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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).
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Federal Communications Commission DA 12-789
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Federal Communications Commission DA 12-789