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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-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:


                         I.  INTRODUCTION

     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 
dollars ($10,000).


                         II.  BACKGROUND

     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 
pending.
                            III. DISCUSSION

     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 
Rules.2 

     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 
forfeiture.

     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 
1.80.

     8   See 47 C.F.R.  1.1914.