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Mt. Rushmore Broadcasting, Inc.

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Released: July 26, 2012

Federal Communications Commission

DA 12-1182

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)
Mt. Rushmore Broadcasting, Inc.
)
File No.: EB-FIELDWR-12-00002388
)
NAL/Acct. No.: 201232800004
Licensee of Station KMLD(FM) and
)
FRN: 0008230559
Station WLP722
)
Facility ID No.: 11927
Casper, Wyoming
)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

Adopted: July 25, 2012

Released: July 26, 2012

By the District Director, Denver Office, Western Region, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture and Order (NAL), we find that Mt.
Rushmore Broadcasting, Inc. (Mount Rushmore), licensee of Station KMLD(FM) in Casper, Wyoming,
apparently willfully and repeatedly violated Section 1.903(a) of the Commission’s rules (Rules),1 by
operating a studio-transmitter link (STL) at a location not authorized by its license. We conclude that Mt.
Rushmore is apparently liable for a forfeiture in the amount of eight thousand dollars ($8,000). In addition,
we direct Mount Rushmore to submit, no later than thirty (30) calendar days from the date of this NAL, a
statement, signed under penalty of perjury, attesting to its compliance with the Commission’s licensing
requirements for the STL.2

II.

BACKGROUND

2.
On Wednesday, August 17, 2011, an agent from the Enforcement Bureau’s Denver Office
(Denver Office) conducted an inspection of Station KMLD(FM) and its associated STL, Station WLP722.
The agent monitored Station WLP722 operation on its authorized frequency 946.0 MHz from the Station
KMLD(FM) main studio, located at 218 N. Wolcott Street, Casper, Wyoming. According to the Station
WLP722 authorization, the STL is licensed to operate at 150 N. Nichols Street, Casper, Wyoming,
approximately 0.3 miles from its current location.
3.
On December 23, 2011, the Denver Office issued a Letter of Inquiry (LOI) to Mount
Rushmore requesting additional details regarding the license and operation of the Station KMLD(FM) STL.3
After multiple extensions, Mount Rushmore responded on April 11, 2012.4 In the LOI Response, Mount


1 47 C.F.R. § 1.903(a).
2 47 C.F.R. § 1.903(a).
3 See Letter of Inquiry from Nikki P. Shears, District Director, Denver Office, Western Region, FCC Enforcement
Bureau, to Mt. Rushmore Broadcasting, Inc. (Dec. 23, 2011) (on file in EB-FIELDWR-12-00002388).
4 See Letter from Lee J. Peltzman, Esquire, Counsel for Mt. Rushmore Broadcasting, Inc., to Nikki P. Shears,
District Director, Denver Office, Western Region, FCC Enforcement Bureau (filed Apr. 11, 2012) (on file in EB-
FIELDWR-12-00002388) (LOI Response).

Federal Communications Commission

DA 12-1182

Rushmore stated that the STL had been in operation as the primary delivery mechanism for Station
KMLD(FM) programming since August 31, 2001, and that an application to change the location of Station
WLP722 should have been filed when Station KMLD moved its main studio in “late 2001 or early 2002”
but could not produce a valid FCC authorization for the STL.5 On May 24, 2012, Mount Rushmore filed an
application with the Commission to modify the Station WLP722 license to reflect the station’s current
location.6

III.

DISCUSSION

4.
Section 503(b) of the of the Communications Act of 1934, as amended (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.7 Section
312(f)(1) of the Act defines “willful” as the “conscious and deliberate commission or omission of [any] act,
irrespective of any intent to violate” the law.8 The legislative history to Section 312(f)(1) of the Act clarifies
that this definition of willful applies to both Sections 312 and 503(b) of the Act,9 and the Commission has so
interpreted the term in the Section 503(b) context.10 The Commission may also assess a forfeiture for
violations that are merely repeated, and not willful.11 The term “repeated” means the commission or
omission of such act more than once or for more than one day.12

A.

