removed for repair or 
          replacement.''10  Section 11.35(b) of the Rules does 
          not apply in this case, because Twenty-One Sound's EAS 
          equipment was not defective and had not been removed 
          for repair or replacement.  In fact, no repairs or 
          replacements were needed; the automatic setting for 
          the EAS unit just needed to be turned on.  Therefore, 
          because Twenty-One Sound's EAS unit was not installed 
          so that the monitoring and transmitting functions were 
          available during the times the station and systems 
          were in operation between, at a minimum, January 1, 
          2005 and March 1, 2005, and because Twenty-One Sound 
          knew or should have known of the problem11 and took no 
          action to correct the problem, there is no basis for 
          reversal of the ultimate finding in the Forfeiture 
          Order that Twenty-One Sound willfully and repeatedly 
          violated Section 11.35(a) of the Rules. 
     7.   In addition, Twenty-One Sound claims that its main 
          studio meets Commission requirements, because it 
          maintained a meaningful management presence.  Twenty-
          One Sound asserts that the guard on duty during the 
          inspection was the station manager.  The station owner 
          claims, under penalty of perjury, that the guard was 
          ``afraid to admit that he was compensated for his time 
          working with KNSX for fear that he would be turned 
          over to the IRS for accepting compensation.''  This 
          explanation does not seem compelling, however, because 
          the guard admitted to the agent that he was paid on 
          occasion by Twenty-One Sound.  Nor does it explain why 
          the station owner failed to correct a contemporaneous 
          statement made by the guard during the March 1, 2005 
          inspection.  The guard stated, in the presence of the 
          station owner, that he was not part of station 
          management.  Twenty-One Sound also states that the 
          station owner and his assistant were part of the 
          physical presence for the station, because they could 
          arrive at the station within minutes of being 
          notified.  Although station management is not required 
          to be continuously present, a meaningful managerial 
          presence requires that ``management personnel report 
          to work at the main studio on a daily basis, spend a 
          substantial amount of time there and, ... use the 
          studio as a ``home base.''12  Twenty-One Sound did not 
          allege that the station owner and his assistant 
          reported to the main studio on a daily basis.  Twenty-
          One Sound merely stated that these individuals could 
          arrive at the main studio within a short period of 
          time.  Indeed, given that Station KNSX's main studio 
          was a guard shack of approximately 128 square feet and 
          that there was no evidence of any property belonging 
          to the station in the shack other than the public 
          file, it would be difficult to believe that these 
          individuals spent a substantial amount of time there.  
          Accordingly, there is no basis for reversal of the 
          ultimate finding in the Forfeiture Order that Twenty-
          One Sound willfully and repeatedly failed to maintain 
          full-time managerial personnel at its main studio in 
          violation of Section 73.1125(a) of the Rules.  

     8.   Regarding its ability to maintain continuous program 
          transmission capability, Twenty-One Sound alleges the 
          guard on duty knew how to control the station's 
          transmitter but was flustered by the inspection.  
          Regardless of whether the guard on duty was flustered 
          or otherwise incapacitated, when asked to demonstrate 
          control of the transmitter, the only guard on duty 
          could not do so.  Therefore, the station failed to 
          maintain continuous program transmission capability 
          from its main studio.  Twenty-One Sound also states 
          that although there was only one telephone line 
          running into the main studio, the guards had cellular 
          telephones and could place calls from a nearby 
          building.  Thus, Twenty-One Sound asserts even if a 
          guard used the single telephone line in the guard 
          shack, she or he would still be able to control the 
          transmitter via a cellular phone or phones in the 
          other building.  We note that the existence of these 
          additional phones was not mentioned during the 
          inspection or in Twenty-One Sound's response to the 
          NAL.  We reiterate that a station must equip its main 
          studio with facilities that can maintain continuous 
          program transmission capability.  Twenty-One Sound's 
          main studio contained no production or transmission 
          equipment and was equipped only with a single 
          telephone.  Twenty-One Sound failed to provide any 
          evidence that the phone line running to the main 
          studio, the cellular telephones allegedly used by the 
          guards, or the phones in the nearby building were 
          maintained by the station or that the station had 
          negotiated the exclusive use of these phone lines.  
          Accordingly, there is no basis for reversal of the 
          ultimate finding in the Forfeiture Order that Twenty-
          One Sound willfully and repeatedly failed to equip its 
          main studio with production and transmission 
          facilities that meet applicable standards and failed 
          to maintain continuous program transmission capability 
          in violation of Section 73.1125(a) of the Rules.13     

     9.   Twenty-One Sound also claims that an agent inspected 
          the station on or about May 7, 1996 during a disaster 
          inspection and found no violations at the main studio.  
          Because the main studio has remained unchanged since 
          then, Twenty-One Sound claims that it thought its 
          current main studio configuration was compliant with 
          the Rules.  According to the Commission's records, on 
          June 10 and 11, 1997, an agent conducted a disaster 
          inspection of Station KNSX(FM)'s tower, which had been 
          struck by an airplane.14  The 1997 disaster 
          inspection, however, only covered Station KNSX(FM)'s 
          tower and did not involve a full inspection of the 
          station's main studio.  Therefore, the agent could not 
          have determined whether there were any violations at 
          the station's main studio.  Moreover, statements made 
          by the station owner during the inspection directly 
          contradict Twenty-One Sound's claims.  The station 
          owner admitted that during the summer of 2004 Station 
          KNSX(FM) failed an alternative broadcast inspection 
          (``ABIP'') conducted by the Missouri Broadcast 
          Association because of problems with its main studio.  
          Thus, although not required to find a violation 
          willful, we conclude that Twenty-One Sound had reason 
          to believe its main studio was not in compliance with 
          the Rules.

