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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-
) NAL/Acct. No.
Mount Rushmore Broadcasting, Inc. )
Licensee, Station KAWK(FM) )
Custer, South Dakota )
Facility ID #43916 )
MEMORANDUM OPINION AND ORDER
Adopted: October 1, 2003 Released: October 3,
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny the petition for reconsideration filed by Mount
Rushmore Broadcasting, Inc., (``Mount Rushmore'').
Mount Rushmore seeks reconsideration of the Forfeiture
Order1 in which the Chief, Enforcement Bureau
(``Bureau''), found it liable for a monetary
forfeiture in the amount of $10,000 for willful
violation of Section 301 of the Communications Act of
1934, as amended (``Act'').2 The noted violation
involves Mount Rushmore's unlicensed operation of a
studio to transmitter (``STL'') link.
2. Mount Rushmore is the licensee of Station KAWK(FM),
Custer, South Dakota. On April 6, 2001, an agent from the
Commission's Denver, Colorado, District Office (``Denver
Office'') inspected Station KAWK-FM. During the inspection the
agent observed, among other things, that Mount Rushmore was
operating an STL on frequency 951.0 MHz. A check of the
Commission's license records indicated that the STL was
3. On January 7, 2002, the Denver Office issued Notice of
Violation (``NOV'') to Mount Rushmore for the unlicensed
operation and other violations detected during the inspection.
In its response to the NOV, filed on November 29, 2002, Mount
Rushmore stated that it had applied for authorization to operate
4. On May 31, 2002, the District Director of the Denver
Office issued a Notice of Apparent Liability for Forfeiture
(``NAL'')4 in the amount of $10,000 for willful violation of
Section 301 of the Act. Mount Rushmore did not file a response
to the NAL. The Bureau's Forfeiture Order, released October 29,
2002, affirmed the forfeiture proposed by the NAL.5 On November
29, 2002, Mount Rushmore filed a petition for reconsideration of
the Forfeiture Order. Mount Rushmore does not dispute the
violation but requests cancellation or reduction of the
forfeiture. Mount Rushmore argues that the violation was not
willful, that it has corrected the violation and that the $10,000
forfeiture is ``a huge fine for a small operator.'' On May 15,
2003, Mount Rushmore supplemented a petition for reconsideration
filed in another proceeding (EB-01-DV-435) with copies of its
1999, 2000, 2001 federal income tax returns.
5. Section 312(f)(1) of the Act,6 which applies to
violations for which forfeitures are assessed under Section
503(b) of the Act,7 provides that ``[t]he term `willful,' ...
means the conscious and deliberate commission or omission of such
act, irrespective of any intent to violate any provision of this
Act or any rule or regulation of the Commission authorized by
this Act ....'' See Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991); see also Nan Tan Computer Co., 9 FCC Rcd 3092
(1994). Mount Rushmore knew that it was operating an STL and
that it did not have license for that operation. We conclude
that Mount Rushmore willfully violated Section 301of the Act.
6. Mount Rushmore's corrective action does not mitigate
its violations. As the Commission stated in Seawest Yacht
Brokers, 9 FCC Rcd 6099, 6099 (1994), ``corrective action taken
to come into compliance with Commission rules or policy is
expected, and does not nullify or mitigate any prior forfeitures
or violations.'' 8
7. We have reviewed the financial information provided by
Mount Rushmore and we find that this information does not provide
a basis for reduction or cancellation of the forfeiture.
8. Since Mount Rushmore still does not have an
authorization for operation of the STL, we have no evidence that
Mount Rushmore now complies with Section 301 of the Act.
Accordingly, we will require, pursuant to Section 308(b) of the
Act,9 that Mount Rushmore submit a report to the Enforcement
Bureau no more than thirty (30) days after release of this Order
demonstrating how it complies with Section 301 of the Act
regarding its use of the STL. Mount Rushmore's report must be
submitted in the form of an affidavit signed under penalty of
perjury by an officer or director of the licensee.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Act10 and Section 1.106 of the Rules,11 Mount
Rushmore's petition for reconsideration of the October 29, 2002,
Forfeiture Order IS DENIED.
10. IT IS ALSO ORDERED that, pursuant Section 308(b) of the
Act, Mount Rushmore must submit the report described in Paragraph
8, no more than thirty (30) after release of this order, to
Federal Communications Commission, Enforcement Bureau, Technical
and Public Safety Division, 445 12th Street, S.W., Room 7-A820,
Washington, D.C. 20554, Attention: Thomas D. Fitz-Gibbon, Esq.
11. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules12 within 30 days of the
release of this Order. If the forfeiture is not paid within the
period specified, the case may be referred to the Department of
Justice for collection pursuant to Section 504(a) of the Act.13
Payment shall be made by mailing a check or similar instrument,
payable to the order of the ``Federal Communications
Commission,'' to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note
NAL/Acct. No. 200232800006 and FRN 0005-0081-23. Requests for
full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.14
12. IT IS FURTHER ORDERED THAT this Order shall be
sent by regular mail and by certified mail, return receipt
requested, to Jan Gray, President, Mount Rushmore Broadcasting,
Inc., 218 N. Wolcott St., Caspar, Wyoming 82601.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 17 FCC Rcd 21398 (Enf. Bur. 2002).
2 47 U.S.C. § 301.
3 According to the Commission's license records, subsequent
to the inspection and issuance of the NOV Mount Rushmore obtained
a temporary STL authorization, WPUJ485, on March 15, 2002. That
authorization expired on September 15, 2002. The Commission's
Wireless Telecommunications Bureau returned Mount Rushmore's
application for a full term STL on April 4, 2002, and dismissed
it on June 30, 2002, because Mount Rushmore did not refile that
application. Mount Rushmore now has no pending application for
an STL license.
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232800005 (Enf. Bur., Denver Office, released May 31, 2002).
5 17 FCC Rcd 21398 (Enf. Bur. 2002).
6 47 USC § 312(f)(1).
7 47 USC § 503(b).
8 See also AT&T Wireless Services, Inc., 17 FCC Rcd 21866,
9 47 U.S.C. § 308(b).
10 47 U.S.C. § 405.
11 47 C.F.R. § 1.106.
12 47 C.F.R. § 1.80.
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.