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Federal Communications Commission
Washington, D.C. 20554
In the Matter of Mt. Rushmore Broadcasting, Inc. Licensee of Station
KRAL(AM) Rawlins, Wyoming Station KIQZ(FM) Rawlins, Wyoming Station WHB734
Rawlins, Wyoming ) ) ) ) ) ) ) ) ) ) ) ) File Numbers: EB-08-DV-0166
EB-08-DV-0169 NAL/Acct. No.: 200932800003 FRN: 0008230559 Facility ID No.
46736 Facility ID No. 46737
ORDER ON REVIEW
Adopted: April 22, 2013 Released: April 25, 2013
By the Commission: Commissioner McDowell not participating.
1. In this Order on Review (Order on Review), we deny the Application for
Review^ filed by Mt. Rushmore Broadcasting, Inc. (Mt. Rushmore),
licensee of Stations KRAL(AM), KIQZ(FM), and WHB734, in Rawlins,
Wyoming, pursuant to Section 1.115 of the Commission's Rules (Rules).
Mt. Rushmore seeks review of the Memorandum Opinion and Order (MO&O)
issued by the Enforcement Bureau (Bureau) in this proceeding.^ In that
MO&O, the Bureau denied Mt. Rushmore's Petition for Reconsideration of
a $17,500 forfeiture for failing to ensure the operational readiness
of the Station KRAL(AM) and Station KIQZ(FM) Emergency Alert System
(EAS) equipment;^ failing to maintain a complete public inspection
file for Stations KRAL(AM) and KIQZ(FM);^ and failing to operate
Station WHB734, an aural studio-transmitter-link (STL), from its
licensed location.^ For the reasons stated below, we affirm the
2. The Forfeiture Order and MO&O fully stated the facts of this
proceeding so we will not repeat them here.^ In the MO&O,^ the Bureau
affirmed findings made by the Bureau's Western Region (Region)
concerning Mt. Rushmore's violations of the EAS and public inspection
file rules, in connection with its operation of Stations KRAL(AM) and
KIQZ(FM); and Mt. Rushmore's failure to operate Station WHB734 in
accordance with its authorization.^ The Bureau found that Mt. Rushmore
did not dispute the facts or the violations as detailed in the NAL or
the Forfeiture Order, and that Mt. Rushmore substantially reiterated
all of the arguments previously considered and rejected by the Region
in its request that the forfeiture be cancelled or substantially
reduced. The Bureau found that Mt. Rushmore failed either to
demonstrate error or to present new facts or changed circumstances, as
required, to compel reconsideration of the Forfeiture Order. The
Bureau also found that, because Mt. Rushmore had provided no financial
documentation of its overall operations to support its repeated
request for reduction of the forfeiture amount based on its inability
to pay, its request could not be considered.^
3. In this Order on Review, we deny Mt. Rushmore's Application for Review
and affirm the Bureau's MO&O. The forfeiture amount in this case was
assessed in accordance with Section 503(b)(2)(E) of the Communications
Act of 1934, as amended (Act).^ That provision states that any person
who willfully or repeatedly fails to comply with any of the provisions
of the Act or of any rule, regulation or order issued by the
Commission thereunder, shall be liable for a forfeiture penalty.^
Section 503's legislative history states that the definitions of "willful"
and "repeated" recited in Section 312(f) of the Act also apply to Section
503^ and the Commission has so interpreted the terms.^ Thus, Section 503's
use of the term "willful" means the "conscious and deliberate commission
or omission of [any] act, irrespective of any intent to violate" the law,^
and the term "repeated" means "the commission or omission of such act more
than once or, if such commission is continuous, for more than one day."^
4. Mt. Rushmore presents three questions for review. It first asks
whether a licensee's failure to make available quarterly radio
issues/programs lists on one date constitutes a "repeated" or
"intentional" violation of the Rules warranting a substantial monetary
forfeiture.^ The failure of a licensee to make a complete public
inspection file available during regular business hours is a violation
of Section 73.3526 of the Rules and such failure may result in a
monetary forfeiture to the licensee.^ Mt. Rushmore failed to make
consecutive quarters of radio issues/programs lists - indeed more than
nine consecutive quarterly radio issues/programs lists - available for
inspection in the public inspection files for both Station KRAL(AM)
and Station KIQZ(FM).^ We therefore affirm the finding that Mt.
