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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. 20053256002
Facility ID: 68579 )
Steelville, MO )
Florissant, MO FRN: 0009075656
Adopted: July 25, 2005
Released: July 27, 2005
By the Regional Director, South Central Region, Enforcement
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eighteen thousand
dollars ($18,000) to Twenty-One Sound Communications, Inc.
(``Twenty-One Sound''), licensee of Station KNSX(FM) in
Steelville, Missouri, for willful and repeated violation of
Sections 11.35(a), 73.1125(a), and 73.3526(a) of the
Commission's Rules (``Rules'').1 The noted violations
involve 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. On March 1, 2005, an agent with the Commission's
Kansas City Office of the Enforcement Bureau (``Kansas City
Office'') attempted to inspect the main studio for Station
KNSX(FM). The agent found signs at the KNSX(FM) transmitter
site in Woodland Lakes, Missouri that stated the main studio
was located in a guard shack at the entrance to a gated
residential area near the transmitter site.2 The agent
observed that there were no signs on or near the guard shack
that indicated it was associated with the station. The
guard shack was staffed twenty-four hours per day by a
single guard. The guards who manned the guard shack worked
for the nearby residential community. The guard on duty
during the inspection, who worked between 3 P.M. and 11
P.M., stated that he was the only guard paid on occasion by
the station owner to make the public file available to the
public. There was no microphone or transmission or
production equipment of any kind in the guard shack. All of
the equipment which enabled the station to operate was
located at the transmitter site. The guard stated that the
KNSX transmitter could not be controlled from the guard
shack. The station owner contemporaneously stated that he
was in the process of obtaining a main studio in Sullivan,
Missouri for Station KNSX(FM) and Station KESY(FM), a co-
owned station licensed to Cuba, Missouri. The owner also
admitted that the station did not publish a local or toll-
free number in the Steelville telephone directory.
3. During the inspection on March 1, 2005, 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.
4. 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 stations assigned to it.
5. 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.3
On June 6, 2005, Twenty-One Sound submitted a response to
the NAL requesting cancellation or reduction of the proposed
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Act,5
Section 1.80 of the Commission's Rules (``Rules''),6 and The
Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC
Rcd 303 (1999) (``Forfeiture Policy Statement''). In
examining Twenty-One Sound'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 other such matters as justice may require.7
7. Section 11.35(a) of the Rules requires broadcast
station licensees to ensure that EAS Encoders, EAS Decoders
and Attention Signal generating and receiving equipment used
as part of the EAS are installed so that the monitoring and
transmitting functions are available during the times the
stations and systems are in operation.8 Broadcast station
licensees are also required to receive, interrupt normal
program, and transmit certain EAS messages.9 When
facilities are unattended, Sections 11.51 and 11.52 of the
Rules require licensees to employ automatic systems to
interrupt programming and transmit certain EAS messages.10
On March 1, 2005, the EAS unit for Station KNSX(FM) was
installed at its unattended KNSX transmitter site and set in
manual mode. The owner of Twenty-One Sound claimed to visit
the site occasionally to transmit manually the required
weekly and monthly EAS tests. He admitted, however, that,
since he put the station back on the air in 1996, the
transmitter site had never been regularly staffed. Thus,
the EAS unit at this unattended transmitter site should have
been set on an automatic mode. Because the EAS unit was set
in manual mode, if an actual and unscheduled EAS message was
received, no person would be present at the EAS transmitter
site to interrupt normal programming and transmit the EAS
message or test. Therefore, although its EAS unit was
installed and not defective, Twenty-One Sound failed to
maintain an operational EAS system.
8. In its response, Twenty-One Sound does not deny
that its EAS unit was set in a manual mode on March 1, 2005,
but, nevertheless, requests cancellation or reduction of the
proposed forfeiture. Twenty-One Sound alleges that the EAS
unit was originally set in an automatic mode and, due to a
power outage or equipment glitch, reverted to the manual
mode on an undisclosed date. Twenty-One Sound claims that
the problem would have been found and corrected when the EAS
equipment did not function properly during the next required
monthly test. If Twenty-One Sound's EAS unit was set in an
automatic mode and only recently switched to manual mode,
its EAS unit should have functioned properly in January and
February of 2005. However, 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. Although the
station owner claimed to have conducted the weekly and
monthly tests, there was no evidence that any weekly or
monthly tests were conducted by the station between January
8 and March 1, 2005. The EAS unit's logging system and
printer worked properly on January 8, 2005 and again when it
was tested on March 1, 2005. The station owner stated that
he was unaware of any damage or repairs to the EAS unit's
logging system and printer between January 8 and March 1.
