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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).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 12-1182

                                       4

   Federal Communications Commission DA 12-1182