     10.  Finally, Twenty-One Sound requests that the Commission 
          eliminate the $3,000 forfeiture for the station's 
          public file violation, because the station's ownership 
          report and license renewal application15 were possibly 
          removed by an individual who reviewed the station's 
          public file and because the station's issues programs 
          lists were only required to be kept for a few days 
          after the March 1, 2005 inspection.  Twenty-One 
          Sound's arguments, however, are not persuasive.  
          Regardless of why or for how long items were missing, 
          the fact remains that three items were missing from 
          the station's public file when the agent conducted his 
          inspection: ownership reports, license renewal, and 
          issues programs lists.  Twenty-One Sound is required 
          to maintain a public file and is responsible for 
          ensuring that it is complete.  Accordingly, there is 
          no basis for reversal of the ultimate finding in the 
          Forfeiture Order that Twenty-One Sound violated 
          Section 73.3526(a) of the Rules by failing to maintain 
          a complete public inspection file.  

V.  ORDERING CLAUSES

     11.  Accordingly, IT IS ORDERED that, pursuant to Section 
          405 of the Communications Act of 1934, as amended,16 
          and Section 1.106 of the Commission's Rules,17 Twenty-
          One Sound Communications, Inc.'s petition for 
          reconsideration of the July 27, 2005 Forfeiture Order 
          IS hereby DENIED.

     12.  IT IS ALSO ORDERED that, pursuant to Section 503(b) of 
          the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of 
          the Rules,18 Twenty-One Sound Communications, Inc., IS 
          LIABLE FOR A MONETARY FORFEITURE in the amount of 
          eighteen thousand dollars ($18,000) for willful and 
          repeated violation of Sections 11.35(a), 73.1125(a), 
          and 73.3526(a) of the Rules.

     13.  Payment of the $18,000 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.19  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 bycheck or money order may 
          be mailed to Federal Communications Commission, P.O. 
          Box358340,Pittsburgh, PA 15251-8340. Payment by 
          overnight mail may be sent toMellon 
          Bank/LB358340,500 Ross Street, Room 1540670, 
          Pittsburgh, PA 15251. Payment by wire transfer may 
          be made to ABA Number043000261, receiving bankMellon 
          Bank, and account number911-6106.  Requests for full 
          payment under an installment plan should be sent to: 
          Associate Managing Director, Financial Operations, 445 
          12th Street, S.W., Room 1A625, Washington, D.C. 
          20554.20

     14.  IT IS FURTHER ORDERED that this Order shall be sent by 
          regular mail and by certified mail, return receipt 
          requested, to Twenty-One Sound Communications, Inc. at 
          its address of record and its counsel, Lee J. 
          Peltzman, Shainis & Peltzman, Chartered, 1850 M Street 
          NW, Suite 240, Washington, DC 20036.

                         
                         FEDERAL COMMUNICATIONS COMMISSION       


                         George R. Dillon
                         Assistant Chief, Enforcement Bureau
_________________________

1Twenty-One Sound, Forfeiture Order, DA 05-2065 (Enf. Bur. South 
Central Region July 27, 2005) (``Forfeiture Order'').

247 C.F.R.  11.35(a), 73.1125(a), 73.3526(a).

3The KNSX(FM) transmitter was located nearby but not within the 
gated residential community. 

4Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
20053256002 (Enf. Bur., Kansas City Office, April 12, 2005) 
(``NAL'').

5Twenty-One Sound requested an extension of time in which to 
submit a response to the NAL, which was granted by the Kansas 
City Office. 

647 U.S.C.  503(b).

747 C.F.R.  1.80.

812 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303 (1999).

947 U.S.C.  503(b)(2)(D).

10See A-O Broadcasting Corporation, Forfeiture Order, 18 FCC Rcd 
27069 (FCC 2003).  We note that the Commission released the A-O 
Broadcasting Corporation Forfeiture Order on December 29, 2003, 
more than one year prior to the investigation of station KNSX(FM) 
by the Kansas City Office.

11Twenty-One Sound should have known that its EAS unit was not 
set in automatic mode when its January monthly test failed to 
automatically retransmit.  Moreover, Twenty-One Sound would have 
discovered and, therefore, should have known that its EAS unit 
was not operational had it conducted the required weekly tests in 
January or February or the required February monthly test.

12Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and 
Order, 7 FCC Rcd 6800, 6802 (1992).

13We note that it is irrelevant whether Station KNSX maintained 
production and transmission equipment at its transmitter site, 
because the transmitter site was not the station's main studio.

14The Commission has no record of a disaster inspection conducted 
on or around May 7, 1996.

15We note that the Forfeiture Order found that the station was 
missing ownership reports, issues programs lists and the license 
renewal, not the license renewal application.  Twenty-One Sound 
did not address whether an individual also removed the station's 
license renewal from the public file.

1647 U.S.C.  405.

1747 C.F.R.  1.106.

18 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

1947 U.S.C.  504(a).

20See 47 C.F.R.  1.1914.