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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                                
                                                                          
     In the Matter of                    )   File No.: EB-11-DV-0066      
                                                                          
     Mount Rushmore Broadcasting, Inc.   )   NAL/Acct. No.: 201232800002  
                                                                          
     Licensee of                         )   FRN: 0008230559              
                                                                          
     Station KZMX(AM), Hot Springs, SD   )   Facility ID No.: 46713       
                                                                          
     Station KZMX-FM, Hot Springs, SD    )   Facility ID No.: 46712       
                                                                          
                                         )                                


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: May 17, 2012 Released: May 18, 2012

   By the District Director, Denver Office, Western Region, Enforcement
   Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
       that Mt. Rushmore Broadcasting, Inc. (Mount Rushmore), licensee of
       Stations KZMX(AM) and KZMX-FM (Stations), in Hot Springs, South
       Dakota, apparently willfully and repeatedly violated Sections
       73.1125(a), 73.1125(e), 73.1225(a), and 73.1350(a) of the Commission's
       rules (Rules), by failing to maintain a management or staff presence
       at the Stations' main studio, by failing to maintain a local telephone
       number in its community of license or a toll-free number for either
       station, by failing to make the Stations available for inspection, and
       by failing to operate Station KZMX-FM in accordance with the terms of
       the station's authorization. We conclude that Mount Rushmore is
       apparently liable for a forfeiture in the amount of twenty-one 
       thousand, five hundred dollars ($21,500).

   II. BACKGROUND

    2. On Tuesday, May 31, 2011, in response to a complaint, an agent from
       the Enforcement Bureau's Denver Office (Denver Office) attempted an
       inspection of the Station KZMX(AM) and Station KZMX-FM main studio,
       during regular business hours. The Stations' main studio is located
       approximately one mile north of Hot Springs, South Dakota, and is
       clearly marked in large letters "KZMX" and a sign on the front door
       reads "Mount Rushmore Broadcasting." The door to the main studio was
       locked and there was no staff or management present at the building.
       There was no contact information posted at the main studio location,
       consequently, the agent was unable to gain entrance to the main
       studio. The agent stayed at the main studio site for several hours,
       monitoring Station KZMX(AM), which was operating on the frequency 580
       kHz, and Station KZMX-FM, which was operating on frequency 96.7 MHz.
       The agent telephoned multiple phone numbers, including two published
       phone numbers associated with Mount Rushmore and the Stations several
       times, but none of his calls were answered. During the time the agent
       was at the main studio location, an individual identifying himself as
       a former employee stopped by the main studio location and informed the
       agent that no one had been present at the main studio for more than a
       year.

    3. On June 1, 2011, during regular business hours, the Denver agent
       returned to the Station KZMX(AM) and Station KZMX-FM main studio and
       again attempted an inspection of the Stations' main studio. The agent
       stopped by the main studio several times throughout the day, during
       regular business hours. Each time, no employees were present and the
       agent was unable to gain access to the main studio. Both Stations were
       in operation and during each visit, the agent telephoned several phone
       numbers associated with the Stations but his calls were not answered.
       The agent then visited a non-affiliated business in the area owned by
       the president of Mount Rushmore. After being informed that the Mount
       Rushmore president was in the area, the agent left his business card
       with an employee who agreed to have the president contact the agent,
       however, the agent never heard from the president.

    4. Also on June 1, 2011, the Denver agent inspected the Station KZMX-FM
       transmitter facility located approximately 1.3 miles from the
       Stations' main studio location. The agent observed that Station
       KZMX-FM was operating using a 4-bay, circularly polarized FM antenna,
       while a 4-bay horizontal FM antenna was on the ground near the KZMX-FM
       tower. According to the Station KZMX-FM license, it is authorized to
       operate using horizontal polarization only.

    5. In the morning of June 2, 2011, the Denver agent returned to the
       Stations' main studio location and again found it locked and with no
       personnel. The agent noted that Station KZMX(AM) was no longer on the
       air and that Station KZMX-FM was operating at reduced modulation.
       Later that day, an attorney for Mount Rushmore called the agent and
       informed the agent that he had filed a request with the Commission for
       special temporary authority to take the Stations off the air. The
       attorney stated that Mount Rushmore had taken Station KZMX(AM) off the
       air on June 1, 2011, and then later notified the agent that Station
       KZMX-FM was taken off the air on June 3, 2011.

   III. DISCUSSION

    6. Section 503(b) 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. Main Studio Violations

    7. Section 73.1125(a) of the Rules requires broadcast stations to
       maintain a main studio. The Commission has interpreted Section 73.1125
       (also known as the "Main Studio Rule") to require, among other things,
       that a licensee maintain a "meaningful management and staff presence"
       at its main studio. Specifically, the Commission has found that a main
       studio "must, at a minimum, maintain full-time managerial and
       full-time staff personnel."  Although management personnel need not be
       "chained to their desks" during normal business hours, they must
       "report to work at the main studio on a daily basis, spend a
       substantial amount of time there and...use the studio as a `home
       base." Section 73.1125(e) requires each AM, FM, TV and Class A TV
       broadcast station to "maintain a local telephone number in its
       community of license or a toll-free number."

