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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
By the Assistant Chief, Enforcement Bureau:
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.
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
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.
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
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 by check or money order may
be mailed to Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by
overnight mail may be sent to Mellon
Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may
be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106. 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.
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)
5Twenty-One Sound requested an extension of time in which to
submit a response to the NAL, which was granted by the Kansas
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.