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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No.: EB-01-DV-435
Mount Rushmore Broadcasting, Inc. )
NAL/Acct. No. 200232800005
) FRN 0005-0081-23
Licensee, Station KZMX (FM) )
Hot Springs, South Dakota )
Facility ID #46712 )
MEMORANDUM OPINION AND ORDER
Adopted: June 6, 2003 Released: June 10, 2003
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny the petition for reconsideration filed on
November 29, 2002, by Mount Rushmore Broadcasting,
Inc., (``Mount Rushmore''). Mount Rushmore seeks
reconsideration of the Forfeiture Order1 in which the
Chief, Enforcement Bureau (``Bureau''), found it
liable for a monetary forfeiture in the amount of
$3,000 for willful violation of Sections 73.1350 and
73.1400 of the Commission's Rules (``Rules'').2 The
noted violations involve Mount Rushmore's inability to
access its station's power and modulation levels by
remote control from the main studio, its inability to
turn its station's transmitter on or off by remote
control from the main studio and its failure to
establish monitoring procedures and schedules to
determine compliance with operating power and
2. Mount Rushmore is the licensee of Station KZMX(FM), Hot
Springs, South Dakota. On April 6, 2001, an agent from the
Commission's Denver, Colorado, Field Office (``Denver Office'')
inspected station KZMX-FM. During the inspection the agent found
that station personnel were unable to access the station's power
and modulation levels by remote control from the main studio,
that station personnel were unable to turn the station's
transmitter on or off by remote control from the main studio and
that Mount Rushmore had not established monitoring procedures and
schedules to determine compliance with the prescribed operating
power and modulation levels.
3. On January 2, 2002, the Denver Office issued a Notice
of Violation (``NOV'') to Mount Rushmore for the violations
detected during the inspection. In its response to the NOV,
Mount Rushmore stated that it had corrected the violations.
4. On May 31, 2002, the District Director of the Denver
Office issued a Notice of Apparent Liability for Forfeiture
(``NAL'')3 in the amount of $3,000 for willful violation of
Sections 73.1350 and 73.1400 of the Rules. Mount Rushmore did
not file a response to the NAL. The Bureau's Forfeiture Order,
released October 29, 2002, affirmed the forfeiture proposed by
the NAL. On November 29, 2002, Mount Rushmore filed a petition
for reconsideration of the Forfeiture Order. Mount Rushmore does
not dispute the violations but requests cancellation or reduction
of the forfeiture. Without elaborating, Mount Rushmore simply
states that its violations were not willful, and notes that it
has corrected the violations and that the forfeiture is ``very
big for a small operator.'' On May 15, 2003, Mount Rushmore
supplemented its petition for reconsideration with copies of its
1999, 2000, and 2001 federal income tax returns.
5. Section 312(f)(1) of the Communications Act of 1934, as
amended (``Act''), 47 USC § 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,' ...
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); see also Nan Tan Computer Co., 9 FCC Rcd 3092
(1994). Section 73.1350 of the Rules includes requirements that
a station's transmitter personnel have the capability to turn the
transmitter off at all times and that the licensee establish
monitoring procedures and schedules to determine compliance with
the prescribed operating power and modulation levels. Section
73.1400 requires a licensee to ensure that its station operates
at all times within the tolerances specified by the applicable
technical rules. Compliance with these requirements is essential
because failure to comply with them can cause serious technical
problems, including interference to other stations'
transmissions. Mount Rushmore has provided no information
indicating that it took any steps to assure its compliance with
Sections 73.1350 and 73.1400 prior to the occurrence of the
violations.4 We conclude that Mount Rushmore willfully violated
Sections 73.1350 and 73.1400 of the Rules.
6. Mount Rushmore's corrective action does not mitigate
its violations. As the Commission stated in Seawest Yacht
Brokers, 9 FCC Rcd 6099 (1994), ``corrective action taken to come
into compliance with Commission rules or policy is expected, and
does not nullify or mitigate any prior forfeitures or
7. We have reviewed the financial information provided by
Mount Rushmore and we find that this information does not provide
a basis for reduction or cancellation of the forfeiture. Indeed,
the forfeiture is a very small percentage of its gross revenues.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act6 and Section 1.106 of the Rules,7 Mount Rushmore's
petition for reconsideration of the October 29, 2002, Forfeiture
Order IS DENIED.
9. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules8 within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.9
Payment shall be made by mailing a check or similar instrument,
payable to the order of the ``Federal Communications
Commission,'' to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note
NAL/Acct. No. 200232800005, and FRN 0005-0081-23. Requests for
full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.10
10. IT IS FURTHER ORDERED THAT this Order shall be
sent by regular mail and by certified mail, return receipt
requested, to Jan Gray, President, Mount Rushmore Broadcasting,
Inc., 218 N. Wolcott St., Caspar, Wyoming 82601.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 17 FCC Rcd 21398 (Enf. Bur. 2002).
2 47 C.F.R. §§ 73.1350 and 73.1400.
3 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232800005 (Enf. Bur., Denver Office, released May 31, 2002).
4 See, e.g., East Tennessee Radio Group, L.P., DA 03-868
(Enf. Bur., released March 26, 2003); and Monroe Area
Broadcasters, Inc., DA 03-1033 (Enf. Bur., released April 7,
5 See also AT&T Wireless Services, Inc., 17 FCC Rcd 21871
6 47 U.S.C. § 405.
7 47 C.F.R. § 1.106.
8 47 C.F.R. § 1.80.
9 47 U.S.C. § 504(a).
10 See 47 C.F.R. § 1.1914.