Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | File Number EB-05-KC-017     |
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| 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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## 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 problem[^11] 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 application[^15]
    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.
    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

[^1]: *Twenty-One Sound*, Forfeiture Order, DA 05-2065 (Enf. Bur. South
    Central Region July 27, 2005) ("*Forfeiture Order*").

[^2]: 47 C.F.R. §§ 11.35(a), 73.1125(a), 73.3526(a).

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

[^4]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    20053256002 (Enf. Bur., Kansas City Office, April 12, 2005)
    ("*NAL*").

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

[^6]: 47 U.S.C. § 503(b).

[^7]: 47 C.F.R. § 1.80.

[^8]: 12 FCC Rcd. 17087 (1997), *recon. denied*, 15 FCC Rcd. 303 (1999).

[^9]: 47 U.S.C. § 503(b)(2)(D).

[^10]: *See 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.

[^11]: Twenty-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.

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

[^13]: We 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.

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

[^15]: We 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.

[^16]: 47 U.S.C. § 405.

[^17]: 47 C.F.R. § 1.106.

[^18]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^19]: 47 U.S.C. § 504(a).

[^20]: *See* 47 C.F.R. § 1.1914.