Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Mount Rushmore Broadcasting, ) File Number: EB-01-DV-444
Inc. ) NAL/Acct. No. 200232800006
) FRN 0005-0081-23
Licensee of Station KAWK(FM) )
Custer, South Dakota )
Facility ID #43916
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 31, 20024
By the District Director, Denver Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"),
we find that Mount Rushmore Broadcasting, Inc., ("Rushmore") licensee
of station KAWK, in Custer, South Dakota, has apparently willfully
violated Section 301 of the Communications Act of 1934, as amended
("Act")1 by operating an unlicensed aural broadcast auxiliary station
without Commission authorization. We conclude that Rushmore is
apparently liable for a forfeiture in the amount of ten thousand
2. On April 6, 2001, a Denver Office Agent inspected KAWK. The
station operated an unlicensed aural broadcast auxiliary radio
station, specifically, a studio-to-transmitter link ("STL") on 951.0
MHz at the Custer Community Hospital, 1039 Montgomery, Custer, South
Dakota. This STL link terminated at KAWK's transmitter site atop Mt.
Coolidge in South Dakota.
3. On January 7, 2002, the Denver Office issued a Notice of
Violation ("NOV") to Rushmore for the rule violations detected on
April 6, 2001, including the operation of the unlicensed STL. In the
February 26, 2002, reply to the NOV, Rushmore stated that the
appropriate STL application for authority to operate the STL has been
filed, along with a request for special temporary authority to operate
the STL pending formal grant of the application.
4. Review of the FCC's databases indicates that Rushmore filed a
special temporary authorization ("STA") on February 26, 2002. The
Commission issued the STA and assigned call sign WPUJ485 on March 15,
2002. On February 27, 2002, Rushmore filed for a permanent station
license and was assigned file number 0000787567. This application is
5. Section 301 of the Act sets forth generally that no person
shall use or operate any apparatus for the transmission of energy or
communications or signals by radio within the United States except
under and in accordance with this Act and with a license granted under
the provisions of this Act. The Rules governing the licensing and
operation of aural broadcast auxiliary stations, including STL's used
by FM radio stations are set forth under Subpart E of Part 74 of the
6. 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.3
The term "willful" as used in Section 503(b) has been interpreted to
mean simply that the acts or omissions are committed knowingly.4
7. Based on the evidence before us, we find that Rushmore
willfully violated Section 301 of the Act by operating an aural
auxiliary broadcast station without a license. 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 operating an unlicensed radio station is $10,000. 5 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 violation(s), 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.6 Applying the Forfeiture Policy
Statement and the statutory factors to the instant case, a $10,000
forfeiture is warranted.
IV. ORDERING CLAUSES
8. 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 ten thousand dollars ($10,000) for violation of Section 301
of the Communications Act of 1934, as amended.7
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's Rules, 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
10. 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.
11. 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.
12. 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.
13. 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
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail # 7001 0320 0002 9702 4382,
Return Receipt Requested, to Mount Rushmore Broadcasting, Inc., P. O.
Box 804, Custer, SD 57730.
FEDERAL COMMUNICATIONS COMMISSION
Leo E. Cirbo
District Director, Denver Office
1 47 U.S.C. § 301.
2 47 C.F.R. § 74.501 et seq.
3 47 U.S.C. § 503(b).
4 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).
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999);
47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 47 U.S.C. §§ 301 and 503(b); 47 C.F.R. §§ 0.111, 0.311 and
8 See 47 C.F.R. § 1.1914.