In re Twenty-One Sound Communications, Inc.
| Decision Date | 18 November 2005 |
| Docket Number | DA 05-2973,EB-05-KC-017 |
| Court | Federal Communications Commission Decisions |
| Parties | In the Matter of Twenty-One Sound Communications, Inc. Licensee, KNSX(FM) Facility ID: 68579 Steelville, MO Florissant, MO |
Adopted: November 16, 2005
NAL/Acct. No. 200532560002, FRN: 0009075656
George R. Dillon, Assistant Chief, Enforcement Bureau
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...
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