Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
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.200532560002
Facility ID: 68579 )
Steelville, MO )
Florissant, MO FRN: 0009075656
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: April 12 , 2005
By the District Director, Kansas City Office, South Central
Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Twenty-One Sound
Communications, Inc. (``Twenty-One Sound''),
licensee of Station KNSX(FM) in Steelville,
Missouri, apparently liable for a forfeiture in
the amount of twenty five thousand dollars
($25,000) for willful and repeated violation of
Sections 11.35(a), 73.1125(a) and 73.3526(a) of
the Commission's Rules (``Rules'').1
Specifically, we find Twenty-One Sound apparently
liable for failing to maintain Emergency Alert
System (``EAS'') equipment in operational
readiness condition, failing to maintain a main
studio, and failing to maintain a public
inspection file consistent with the Rules.
II. BACKGROUND
2. On March 1, 2005, an agent with the
Commission's Kansas City Office of the Enforcement
Bureau (``Kansas City Office'') inspected the main
studio for Station KNSX(FM). The main studio was
located in a guard shack at the entrance to a
gated residential area near the KNSX transmitter
site in Woodland Lakes, Missouri. 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 only staffed by
guards, who worked for the nearby residential
community. The KNSX transmitter could not be
controlled from the guard shack. The owner of
Twenty-One Sound stated 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. The owner 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. Finally, the owner of
Twenty-One Sound stated that Station KNSX(FM) had
received numerous emails about the station, but
that these emails had not been placed in the
public file.
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 placed 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.
III. DISCUSSION
5. Section 503(b) of the Act provides that any
person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any
license, or willfully or repeatedly fails to
comply with any of the provisions of the Act or of
any rule, regulation or order issued by the
Commission thereunder, shall be liable for a
forfeiture penalty. The term ``willful'' as used
in Section 503(b) has been interpreted to mean
simply that the acts or omissions are committed
knowingly.2 The term ``repeated'' means the
commission or omission of such act more than once
or for more than one day.3
6. 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.4
Broadcast station licensees are also required to
receive, interrupt normal program, and transmit
certain EAS messages.5 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.6 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.7 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. Therefore, although its EAS unit was
installed and not defective, Twenty-One Sound
failed to maintain an operational EAS system.
7. 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.''8 The Commission
has defined a minimally acceptable ``meaningful
presence'' as full-time managerial and full-time
staff personnel.9 Section 73.1125(e) of the Rules
requires FM stations to maintain a local or toll-
free telephone number in its community of
license.10 The owner of Twenty-One Sound put
Station KNSX(FM) back on the air in 1996.
However, he was unable to provide evidence that
the station ever maintained a main studio. The
guard shack identified by the Secretary/General
Manager of Twenty-One Sound as the main studio did
not contain any production or transmission
equipment, was incapable of maintaining program
transmission capability,11 and was not staffed by
any managerial personnel or full-time station
staff personnel. The owner also admitted that his
station failed an ABIP based on main studio issues
and did not publish a number for the station in
any local telephone directories.
8. Section 73.3526(a) of the Rules requires
commercial broadcast stations to maintain for
public inspection, a file containing materials
listed in that section.12 The public inspection
file is to be maintained at the main studio of the
station13 and be available for public inspection
during regular business hours.14 The guard, who
was paid on occasion by the owner of Twenty-One
Sound to make the file available to the public,
worked between 3 P.M. and 11 P.M.15 It would also
be very difficult for the public to find the file,
as the guard shack was not labeled and the station
did not maintain a telephone number listed in the
local directories. Thus, the public file was not
available for inspection during normal business
hours. On March 1, 2005, the public file did not
contain the station's most recent license
application, any ownership reports, emails from
the public, or issues-programs lists after
December 24, 2003. Although the owner of Twenty-
One Sound claimed that some or all of the missing
items were removed from the file by the ABIP
inspector, several items that should have been
placed in the public file after the ABIP
inspection were also missing.
9. Based on the evidence before us, we find that
Twenty-One Sound apparently willfully and
repeatedly violated Sections 11.35(a), 73.1125(a),
and 73.3526(a) of the Rules by failing to maintain
an operational EAS system, failing to maintain a
main studio for Station KNSX(FM), and failing to
maintain a public inspection file as required by
the Rules.
10. Pursuant to Section 1.80(b)(4) the Rules,
the base forfeiture amounts for the listed
violations are: $8,000 for failure to maintain
operational EAS equipment; $7,000 for a violation
of a main studio rule; and $10,000 for failure to
maintain a public inspection file consistent with
the Rules.16 In assessing the monetary forfeiture
amount, we must also take into account the
statutory factors set forth in Section
503(b)(2)(D) of the Act,17 which include 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.'' Considering the entire
record and applying the statutory factors listed
above, this case warrants a $25,000 forfeiture.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934,
as amended,18 and Sections 0.111, 0.311 and 1.80
of the Commission's Rules,19 Twenty-One Sound
Communications, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount
of twenty five thousand dollars ($25,000) for
willful and repeated violation of Sections 11.35,
73.1125, and 73.3526 of the Rules, by failing to
maintain operational EAS equipment, failing to
maintain a main studio, and failing to maintain a
public inspection file as required.
