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 File No.: EB-FIELDWR-12-00002409
)
Mt. Rushmore Broadcasting, Inc. NAL/Acct. No.: 201232800006
)
Licensee of Station KHOC(FM) FRN: 0008230559
)
Casper, Wyoming Facility ID No.: 15925
)
)
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 KHOC(FM) in Casper, Wyoming, apparently willfully
and repeatedly violated Section 301 of the Communications Act of 1934,
as amended (Act), by operating a studio-transmitter link (STL) without
an authorization. We conclude that Mt. Rushmore is apparently liable
for a forfeiture in the amount of twenty thousand dollars ($20,000).
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.
II. BACKGROUND
2. On Wednesday, August 17, 2011, an agent from the Enforcement Bureau's
Denver Office (Denver Office) conducted an inspection of Station
KHOC(FM) and its associated STL (Station KHOC(FM) STL). The agent
monitored the Station KHOC(FM) STL operation on frequency 944.5 MHz
from the station's main studio. An on-scene query of the Commission's
databases showed no license issued to Mount Rushmore for an STL on
frequency 944.5 MHz in Casper, WY, and Mount Rushmore was unable to
produce a Commission authorization for its the operation of the
Station KHOC(FM) STL.
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 KHOC(FM) STL. After multiple
extensions, Mount Rushmore responded on April 11, 2012. In the LOI
Response, Mount Rushmore stated that the STL had been in operation as
the primary delivery mechanism for Station KHOC(FM) programming since
April 7, 2000, and could not produce a valid FCC authorization for the
STL. On May 24, 2012, Mount Rushmore submitted an application to the
Commission requesting authority to operate an STL on frequency 944.5
MHz for Station KHOC(FM) in Casper, WY.
III. DISCUSSION
4. 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. 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. 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, and the
Commission has so interpreted the term in the Section 503(b) context.
The Commission may also assess a forfeiture for violations that are
merely repeated, and not willful. The term "repeated" means the
commission or omission of such act more than once or for more than one
day.
A. Operation of an Unlicensed Studio-Transmitter Link
5. The evidence in this case is sufficient to establish that Mount
Rushmore violated Section 301 of the Act. Section 301 of the Act
requires that "[n]o person shall use or operate any apparatus for the
transmission of energy or communications or signals by radio ...
except under and in accordance with this Act and with a license in
that behalf granted under the provisions of this Act." At the time of
the August 17, 2011, inspection, Mount Rushmore was operating an
unlicensed STL on the frequency of 944.5 MHz. Mount Rushmore
acknowledges the continuous operation of this STL since April 7, 2000,
but is unable to provide any evidence of a Commission authorization
for this operation. Based on the evidence before us, we find that
Mount Rushmore apparently willfully and repeatedly violated Section
301 of the Act by operating the Station KHOC(FM) STL without an FCC
license for a period exceeding eleven years.
A. 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 without an
instrument of authorization is $10,000. 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. 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 KHOC(FM) STL without an instrument
of authorization. Accordingly, we propose a forfeiture amount of
$20,000 rather than the base forfeiture amount to Mount Rushmore for
its prolonged unauthorized operation of the Station KHOC(FM) STL.
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
twenty thousand dollars ($20,000).
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 KHOC(FM) and its associated STL in compliance with
Section 301 of the Act, 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 twenty thousand dollars ($20,000) for
violation of Section 301 of the Act.
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. 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:
* 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.
* 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.
* 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. 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 to
Sections 1.16 and 1.80(f)(3) of the Rules. 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
47 U.S.C. S: 301.
47 U.S.C. S: 301.
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-12-00002409).
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-12-00002409) (LOI Response).
LOI Response, Jan Gray Declaration.
See File No. 0005232119, submitted May 24, 2012 (Station KHOC(FM) STL
Application). As of the date of this NAL, the Station KHOC(FM) STL
Application remains pending.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
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 . . . .").
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).
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).
Section 312(f)(2) of the Act, 47 U.S.C. S: 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.
47 U.S.C. S: 301.
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. S: 1.80.
The Enforcement Bureau has determined that unauthorized operation in any
of the licensed services is a serious violation and will merit the base
forfeiture of $10,000 prior to the application of the adjustment criteria
listed in Section 503(b)(2)(E) of the Act. See BASF Corporation, Notice of
Apparent Liability for Forfeiture, 25 FCC Rcd 17300, 17302-03, paras. 9-11
(Enf. Bur. 2010) (applying the $10,000 base forfeiture for unauthorized
operation of a station in the Private Land Mobile Radio Service, then
upwardly adjusting the total forfeiture to $25,000 for that violation and
for failure to file a timely renewal application for the station).
47 U.S.C. S: 503(b)(2)(E).
See 47 C.F.R. S: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).
47 U.S.C. S: 301.
47 U.S.C. S:S: 301 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 12-1184
3
Federal Communications Commission DA 12-1184