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

In the Matter of                 )
                                 )
Mount Rushmore Broadcasting,     )    File Number:  EB-01-DV-435
Inc.                             )    NAL/Acct. No. 200232800005
                                 )    FRN  0005-0081-23
Licensee of Station KZMX(FM)     )
Hot Springs, South Dakota        )
Facility ID #46712



              NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                             Released:  May 31, 2002

By the District Director, Denver Office, Enforcement Bureau:


                         I.  INTRODUCTION

     1. In this Notice of Apparent Liability for Forfeiture ("NAL"), 
we find that Mount Rushmore Broadcasting, Inc., ("Rushmore") licensee 
of station KZMX, in Hot Springs, South Dakota, apparently willfully 
violated Sections 73.1350 and 73.1400 of the Commission's Rules 
("Rules")1 by failing to establish monitoring procedures and schedules 
to determine compliance with operating power and modulation levels and 
failing to have positive on/off control of the transmitter.  We 
conclude, pursuant to Section 503(b) of the Communications Act of 
1934, as amended ("Act"),2 that Rushmore is apparently liable for a 
forfeiture in the amount of three thousand dollars ($3,000).


                         II.  BACKGROUND

     2. On April 6, 2001, a Denver Office Agent inspected station 
KZMX.  At the time of the inspection, station personnel were unable to 
access the transmitter operating power and modulation levels or turn 
the transmitter off via the remote control system from the main 
studio.  The station also had no established monitoring procedures or 
schedules to determine compliance with operating power and modulation 
levels, and had not performed periodic complete inspections of the 
transmitting system.

     3. On January 2, 2002, the Denver Office issued a Notice of 
Violation ("NOV") to Rushmore for the violations detected on April 6, 
2001.  On March 11, 2002, Rushmore submitted a reply to the NOV.   
Rushmore stated that station KZMX is now able to access the 
transmitter operating power levels and to turn the transmitter off via 
remote control from the main studio, and the station has established 
monitoring schedules and procedures for monitoring power and 
modulation. 

                            III. DISCUSSION

     4. Section 503(b) of the Act provides that any person who 
willfully fails to comply substantially with the terms and conditions 
of any license, or willfully 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.  
The term "willful" as used in Section 503(b) has been interpreted to 
mean simply that the acts or omissions are committed knowingly.3 

     5. A broadcast station licensee is responsible for maintaining 
and operating the station in compliance with the technical rules and 
in accordance with the terms of the station license.  Licensees must 
maintain and control operating parameters such as output power and 
level of modulation as required by Section 73.1350 of the Rules.  In 
particular, Section 73.1350(b) provides that a licensee may designate 
one or more technically competent persons to adjust the transmitter 
operating parameters for compliance with the technical rules and the 
station authorization, but requires that the transmitter control 
personnel must have the capability to turn the transmitter off at all 
times.  Section 73.1350(c)(1) states that a licensee must establish 
monitoring procedures and schedules to determine compliance with the 
rules regarding operating power and modulation levels.  The Rules 
provide licensees flexibility in designing and constructing necessary 
equipment and circuitry to control their station's operating 
parameters.  Nevertheless, Section 73.1400 requires stations to 
operate in compliance with applicable technical rules and the terms of 
the station authorization by employing various methods or levels of 
transmission system monitoring and supervision that will preclude 
out-of-tolerance operation.  Section 73.1400(a)(1) specifically 
provides that a remote control system must provide sufficient 
transmission system monitoring and control capability so as to ensure 
compliance with Section 73.1350.  

     6. At the time of inspection on April 6, 2001, KZMX personnel 
were unable to turn the transmitter off via remote control from the 
main studio, had no established monitoring schedules and procedures 
for monitoring power and modulation, and were unable to access the 
transmitter operating power and modulation levels via a remote control 
system from the main studio.  Further, KZMX personnel were unable to 
identify when the last complete transmitting system inspection had 
been conducted.

     7.  Based on the evidence before us, we find that Rushmore 
willfully violated Sections 73.1350 and 73.1400 of the Commission's 
Rules by failing to establish monitoring procedures and schedules to 
determine compliance with operating power and modulation levels and 
failing to have positive control of the transmitter.  

