Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

   In the Matter of Mt. Rushmore Broadcasting, Inc. Licensee of Station
   KHOC(FM) Casper, Wyoming ) ) ) ) ) ) ) File No.: EB-FIELDWR-12-00003587
   NAL/Acct. No.: 201332800003 FRN: 0008230559 Facility ID No.: 15925




             NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER

   Adopted: February 27, 2013 Released: February 28, 2013

   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 KHOC(FM) in Casper, Wyoming, apparently willfully
       and repeatedly violated Section 73.3526 of the Commission's rules
       (Rules),^ by failing to maintain a complete public inspection file. We
       conclude that Mount Rushmore is apparently liable for a forfeiture in
       the amount of fifteen thousand dollars ($15,000). 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 public
       inspection file requirements, for Station KHOC(FM).^

   II. BACKGROUND

    2. On Wednesday, August 17, 2011, an agent from the Enforcement Bureau's
       Denver Office (Denver Office) conducted an inspection of Station
       KHOC(FM). The Denver agent reviewed the Station KHOC(FM) public
       inspection file and found that Station KHOC(FM) was missing
       twenty-three (23) consecutive quarters of issues/programs lists, i.e.,
       all quarterly issues programs lists since the Commission granted the
       Station's renewal application on September 28, 2005.^ When queried by
       the Denver agent, Station KHOC(FM) personnel were unable to locate any
       issues/programs lists for the current license period other than four
       documents.

   III. DISCUSSION

    3. 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. Failure to Maintain a Complete Public Inspection File

    4. Section 73.3526(a)(2) of the Rules requires broadcast stations
       maintain for public inspection a file containing materials listed in
       that section.^ Section 73.3526(c)(1) of the Rules specifies that the
       file shall be available for public inspection at any time during
       regular business hours,^ and Section 73.3526(e)(12) of the Rules
       specifically requires licensees to place in their public inspection
       file for each calendar quarter, a list of programs that have provided
       the station's most significant treatment of community issues during
       the preceding three month period.^ This list is known as the
       issues/programs lists and must include a brief narrative describing
       what issues were given significant treatment and the programming that
       provided this treatment. Copies of the issues/programs lists must be
       retained in the public inspection file until final action has been
       taken on the station's next license renewal application.^ The renewal
       of the Station KHOC(FM) license was granted on September 28, 2005, and
       expires October 1, 2013. At the time of the August 17, 2011,
       inspection, the Station KHOC(FM) public inspection file was missing
       twenty-three (23) consecutive quarters of radio issues/programs lists.
       The file contained no lists since the station's 2005 renewal was
       granted. Based on the evidence before us, we find that Mount Rushmore
       apparently willfully and repeatedly violated Section 73.3526 of the
       Rules by failing to maintain the issues/programs lists and make them
       available in the Station's public inspection file.

     A. Proposed Forfeiture Amount and Reporting Requirement

    5. Pursuant to the Commission's Forfeiture Policy Statement and Section
       1.80 of the Rules, the base forfeiture amount for violation of the
       public file rules is $10,000.^ 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 failure to create and make available issues/programs lists
       in the Station KHOC(FM) public inspection file, which has continued
       for the entire length of the current license term.^  Accordingly, we
       propose a forfeiture amount of $15,000 rather than the base forfeiture
       amount. 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 forfeiture in the amount of
       fifteen thousand dollars ($15,000).

    6. 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 KHOC(FM) in compliance with Section 73.3526 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 9 within thirty (30)
       calendar days of the release date of this Notice of Apparent Liability
       for Forfeiture and Order.

   IV. ORDERING CLAUSES

    7. 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 fifteen  thousand dollars ($15,000) for
       violation of Section 73.3526 of the Rules.^

    8. 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.

    9. IT IS FURTHER ORDERED that Mt. Rushmore Broadcasting, Inc., SHALL
       SUBMIT a written statement, as described in paragraph 6, 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.   Mount Rushmore shall also e-mail the written
       statement to  WR-Response@fcc.gov.

   10. 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. Mount Rushmore 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.

   11. 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.

   12. 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.

   13. 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.

   14. 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 first class 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 73.3526.

   ^ 47 C.F.R. SS 1.16, 73.3526.

   ^  See Application for Renewal of License for Station KHOC(FM), File
   Number BRH-20050601BGP, granted September 28, 2005.

   ^ 47 U.S.C. S 503(b).

   ^ 47 U.S.C. S 312(f)(1).

   ^ H.R. Rep. No. 97-765, 97^th 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 73.3526(a)(2).

   ^ 47 C.F.R. S 73.3526(c)(1).

   ^ 47 C.F.R. S 73.3526(e)(12).

   ^  Id.

   ^  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. S1.80(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 73.3526.

   ^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
   73.3526.

   ^ 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. SS 1.16, 1.80(f)(3).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 13-291

                                       5

   Federal Communications Commission DA 13-291