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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Twenty-One Sound Communications, Inc. )
File Number EB-05-KC-017
Licensee, KNSX(FM) )
NAL/Acct. No. 200532560002
Facility ID: 68579 )
Steelville, MO )
Florissant, MO )
ORDER ON REVIEW
Adopted: February 6, 2008 Released: February 8, 2008
By the Commission:
1. In this Order on Review ("Order on Review"), we deny the application
for review filed by Twenty-One Sound Communications, Inc. ("Twenty-One
Sound"), pursuant to Section 1.115 of the Commission's Rules
("Rules"). Twenty-One Sound seeks review of the Enforcement Bureau's
("Bureau") Memorandum Opinion and Order denying Twenty-One Sound's
petition for reconsideration of a Forfeiture Order issued July 27,
2005. 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"). 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
2. In its Application for Review, Twenty-One Sound reiterates past
arguments raised at the Bureau level. We find that these arguments
were fully and correctly addressed in the Bureau's Order, but we take
the opportunity to elaborate on certain issues below. Twenty-One Sound
also provides new statements that were not raised at the Bureau level.
The Commission's Rules, however, provide that: "No application for
review will be granted if it relies on questions of fact ... upon
which the designated authority has been afforded no opportunity to
pass." We find that Twenty-One Sound has not demonstrated good cause
to waive this Rule. Nevertheless, as described below, we find that
Twenty-One Sound's new arguments lack merit.
3. Twenty-One Sound argues that its violations were not willful, as the
station's owner did not intend to violate the Rules. The station's
owner asserts that he has great respect for the Commission and the
federal government and love of radio and that he would never
intentionally violate the Rules. The Communications Act of 1934, as
amended, specifically provides, however, that a violator may commit a
willful violation, without intending to violate the Rules. By
concluding that Twenty-One Sound willfully and repeatedly violated the
Rules, the Bureau in no way impugned the character, motives,
patriotism, or love of radio of Twenty-One Sound's owner.
4. Regarding the main studio violation, Twenty-One Sound again asserts
that the guard on duty during the inspection on March 1, 2005 was the
station's manager. However, according to the Bureau's records of the
inspection, that guard stated, in the presence of the station owner,
that he was not part of station management. In a statement attached to
Twenty-One Sound's application for review, the station owner asserted
for the first time that he did not hear this statement and that, if he
had, he would have promptly corrected the guard. The fact that the
guard made this statement in the presence of the station owner was
included in the Forfeiture Order, yet Twenty-One Sound failed to raise
its current assertion in its petition for reconsideration of the
Forfeiture Order. Accordingly, Twenty-One Sound is barred from raising
this issue of fact in its Application for Review, and we conclude that
the Bureau did not err in finding that Twenty-One Sound failed to
maintain a full-time managerial presence at its main studio.
5. Moreover, Twenty-One Sound asserts for the first time in its
application for review that the station's main studio was housed in
the transmitter building, not the guard shack previously identified as
the main studio. In the Notice of Apparent Liability, the Kansas City
Office of the Bureau acknowledged that the station transmitter site
was capable of maintaining program transmission capability, but
explained that the owner did not identify the transmitter site as the
main studio. The station owner admitted on March 1, 2005 (and his
statement in the application for review does not contradict this prior
admission) that the transmitter site was unattended. Although
Twenty-One Sound cannot maintain that the transmitter building was its
main studio consistent with Section 1.115(c) of the Rules, even
assuming it could, Twenty-Sound's failure to maintain a full-time
managerial presence at the transmitter building also would constitute
a violation of Section 73.1125 of the Rules.
6. Failure to maintain a full-time managerial presence at a main studio
by itself constitutes a violation of Section 73.1125(a) of the Rules.