    8. On May 31, 2011, June 1, 2011, and June 2, 2011, when a Denver agent
       attempted to conduct an inspection at the Stations' main studio during
       regular business hours, the agent was unable to gain access to the
       main studio and there were no station personnel present. The agent
       made several phone calls to multiple telephone numbers associated with
       the Stations and the licensee, but there was no answer at any of the
       numbers and some of the numbers were out of service. Although Mount
       Rushmore filed for special temporary authority to take the Stations
       off the air after being contacted by the agent, neither that filing
       nor the ultimate receipt of such special temporary authority
       alleviates Mount Rushmore's obligations to comply with the
       Commission's main studio requirements.  Accordingly, based on the
       evidence before us, we find that Mount Rushmore apparently willfully
       and repeatedly violated Section 73.1125(a) of the Rules by failing to
       maintain a full-time management and staff presence at the Station
       KZMX(AM) and Station KZMX-FM main studio during regular business
       hours, and by failing to maintain a local telephone number in the
       Stations' community of license or a toll-free number.

    B. Failure to Make the Stations Available for Inspection

    9. Section 73.1225(a) of the Rules requires that the "licensee of a
       broadcast station shall make the station available for inspection by
       representatives of the FCC during the station's business hours, or at
       any time it is in operation." On May 31, 2011, June 1, 2011, and June
       2, 2011, a Denver agent attempted to inspect Station KZMX(AM) and
       Station KZMX-FM while they were in operation. Despite repeated
       attempts by the Denver agent to contact the Stations and the licensee,
       the stations were not made available to the agent for inspection.
       Accordingly, based on the evidence before us, we find that Mount
       Rushmore apparently willfully and repeatedly violated Section
       73.1225(a) of the Rules by failing to make Stations KZMX(AM) and
       Station KZMX-FM available for inspection by an FCC agent.

    C. Failure to Operate in Accordance with Station Authorization

   10. Section 73.1350(a) of the Rules states that "[e]ach licensee is
       responsible for maintaining and operating its broadcast station in a
       manner which complies with the technical rules . . . and in accordance
       with the terms of the station authorization." On June 1, 2011, a
       Denver agent inspected the transmitting facility of Station KZMX-FM
       and observed that the station was operating using a 4-bay, circularly
       polarized FM antenna; however, according to the Station KZMX-FM
       license, it is authorized to operate using horizontal polarization
       only. A prior Denver Office inspection showed this operation was
       ongoing for several years. Accordingly, based on the evidence before
       us, we find that Mount Rushmore apparently willfully and repeatedly
       violated Section 73.1350(a) of the Rules by failing to operate Station
       KZMX-FM in accordance with the terms of the station's authorization.

    D. Proposed Forfeiture Amount

   11. Pursuant to the Commission's Forfeiture Policy Statement and Section
       1.80 of the Rules, the base forfeiture amount for violations of the
       main studio rule is $7,000, the base forfeiture for failing to make a
       station available for inspection is $7,000, and the base forfeiture
       amount for use of unauthorized equipment is $5,000. 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
       apparently lengthy duration of Mount Rushmore's failure to operate in
       accordance with the KZMX-FM station authorization and because Mount
       Rushmore had previously received a forfeiture for failing to operate
       Station KZMX-FM in accordance with its authorization. Accordingly, we
       assess a forfeiture amount of $7,500 rather than the base forfeiture
       amount to Mount Rushmore for use of unauthorized equipment which
       resulted in its failure to operate Station KZMX-FM in accordance with
       its authorization. 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 twenty-one thousand, five hundred dollars
       ($21,500).

   IV. ORDERING CLAUSES

   12. 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 twenty-one thousand, five hundred
       dollars ($21,500) for violations of Sections 73.1125(a), 73.1125(e),
       73.1225(a) and 73.1350(a) of the Rules.

   13. 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, 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.

   14. Payment of the forfeiture must be made by credit card, check, or
       similar instrument, payable to the order of the Federal Communications
       Commission. The payment must include the Account number and FRN
       referenced above. Payment by check or money order may be mailed to
       Federal Communications Commission, P.O. Box 979088, St. Louis, MO
       63197-9000. Payment by overnight mail may be sent to U.S. Bank -
       Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
       Louis, MO 63101. Payment by wire transfer may be made to ABA Number
       021030004, receiving bank TREAS/NYC, and account number 27000001. For
       payment by credit card, an FCC Form 159 (Remittance Advice) must be
       submitted.  When completing the FCC Form 159, enter the NAL/Account
       number in block number 23A (call sign/other ID), and enter the letters
       "FORF" in block number 24A (payment type code). Requests for full
       payment under an installment plan should be sent to:  Chief Financial
       Officer-Financial Operations, 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 at
       1-877-480-3201 or E-mail: ARINQUIRIES@fcc.gov. Mt. Rushmore
       Broadcasting, Inc., will also send electronic notification on the date
       said payment is made to WR-Response@fcc.gov.

   15. 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 Office, 215 S. Wadsworth Blvd., # 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.

   16. 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.

