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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

                                       4

   Federal Communications Commission DA 12-1223