However, the Bureau also found that Twenty-One Sound failed to equip
the guard shack/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. Twenty-One Sound acknowledges that the guard
shack/main studio did not contain any production or transmission
equipment or a microphone. Twenty-One Sound again asserts that the
transmitter could be controlled or turned on and off via any telephone
or Internet DSL and that 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 on March 1, 2005,
the only guard on duty could not do so. Therefore, the Bureau did not
err in finding that the station failed to maintain continuous program
transmission capability and control of its transmitter from its main
7. Twenty-One Sound's owner again claims that an agent inspected the
station during a disaster inspection in 1997 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. As stated in the
Memorandum Opinion and Order, there was a disaster inspection of
KNSX(FM)'s tower, but no inspection of the station's main studio
occurred at that time. During the disaster inspection, the agent
notified Twenty-One Sound's owner of his failure to post an antenna
structure registration number and advised him to consult the broadcast
station inspection checklist. Moreover, the Bureau found that the
claim that the owner thought the main studio configuration was
compliant with the Rules was contradicted by his own statement made
during the March 1, 2005 inspection that he failed an alternative
broadcast inspection ("ABIP") conducted by the Missouri Broadcast
Association in the summer of 2004 because of problems with the
station's main studio. Accordingly, we find no error in the Bureau's
finding that Twenty-One Sound violated the main studio Rules.
8. Twenty-One Sound also alleges that its station setup meets the spirit
of the Commission's main studio Rules because its transmitter may be
controlled remotely via telephone and Internet DSL, and therefore, it
should not be responsible for a forfeiture for a technical violation
of the Rules. We disagree. Although the Commission has relaxed the
main studio requirements over time, it has not eliminated the
requirement that "[a] station must equip the main studio with
production and transmission facilities that meet applicable standards,
maintain continuous program transmission capability, and maintain a
meaningful management and staff presence." Accordingly, because the
Bureau found Twenty-One Sound failed to maintain a full-time
management presence and continuous program transmission capability at
its main studio, we do not find that the Bureau erred in its
imposition of a seven thousand dollar forfeiture.
9. In addition, Twenty-One Sound's owner disputes the Bureau's finding
that the station violated the EAS Rules. The owner claims that he had
sixty days to correct the problems with the station's EAS equipment.
The Commission previously concluded that the 60 days referenced in
Section 11.35(b) begin "only after the defective equipment has been
removed for repair or replacement." The Bureau found that Section
11.35(b) did not apply in this case, because the equipment was not
defective and had not been removed for repair or replacement. The
owner argues that the removal of equipment is not the first thing that
would be done when a problem with EAS equipment is noticed; tests
would be performed first. He claims that he would have discovered the
problems with his EAS equipment within 60 days. We conclude, however,
that the Bureau did not err in its interpretation of Section 11.35(b),
which states that a broadcast station may operate "without the
defective EAS equipment pending its repair or replacement for 60 days
without further FCC authority."
10. Finally, Twenty-One Sound requests reconsideration of the Bureau's
decision to impose a three thousand dollar forfeiture for failing to
make available a complete public inspection file. Twenty-One Sound
again claims that the forfeiture should be cancelled, because the
station's ownership report and license renewal and application 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.
The Bureau stated that "[r]egardless 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;" and
that "Twenty-One Sound is required to maintain a public file and is
responsible for ensuring that it is complete." We find no error in
that conclusion. Twenty-One Sound also argues that it is illogical to
penalize it for not having its license renewal and its license renewal
application in the station's public file. The Bureau, however, did not
penalize Twenty-One Sound for missing both its license renewal and
license renewal application, but rather for failure to maintain a
complete public inspection file.
11. Upon review of the Application for Review and the entire record
herein, we conclude that Twenty-One Sound has failed to demonstrate
that the Bureau erred. The Bureau properly decided the matters before
it, and we uphold its decision for the reasons stated in its
Forfeiture Order and Memorandum Opinion and Order.
III. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED, pursuant to section 1.115(g) of the
Commission's Rules, that the Application for Review filed by
Twenty-One Sound Communications, Inc. IS DENIED and the Memorandum
Opinion and Order IS AFFIRMED.
13. 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. 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, SW, Room 1A625, Washington, D.C. 20554.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by
first class mail and certified mail, return receipt requested, to
Twenty-One Sound at its address of record and to its counsel, Lee J.
