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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Mt. Rushmore Broadcasting, Inc. File No.: EB-FIELDWR-12-00002388
)
Licensee of Station KMLD(FM) NAL/Acct. No.: 201232800004
and )
FRN: 0008230559
Station WLP722 )
Facility ID No.: 11927
Casper, Wyoming )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: July 25, 2012 Released: July 26, 2012
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Mt. Rushmore Broadcasting, Inc. (Mount Rushmore),
licensee of Station KMLD(FM) in Casper, Wyoming, apparently willfully
and repeatedly violated Section 1.903(a) of the Commission's rules
(Rules), by operating a studio-transmitter link (STL) at a location
not authorized by its license. We conclude that Mt. Rushmore is
apparently liable for a forfeiture in the amount of eight thousand
dollars ($8,000). In addition, we direct Mount Rushmore to submit, no
later than thirty (30) calendar days from the date of this NAL, a
statement, signed under penalty of perjury, attesting to its
compliance with the Commission's licensing requirements for the STL.
II. BACKGROUND
2. On Wednesday, August 17, 2011, an agent from the Enforcement Bureau's
Denver Office (Denver Office) conducted an inspection of Station
KMLD(FM) and its associated STL, Station WLP722. The agent monitored
Station WLP722 operation on its authorized frequency 946.0 MHz from
the Station KMLD(FM) main studio, located at 218 N. Wolcott Street,
Casper, Wyoming. According to the Station WLP722 authorization, the
STL is licensed to operate at 150 N. Nichols Street, Casper, Wyoming,
approximately 0.3 miles from its current location.
3. On December 23, 2011, the Denver Office issued a Letter of Inquiry
(LOI) to Mount Rushmore requesting additional details regarding the
license and operation of the Station KMLD(FM) STL. After multiple
extensions, Mount Rushmore responded on April 11, 2012. In the LOI
Response, Mount Rushmore stated that the STL had been in operation as
the primary delivery mechanism for Station KMLD(FM) programming since
August 31, 2001, and that an application to change the location of
Station WLP722 should have been filed when Station KMLD moved its main
studio in "late 2001 or early 2002" but could not produce a valid FCC
authorization for the STL. On May 24, 2012, Mount Rushmore filed an
application with the Commission to modify the Station WLP722 license
to reflect the station's current location.
III. DISCUSSION
4. Section 503(b) of the of the Communications Act of 1934, as amended
(Act), provides that any person who willfully or repeatedly fails to
comply substantially with the terms and conditions of any license, or
willfully or repeatedly 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. Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act, and the Commission has so
interpreted the term in the Section 503(b) context. The Commission
may also assess a forfeiture for violations that are merely repeated,
and not willful. The term "repeated" means the commission or omission
of such act more than once or for more than one day.
A. Operation at an Unauthorized Location
5. The evidence in this case is sufficient to establish that Mount
Rushmore violated Section 1.903(a) of the Rules. Section 1.903(a) of
the Rules requires that stations in the Wireless Radio Services must
be used and operated only in accordance with the rules applicable to
their particular service, and with a valid authorization granted by
the Commission. At the time of the August 17, 2011, inspection, Mount
Rushmore was operating Station WLP722, the Station KMLD(FM) STL at a
location approximately 0.3 miles from its authorized location. Mount
Rushmore acknowledges the continuous operation of Station WLP722 at
this location since August 31, 2001, but is unable to provide any
evidence of a Commission authorization for operation at this location.
Based on the evidence before us, we find that Mount Rushmore
apparently willfully and repeatedly violated Section 1.903(a) of the
Rules by operating Station WLP722 at allocation not authorized on its
license.
A. Proposed Forfeiture Amount and Reporting Requirement
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for operation at an
unauthorized location is $4,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in Section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require. Applying the Forfeiture Policy Statement, Section 1.80 of the
Rules, and the statutory factors to the instant case, we find no
downward adjustments are warranted, but conclude that an upward
adjustment is warranted because of the long duration of Mount
Rushmore's operation of the Station WLP722 at a location not
authorized on its license. Accordingly, we propose a forfeiture
amount of $8,000 rather than the base forfeiture amount to Mount
Rushmore for its prolonged operation of the Station KMLD(FM) STL at an
unauthorized location. Applying the Forfeiture Policy Statement,
Section 1.80 of the Rules, and the statutory factors to the instant
case, we conclude that Mount Rushmore is apparently liable for a total
forfeiture in the amount of eight thousand dollars ($8,000).