   17. IT IS FURTHER ORDERED that a copy of this 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 Lee J. Peltzman,
       Shainis & Peltzman, Chartered, 1850 M Street, N.W., Suite 240,
       Washington, D.C. 20036, its counsel of record.

   FEDERAL COMMUNICATIONS COMMISSION

   Nikki P. Shears

   District Director

   Denver Office

   Western Region

   Enforcement Bureau

   47 C.F.R. S:S: 73.1125(a),(e), 73.1225(a), 73.1350(a).

   The agent observed that the modulation of Station KZMX-FM on the frequency
   96.7 MHz was very weak, making the simulcast audio from the station
   difficult to hear.

   There was no voicemail associated with any of the numbers and some of the
   numbers were disconnected or out of service.

   A Denver Office inspection in 2005 revealed the same scenario - a
   circularly polarized FM antenna was in use by Station KZMX-FM while a
   4-bay horizontal FM antenna lay on the ground nearby.

   See File Number BMLH-19901010KC, granted February 7, 2007 (Station KZMX-FM
   License).

   See File No. BLSTA - 20110602AAX, granted August 29, 2011 (KZMX(AM) STA
   Request); File No. BLSTA - 20110602AAV, granted August 29, 2011 (KZMX-FM
   STA Request). The justification given for the KZMX(AM) STA Request was
   that the "station was taken off the air because of equipment
   malfunctions." The justification given for the KZMX-FM STA Request was the
   "station equipment was damaged as a result of a lightening strike." See
   also File No. BLESTA-20120319AHW, granted April 18, 2012 (KZMX-FM STA
   Request granted until May 23, 2012); File No. BLESTA-20120319AHU, granted
   April 18, 2012 (KZMX(AM) STA Request granted until June 1, 2012). Both
   Stations resumed operations on April 27, 2012. See Resumption of
   Operations (KZMX(AM)), filed April 30, 2012; Resumption of Operations
   (KZMX-FM), filed April 30, 2012.

   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: 73.1125(a).

   Amendment of Sections 73.1125 and 73.1130 of the Commission's Rules, the
   Main Studio and Program Origination Rules for Radio and Television
   Broadcast Stations, Memorandum Opinion and Order, 3 FCC Rcd 5024, 5026
   (1988) (Main Studio and Program Origination Rules), erratum issued, 3 FCC
   Rcd 5717 (1988) (correcting language in n.29).

   See  Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and Order,
   6 FCC Rcd 3615, 3616 & n.2 (1991)  (Jones Eastern)  (noting that, "This is
   not to say that the same staff person and manager must be assigned
   full-time to the main studio. Rather, there must be management and staff
   presence on a full-time basis during normal business hours to be
   considered `meaningful.'"), clarified, 7 FCC Rcd 6800 (1992)  (Jones
   Eastern II). See also Birach Broadcasting Corporation, Notice of Apparent
   Liability for Forfeiture, 25 FCC Rcd 2635 (Enf. Bur. 2010).

   Jones Eastern II, 7 FCC Rcd at 6802.

   47 C.F.R. S: 73.1125(e).

   We note that the Commission's grants of silent authority for both Station
   KZMX(AM) and Station KZMX-FM state specifically that "the station's silent
   status does not suspend the licensee's obligation to comply with all other
   relevant Commission rules . . . ." Letter from H. Taft Snowden, Audio
   Division, Media Bureau, Granting Silent Authority for KZMX(AM) to Jan
   Charles Gray, Mt. Rushmore Broadcasting, Inc., (Aug. 29, 2011) at 2;
   Letter from H. Taft Snowden, Audio Division, Media Bureau, Granting Silent
   Authority for KZMX-FM to Jan Charles Gray, Mt. Rushmore Broadcasting,
   Inc., (Aug. 29, 2011) at 2.

   47 C.F.R. S: 73.1225(a).

   This failure by Mount Rushmore prevented the agent from doing any
   comprehensive inspection of the Stations' facilities and filings,
   including the Stations' Emergency Alert System equipment and Public
   Inspection Files.

   47 C.F.R. S: 73.1350(a).

   The Station KZMX-FM License authorizes operation using the following
   antenna: "Gates FMA-4A, 4 section, horizontally polarized."

   We note that Mount Rushmore was previously assessed a forfeiture for
   violating Section 73.1350 of the Rules while operating Station KZMX-FM.
   See Mount Rushmore Broadcasting, Inc., Forfeiture Order, 17 FCC Rcd 21398
   (Enf. Bur. 2002) aff'd 18 FCC Rcd 11446 (Enf. Bur. 2003) (assessing a
   $3,000 forfeiture for violation of Sections 73.1350 and 73.1400 of the
   Rules by failing to operate Station KZMX-FM in compliance with the
   technical rules and in accordance with the terms of the station license,
   specifically, for failing to establish monitoring procedures and schedules
   to determine compliance with operating power and modulation levels and
   failing to have positive control of the transmitter).

   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 supra note 23.

   47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
   73.1125(a),(e), 73.1225(a), 73.1350(a).

   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 12-789

                                       3

   Federal Communications Commission DA 12-789