Rushmore's violation was repeated.
5. We also reject Mt. Rushmore's claim that imposition of a forfeiture
was unwarranted because the stations' violations allegedly were not
"intentional." As an initial matter, under Section 503(b) of the Act,
the Commission need only demonstrate that the conduct at issue was
"repeated" or "willful" to merit a forfeiture penalty. As discussed
above, we have already established that the conduct was repeated, and
therefore subject to forfeiture on that basis alone. But the conduct
also can be said to be "willful" under Section 503(b) because Mt.
Rushmore failed to take the actions in question (i.e., to maintain and
produce for inspection, upon request, a complete public inspection
file as required under Section 73.3526 of the Rules), irrespective of
any intent to violate Section 73.3526. Indeed, at the time of the
inspection, Mt. Rushmore knew its public inspection file was
incomplete and advised the Denver Office agents accordingly.^
Moreover, to the extent Mt. Rushmore merely contests the forfeiture
amount, we find that the amount assessed for violations at the two
stations was consistent with the Commission's recent precedent.^
6. Second, Mt. Rushmore asserts that the Bureau failed to consider as
mitigating factors the licensee's immediate correction of the
violations and dismissal of the station employee responsible for the
violations.^ As the Commission has stated in the past, however, a
licensee is expected to correct errors when they are brought to the
licensee's attention and such correction is not grounds for a downward
adjustment in the forfeiture.^
7. Finally, Mt. Rushmore asks that if stations "are failing financially
to the point that they have been silent for most of the past year,
would a substantial forfeiture be confiscatory in nature and out of
line with other FCC monetary actions dealing with silent stations."^
The Bureau considered Mt. Rushmore's financial status in the MO&O, but
correctly concluded that it was unable to determine if a forfeiture
reduction was appropriate because Mt. Rushmore had "provided no
financial documentation of its overall operations to support its
request for reduction of the forfeiture amount based on its inability
to pay."^ Mt. Rushmore has failed to make such a showing in its
Application for Review. Instead, it continues to contend that it
cannot do so because "it does not maintain separate tax records for
each of its stations and, therefore, it [is] impossible to break down
a financial statement to demonstrate that its two Rawlins stations
[have] economic problems."^ Such station-specific financial
information is not necessary or appropriate for an ability to pay
determination. The Commission has consistently interpreted its rules
as requiring consideration of all financial resources available to a
licensee, not just those attributable to the station or stations
involved in the violations at issue. ^ ^ As was made clear in the
MO&O, in making such a determination, we require information about a
licensee's overall financial resources, particularly one such as Mr.
Rushmore, which holds a total of 11 radio station licenses.^ Moreover,
the operating status of its two Rawlins stations is not probative to
this determination.^ Therefore, upon review of the Application for
Review and the entire record herein, we deny Mt. Rushmore's
Application for Review and affirm the Bureau's MO&O.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED that, pursuant to Section 1.115(g) of the
Commission's Rules,^ that the Application for Review filed by Mt.
Rushmore Broadcasting, Inc. IS DENIED and the Memorandum Opinion and
Order IS AFFIRMED.
9. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within fifteen (15) calendar days after the
release date of this Order on Review.^ On April 4, 2013, the United
States filed a complaint in federal district court against Mt.
Rushmore Broadcasting, Inc., for recovery of the $17,500 monetary
forfeiture penalty, in U.S. v. Mt. Rushmore Broadcasting, Inc., No.
2:13-cv-00079 (D. Wyo.). If timely payment of the forfeiture is
received, the government will dismiss the district court case. Mt.
Rushmore Broadcasting, Inc., shall send electronic notification of
payment to WR-Response@fcc.gov and to Mark A. Klaassen, Assistant
United States Attorney, at email@example.com, on the date said
payment is made.
