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 Federal  Communications  Commission  DA  05-  2973 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 


 In  the  Matter  of 
 Twenty-  One  Sound  Communications,  Inc.  Licensee,  KNSX(  FM) 
 Facility  ID:  68579  Steelville,  MO 
 Florissant,  MO 


 )  ) 
 )  ) 
 )  ) 
 )  ) 


 File  Number  EB-  05-  KC-  017 
 NAL/  Acct.  No.  200532560002 
 FRN:  0009075656 


 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  Commissions  Rules  (  Rules).  2  The  noted  violations  involved  Twenty-  One  Sounds  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  Commissions  (  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  stations  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 
 stations  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. 


 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. 
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 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 
 stations  public  file  was  incomplete,  rather  than  unavailable.  The  Enforcement  Bureau  received  Twenty-One  Sounds  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  Commissions  Forfeiture  Policy  Statement  and  Amendment  of 
 Section  1.80  of  the  Rules  to  Incorporate  the  Forfeiture  Guidelines.  8  In  examining  Twenty-  One  Sounds  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  Sounds  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 
 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 
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 Section  11.35(  b)  of  the  Rules  does  not  apply  in  this  case,  because  Twenty-  One  Sounds  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  Sounds  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  KNSXs  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  stations  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  Sounds  response  to  the 
 NAL.  We  reiterate  that  a  station  must  equip  its  main  studio  with  facilities  that  can  maintain  continuous 


 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). 
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 program  transmission  capability.  Twenty-  One  Sounds  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  Commissions  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  stations  main  studio.  Therefore,  the  agent  could  not  have  determined  whether  there  were  any  violations  at  the  stations  main  studio.  Moreover,  statements  made  by  the  station 
 owner  during  the  inspection  directly  contradict  Twenty-  One  Sounds  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  stations  public  file  violation,  because  the  stations  ownership  report  and  license  renewal 
 application  15  were  possibly  removed  by  an  individual  who  reviewed  the  stations  public  file  and  because  the  stations  issues  programs  lists  were  only  required  to  be  kept  for  a  few  days  after  the  March  1,  2005 
 inspection.  Twenty-  One  Sounds  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  stations  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  Commissions  Rules,  17  Twenty-  One  Sound 
 Communications,  Inc.  s  petition  for  reconsideration  of  the  July  27,  2005  Forfeiture  Order  IS  hereby  DENIED. 


 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  stations  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  stations  license  renewal  from  the  public  file. 


 16  47  U.  S.  C.    405. 
 17  47  C.  F.  R.    1.106. 
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 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 


 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. 
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