Operation at an Unauthorized Location

5.
The evidence in this case is sufficient to establish that Mount Rushmore violated Section
1.903(a) of the Rules. Section 1.903(a) of the Rules requires that stations in the Wireless Radio Services
must be used and operated only in accordance with the rules applicable to their particular service, and
with a valid authorization granted by the Commission.13 At the time of the August 17, 2011, inspection,


5 LOI Response, Jan Gray Declaration at 4.
6 See File No. 0005232128, submitted May 24, 2012 (Station WLP722 Modification Application). As of the date of
this NAL, the Station WLP722 Modification Application remains pending.
7 47 U.S.C. § 503(b).
8 47 U.S.C. § 312(f)(1).
9 H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) (“This provision [inserted in Section 312] defines the terms
‘willful’ and ‘repeated’ for purposes of section 312, and for any other relevant section of the act (e.g., Section 503)
. . . . As defined[,] . . . ‘willful’ means that the licensee knew that he was doing the act in question, regardless of
whether there was an intent to violate the law. ‘Repeated’ means more than once, or where the act is continuous, for
more than one day. Whether an act is considered to be ‘continuous’ would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in Sections 312 and 503, and are consistent with
the Commission’s application of those terms . . . .”).
10 See, e.g., Application for Review of Southern California Broadcasting Co., Memorandum Opinion and Order, 6
FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd 3454 (1992).
11 See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359,
1362, para. 10 (2001) (Callais Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable television operator’s
repeated signal leakage).
12 Section 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.” See Callais Cablevision, Inc., 16 FCC Rcd at 1362.
13 47 C.F.R. § 1.903(a).
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Federal Communications Commission

DA 12-1182

Mount Rushmore was operating Station WLP722, the Station KMLD(FM) STL at a location
approximately 0.3 miles from its authorized location. Mount Rushmore acknowledges the continuous
operation of Station WLP722 at this location since August 31, 2001, but is unable to provide any
evidence of a Commission authorization for operation at this location. Based on the evidence before us,
we find that Mount Rushmore apparently willfully and repeatedly violated Section 1.903(a) of the Rules by
operating Station WLP722 at allocation not authorized on its license.

B.

Proposed Forfeiture Amount and Reporting Requirement

6.
Pursuant to the Commission’s Forfeiture Policy Statement and Section 1.80 of the Rules,
the base forfeiture amount for operation at an unauthorized location is $4,000.14 In assessing the monetary
forfeiture amount, we must also take into account the statutory factors set forth in Section 503(b)(2)(E) of
the Act, which include the nature, circumstances, extent, and gravity of the violations, 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.15 Applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory
factors to the instant case, we find no downward adjustments are warranted, but conclude that an upward
adjustment is warranted because of the long duration of Mount Rushmore’s operation of the Station
WLP722 at a location not authorized on its license.16 Accordingly, we propose a forfeiture amount of
$8,000 rather than the base forfeiture amount to Mount Rushmore for its prolonged operation of the Station
KMLD(FM) STL at an unauthorized location. Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we conclude that Mount Rushmore is apparently
liable for a total forfeiture in the amount of eight thousand dollars ($8,000).
7.
We further order Mount Rushmore to submit a written statement, pursuant to Section 1.16
of the Rules, signed under penalty of perjury by an officer or director of Mount Rushmore, stating that it is
operating Station KMLD(FM) and Station WLP722 in compliance with Section 1.903(a) of the Rules,17 and
detailing the specific actions taken by Mount Rushmore to come into compliance. This statement must be
provided to the Denver Office at the address listed in paragraph 10 within thirty (30) calendar days of the
release date of this Notice of Apparent Liability for Forfeiture and Order.

IV.

ORDERING CLAUSES

8.
Accordingly,

IT IS ORDERED

that, pursuant to Section 503(b) of the Communications
Act of 1934, as amended, and Sections 0.111, 0.204, 0.311, 0.314, and 1.80 of the Commission’s rules, Mt.
Rushmore Broadcasting, Inc., is hereby

NOTIFIED

of this

APPARENT LIABILITY FOR A
FORFEITURE

in the amount of eight thousand dollars ($8,000) for violation of Section 1.903(a) of the
Rules.18


14 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines
, Report and Order, 12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80.
15 47 U.S.C. § 503(b)(2)(E).
16 See 47 C.F.R. §1.80(b)(5), Note to Paragraph (b)(5): Section II. Adjustment Criteria for Section 503 Forfeitures
(establishing “repeated or continuous violation” as an upward adjustment factor). We also note that Mount
Rushmore has previously been assessed a forfeiture for violating Section 301 of the Act by operating an unlicensed
STL. See Mount Rushmore Broadcasting, Inc., Memorandum Opinion and Order, 18 FCC Rcd 19804 (Enf. Bur.
2003) (forfeiture paid).
17 47 C.F.R. § 1.903(a).
18 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.204, 0.311, 0.314, 1.80, 1.903(a).
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Federal Communications Commission

DA 12-1182

9.