The station owner knew or should have known that its EAS
unit was not set in automatic mode when it failed to
retransmit the January and February monthly tests.
Accordingly, we find no basis to cancel or reduce the
forfeiture associated with this violation.
9. Section 73.1125(a) of the Rules requires FM
stations to maintain a main studio. ``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.''11 The Commission has
defined a minimally acceptable ``meaningful presence'' as
full-time managerial and full-time staff personnel.12 The
guard shack/main studio at the time of inspection was
staffed by a single guard. Twenty-One Sound asserts in its
response that the guard on duty during the inspection was
the station manager. However, when the agent questioned the
guard, the guard stated, in the presence of the station
owner, that he was not considered part of station
management. The owner did not dispute contemporaneously the
guard's statements. Accordingly, we cannot rely upon
Twenty-One Sound's assertion that the guard was the station
manager without corroborating documentation. Thus, we
conclude Twenty-One Sound failed to maintain full-time
managerial personnel. Twenty-One Sound also claims that the
guard could control the transmitter and originate
programming from the main studio via the telephone, and it,
therefore, equipped its main studio with production and
transmission facilities that meet applicable standards. No
radio equipment of any kind, however, was located in the
guard shack other than a telephone. All of the station's
equipment was located at the transmitter site. Moreover,
when asked if he could control the station transmitter, the
only guard on duty stated explicitly that he could not
control the transmitter from the guard shack. Assuming
agruendo that the guard did know how to control the
transmitter from the guard shack, the guard still could not
maintain continuous program transmission capability, because
there was only one telephone line to the guard shack. If
the guard placed or received a phone call during his shift,
he would not be able to control the transmitter or originate
programming. Therefore, we find that Twenty-One Sound
failed to equip its main studio with production and
transmission facilities that meet applicable standards and
failed to maintain continuous program transmission
10. In addition, Twenty-One Sound questions the
fairness of the main studio rules for lower power stations,
because higher power stations have larger principal
community contours and greater flexibility in locating their
main studios. The Commission has addressed this concern,
however, by allowing stations to locate their main studios
within either the station's community of license, 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 within twenty-five miles from the
reference coordinates of the center of its community of
license.13 Thus, lower power stations and higher power
stations serving the same community would have almost the
same options in locating their main studios. Twenty-One
Sound also states that it has now obtained a new main studio
for the station in Cuba, Missouri. Licensees are expected
to take prompt remedial action to comply with the Rules
after being informed of a violation, so such action does not
warrant a reduction in the forfeiture.14
11. Section 73.3526(a) of the Rules requires
commercial broadcast stations to maintain for public
inspection, a file containing materials listed in that
section.15 The public inspection file is to be maintained
at the main studio of the station16 and be available for
public inspection during regular business hours.17 The
Kansas City Office found that the station's public file was
apparently unavailable to the public during normal business
hours, because the guard on duty stated that he was the only
guard to provide the public file to members of the public
and that the other guards were supposed to call him if
anyone came by between 9 A.M. and 3 P.M.18 The Kansas City
Office also concluded that it would be very difficult for
the public to find the file, as the guard shack was not
labeled19 and the station did not maintain a telephone
number listed in the local directories.20 In its response
to the NAL, Twenty-One Sound asserts that the other guards,
who worked between 9 A.M. and 3 P.M., would make the public
file available to members of the public. It is possible
that the station owner failed to inform the guard on duty of
this fact, and we have no other evidence to contradict the
station owner's assertion that the file would have been
available to members of the public between 9 A.M. and 3 P.M.
Therefore, we reduce the forfeiture associated with this
violation from $10,000 to $3,000, because the public file
was partially complete and was only missing the station's
license renewal,21 ownership reports, and issues-programs
lists22 after December 24, 2003.23
12. We have examined Twenty-One Sound's response to
the NAL pursuant to the statutory factors above, and in
conjunction with the Forfeiture Policy Statement. As a
result of our review and based on the evidence, we find that
Twenty-One Sound willfully24 and repeatedly25 violated
Sections 11.35(a), 73.1125(a) and 73.3526(a) of the Rules by
failing to maintain EAS equipment in operational readiness
condition, failing to maintain a main studio in compliance
with the Rules, and failing to maintain a complete public
inspection file. We find it appropriate to reduce the
forfeiture for these violations from $25,000 to $18,000.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Commission's Rules,26 Twenty-One Sound Communications, Inc.