Peltzman, Shainis & Peltzman, Chartered, 1850 M Street NW, Suite 240,
Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
47 C.F.R. S: 1.115.
Twenty-One Sound, Memorandum Opinion and Order, 20 FCC Rcd 18064 (Enf.
Bur. 2005) ("Memorandum Opinion and Order").
Twenty-One Sound, Forfeiture Order, 20 FCC Rcd 12497 (Enf. Bur. South
Central Region 2005) ("Forfeiture Order").
47 C.F.R. S:S: 11.35(a), 73.1125(a), 73.3526(a).
47 C.F.R. S: 1.115(c).
Twenty-One Sound also raises several issues related to the location of the
station's public file that are irrelevant to the violations found by the
Bureau. We do not address these issues, as the Bureau issued a forfeiture
for failing to maintain a complete public inspection file - not placing
the file in a deficient location.
Section 312(f)(1) of the Act, 47 U.S.C. S: 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 also Southern California
Broadcasting Co., 6 FCC Rcd 4387, 4388 (1991).
See 47 C.F.R. S: 1.115(c).
Twenty-One Sound states that production and transmission equipment was
housed at the station's transmitter site. However, as discussed supra,
Twenty-One Sound did not assert that the transmitter site served as its
main studio until its application for review.
Twenty-One Sound acknowledges that the guard shack was not equipped with a
DSL connection or computer. It did, however, contain a telephone.
Main Studio and Program Origination Rules, Memorandum Opinion and Order,
3 FCC Rcd 5024, 5026, para. 24 (1988). See Review of the Commission's
Rules Regarding the Main Studio and Local Pub. Inspection Files of
Broadcast Television and Radio Stations, Report and Order, 13 FCC Rcd
15691, paras. 7-17 (1998) (relaxing the geographical limitations on the
location of the main studio but rejecting proposals to further relax the
rules), revised in part on reconsideration, Memorandum Opinion and Order,
14 FCC Rcd 11113 (1999).
See A-O Broadcasting Corporation, Forfeiture Order, 18 FCC Rcd 27069,
27074, para. 18 (FCC 2003).
On January 8, 2005, the station's EAS unit did not automatically
retransmit the required monthly test. The station's logs show that the
station received the required monthly test on January 8, and originated,
rather than retransmitted, it. Moreover, the station's logs show that the
EAS unit failed to retransmit the required monthly test in February 2005.
The station's logs also failed to show any weekly tests between January 8,
2005 and March 1, 2005. We note that the station owner failed to provide
an explanation of why he would identify and correct the problem with his
EAS equipment within 7 days, when he failed to do so during the 53 days
prior to the agent's inspection.
In its petition for reconsideration, Twenty-One Sound alleged that someone
removed its license renewal application. In its application for review,
Twenty-One Sound claims that someone removed its license renewal.
During the March 1, 2005 inspection, the station owner stated that the
station's license had not yet been renewed. However, on March 1, 2005, the
station's public file did not contain its most recent license application,
so the NAL cited Twenty-One Sound for missing its license application. In
response to the NAL, Twenty-One Sound stated that its license was renewed
on January 21, 2005, so it was not required to have its license renewal
application in its public file. However, pursuant to Section 1.117 of the
Rules, an action issued pursuant to delegated authority is not final until
40 days after public notice of the action. 47 C.F.R. S: 1.117. Public
Notice of Twenty-One Sound's license renewal was published on January 26,
2005. Thus, its renewal was not final on March 1, 2005. Section
73.3526(e)(2) of the Rules states that applications shall be retained in
the public file until final action has been taken on the application.
Twenty-One Sound maintained neither its license renewal application nor
its license renewal in its public file on March 1, 2005. Twenty-One Sound
was only cited for missing three items - issues program lists, ownership
reports, and license renewal application/license renewal.
47 C.F.R. S: 1.115(g).
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission FCC 08-33
Federal Communications Commission FCC 08-33