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                                   Before the

                       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                                                    

                                FORFEITURE ORDER

   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
       NOAA, respectively.

    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
       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. 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
       EAS transmissions.

   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
       the inspection.

   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
       this Order.

   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.


   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: with any questions regarding payment procedures. 
       Mount Rushmore Broadcasting, Inc., will also send electronic
       notification on the date said payment is made to

   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.


   Rebecca L. Dorch

   Regional Director, Western Region

   Enforcement Bureau

   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