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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Mt. Rushmore Broadcasting, Inc. )
KRAL(AM) ) File Numbers: EB-08-DV-0166
Rawlins, Wyoming ) EB-08-DV-0169
Facility ID # 46736 ) NAL/Acct. No.: 200932800003
KIQZ(FM) ) FRN: 0008230559
Rawlins, Wyoming )
Facility ID # 46737 )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 10, 2008
By the District Director, Denver District Office, Western Region,
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Mt. Rushmore Broadcasting, Inc. ("Mt. Rushmore"), licensee of
stations KRAL(AM) and KIQZ(FM) serving Rawlins, Wyoming, apparently
willfully and repeatedly violated Section 11.35(a) of the Commission's
Rules ("Rules") by failing to ensure the operational readiness of the
KRAL(AM) and KIQZ(FM) Emergency Alert System ("EAS") equipment;
Section 73.3526 of the Rules, by failing to maintain a complete public
inspection file for KRAL(AM) and KIQZ(FM); and Sections 1.903(a),
1.947(a), and 74.532(e) of the Rules by failing to operate station
WHB734, an aural studio-transmitter-link ("STL"), from its licensed
location. We conclude, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), that Mt. Rushmore is
apparently liable for a forfeiture in the amount of twenty thousand
2. On April 10, 2008, agents from the Enforcement Bureau's Denver
District Office conducted an inspection of KRAL(AM) and KIQZ(FM) at
the stations' main studio location of 2346 W. Spruce Street, in
Rawlins, Wyoming. The inspection revealed that the EAS receive system
utilized by both KRAL(AM) and KIQZ(FM) was not operational. The agents
reviewed the KRAL(AM) and KIQZ(FM) EAS logs and observed that the all
of the EAS entries were logged as Required Weekly Test ("RWT")
transmitted by KRAL(AM) and KIQZ(FM) from October 31, 2007 to April 1,
2008. In response to questions from the Denver agents, Mt. Rushmore
staff stated that the station was only transmitting the RWT. The staff
claimed their understanding of the EAS equipment testing requirements
was to transmit the RWT once a week and make a log entry. Therefore,
the station did not observe or log the reception of any EAS
activations or test. A physical inspection of the EAS equipment showed
no evidence from the EAS encoder/decoder's printouts of any EAS
activations or test being received.
3. Also on April 10, 2008, the FCC agents inspected the aural
studio-to-transmitter link ("STL"), call sign WHB734, operating on a
center frequency of 950.000 MHz, from the Mt. Rushmore studio at 2346
Spruce Street in Rawlins, Wyoming. The coordinates of the Mt. Rushmore
studio are approximately 41-o 47' 04" north latitude, 107-o 15' 49"
west longitude. At the time of the inspection, station WHB734 was
operating from these coordinates. According to the WHB734 station
authorization, the licensed coordinates are 41-o 47' 18.8" north
latitude, 107-o 14' 33.1" west longitude with a physical street
address of 415 West Buffalo Street, in Rawlins, Wyoming.
4. On April 11, 2008, the Denver agents returned to the Mt. Rushmore
studio. The agents suggested that the Mt. Rushmore manager contact the
stations' primary (LP-1) and secondary (LP-2) assignments to request
an EAS test. KRAL(AM) and KIQZ(FM) are located in Carbon County,
Wyoming. According to the Wyoming State Plan for the Emergency Alert
System at the time of the inspection, with the most recent update
noted on May 25, 2007, the LP-1 and LP-2 assignments were KUWR-FM and
5. The FCC agents also conducted an examination of the public inspection
files for KRAL(AM) and KIQZ(FM) with the stations' manager on April
11, 2008. Among the items reviewed, the agents requested the quarterly
radio issues/programs list for all quarters beginning from the term of
the last renewal on October 1, 2005. The manager was unable to locate
these items within the KRAL(AM) and KIQZ(FM) public inspection files.
6. When the inspections were completed on April 11, 2008, the agents
reviewed the violations with the stations' manager. During the review,
the agents informed the manager of the location violations found with
the WHB734 station license. The manager stated that the WHB734 STL had
been relocated from the 415 West Buffalo Street studio location to the
2346 Spruce Street Studio more than a year prior to the inspection. On
April 11, 2008, station WHB734 continued transmitting on a center
frequency of 950.000 MHz.
7. On December 10, 2008, a review of the Commission's databases reflected
neither a change in the coordinates nor a change in the fixed location
address for station WHB734. Additionally, there were no applications
pending in the system for modifications to correct the licensing
errors the agents communicated to Mt. Rushmore.