     8. The base forfeiture amount set by The Commission's Forfeiture 
Policy Statement and Amendment of Section 1.80 of the Rules to 
Incorporate the Forfeiture Guidelines, ("Forfeiture Policy 
Statement"), and Section 1.80 of the Rules, for violation of 
transmitter control and metering requirements is $3,000.4  In 
assessing the monetary forfeiture amount, we must also take into 
account the statutory factors set forth in Section 503(b)(2)(D) of the 
Act, which include the nature, circumstances, extent, and gravity of 
the violations, and with respect to the violator, the degree of 
culpability, and history of prior offenses, ability to pay, and other 
such matters as justice may require.5  Applying the Forfeiture Policy 
Statement and the statutory factors to the instant case, a $3,000 
forfeiture is warranted.  

                         IV.  ORDERING CLAUSES

     9. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of 
the Communications Act of 1934, as amended, and Sections 0.111, 0.311 
and 1.80 of the Commission's Rules, Mount Rushmore Broadcasting, Inc., 
is hereby NOTIFIED of an APPARENT LIABILITY FOR A FORFEITURE in the 
amount of three thousand dollars ($3,000) for violations of Sections 
73.1350 and 73.1400 of the Rules.6

     10.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the 
Commission's Rules7 within thirty days of the release date of this 
NOTICE OF APPARENT LIABILITY, Mount Rushmore Broadcasting, Inc., SHALL 
PAY the full amount of the proposed forfeiture or SHALL FILE a written 
statement seeking reduction or cancellation of the proposed 
forfeiture.

     11.  Payment of the forfeiture may be made by mailing a check or 
similar instrument, payable to the order of the Federal Communications 
Commission, to the Forfeiture Collection Section, Finance Branch, 
Federal Communications Commission, P.O. Box 73482, Chicago, Illinois 
60673-7482.  The payment MUST INCLUDE the FCC Registration number 
(FRN) and also must note the NAL/Acct. No. referenced in the caption.

     12.  The response, if any, must be mailed to Federal 
Communications Commission, Enforcement Bureau, Technical and Public 
Safety Division, 445 12th Street, S.W., Washington, D.C. 20554 and 
must include the NAL/Acct. No. referenced in the caption.  

     13.  The Commission will not consider reducing or canceling a 
forfeiture in response to a claim of inability to pay unless the 
petitioner submits: (1) federal tax returns for the most recent 
three-year period; (2) financial statements prepared according to 
generally accepted accounting practices ("GAAP"); or (3) some other 
reliable and objective documentation that accurately reflects the 
petitioner's current financial status.  Any claim of inability to pay 
must specifically identify the basis for the claim by reference to the 
financial documentation submitted.  

     14.  Requests for payment of the full amount of this Notice of 
Apparent Liability under an installment plan should be sent to: Chief, 
Revenue and Receivables Operations Group, 445 12th Street, S.W., 
Washington, D.C. 20554.8

     15.  IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT 
LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 4399, 
Return Receipt Requested, to Mount Rushmore Broadcasting, Inc., P. O. 
Box 611, Hot Springs, SD  57747.

                              FEDERAL COMMUNICATIONS COMMISSION



                              Leo E. Cirbo
                              District Director, Denver Office
_________________________

     1  47 C.F.R.  73.1350 and 73.1400.

     2  47 U.S.C.  503(b).

     3  Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies to violations for which forfeitures are assessed under Section 
503(b) of the Act, provides that "[t]he term 'willful', when used with 
reference to the commission or omission of any act, means the 
conscious and deliberate commission or omission of such act, 
irrespective of any intent to violate any provision of this Act ?."  
See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991).

     4  12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R. 1.80.

     5  47 U.S.C.  503(b)(2)(D).

     6  47 U.S.C.  503(b), 47 C.F.R.  0.111, 0.311, 1.80, 73.1350 
and 73.1400.

     7  47 C.F.R.  1.80.

     8  See 47 C.F.R.  1.1914.