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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Mt. Rushmore Broadcasting, Inc. )
Licensee of Station KRAL(AM) ) File Numbers: EB-08-DV-0166
Rawlins, Wyoming ) EB-08-DV-0169
Facility ID # 46736 ) NAL/Acct. No.: 200932800003
Station KIQZ(FM) ) FRN: 0008230559
Rawlins, Wyoming )
Facility ID # 46737 )
Station WHB734 )
Rawlins, Wyoming )
Memorandum opinion and order
Adopted: September 12, 2011 Released: September 13, 2011
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("MO&O"), we deny the petition
for reconsideration ("Petition") filed by Mt. Rushmore Broadcasting,
Inc., ("Mt. Rushmore" or "the Licensee"), licensee of Stations
KRAL(AM), KIQZ(FM), and WHB734, in Rawlins, Wyoming, of the Forfeiture
Order issued in this proceeding. The Forfeiture Order imposed a
monetary forfeiture in the amount of $17,500 for willful and repeated
violation of sections 1.903(a), 1.947(a), 11.35(a), 73.3526, and
74.532(e) of the Commission's rules ("Rules").
2. In the Forfeiture Order, issued January 8, 2010, the Western Region
of the Enforcement Bureau ("Region") determined that Mt. Rushmore had
failed to ensure the operational readiness of the Station KRAL(AM) and
Station KIQZ(FM) Emergency Alert System ("EAS") equipment; failed to
maintain a complete public inspection file for Station KRAL(AM) and
Station KIQZ(FM); and failed to operate Station WHB734, an aural
studio-transmitter-link ("STL"), from its licensed location. The
Region found no merit to Mt. Rushmore's arguments that its violations
were not willful and that the forfeiture amount proposed in the NAL
should be reduced because Mt. Rushmore had relied on an employee who
was not candid with the station owner and who was subsequently
terminated. The Region stated, "[t]he Commission has long held that
`licensees are responsible for the acts and omissions of their
employees and independent contractors.'" The Region also found no
merit to Mt. Rushmore's argument that a downward adjustment was
appropriate because Mt. Rushmore corrected the EAS issues at the
stations immediately after the inspection. The Region determined that
the Commission has held that "a licensee is expected to correct errors
when they are brought to a licensee's attention and that such
correction is not grounds for a downward adjustment in the
forfeiture." The Region accepted Mt. Rushmore's explanation, however,
concerning the misplacement of the issues/programs lists and found
that Mt. Rushmore's efforts warranted a good faith reduction of the
proposed forfeiture amount for that violation from $8,000 to $5,500,
and included this adjustment in the January 2010 Forfeiture Order.
3. At the same time, the Region found no grounds to reduce the proposed
forfeiture concerning Mt. Rushmore's failure to operate Station WHB734
from its licensed location. Specifically, the Region found inapposite
Mt. Rushmore's claim that a previous inspection by the Bureau's Denver
Office did not identify this violation, finding that because Mt.
Rushmore is a Commission licensee, it is responsible for knowing and
complying with the terms of its authorization and the Rules. The
Region also declined to reduce the forfeiture by 50%, as requested by
Mt. Rushmore, because Mt. Rushmore failed to submit the required
financial documentation (e.g. three years of tax returns) to support
an inability to pay claim.
4. Reconsideration is appropriate only where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters. A petition for
reconsideration that reiterates arguments that were previously
considered and rejected will be denied.
5. Mt. Rushmore does not dispute the facts as detailed in the NAL or the
Forfeiture Order, and thus the facts established in those decisions
are incorporated herein by reference. Mt. Rushmore again requests that
the forfeiture be cancelled or substantially reduced and reiterates
all of the arguments previously considered and rejected by the Region,
as described above. In addition, Mt. Rushmore again asks for a
reduction based on its asserted inability to pay the forfeiture
amount, but again submits no financial information about its overall
operations supporting its request.
6. We find that the Region has already considered and properly disposed
of the issues raised by Mt. Rushmore in its Petition by appropriate
application of Commission precedent. The Licensee has failed to either
demonstrate error or to present new facts or changed circumstances, as
required. We further find that because Mt. Rushmore has provided no
financial documentation of its overall operations to support its
request for reduction of the forfeiture amount based on its inability
to pay, we cannot consider its request. Therefore, we find that Mt.
Rushmore's Petition provides no basis for reduction or cancellation of
the monetary forfeiture assessed against the Licensee, and we affirm
the Forfeiture Order.
IV. ordering clauses
7. Accordingly, IT IS ORDERED that, pursuant to section 405 of the
Communications Act of 1934, as amended, and section 1.106 of the
Rules, that the Petition for Reconsideration filed by Mt. Rushmore
Broadcasting, Inc., IS DENIED and the Forfeiture Order IS AFFIRMED.
8. IT IS ALSO ORDERED that, pursuant to section 503(b) of the Act, and
sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Mt. Rushmore
Broadcasting, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount
of seventeen thousand, five hundred dollars ($17,500) for violations
of sections 1.903(a), 1.947(a), 11.35(a), 73.3526, and 74.532(e) of
the Commission's rules.
9. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the Rules within thirty (30) days of the release of
this Memorandum Opinion and 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 credit card, check, or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Account Number and FRN
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., shall also send electronic notification to WR-Response@fcc.gov
on the date said payment is made.
