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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.