IS LIABLE FOR A MONETARY FORFEITURE in the amount of
eighteen thousand hundred dollars ($18,000) for willfully
and repeatedly violating Sections 11.35(a), 73.1125(a) and
73.3526(a) of the Rules.
14. 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.27 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: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
15. 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.
at its address of record and its counsel, Lee J. Peltzman,
Shainis & Peltzman, Chartered, 1850 M Street NW, Suite 240,
Washington, DC 20036.
Dennis P. Carlton
Regional Director, South
147 C.F.R. §§ 11.35(a), 73.1125(a), and 73.3526(a).
2The KNSX(FM) transmitter was located nearby but not within
the gated residential community.
3Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
20053256002 (Enf. Bur., Kansas City Office, April 12, 2005)
4Twenty-One Sound requested an extension of time in which
to submit a response to the NAL, which was granted by the
Kansas City Office.
547 U.S.C. § 503(b).
647 C.F.R. § 1.80.
747 U.S.C. § 503(b)(2)(D).
847 C.F.R. § 11.35(a).
9See 47 C.F.R. §§ 11.51(k), 11.52(e).
10See 47 C.F.R. §§ 11.51(k)(1), 11.52(e)(1).
11Main Studio and Program Origination Rules, Memorandum
Opinion and Order, 3 FCC Rcd 5024, 5026 (1988).
12Jones Eastern of the Outer Banks, Inc., Memorandum Opinion
and Order, 6 FCC Rcd 3615, 3616 (1991), clarified 7 FCC Rcd
13See 47 C.F.R. § 73.1125(a).
14See AT&T Wireless Services, Inc., 17 FCC Rcd 21861,
21864-75 (2002); Sonderling Broadcasting Corp., 69 FCC 2d
289, 291 (1978); Odino Joseph, 18 FCC Rcd 16522, 16524,
para. 8 (Enf. Bur. 2003); South Central Communications
Corp., 18 FCC Rcd 700, 702-03, para. 9 (Enf. Bur. 2003);
Northeast Utilities, 17 FCC Rcd 4115, 4117, para. 13 (Enf.
1547 C.F.R. § 73.3526(a).
16See 47 C.F.R. § 73.3526(b).
17See 47 C.F.R. § 73.3526(c)(1).
18Although the guard lived in the nearby residential
community, there is no guarantee that this guard would be
reachable or that he would arrive at the guard shack within
a reasonable period of time for members of the public that
arrived between 9 A.M. and 3 P.M.
19Twenty-One Sound asserts in its response to the NAL that
there were signs not far from the guard shack that stated
the guard shack was the station's main studio. The only
sign the agent could find, however, was located at the
transmitter site. That sign referenced the guard shack,
but did not indicate which guard shack, of the several in
the residential complex, served as the main studio. If an
agent, who was looking for appropriate signage, could not
find the main studio's signage, members of the general
public would likely have similar difficulties locating the
20The station did maintain a toll-free telephone number
that was listed in 800 directory assistance.
21The NAL noted that Twenty-One Sound's public file was
missing a copy of its most recent license application.
During the inspection, the station owner stated that the
Commission had not yet renewed its license. However, in
its response to the NAL, Twenty-One Sound states that its
license was renewed on January 21, 2005. The public file
contained neither the most recent license application, nor
the license renewal.
22Twenty-One Sound correctly notes that issues-programs
lists are only to be retained until final action has been
taken on the station's next license renewal application.
Twenty-One Sound asserts that it was not required to have
any issues-programs lists on March 1, 2005, because its
license was renewed on January 21, 2005. 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. § 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, and the issues-programs lists from 2004 were required
to be maintained in the file.
23The NAL also stated that the station's public file was
missing emails from the public. During the inspection, the
station owner stated that the station received numerous
emails from the public, but that he failed to place them in
the public file. However, in its response to the NAL,
Twenty-One Sound asserts that the emails in question were
not required to be placed in the file, because they were
merely record requests.
24Section 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., 6 FCC Rcd
25The term ``repeated,'' when used with reference to the
commission or omission of any act, ``means the commission
or omission of such act more than once or, if such
commission or omission is continuous, for more than one
day.'' 47 U.S.C. § 312(f)(2).
2647 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
2747 U.S.C. § 504(a).
28See 47 C.F.R. § 1.1914.