8. 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. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
9. The Rules provide that every AM and FM broadcast station is part of
the nationwide EAS network and is categorized as a participating
national EAS source unless the station affirmatively requests
authority to not participate. The EAS provides the President and state
and local governments with the capability to provide immediate and
emergency communications and information to the general public. State
and local area plans identify local primary sources responsible for
coordinating carriage of common emergency messages from sources such
as the National Weather Service or local emergency management
officials. Required monthly and weekly tests originate from EAS Local
or State Primary sources and must be retransmitted by the
10. Section 11.35 of the Rules requires all broadcast stations to ensure
that EAS encoders, EAS decoders and Attention Signal generating and
receiving equipment is installed and operational so that the
monitoring and transmitting functions are available during the times
the station is in operation. Broadcast stations must also determine
the cause of any failure to receive required monthly and weekly EAS
tests, and must indicate in the station's log why any required tests
were not received and when defective equipment is removed and restored
to service. Section 11.52(d) of the Rules requires broadcast stations
to monitor at least two EAS sources. The monitoring assignments of
each broadcast station are specified in the State EAS Plan and FCC
Mapbook. The requirement that stations monitor at least two EAS
sources ensures redundancy of the EAS system in the event one of the
11. Section 11.61(a)(1) and (2) of the Rules requires broadcast stations
to (a) receive monthly EAS tests from designated local primary EAS
sources and retransmit the monthly test within 60 minutes of its
receipt and (b) conduct tests of the EAS header and EOM codes at least
once a week at random days and times. The requirement that stations
monitor, receive and retransmit the required EAS tests ensures the
operational integrity of the EAS system in the event of an actual
disaster. Appropriate entries must be made in the broadcast station
log as specified in Sections 73.1820 and 73.1840, indicating reasons
why any tests were not received or transmitted.
12. On April 11, 2008, the inspection and investigation by the Denver
agents revealed that the EAS equipment for KRAL(AM) and KIQZ(FM) was
apparently not operational because no evidence was found demonstrating
the functionality of the equipment to receive tests and alerts from
the assigned EAS LP-1 and LP-2 stations. Mt. Rushmore staff
acknowledged that the stations did not utilize the EAS equipment to
receive the required RMTs. Additionally, Mt. Rushmore failed to
document in the EAS logs the lack of functionality of the EAS
equipment for receipt of EAS transmissions. Mt. Rushmore was aware
that EAS equipment was required for both stations, but failed to
ensure the functionality of the equipment as required by the Rules.
Therefore, we find that Mt. Rushmore's violation was willful. Mt.
Rushmore's violation occurred on more than one day; therefore, the
violation was repeated. Based on the evidence before us, we find that
Mt. Rushmore apparently willfully and repeatedly violated Section
11.35(a) of the Rules by failing to ensure the operational readiness
of the EAS equipment at KRAL(AM) and KIQZ(FM).
13. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM and FM station licensee shall maintain a public inspection file
containing the material, relating to that station, described in
paragraphs (e)(1) through (e)(10) and paragraphs (e)(12) through
(e)(14) of this section as well as paragraph (e)(16) of this section.
Further, as required by Section 73.3526(b), the public inspection file
shall be maintained at the station's main studio location.
14. Section 73.3526(e)(12) of the Rules requires licensees to place in
their public inspection file, for each calendar quarter, a list of
programs that have provided the station's most significant treatment
of community issues during the preceding three month period. This list
is known as the radio issues/programs list and copies of the lists
must be maintained in the file until final action has been taken on
the station's next renewal application. The public inspection files
for KRAL(AM) and KIQZ(FM) were missing quarterly radio issues/program
lists for all quarters during the license term, which began on October
1, 2005. Therefore, Mt. Rushmore failed to comply with Section
73.3526(e)(12) of the Rules.
15. Mt. Rushmore was aware of the requirement to have a complete public
inspection file for KRAL(AM) and KIQZ(FM) given its response in the
renewal applications, FCC Form 303-S, filed June 1, 2005. In Section
III, Question 3, for each station, Mt. Rushmore certified that the
public inspection file had the proper documentation as required by
Section 73.3526. Therefore, Mt. Rushmore's violation is willful. The
station manager indicated he did not know the whereabouts of the
material missing from the public inspection files, and no evidence
could be found that the missing material was ever in place. This
exclusion applied to at least two consecutive quarters of materials;
therefore, Mt. Rushmore's violation is repeated. Where lapses occur in
maintaining the public inspection file, neither the negligent acts nor
omissions of station employees or agents, nor the subsequent remedial
actions undertaken by the licensee, excuse or nullify a licensee's
rule violation. Based on the evidence before us, we find that Mt.
Rushmore apparently willfully and repeatedly violated Section 73.3526
of the Rules by failing to ensure a complete public inspection file
was properly maintained at the main studio location.
16. 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. Section 1.947(a) of the Rules
requires that all major modifications as defined in Section 1.929 of
the Rules require prior Commission approval. Section 1.929(d)(1)(i) of
the Rules defines one of the major actions as "any change in transmit
antenna location by more than 5 seconds in latitude or longitude for
fixed point-to-point facilities." Section 74.532(e) of the Rules
states that each aural broadcast auxiliary station will be licensed at
a specified transmitter location to communicate with a specified
receiving location, and the direction of the main radiation lobe of
the transmitting antenna will be a term of the station authorization.
