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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of File No.: EB-11-AT-0001
)
Hye Cha Kim NAL/Acct. No.: 201232480007
)
Licensee of Station WDGR(AM) FRN: 0018897660
)
Dahlonega, GA Facility ID No.: 24459
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 1, 2012 Released: August 1, 2012
By the District Director, Atlanta Office, South Central Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Hye Cha Kim, licensee of Station WDGR(AM) in Dahlonega, Georgia
(Station), apparently willfully and repeatedly violated Sections 73.49
and 73.1745 of the Commission's rules (Rules) by failing to enclose
the Station's antenna structure within an effective locked fence or
other enclosure and failing to adhere to the terms of the Station's
authorization. We conclude that Mrs. Kim is apparently liable for a
forfeiture in the amount of eleven thousand dollars ($11,000).
II. BACKGROUND
2. Station WDGR(AM) is licensed to operate during daytime hours with 10
kilowatt (kW) transmitter power, except during critical hours when the
station must reduce power to 2.5 kW. Thus, the Station must either
discontinue transmitting at local sunset, or may operate for two hours
past sunset with a reduced transmitter power of 1 watt in accordance
with its post sunset authority.
3. On January 5, 2012, and again on January 11, 2012, agents from the
Enforcement Bureau's Atlanta Office (Atlanta Office) monitored the
operations of Station WDGR(AM) and observed the Station operate for
more than two hours past sunset on both days, until at least 8:30 p.m.
The agents also observed that the Station did not reduce its
transmitter power to 1 watt after sunset in accordance with its post
sunset authority.
4. On January 5 and January 11, 2012, the agents also observed that a
section of the fence surrounding the base of the Station's antenna
structure was missing, allowing ready access to its base. The agents
further noted that there was no fence around the perimeter of the
property.
5. On January 17, 2012, an agent from the Atlanta Office, accompanied by
the Station's chief operator, inspected Station WDGR(AM)'s main studio
and antenna structure. The agent observed that a section of the fence
was still missing. The chief operator stated that he knew the fence
section was missing, but that it had been missing for "not a long
time." The chief operator also stated to the agent that he was unaware
that the Station had post sunset authority and of any nighttime
operations by the Station. The chief operator further explained that
his assistant must have made an error and forgot to shut the
transmitter off.
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. Failure to Enclose the Antenna Structure Within an Effective Locked
Fence
7. Section 73.49 of the Rules states that "[a]ntenna towers having radio
frequency potential at the base . . . must be enclosed within
effective locked fences or other enclosures." "Individual tower fences
need not be installed if the towers are contained within a protective
property fence." Station WDGR(AM)'s antenna structure has radio
frequency potential at its base and therefore must be enclosed within
an effective locked fence. On January 5, January 11, and again on
January 17, 2012, when the Station was in operation, agents from the
Atlanta Office observed that a section of the fence surrounding the
antenna structure was missing, thereby allowing ready access to the
base. The agents also observed that there was no fence around the
perimeter of the property. Based on the evidence before us, we find
that Mrs. Kim apparently willfully and repeatedly violated Section
73.49 of the Rules by failing to enclose the Station's antenna
structure within an effective locked fence.
B. Failure to Adhere to the Terms of the Station Authorization
8. Section 73.1745 of the Rules states that "[n]o broadcast station shall
operate at times, or with modes or power, other than those specified
and made a part of the license, unless otherwise provided in this
part." Station WDGR(AM) has authority to operate two hours past sunset
(until 7:45 p.m.) with a transmitter power of 1 watt. On January 5,
and again on January 11, 2012, agents from the Atlanta Office observed
Station WDGR(AM) operate after post sunset hours (until at least 8:30
p.m.) with more than 1 watt of transmitter power. Although the
Station's chief operator attributed the unauthorized operations to an
employee mistake, Commission precedent has established that a violator
can be held liable for violations resulting from employee mistakes.
Based on the evidence before us, we find that Mrs. Kim apparently
willfully and repeatedly violated Section 73.1745 of the Rules by
operating the Station at times and with modes of power inconsistent
with her station authorization.
C. Proposed Forfeiture Amount
9. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for an AM tower fencing
violation is $7,000 and for exceeding power limits 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 conclude that Mrs. Kim is apparently liable for a
total forfeiture in the amount of $11,000, consisting of the
following: $7,000 for the antenna structure fencing violation and
$4,000 for operating her station overpower and at unauthorized times.
IV. ORDERING CLAUSES
10. 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, Hye Cha Kim is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eleven thousand dollars ($11,000) for violations of
Sections 73.49 and 73.1745 of the Rules.
11. 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, Hye Cha Kim
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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. Hye Cha Kim shall also send electronic
notification on the date said payment is made to SCR-Response@fcc.gov.
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.
13. 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.
14. 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, South
Central Region, Atlanta Office, 3575 Koger Blvd., Suite 320, Duluth,
GA 30096 and include the NAL/Acct. No. referenced in the caption. Hye
Cha Kim also shall email the written response to SCR-Response@fcc.gov.
15. 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.
16. 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 First Class Mail to Hye Cha Kim at P.O. Box 2964,
Duluth, GA 30096, and to her attorney, Jeffrey L. Timmons, P.C., at
1110 Whitehawk Trail, Lawrenceville, GA 30043.
FEDERAL COMMUNICATIONS COMMISSION
Douglas G. Miller
District Director
Atlanta Office
South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.49 and 73.1745.
See License File No. BL-19830715AA. Section 73.187 of the Rules defines
"critical hours" as the two hours after local sunrise and the two hours
before local sunset. 47 C.F.R. S: 73.187.
In January 2012, local sunset time was 5:45 p.m. (EST).
See Revised Parameters for Operation under Post-Sunset Authority dated
Feb. 28, 2007, associated with Licensed Facility BL-19830715AA.
On both days, the agents from the Atlanta Office observed that the Station
stopped transmitting programming between 5:45 p.m. and 6:00 p.m., and 5:00
p.m. and 5:15 p.m., respectively, but continued to transmit the
unmodulated carrier into the evening.
There was no designated chief operator at the Station, but the person
stated that he was the Station's chief operator.
The Station did not have automatic transmitter control equipment and
required manual adjustment of the transmitter at night. Non-remote control
attended operation of transmission systems is permissible under the rules,
provided the station operates within tolerances at all times. See 47
C.F.R. S: 73.1400.
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: 73.49.
Id.
Station WDGR is currently silent. Thus, there is no longer radio frequency
potential at the base or a potential safety hazard.
47 C.F.R. S: 73.1745.
See, e.g., Tidewater Communications, LLC, Order on Review, 25 FCC Rcd 1675
(2010), citing North Country Repeaters, Forfeiture Order, 19 FCC Rcd 22139
(Enf. Bur. 2004); PBJ Communications of Virginia, Inc., Memorandum Opinion
and Order, 7 FCC Rcd 2088 (1988); and Standard Communications Corp.,
Memorandum Opinion and Order, 1 FCC Rcd 358 (1986).
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).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.49 and 73.1745.
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 12-1223
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Federal Communications Commission DA 12-1223