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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Hye Cha Kim Licensee of Station WDGR(AM) Dahlonega, GA )
) ) ) ) ) ) File No.: EB-11-AT-0001 NAL/Acct. No.: 201232480007 FRN:
0018897660 Facility ID No.: 24459
FORFEITURE ORDER
Adopted: February 25, 2013 Released: February 25, 2013
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of five hundred dollars ($500) to Hye Cha Kim, licensee of
Station WDGR(AM) in Dahlonega, Georgia (Station), for willfully and
repeatedly violating Sections 73.49 and 73.1745 of the Commission's
rules (Rules).^ The noted violations involved Mrs. Kim's failure to
enclose the Station's antenna structure within an effective locked
fence or other enclosure and failure to adhere to the terms of the
Station's authorization.
II. BACKGROUND
2. On August 1, 2012, the Enforcement Bureau's Atlanta Office (Atlanta
Office) issued a Notice of Apparent Liability for Forfeiture (NAL) ^
^ to Mrs. Kim for failure to enclose the Station's antenna structure
within an effective locked fence and failure to adhere to the terms of
the Station's authorization. In response to the NAL, Mrs. Kim did not
deny any of the facts in the NAL, but nonetheless urged cancellation
or reduction of the proposed $11,000 forfeiture based on her inability
to pay.^ Mrs. Kim also stated that the Station has been silent since
January 18, 2012, and that she has replaced the Station's transmitter
and hopes to be in full compliance when and if the station returns to
the air.^
III. DISCUSSION
3. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act),^ Section 1.80 of the Rules,^ and the Forfeiture Policy
Statement.^ In examining Mrs. Kim's response, Section 503(b)(2)(E) of
the Act requires that the Commission take into account the nature,
circumstances, extent, and gravity of the violation 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.^ As discussed below, we have considered Mrs. Kim's response
in light of these statutory factors, and find that a reduction of the
forfeiture is warranted based solely on inability to pay.
4. First, we affirm the NAL's undisputed finding that Mrs. Kim violated
Sections 73.49 and 73.1745 of the Rules.^ 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."^ As reflected in the NAL, on January 5, January 11, and
again on January 17, 2012, when the Station was in operation and the
base of the structure had RF potential, 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. 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."^ As
stated in the NAL, on January 5, and again on January 11, 2012, agents
from the Atlanta Office observed the Station operate after authorized
hours with more than the authorized transmitter power. Based on the
evidence before us, we conclude that Mrs. Kim willfully and repeatedly
violated Sections 73.49 and 73.1745 of the Rules by failing to enclose
the Station's antenna structure within an effective locked fence and
operating the Station at times and with modes of power inconsistent
with the Station's authorization.
5. In the NAL Response, Mrs. Kim nonetheless requests cancellation or
reduction of the $11,000 forfeiture based on her inability to pay.
With regard to an individual or entity's inability to pay claim, the
Commission has determined that, in general, gross revenues are the
best indicator of an ability to pay a forfeiture.^ Based on the
financial documents provided by Mrs. Kim, we find sufficient basis to
reduce the forfeiture to $500.^ However, we caution Mrs. Kim that a
party's inability to pay is only one factor in our forfeiture
calculation analysis, and is not dispositive.^ We have previously
rejected inability to pay claims in cases of repeated or otherwise
egregious violations.^ Therefore, future violations of this kind may
result in significantly higher forfeitures that may not be reduced due
to Mrs. Kim's financial circumstances.
IV. ORDERING CLAUSES
6. 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(f)(4) of the Commission's rules, Hye Cha Kim IS
LIABLE FOR A MONETARY FORFEITURE in the amount of five hundred dollars
($500) for violations of Sections 73.49 and 73.1745 of the
Commission's rules.^
7. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Hye Cha Kim shall send electronic
notification of payment to SCR-Response@fcc.gov on the date said
payment is made. The payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the
NAL/Account number and FRN referenced above. 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.
8. 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, [1]ARINQUIRIES@fcc.gov.
9. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested, to Hye Cha Kim at her address of record, and to her attorney,
Jeffrey L. Timmons, at 1110 Whitehawk Trail, Lawrenceville, GA 30043-7158.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
^ 47 C.F.R. SS 73.49, 73.1745.
^ Hye Cha Kim, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd
8912 (Enf. Bur. 2012). A comprehensive recitation of the facts and history
of this case can be found in the NAL and is incorporated herein by
reference.
^ Letter from Hye Cha Kim to Douglas Miller, District Director, Atlanta
Office, Enforcement Bureau at 1 (Aug. 31, 2012) (on file in EB-11-AT-0001)
(NAL Response).
^ Id. at 2.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ See NAL, supra note 2.
^ 47 C.F.R. S 73.49.
^ 47 C.F.R. S 73.1745.
^ See PJB Communications of Virginia, Inc., Forfeiture Order, 7 FCC Rcd
2088, 2089 (1992) (forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues); Local Long
Distance, Inc., Forfeiture Order, 16 FCC Rcd 24385 (2000) (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, Forfeiture
Order, 15 FCC Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
^ This forfeiture amount falls within the percentage range that the
Commission has previously found acceptable. See supra note 12.
^ See 47 U.S.C. S 503(b)(2)(E) (requiring Commission to take into account
the nature, circumstances, extent, and gravity of the violation and, with
respect to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and such other matters as justice may require).
^ Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur., Western
Region 2011) (holding that violator's repeated acts of malicious and
intentional interference outweigh evidence concerning his ability to pay),
aff'd, Memorandum Opinion and Order, DA 13-199 (Enf. Bur. Feb. 15, 2013);
Hodson Broadcasting Corp., Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur.
2009) (holding that permittee's continued operation at variance with its
construction permit constituted an intentional and continuous violation,
which outweighed permittee's evidence concerning its ability to pay the
proposed forfeitures).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
73.49, 73.1745.
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ 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.
Federal Communications Commission DA 13-274
2
Federal Communications Commission DA 13-274
References
Visible links
1. mailto:ARINQUIRIES@fcc.gov