At the time of the inspection on April 10, 2008, Mt. Rushmore was
found operating radio station WHB734 from a location inconsistent with
the station's authorized coordinates and street address. The distance
separating the point of operation from that of the license was greater
than 1.1 miles (specifically, a difference of approximately 15 seconds
of latitude and approximately 76 seconds of longitude). The licensee's
station manager acknowledged the licensing inaccuracies, noting that
station WHB734 had been operating from this location for over a year;
therefore, the violation was willful. Station WHB734 was observed
operating from the incorrect location on April 10 and 11, 2008. The
violation occurred for more than one day, therefore, it was repeated.
Based on the evidence before us, we find that Mt. Rushmore apparently
willfully and repeatedly violated Sections 1.903(a), 1.947(a), and
74.532(e) of the Rules by failing to operate station WHB734 from its
17. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for EAS equipment installed but not operational
is $8,000, public file violations is $10,000 and for the operation of
a station from an unauthorized location is $4,000. 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, which
include the nature, circumstances, extent, and gravity of the
violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Because the KRAL(AM) and KIZQ(FM)
public inspection files were partially complete, we conclude that a
reduction in the base forfeiture amount for the public file violation
to $4,000 is appropriate for each station is appropriate. Applying the
Forfeiture Policy Statement, Section 1.80, and the statutory factors
to the instant case, we conclude that Mt. Rushmore is apparently
liable for a $20,000 forfeiture.
18. We note that, as of the date of this NAL, the Commission databases
continue to reflect neither a change in the coordinates nor a change
in the fixed location address for station WHB734. Consequently, we
require Mt. Rushmore to report to the Denver Office, no more than
thirty (30) days following the release of this Order how it achieved
compliance with Section 1.903(a) of the Rules for station WHB734. Mt.
Rushmore's report must be submitted in the form of an affidavit signed
by an officer or director of Mt. Rushmore.
IV. ORDERING CLAUSES
19. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 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 violations of
11.35(a), 73.3526, 1.903(a), 1.947(a), and 74.532(e).
20. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, 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.
21. IT IS FURTHER ORDERED that, within thirty days of the release date of
this Notice of Apparent Liability for Forfeiture, Mt. Rushmore
Broadcasting, Inc., SHALL FILE with the Denver Office, the information
required in paragraph 18, above.
22. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). Requests for full payment under
an installment plan should be sent to: Chief Financial Officer --
Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
D.C. 20554. Please contact the Financial Operations Group Help
Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures. Mt. Rushmore Broadcasting,
Inc. will also send electronic notification on the date said payment
is made to WR-Response@fcc.gov.
23. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Western Region, Denver District
Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood, Colorado, 80226,
and must include the NAL/Acct. No. referenced in the caption.
24. 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.
25. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Mt. Rushmore Broadcasting, Inc.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
Denver District Office
47 C.F.R. S:S: 11.35(a), 73.3526, 1.903(a), 1.947(a), and 74.532(e).
47 U.S.C. S: 503(b).
Mt. Rushmore's station manager contacted KUWR-FM to request the
transmission of an EAS test. It was revealed that Mt. Rushmore's stations
could not receive KUWR-FM's transmissions due to the great distance.
KUWR-FM informed Mt. Rushmore that the translator in the adjacent town of
Sinclair, WY, could be received in Rawlins, however, the translator had
lost power during the storm that was in effect at the time of the
inspection and would be out of service until at least the next day.
Contact with NOAA was made but no complete EAS test was transmitted. Due
to a combination of inclement weather, equipment problems, and available
personnel with each of the assigned stations, no EAS test could be
generated to troubleshoot the problems with Mt. Rushmore's EAS equipment.
Section 312(f)(1) of the Act, 47 U.S.C. S: 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).
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."
47 C.F.R. S:S: 11.11 and 11.41.
47 C.F.R. S:S: 11.1 and 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local and relay EAS
47 C.F.R. S: 11.35(a) and (b).
47 C.F.R. S: 11.52(d).
47 C.F.R. S: 11.61. The required monthly and weekly tests are required to
conform to the procedures in the EAS Operational Handbook. See also,
Amendment of Part 11 of the Commission's Rules Regarding the Emergency
Alert System, 17 FCC Rcd 4055 (2002) (effective May 16, 2002, the required
monthly EAS test must be retransmitted within 60 minutes of receipt).
47 C.F.R. S:S: 73.1820 and 73.1840.
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(b).
47 C.F.R. S: 73.3526(e)(12).
See Mt. Rushmore's renewal applications for KRAL(AM) and KIQZ(FM), File
Nos. BR-200500601BCT and BRH-20050601BCQ, respectively. Both applications
were granted on September 28, 2005.
See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999).
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.947(a).
47 C.F.R. S: 1.929(d)(1)(i).
47 C.F.R. S: 11.35(a), 73.3526, 1.903(a), 1.947(a) and 74.532(e).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 11.35(a),
73.3526, 1.903(a), 1.947(a), and 74.532(e).
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission
Federal Communications Commission