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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
Facility ID # 46737
Adopted: January 8, 2010 Released: January 8, 2010
By the Regional Director, Western Region, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of seventeen thousand, five hundred dollars ($17,500) to
Mt. Rushmore Broadcasting, Inc. ("Mt. Rushmore"), licensee of stations
KRAL(AM) and KIQZ(FM) serving Rawlins, Wyoming, for willful and
repeated violation of Section 11.35(a) of the Commission's Rules
("Rules"), Section 73.3526 of the Rules, and Sections 1.903(a),
1.947(a), and 74.532(e) of the Rules. On December 10, 2008, the
Enforcement Bureau's Denver Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $20,000 to Mt.
Rushmore for failing to ensure the operational readiness of the
KRAL(AM) and KIQZ(FM) Emergency Alert System ("EAS") equipment; for
failing to maintain a complete public inspection file for KRAL(AM) and
KIQZ(FM); and for failing to operate station WHB734, an aural
studio-transmitter-link ("STL"), from its licensed location. In this
Order, we consider Mt. Rushmore's arguments that its violations were
not willful, that the violations were corrected after the inspection
took place, and that the violations were not discovered during a prior
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 Denver 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 Denver 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
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. On December 10, 2008, the Denver Office issued a NAL in the amount of
$20,000 to Mt. Rushmore. In the NAL, the Denver Office found that Mt.
Rushmore apparently willfully and repeatedly violated Section 11.35(a)
of the Rules by failing to ensure the operational readiness of the
KRAL(AM) and KIQZ(FM) 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 from its licensed location. Mt.
Rushmore filed a response ("Response") to the NAL on January 15, 2009.
In its Response, Mt. Rushmore argues that its violations were not
willful, that the violations were corrected after the inspection took
place, and that the violations were not discovered during a prior
9. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
the Response, Section 503(b) of the Act requires that the Commission
take into account the nature, circumstances, extent and gravity of the
violation 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.
10. The Rules provide that every 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 participating
station. As the nation's emergency warning system, the EAS is critical
to public safety. Broadcasters play a vital role in ensuring the
success of the EAS. The Commission takes seriously any violations of
the Rules implementing the EAS and expects full compliance from its
11. 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
sources fails. 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. 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
12. Mt. Rushmore argues that this violation, along with the other
violations, was not willful because Mt. Rushmore relied on a manager
"who was not being truthful" and who was later terminated by Mt.
Rushmore. Mt. Rushmore further argues that the Commission should hold
the manager, and not Mt. Rushmore, liable for the forfeiture amount.
We find no merit to these arguments. The Commission has long held that
"licensees are responsible for the acts and omission of their
employees and independent contractors," and has consistently "refused
to excuse licensees from forfeiture penalties where the actions of
employees or independent contractors have resulted in violations." Mt.
Rushmore also argues that it fixed the EAS issues immediately after
the inspection. We note that this does not provide a basis for a
downward adjustment in the proposed forfeiture, as the Commission has
stated in the past that a licensee is expected to correct errors when
they are brought to the licensee's attention and that such correction
is not grounds for a downward adjustment in the forfeiture.
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. 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. 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. 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.
14. Mt. Rushmore argues that this violation is also the fault of its
manager who "simply panicked," did not know where the public file was,
and failed to contact the employee who was responsible for the public
file. Mt. Rushmore states that the file was actually complete and that
a copy, along with an affidavit, could be sent to the Commission for
verification. According to the Denver agents, however, the Mt.
Rushmore manager did telephone and consult with the employee who was
responsible for the public inspection file several times during the
inspection. Reductions based on good faith efforts to comply generally
involve situations where violators demonstrate that they initiated
measures to correct or remedy violations prior to a Commission
inspection or investigation. We accept Mt. Rushmore's explanation
concerning the misplacement of the issues/programs lists and,
consequently, we find that Mt. Rushmore's efforts warrant a good faith
reduction of the proposed forfeiture amount and we reduce the proposed
forfeiture from $8,000 to $5,500. We decline, however, to cancel the
forfeiture because, the issue/programs lists were not available for
inspection by either the Denver agents or the public, on the day of
15. 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.