12. IT IS FURTHER ORDERED that, pursuant to
Section 1.80 of the Commission's Rules,20 within
thirty days of the release date of this NAL,
Twenty-One Sound Communications, Inc. SHALL PAY
the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction
or cancellation of the proposed forfeiture.
13. Payment of the forfeiture may be made by
mailing a check or similar instrument, payable to
the order of the Federal Communications
Commission. Payment by check or money order may be
mailed to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482.
Payment by overnight mail may be sent to
BankOne/LB 73482, 525 West Monroe, 8th Floor
Mailroom, Chicago, IL 60661. Payment by wire
transfer may be made to ABA Number 071000013,
receiving bank Bank One, and account number
1165259. The payment should note the NAL/Acct.
No. 20053256002, and FRN 0009075656, referenced in
the letterhead above. Requests for payment of the
full amount of this NAL under an installment plan
should be sent to: Federal Communications
Commission, Chief, Revenue and Receivable
Operations Group, 445 12th street, SW, Washington,
D.C. 20554.
14. The response, if any, must be mailed to
Federal Communications Commission, Enforcement
Bureau, South Central Region, Kansas City Office,
520 N.E. Colbern Rd., Second Floor, Lees Summit,
Missouri, 64086 within thirty days of the release
date of this NAL and MUST INCLUDE THE NAL/Acct.
No. referenced above.
15. The Commission will not consider reducing or
canceling a forfeiture in response to a claim of
inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-
year period; (2) financial statements prepared
according to generally accepted accounting
practices (``GAAP''); or (3) some other reliable
and objective documentation that accurately
reflects the petitioner's current financial
status. Any claim of inability to pay must
specifically identify the basis for the claim by
reference to the financial documentation
submitted.
16. IT IS FURTHER ORDERED that a copy of this NAL
shall be sent by regular and Certified Mail Return
Receipt Requested to Twenty-One Sound
Communications, Inc. at its address of record and
its counsel, Lee Peltzman, 1850 M. St. N.W. Suite
240, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Robert C. McKinney
District Director
Kansas City Office
South Central Region
Enforcement Bureau
_________________________
1 47 C.F.R. §§ 11.35(a), 73.1125(a), and 73.3526(a)
2Section 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', when used with reference to the commission or
omission of any act, 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 4387
(1991).
3Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
also applies to violations for which forfeitures are
assessed under Section 503(b) of the Act, provides that
``[t]he 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.''
447 C.F.R. § 11.35(a).
5See 47 C.F.R. §§ 11.51(k), 11.52(e).
6See 47 C.F.R. §§ 11.51(k)(1), 11.52(e)(1).
7The owner claimed to run weekly EAS tests, but was unable
to explain why the EAS logs failed to include any weekly
tests between January 8, 2005 and March 1, 2005. The
owner/chief operator also claimed he was unaware that the
station was prohibited from originating its own required
monthly tests (``RMTs''). The station logs documented that
the RMTs were received but not retransmitted, as required by
47 C.F.R. § 11.61(a).
8Main Studio and Program Origination Rules, Memorandum
Opinion and Order, 3 FCC Rcd 5024, 5026 (1988).
9Jones Eastern of the Outer Banks, Inc., Memorandum Opinion
and Order, 6 FCC Rcd 3615, 3616 (1991), clarified 7 FCC Rcd
6800 (1992).
1047 C.F.R. § 73.1125(e).
11Although the station transmitter site was capable of
maintaining program transmission capability, the owner of
Twenty-One Sound did not identify the station transmitter
site as its main studio. Even if he had stated that the
transmitter site was the main studio, he admitted that the
transmitter site was unattended.
1247 C.F.R. § 73.3526(a).
13See 47 C.F.R. § 73.3526(b).
14See 47 C.F.R. § 73.3526(c)(1).
15The guard who worked from 3 P.M. to 11 P.M. stated he
lived in the nearby residential community and that the other
guards were supposed to call him if anyone came by when he
was not on duty. However, 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. Thus,
the public file was not available during regular business
hours.
1647 C.F.R. § 1.80.
1747 U.S.C. § 503(b)(2)(D).
1847 U.S.C. § 503(b).
1947 C.F.R. §§ 0.111, 0.311, 1.80.
2047 C.F.R. § 1.80.