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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554


In the Matter of                        )         File  No.:  EB-
01-DV-444
                              )         NAL/Acct.             No. 
                         200232800006
Mount Rushmore Broadcasting, Inc.                      )                        
FRN 0005-0081-23
                              )
Licensee, Station KAWK(FM)              )         
Custer, South Dakota                         )
Facility ID #43916                 )

                  MEMORANDUM OPINION AND ORDER

     Adopted:  October 1, 2003          Released:    October   3, 
2003 

By the Chief, Enforcement Bureau:

                         I. INTRODUCTION

     1.   In this  Memorandum Opinion and  Order (``Order''),  we 
          deny the  petition for reconsideration  filed 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  $10,000  for   willful 
          violation of Section  301 of the Communications Act  of 
          1934,  as  amended  (``Act'').2   The  noted  violation 
          involves  Mount Rushmore's  unlicensed operation  of  a 
          studio to transmitter (``STL'') link.

                         II. BACKGROUND

     2.   Mount Rushmore  is the  licensee of  Station  KAWK(FM), 
Custer, South  Dakota.   On April  6,  2001, an  agent  from  the 
Commission's  Denver,   Colorado,   District   Office   (``Denver 
Office'') inspected Station KAWK-FM.   During the inspection  the 
agent observed,  among  other  things, that  Mount  Rushmore  was 
operating an  STL  on  frequency  951.0  MHz.   A  check  of  the 
Commission's  license  records   indicated  that   the  STL   was 
unlicensed.

     3.   On January 7, 2002, the Denver Office issued Notice  of 
Violation  (``NOV'')  to  Mount   Rushmore  for  the   unlicensed 
operation and other  violations detected  during the  inspection.  
In its response  to the NOV,  filed on November  29, 2002,  Mount 
Rushmore stated that it had applied for authorization to  operate 
the STL.3

     4.   On May 31,  2002, the District  Director of the  Denver 
Office issued  a  Notice  of Apparent  Liability  for  Forfeiture 
(``NAL'')4 in  the amount  of $10,000  for willful  violation  of 
Section 301 of the Act.  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.5  On  November 
29, 2002, Mount Rushmore filed a petition for reconsideration  of 
the Forfeiture  Order.   Mount  Rushmore  does  not  dispute  the 
violation  but  requests   cancellation  or   reduction  of   the 
forfeiture.  Mount  Rushmore argues  that the  violation was  not 
willful, that it has corrected the violation and that the $10,000 
forfeiture is ``a huge fine for  a small operator.''  On May  15, 
2003, Mount Rushmore supplemented a petition for  reconsideration 
filed in  another proceeding  (EB-01-DV-435) with  copies of  its 
1999, 2000, 2001 federal income tax returns.

                         III. DISCUSSION

     5.   Section  312(f)(1)  of  the  Act,6  which  applies   to 
violations for  which  forfeitures  are  assessed  under  Section 
503(b) of the  Act,7 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).  Mount Rushmore  knew that  it was operating  an STL  and 
that it did  not have  license for that  operation.  We  conclude 
that Mount Rushmore willfully violated Section 301of the Act.

     6.   Mount Rushmore's  corrective action  does not  mitigate 
its violations.   As  the  Commission  stated  in  Seawest  Yacht 
Brokers, 9 FCC Rcd 6099,  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 violations.'' 8
     
     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.

     8.   Since  Mount   Rushmore   still  does   not   have   an 
authorization for operation of the STL, we have no evidence  that 
Mount  Rushmore  now  complies  with  Section  301  of  the  Act.  
Accordingly, we will require, pursuant  to Section 308(b) of  the 
Act,9 that  Mount Rushmore  submit a  report to  the  Enforcement 
Bureau no more than thirty (30) days after release of this  Order 
demonstrating how  it  complies  with  Section  301  of  the  Act 
regarding its use of  the STL.  Mount  Rushmore's report must  be 
submitted in the  form of  an affidavit signed  under penalty  of 
perjury by an officer or director of the licensee.

                      IV.  ORDERING CLAUSES

     9.   Accordingly, IT IS  ORDERED that,  pursuant to  Section 
405 of  the  Act10  and  Section  1.106  of  the  Rules,11  Mount 
Rushmore's petition for reconsideration of the October 29,  2002, 
Forfeiture Order IS DENIED.
     10.  IT IS ALSO ORDERED that, pursuant Section 308(b) of the 
Act, Mount Rushmore must submit the report described in Paragraph 
8, no  more than  thirty (30)  after release  of this  order,  to 
Federal Communications Commission, Enforcement Bureau,  Technical 
and Public Safety Division, 445  12th Street, S.W., Room  7-A820, 
Washington, D.C. 20554, Attention: Thomas D. Fitz-Gibbon, Esq.

     11.  Payment of the forfeiture shall  be made in the  manner 
provided for in Section 1.80 of the Rules12 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.13  
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. 200232800006  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. 20554.14

     12.       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 U.S.C.  301.

     3 According to the Commission's license records,  subsequent 
to the inspection and issuance of the NOV Mount Rushmore obtained 
a temporary STL authorization, WPUJ485, on March 15, 2002.   That 
authorization expired on  September 15,  2002.  The  Commission's 
Wireless  Telecommunications  Bureau  returned  Mount  Rushmore's 
application for a full term STL  on April 4, 2002, and  dismissed 
it on June 30, 2002, because  Mount Rushmore did not refile  that 
application.  Mount Rushmore now  has no pending application  for 
an STL license.

     4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200232800005 (Enf. Bur., Denver Office, released May 31, 2002).

     5 17 FCC Rcd 21398 (Enf. Bur. 2002).

     6 47 USC  312(f)(1).

     7 47 USC  503(b).

     8 See also AT&T Wireless  Services, Inc., 17 FCC Rcd  21866, 
21871 (2002).

     9 47 U.S.C.  308(b).

     10 47 U.S.C.  405.

     11 47 C.F.R.  1.106.

     12 47 C.F.R.  1.80.

     13 47 U.S.C.  504(a).

     14 See 47 C.F.R.  1.1914.