10. IT IS FURTHER ORDERED that this Memorandum Opinion and Order shall be
sent by both regular mail and by certified mail, return receipt
requested, to Mt. Rushmore Broadcasting, Inc., 2346 West Spruce
Street, Rawlins, Wyoming, 82301, and Lee J. Peltzman, Shainis &
Peltzman, Chartered, 1850 M Street, N.W., Suite 240, Washington, D.C.
20036, its counsel of record.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
See Mt. Rushmore Broadcasting, Inc., Petition for Reconsideration (filed
February 12, 2010) ("Petition"). We note that while the Petition was filed
more than 30 days after the release of the Forfeiture Order it is
nonetheless timely as filing deadlines that fell between February 5, 2010
and February 12, 2010 were extended until February 16, 2010 due to the
closing of the FCC during that period for adverse weather conditions in
Washington, D.C. See Waiver of Filing Deadlines Due to Adverse Weather
Conditions, Public Notice, 2010 WL 539540 (rel. February 16, 2010).
Mt. Rushmore Broadcasting, Inc., Forfeiture Order, 25 FCC Rcd 95 (Enf.
Bur. Western Region 2010) ("Forfeiture Order"), aff'g Notice of Apparent
Liability for Forfeiture, NAL/Acct. No. 200932800003 (Enf. Bur., Western
Region, Denver District Office, rel. December 10, 2008) ("NAL").
47 C.F.R. S:S: 1.903(a), 1.947(a), 11.35(a), 73.3526, 74.532(e).
47 C.F.R. S: 11.35(a); Forfeiture Order, 25 FCC Rcd at 98.
47 C.F.R. S: 73.3526; Forfeiture Order, 25 FCC Rcd at 99.
47 C.F.R. S:S: 1.903(a), 1.947(a), 74.532(e); Forfeiture Order, 25 FCC Rcd
Id., 25 FCC Rcd at 98 (quoting Eure Family Limited Partnership, Memorandum
Opinion and Order, 17 FCC Rcd 21861, 21863-64 (2002); citing MTD, Inc.,
Memorandum Opinion and Order, 6 FCC Rcd 34, 35 (1991); Wagenvoord
Broadcasting Co., Memorandum Opinion and Order, 35 FCC 2d 361 (1972); Rama
Communications, Inc., Memorandum Opinion and Order, 23 FCC Rcd 18209,
18211 (Enf. Bur. 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 violation.")).
Forfeiture Order, 25 FCC Rcd at 98.
Id. at 99 (citing AT&T Wireless Services, Inc. Forfeiture Order, 17 FCC
Rcd 21866, 21871-76 (2002)).
Forfeiture Order, 25 FCC Rcd at 99 (citing Radio One Licenses, Inc.,
Memorandum Opinion and Order, 18 FCC Rcd 15964, 15965 (2003), recon.
denied, 18 FCC Rcd 25481 (2003); Lazer Licenses, LLC, Forfeiture Order, 23
FCC Rcd 2589 (Enf. Bur. 2008)).
Forfeiture Order, 25 FCC Rcd at 100 (citing Discussion Radio Inc.,
Memorandum Opinion and Order and Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 7433, 7437 (2004)). The prior inspection of
Stations KRAL(AM) and KIQZ(FM) by the Denver District Office occurred in
1998 and was a targeted EAS inspection that resulted in findings of
violations of the EAS rules by Mt. Rushmore. See Mount Rushmore
Broadcasting, Inc., Forfeiture Order, 13 FCC Rcd 5265 (CIB 1998).
Forfeiture Order, 25 FCC Rcd at 100.
See 47 C.F.R. S: 1.106(c); EZ Sacramento, Inc., Memorandum Opinion and
Order, 15 FCC Rcd 18257 (Enf. Bur. 2000) (citing WWIZ, Inc., 37 FCC 685,
686 (1964), aff'd sub. nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C.
Cir. 1965), cert. denied, 383 U.S. 967 (1966)).
EZ Sacramento, Inc., 15 FCC Rcd at 18257.
In its Petition, Mt. Rushmore also describes its efforts to remedy a
violation of section 73.49 of the Rules, 47 C.F.R. S: 73.49, concerning a
broken fence surrounding one of its AM towers, in response to a call from
FCC agents. Petition at 3 - 4. As that violation was not charged in this
proceeding, we see no relevance to this new information, other than to
remind Mt. Rushmore, as the Region did, that as a licensee it is expected
to comply with the Rules. Forfeiture Order, 25 FCC Rcd at 100.
Although Mt. Rushmore acknowledges that the Region made a downward
adjustment of the proposed forfeiture for its public inspection file
violation, from $8,000 to $5,500, for Mt. Rushmore's good faith effort to
comply with section 73.3526 of the Rules, Mt. Rushmore argues that the
assessed $5,500 forfeiture should be further reduced for the same reasons
that Mt. Rushmore previously argued to the Region - that the station
manager mishandled the inspection and should have contacted the Mt.
Rushmore staff responsible for the public inspection file on the day of
the inspection. The Region found that the manager did contact the staff
member responsible for the public inspection file several times during the
inspection; however, the missing issues and programs lists could not be
produced. Forfeiture Order, 25 FCC Rcd at 99. The public inspection files
for Station KRAL(AM) and Station KIQZ(FM) were missing quarterly radio
issues/program lists for all quarters during the license term, which began
on October 1, 2005.
See Petition at 2 -5.
See id. at 4 -5.
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
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).
(Continued from previous page)
Federal Communications Commission DA 11-1506
Federal Communications Commission DA 11-1506