Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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

**Adopted:** February 6, 2008 **Released:** February 8, 2008

By the Commission:

**I. INTRODUCTION**

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").[^1] Twenty-One Sound seeks review of
    the Enforcement Bureau's ("Bureau") *Memorandum Opinion and
    Order*[^2] denying Twenty-One Sound's petition for reconsideration
    of a *Forfeiture Order* issued July 27, 2005.[^3] 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").[^4] 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. DISCUSSION**

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."[^5] 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.[^6]

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.[^7] 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,[^8] 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.[^9] Twenty-One Sound again
    asserts that the transmitter could be controlled or turned on and
    off via any telephone or Internet DSL[^10] 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 studio.

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."[^11] 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."[^12] 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.[^13] 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[^14]
    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.[^15]

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,[^16] 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.[^17] 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.[^18]

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

> Secretary

[^1]: 47 C.F.R. § 1.115.

[^2]: *Twenty-One Sound*, Memorandum Opinion and Order, 20 FCC Rcd 18064
    (Enf. Bur. 2005) ("*Memorandum Opinion and Order*").

[^3]: *Twenty-One Sound*, Forfeiture Order, 20 FCC Rcd 12497 (Enf. Bur.
    South Central Region 2005) ("*Forfeiture Order*").

[^4]: 47 C.F.R. §§ 11.35(a), 73.1125(a), 73.3526(a).

[^5]: 47 C.F.R. § 1.115(c).

[^6]: 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.

[^7]: 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 also Southern California Broadcasting Co.*, 6 FCC Rcd
    4387, 4388 (1991).

[^8]: *See* 47 C.F.R. § 1.115(c).

[^9]: 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.

[^10]: Twenty-One Sound acknowledges that the guard shack was not
    equipped with a DSL connection or computer. It did, however, contain
    a telephone.

[^11]: *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).

[^12]: *See A-O Broadcasting Corporation*, Forfeiture Order, 18 FCC Rcd
    27069, 27074, para. 18 (FCC 2003).

[^13]: 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.

[^14]: 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.

[^15]: 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. § 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.

[^16]: 47 C.F.R. § 1.115(g).

[^17]: 47 U.S.C. § 504(a).

[^18]: *See* 47 C.F.R. § 1.1914.