10. The payment must be made by check or similar instrument, wire
transfer, or credit card, and must include the NAL/Account number and
FRN referenced above. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted.^ When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
11. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer--Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.^ If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
12. IT IS FURTHER ORDERED that this Order on Review shall be sent by both
Certified Mail, Return Receipt Requested, and regular mail to Mt.
Rushmore Broadcasting, Inc., at 218 N. Wolcott Street, Casper, Wyoming
82601-1923, and Lee J. Peltzman, Shainis & Peltzman, Chartered, 1850 M
Street, N.W., Suite 240, Washington, D.C. 20036, its counsel of
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
^ Application for Review, Mt. Rushmore Broadcasting, Inc. EB-08-DV-0166,
filed October 13, 2011 (Application for Review).
^ Mt. Rushmore Broadcasting, Inc., Memorandum Opinion and Order, 26 FCC
Rcd 12845 (Enf. Bur. 2011), (MO&O), aff'g 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 11.35(a).
^ 47 C.F.R. S 73.3526.
^ 47 C.F.R. SS 1.903(a), 1.947(a), 74.532(e).
^ Forfeiture Order, 25 FCC Rcd at 95-96; MO&O, 26 FCC Rcd at 12845-12847.
According to the Application for Review, both stations went silent on June
21, 2011. See File No. BLSTA-20110713AAI, granted August 10, 2011
(KRAL(AM) 2011 STA Request); File No. BLSTA - 20110713AAJ, granted October
6, 2011 (KIQZ(FM) 2011 STA Request). See also File No. 20120221ABD,
granted March 8, 2012 (KRAL(AM) STA Extension Request granted until June
21, 2012); File No. BLESTA- 20120319AHV, granted April 18, 2012 (KIQZ(FM)
STA Extension Request granted until June 21, 2012). According to
Commission records, Station KRAL(AM) resumed operations on June 18, 2012,
and Station KIQZ(FM) resumed operations on June 19, 2012, and then both
stations went silent again on June 21, 2012. See File No.
BLSTA-20120622ACM, granted September 24, 2012 (KRAL (AM) 2012 STA
Request); File No. BLSTA - 20120622ACN, granted September 7, 2012
(KIQZ(FM) 2012 STA Request).
^ MO&O, 26 FCC Rcd at 12846-12847.
^ See MO&O, 26 FCC Rcd at 12847; see also Forfeiture Order, 25 FCC Rcd at
^ MO&O, 26 FCC Rcd at 12847.
^ 47 U.S.C. S 503(b)(2)(E). See also 47 C.F.R. S 1.80 (b)(4); The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80 of
the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12
FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied, 15 FCC
Rcd 303 (1999).
^ 47 U.S.C. S 503(b).
^ H.R. Rep. No. 97-765, 97^th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant Section of the act
(e.g., Section 503) . . . . As defined . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
^ See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P10 (2001) (proposing a
forfeiture for, inter alia, a cable television operator's repeated signal
leakage); Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991) (applying Section 312(f)(1) definition
of "willful" to Section 503 forfeiture), recons. denied, 7 FCC Rcd 3454
^ 47 U.S.C. S 312(f)(1).
^ 47 U.S.C. S 312(f)(2).
^ Application for Review at 3-4.
^ See Lazer Licenses, LLC, Order on Review, 27 FCC Rcd 626 (2012) (the
licensee of three co-located broadcast stations was liable for an $8,000
forfeiture when an inspection revealed that the public inspection file of
each station was missing six quarterly issues/programs lists on one day);
Twenty-One Sound Communications, Inc., Order on Review, 23 FCC Rcd 2436
(2008) (the licensee of a broadcast station was liable for a $3,000
forfeiture when an inspection revealed that the station's public
inspection file was missing the station's ownership report, license
renewal, and renewal application).
^ NAL at para. 15. Compare Twenty-One Sound Communications, Inc., 23 FCC
Rcd at 2439 (an incomplete public inspection file, missing only three
items, could subject a licensee to monetary forfeiture regardless of why
or for how long the items were missing).