16. Mt. Rushmore does not deny that WHB734 was operating from an incorrect
location. Instead, Mt. Rushmore argues that studio location had not
changed since Mt. Rushmore purchased the station in 1993, and that it
assumed that the actual location of WHB734 was "very close" to its
prior location, which is the location listed on its license. It also
argues that a prior inspection by the Denver Office in 1998 did not
mention this violation. We find no reason to reduce the proposed
forfeiture amount for this violation. We note that Mt. Rushmore is a
Commission licensee and is responsible for knowing and complying with
the terms of its authorization and the Act and the Rules. We also note
that the fact that a prior inspection did not reveal the violation
does not excuse the violation. Also, despite Mt. Rushmore's assurance
that it was making a filing to amend the license, no such filing has
been made, and Mt. Rushmore continues to operate WHB734 more than one
mile from its licensed location. We therefore decline to decrease the
forfeiture amount and we order Mt. Rushmore to file a report with the
Denver Office detailing its compliance with the location requirements
in its license, WHB734, and this Order within 30 days of the date of
17. Mt. Rushmore also requests a 50% reduction of the proposed forfeiture
because the AM/FM simulcast stations purportedly are failing. However,
Mt. Rushmore did not submit the documentation, including three years
of tax returns, to support an inability to pay claim. Therefore, no
reduction for inability to pay is warranted.
18. We have examined the Response to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that Mt. Rushmore
willfully and repeatedly violated Sections 1.903(a), 1.947(a),
11.35(a), 73.3526, and 74.532(e) of the Rules. Considering the entire
record and the factors listed above, we find that reduction of the
proposed forfeiture to $17,500 is warranted.
IV. ORDERING CLAUSES
19. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Mt. Rushmore
Broadcasting, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount
of $17,500 for willfully and repeatedly violating Sections 1.903(a),
1.947(a), 11.35(a), 73.3526, and 74.532(e) of the Rules.
20. IT IS FURTHERED ORDERED THAT, within 30 days of the release of this
Order, Mt. Rushmore Broadcasting, Inc., file with the District
Director, Denver Office, the report required in paragraph 16 above.
21. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules 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. 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.
Mount Rushmore Broadcasting, Inc., will also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
22. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Mt. Rushmore
Broadcasting, Inc., at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
47 C.F.R. S:S: 11.35(a), 73.3526, 1.903(a), 1.947(a), and 74.532(e).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932800003
(Enf. Bur., Western Region, Denver Office, released December 10, 2008).
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).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
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.
Eure Family Limited Partnership, Memorandum Opinion and Order, 17 FCC Rcd
21861, 21863-64 (2002) ("Eure"); MTD, Inc., Memorandum Opinion and Order,
6 FCC Rcd 34, 35 (1991); Wagenvoord Broadcasting Co., Memorandum Opinion
and Order, 35 FCC 2d 361 (1972); see also, Rama Communications, Inc.,
Memorandum Opinion and Order, 23 FCC Rcd 18209, 18211 (EB 2008) ("[W]here
lapses in compliance occur, neither the negligent acts nor omissions of
station employees or agents, nor the subsequent remedial actions
undertaken by the licensee, excuse or nullify the licensee's rule
See Eure, 17 FCC Rcd at 21863-64; Triad Broadcasting Company, Inc.,
Memorandum Opinion and Order, 96 FCC 2d 1235, 1244 (1984).
AT&T Wireless Services, Inc. 17 FCC Rcd 21866, 21871-76 (2002); see supra
Rama Communications, Inc,
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 Radio One Licenses, Inc., 18 FCC Rcd 15964, 15965 (2003), recon.
denied, 18 FCC Rcd 25481 (2003).
See Lazer Licenses, LLC, 23 FCC Rcd 2589 (EB 2008).
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).
See Discussion Radio Incorporated, Memorandum Opinion and Order and Notice
of Apparent Liability for Forfeiture, 19 FCC Rcd 7433, 7437 (2004). We
note that the license for WHB734 expressly lists the fixed address as 415
West Buffalo, which is not where the station is located.
J.B. McNutt, 37 FCC 2d 432 (1972). The 1998 inspection of KRAL and KIQZ
focused on the stations' EAS equipment and determined that Mt. Rushmore
violated the EAS rules. See Mount Rushmore Broadcasting, Inc., 13 FCC Rcd
5265 (CIB 1998)
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 1.903(a),
1.947(a), 11.35(a), 73.3526, 74.532(e).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 10-24
Federal Communications Commission DA 10-24