******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect to ASCII Text format. 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 WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of KRAL-AM and KIQZ-FM ) Mt. Rushmore Broadcasting, Inc. ) NAL/Acct. No: 815DV0001 Rawlins, Wyoming ) FORFEITURE ORDER Released: March 19, 1998 By the Compliance and Information Bureau: I. Introduction 1. Before the Bureau is a Notice of Apparent Liability (NAL) dated December 1, 1997 and a December 30, 1997 response thereto filed by Mt. Rushmore Broadcasting, Inc., (Rushmore) licensee of co-located broadcast stations KRAL-AM and KIQZ-FM, Rawlins, Wyoming. Rushmore requests that the Bureau "reduce to zero" the $4,000 forfeiture amount proposed in the NAL. Pursuant to Section 503(b) of the Communications Act of 1934, as amended (the Act), 47 U.S.C.  503(b), and Section 1.80 of the Commission's Rules, 47 C.F.R  1.80, the NAL assessed a forfeiture against Rushmore for willful and repeated violations of the Commission's Rules relating to the Emergency Alert System (EAS), Sections 11.52(d), 11.61(a), 11.61(b), and 11.61(a)(1)(iii) of the rules, and Section 1.89 of the rules for failure to reply to an Official Notice of Violation as requested. 47 C.F.R  11.52(d), 11.61(a), 11.61(b), 11.61(a)(1)(iii), and 1.89. 2. For the reasons set forth below, we affirm the forfeiture at $4,000. II. Background 3. As enumerated in the NAL, which is incorporated herein by reference, the EAS violations were discovered during inspections conducted on June 19, 1997, and July 10, 1997, by an agent from the Compliance and Information Bureau's Denver Field Office. In addition to the EAS violations, Rushmore failed to respond to the second Official Notice of Violation by the due date, regarding EAS deficiencies which had remained uncorrected from the first inspection. 4. In its response, Rushmore's president states that the company's general manager informed him of the EAS violations soon after the first inspection, and that the general manager assured him that the matter had been taken care of and that the stations were in compliance. The president contends that he heard nothing further about the violations at the Rawlings stations until he found the December 1, 1997 NAL on a visit to the company's stations in Casper, Wyoming. He questioned the general manager and the operations manager about the Rawlings stations, but they had no explanation for not responding to the second Official Notice of Violation. The president also states that he terminated the managers' employment because they had not taken care of the EAS problems in a timely manner and had not been truthful with him about the matter. 5. The president also states that he since has assumed responsibility for all responses to the Commission. He emphasizes that, his past employment experience, as senior vice president and general counsel of an unnamed large company in Los Angeles, had instilled in him the importance of complying with all applicable laws and regulations. He states that Mt. Rushmore operates eleven stations in South Dakota and Wyoming and had not received a fine since commencing operations in 1991. Finally, he contends that Mt. Rushmore has lost money every year between 1993 and 1996, and attaches relevant portions of the company's income tax returns for those years in support of his contention. III. Discussion 6. As stated in the NAL, Section 503 of the Act provides that broadcast licensees and cable operators may be subject to forfeitures not to exceed $27,500 for each violation or each day of a continuing violation not to exceed $275,000 for willful or repeated violation of the Communications Act or the Commission's rules. 47 U.S.C 503(b)(2)(A). In assessing such a fine, 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 such other matters as justice may require." 47 U.S.C 503(b)(2)(D). We now turn to the factors presented by Rushmore in its response. 7. As an initial matter, we note that the response does not contest that Mt. Rushmore is not accountable for the violations that occurred, but that the actions and inaction of several of its employees prevented the matter from being properly resolved, which gave rise to additional violations. As a licensee, Mt. Rushmore is responsible for the actions of its employees. Triad Broadcasting, Inc., 96 FCC 2d 1235 (1984), citing James C. Vernon, 30 FCC 2d 456 (1971) (licensee not excused for violation even when possibly deceived by an employee). 8. Regarding its ability to pay, Mt. Rushmore presents portions of its income tax returns for the years 1993 to 1996 in support of its claim that it is unable to pay the forfeiture. However, the fact that Mt. Rushmore claims to have suffered financial losses for these years does not warrant our reducing the forfeiture amount in this case. In this connection, the Commission has previously stated that, in general, a licensee's gross revenues is the best indicator of its ability to pay a forfeiture. PJB Communications of Virginia, 7 FCC Rcd 2088 (1992). In consideration of the tax information supplied by Mt. Rushmore, it appears that the company's gross revenues increased substantially from 1993 to 1996. Consequently, we are not persuaded, by Mt. Rushmore's claim, that it is suffering economic hardship. 9. For the foregoing reasons, we affirm the forfeiture amount of $4,000. IV. Ordering Clauses 10. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, 47 U.S.C 503(b), and Sections 1.80 and 1.106 of the Commission's Rules, 47 C.F.R  1.80, 1.106, that Mt. Rushmore Broadcasting, Inc. IS APPARENTLY LIABLE FOR A MONETARY FORFEITURE in the amount of $4,000 for willful and repeated violations of Sections 11.52(d), 11.61(a), 11.61(b), and 11.61(a)(1)(iii) of the Commission's Rules, 47 C.F.R  11.52(d), 11.61(a), 11.61(b), and 11.61(a)(1)(iii), and for willful violation of Section 1.89 of the Commission's Rules, 47 C.F.R.  1.89. 11. IT IS FURTHER ORDERED, pursuant to Section 1.80(f)(3) of the Commission's rules, 47 C.F.R 1.80(f)(3), that Mt. Rushmore Broadcasting, Inc. shall, within thirty (30) days of the date of release of this Notice, pay the full amount of the forfeiture or file a written response showing why the forfeiture should be reduced or not imposed. Any written response must include a detailed factual statement and supporting documentation. Forfeitures shall be paid by check, credit card or money order payable to the Federal Communications Commission. The remittance should be marked "NAL/Acct. No 815DV0001 and mailed to the following address: Federal Communications Commission Post Office Box 73482 Chicago, Illinois 60673-7482 Petitions for Reconsideration pursuant to Section 1.106, 47 C.F.R.  1.106 of the Rules, or Applications for Review pursuant to Section 1.115, 47 C.F.R.  1.115, should be sent to: Chief, Compliance Division Compliance and Information Bureau Federal Communications Commission 1919 M Street, N.W. Washington, D.C. 20554 Attn: Mail Stop 1500E3DCC 12. IT IS FURTHER ORDERED that this notice shall be sent, by certified mail, return receipt requested, to Mt. Rushmore Broadcasting, Inc., Box 218 North Wolcott, Casper, Wyoming, 82601. FEDERAL COMMUNICATIONS COMMISSION Pamera D. Hairston Chief, Compliance Division Compliance and Information Bureau