^ At the time of the inspection, the station's manager contacted 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.
^ Mt. Rushmore contends that in other cases, forfeitures were not assessed
for "single" violations of the public inspection file rules. Application
for Review at 3-4. Specifically, admonishments were found to be
appropriate where certain types of material were missing from the public
inspection file. See EZ New Orleans, Inc., Memorandum Opinion and Order,
15 FCC Rcd 7164 (1999) (admonishment appropriate where licensee failed to
place listener complaint letters in its public inspection file); Emmis
Television License Corp., Memorandum Opinion and Order, 19 FCC Rcd 22581
(Enf. Bur. 2004) (admonishment appropriate where public complaint letters
were missing from a station's public inspection file). Cancellation of a
forfeiture was found to be appropriate where a licensee could show a
public inspection file did exist and was missing from a main studio for
one day. See Jamie Patrick Broadcasting, Ltd., Memorandum Opinion and
Order, 17 FCC Rcd 26277 (Enf. Bur. 2002) (forfeiture cancelled where
licensee was able to certify that it always maintained a public inspection
file and it was missing from the station's main studio for just one day).
But see L.R. Radio Group, Inc., Forfeiture Order, 27 FCC Rcd 11260 (Enf.
Bur. 2012) (imposing forfeiture for missing public inspection file despite
licensee's claim that file existed but was misplaced during FCC agent's
inspection; "even if the lists existed at the time of the inspection, the
licensee must make the public inspection file available; it is not the
agent's responsibility to search the station to locate the station's
public inspection file"). We believe that Mt. Rushmore's public inspection
file violations are not comparable to the cases it cites -- the violations
were more serious in terms of both the missing materials and the period
covered, involved two stations, and Mt. Rushmore made no effort to produce
the missing materials at any time after the inspection, or to show that
they had ever been compiled.
^ Application for Review at 3, 4-5. We note that, contrary to Mt.
Rushmore's assertions, it did not immediately correct all the violations
in this proceeding. See, e.g., Forfeiture Order, 25 FCC Rcd at 100
(ordering Mt. Rushmore to comply with the Denver Office's directive in the
NAL to report on its efforts to bring the Station WHB734 license into
^ AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871-76 (2002).
^ Application for Review at 3, 5-6.
^ MO&O, 26 FCC Rcd at 12847.
^ Application for Review at 5.
^ See SM Radio, Inc., Order on Review, 23 FCC Rcd 2429, 2431-2434 (2008).
^ See Mt. Rushmore's most recent FCC 323 Ownership Report for Commercial
Broadcast Stations, File No. BOA-20111201CEQ, dated December 1, 2011.
^ Mt. Rushmore's citation of the Commission's policy of waiving the
obligation of stations that are dark or silent from paying annual
regulatory fees is inapposite to the situation where, as here, the issue
is the obligation of a licensee to satisfy a forfeiture obligation due to
its violation of the Commission's rules. Application for Review at 6. The
Commission has determined that it will grant petitions for waiver of
regulatory fees on grounds of financial hardship from licensees of
broadcast stations which are dark because "[p]etitions to go dark are
generally based on financial hardship . . . [and] [u]nder these
circumstances, imposition of the regulatory fees could be an impediment to
the restoration of broadcast service . . . ." Implementation of Section 9
of the Communications Act, Memorandum Opinion and Order, 10 FCC Rcd 12759,
12762 (1995). The Commission has announced no such general policy
regarding inability to pay claims by licensees that have been found to
have violated the Commission's rules. In those cases, and as explained in
the MO&O, a licensee may also succeed in having its forfeiture reduced or
cancelled, but it must provide specific financial documentation to justify
its inability to pay claim. Mt. Rushmore has not supplied such
documentation in this proceeding.
^ 47 C.F.R. S 1.115(g).
^ 47 C.F.R. S 1.80.
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
(Continued from previous page)
(continued . . . )
Federal Communications Commission FCC 13-55
Federal Communications Commission FCC 13-55