IT IS FURTHER ORDERED

that, pursuant to Section 1.80 of the Commission’s rules,
within thirty (30) calendar days of the release date of this Notice of Apparent Liability for Forfeiture and
Order, Mt. Rushmore Broadcasting, Inc.,

SHALL PAY

the full amount of the proposed forfeiture or

SHALL FILE

a written statement seeking reduction or cancellation of the proposed forfeiture.
10.

IT IS FURTHER ORDERED

that Mt. Rushmore Broadcasting, Inc.,

SHALL SUBMIT

a written statement, as described in paragraph 7, within thirty (30) calendar days of the release date of this
Notice of Apparent Liability for Forfeiture and Order. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Western Region, Denver District Office, 215 S.
Wadsworth Blvd., Suite 303, Lakewood, Colorado 80226. Mt. Rushmore shall also e-mail the written
statement to WR-Response@fcc.gov.
11.
Payment of the forfeiture must be made by check or similar instrument, wire transfer, or
credit card, and must include the NAL/Account number and FRN referenced above. Mt. Rushmore
Broadcasting, Inc., shall send electronic notification of payment to WR-Response@fcc.gov on the date
said payment is made. Regardless of the form of payment, a completed FCC Form 159 (Remittance
Advice) must be submitted.19 When completing the FCC Form 159, enter the Account Number in block
number 23A (call sign/other ID) and enter the letters “FORF” in block number 24A (payment type
code). Below are additional instructions you should follow based on the form of payment you select:
Ÿ
Payment by check or money order must be made payable to the order of the Federal
Communications Commission. Such payments (along with the completed Form 159) must be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-
9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-
GL, 1005 Convention Plaza, St. Louis, MO 63101.
Ÿ
Payment by wire transfer must be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure
appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank
at (314) 418-4232 on the same business day the wire transfer is initiated.
Ÿ
Payment by credit card must be made by providing the required credit card information on
FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment.
The completed Form 159 must then be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank –
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101.
12.
Any request for full payment under an installment plan should be sent to: Chief Financial
Officer—Financial Operations, Federal Communications Commission, 445 12th Street, S.W., Room 1-
A625, Washington, D.C. 20554.20 If you have questions regarding payment procedures, please contact
the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
13.
The written statement seeking reduction or cancellation of the proposed forfeiture, if any,
must include a detailed factual statement supported by appropriate documentation and affidavits pursuant


19 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
20 See 47 C.F.R. § 1.1914.
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Federal Communications Commission

DA 12-1182

to Sections 1.16 and 1.80(f)(3) of the Rules.21 Mail the written statement to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver District Office, 215 S. Wadsworth Blvd.,
Suite 303, Lakewood, Colorado 80226, and include the NAL/Acct. No. referenced in the caption. Mt.
Rushmore Broadcasting, Inc., also shall email the written response to WR-Response@fcc.gov.
14.
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.
15.

IT IS FURTHER ORDERED

that a copy of this Notice of Apparent Liability for
Forfeiture and Order shall be sent by both Certified Mail, Return Receipt Requested, and regular mail to
Notice of Apparent Liability for Forfeiture shall be sent by both Certified Mail, Return Receipt Requested,
and regular mail to Mt. Rushmore Broadcasting, Inc., at 218 N. Wolcott Street, Casper, Wyoming 82601-
1923, and to its counsel, Lee J. Peltzman, Esq., Shainis & Peltzman, Chartered, 1850 M Street, NW, Suite
240, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau


21 47 C.F.R. §§ 1.16, 1.80(f)(3).
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