7. We further order Mount Rushmore to submit a written statement,
pursuant to Section 1.16 of the Rules, signed under penalty of perjury
by an officer or director of Mount Rushmore, stating that it is
operating Station KMLD(FM) and Station WLP722 in compliance with
Section 1.903(a) of the Rules, and detailing the specific actions
taken by Mount Rushmore to come into compliance. This statement must
be provided to the Denver Office at the address listed in paragraph 10
within thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order.
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, 0.204,
0.311, 0.314, and 1.80 of the Commission's rules, Mt. Rushmore
Broadcasting, Inc., is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of eight thousand dollars ($8,000) for
violation of Section 1.903(a) of the Rules.
9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Mt. 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. IT IS FURTHER ORDERED that Mt. Rushmore Broadcasting, Inc., SHALL
SUBMIT a written statement, as described in paragraph 7, within thirty
(30) calendar days of the release date of this Notice of Apparent
Liability for Forfeiture and Order. The statement must be mailed to
Federal Communications Commission, Enforcement Bureau, Western Region,
Denver District Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood,
Colorado 80226. Mt. Rushmore shall also e-mail the written statement
to WR-Response@fcc.gov.
11. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Mt. Rushmore Broadcasting, Inc., shall send
electronic notification of payment to WR-Response@fcc.gov on the date
said payment is made. Regardless of the form of payment, a completed
FCC Form 159 (Remittance Advice) must be submitted. When completing
the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
12. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Denver District Office, 215 S. Wadsworth Blvd., Suite 303,
Lakewood, Colorado 80226, and include the NAL/Acct. No. referenced in
the caption. Mt. Rushmore Broadcasting, Inc., also shall email the
written response to WR-Response@fcc.gov.
14. 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.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail to Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail to Mt. Rushmore Broadcasting, Inc., at 218
N. Wolcott Street, Casper, Wyoming 82601-1923, and to its counsel, Lee
J. Peltzman, Esq., Shainis & Peltzman, Chartered, 1850 M Street, NW,
Suite 240, Washington, D.C. 20036.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
47 C.F.R. S: 1.903(a).
47 C.F.R. S: 1.903(a).
See Letter of Inquiry from Nikki P. Shears, District Director, Denver
Office, Western Region, FCC Enforcement Bureau, to Mt. Rushmore
Broadcasting, Inc. (Dec. 23, 2011) (on file in EB-FIELDWR-12-00002388).
See Letter from Lee J. Peltzman, Esquire, Counsel for Mt. Rushmore
Broadcasting, Inc., to Nikki P. Shears, District Director, Denver Office,
Western Region, FCC Enforcement Bureau (filed Apr. 11, 2012) (on file in
EB- FIELDWR-12-00002388) (LOI Response).
LOI Response, Jan Gray Declaration at 4.
See File No. 0005232128, submitted May 24, 2012 (Station WLP722
Modification Application). As of the date of this NAL, the Station WLP722
Modification Application remains pending.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied,
7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
47 C.F.R. S: 1.903(a).
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See 47 C.F.R. S:1.80(b)(5), Note to Paragraph (b)(5): Section II.
Adjustment Criteria for Section 503 Forfeitures (establishing "repeated or
continuous violation" as an upward adjustment factor). We also note that
Mount Rushmore has previously been assessed a forfeiture for violating
Section 301 of the Act by operating an unlicensed STL. See Mount Rushmore
Broadcasting, Inc., Memorandum Opinion and Order, 18 FCC Rcd 19804 (Enf.
Bur. 2003) (forfeiture paid).
47 C.F.R. S: 1.903(a).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
1.903(a).
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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(continued....)
Federal Communications Commission DA 12-1182
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Federal Communications Commission DA 12-1182