**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+---------------------------------+
| In the Matter of                 | ) | File Number: EB-05-ST-481       |
|                                  |   |                                 |
| Red Diamond Construction, Inc.   | ) | NAL/Acct. No. 200632980001      |
|                                  |   |                                 |
| Licensee of Station WPIY355      | ) | FRN 0001572122                  |
|                                  |   |                                 |
| Spokane, Washington              | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
|                                  |   |                                 |
|                                  | ) |                                 |
+----------------------------------+---+---------------------------------+

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE {#notice-of-apparent-liability-for-forfeiture .unnumbered}

> Released: November 16, 2005

By the Acting District Director, Seattle Office, Western Region,
Enforcement Bureau:

# INTRODUCTION

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that Red Diamond Construction, Inc. ("Red Diamond"), licensee
    of land mobile station WPIY355, apparently willfully and repeatedly
    violated Section 1.903(a) of the Commission\'s Rules (\"Rules\")[^1]
    by operating on 151.520 MHz, a frequency not authorized by the
    license, WPIY355. We conclude, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended (\"Act\"),[^2] that Red
    Diamond is apparently liable for a forfeiture in the amount of four
    thousand dollars (\$4,000).

# BACKGROUND

2.  On May 11, 2005, the Enforcement Bureau's Seattle Office received an
    interference complaint concerning an unauthorized station operating
    on 151.520 MHz in Spokane, Washington. A review of the Commission's
    databases revealed no authorization for Red Diamond to operate on
    151.520 MHz in that area. An agent from the Seattle Office then
    telephoned the owner of Red Diamond and told him that the license,
    WPIY355, did not authorize Red Diamond's operation on 151.520 MHz.
    The agent also informed the owner of Red Diamond that the Red
    Diamond land mobile license, WPIY355, was for operation in the 464
    MHz band.

3.  From May 16 through May 18, 2005, the Seattle Office monitored
    151.520 MHz in the Spokane, Washington area and detected
    unauthorized transmissions on the frequency by Red Diamond
    employees. On May 25, 2005, an agent from the Seattle Office again
    detected unauthorized transmissions on 151.520 MHz in the Spokane,
    Washington, area. The agent used mobile direction finding techniques
    to locate the transmissions to water line construction operations by
    Red Diamond. When interviewed by the Seattle agent, the owner of Red
    Diamond stated that he had held an FCC license for the past 25 years
    and that he was currently using 151.520 MHz. The owner produced a
    copy of Red Diamond's license for WPIY355. The license authorized
    Red Diamond to operate in the 464 MHz band only. The Seattle agent
    informed the owner that there was no current license that authorized
    Red Diamond's use of 151.520 MHz. Red Diamond then ceased operations
    on the unlicensed frequency. Subsequently, Red Diamond applied for
    additional authority and was granted authority to operate on 159.720
    MHz on June 8, 2005.

**III. DISCUSSION**

4.  Section 503(b) of the 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. The term \"willful\" as used in
    Section 503(b) has been interpreted to mean simply that the acts or
    omissions are committed knowingly.[^3] The term "repeated" means the
    commission or omission of such act more than once or for more than
    one day.[^4]

5.  Section 1.903(a) of the Rules requires that stations in the Wireless
    Radio Services must be used and operated only in accordance with the
    rules applicable to their particular service, and with a valid
    authorization granted by the Commission. On May 11, 16, 17, 18 and
    25, 2005, a Seattle agent determined that Red Diamond was operating
    its land mobile station, WPIY355, on 151.520 MHz, a frequency not
    authorized by its license. Red Diamond received notice from a
    Seattle agent on May 11, 2005, that the operation of the station was
    unauthorized but Red Diamond continued to operate on 151.520 MHz.
    Additionally, the owner of Red Diamond acknowledged operation of the
    station to a Seattle agent on May 25, 2005. Therefore, the violation
    is willful. Red Diamond's violation occurred on more than one day,
    therefore, it is repeated. Based on the evidence before us, we find
    Red Diamond apparently willfully and repeatedly violated Section
    1.903(a) of the Rules by operating its land mobile station, WPIY355,
    on 151.520 MHz, a frequency not authorized by its license.

6.  Pursuant to *The Commission's Forfeiture Policy Statement and
    Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines,* (\"*Forfeiture Policy Statement*\"), and Section 1.80
    of the Rules, the base forfeiture amount for using an unauthorized
    frequency is \$4,000.[^5] In assessing the monetary forfeiture
    amount, we must also take into account the statutory factors set
    forth in Section 503(b)(2)(D) of the Act, which include the nature,
    circumstances, extent, and gravity of the violations, and with
    respect to the violator, the degree of culpability, and history of
    prior offenses, ability to pay, and other such matters as justice
    may require.[^6] Seattle agents have confirmed subsequent to the
    investigation, Red Diamond applied for and was granted an amendment
    to its authorization to include 159.720 MHz.[^7] The Commission has
    stated in the past that a licensee is expected to correct violations
    when they are brought to the licensee's attention and that such
    correction is not grounds for a downward adjustment in the
    forfeiture.[^8] Additionally, a licensee is required to operate on
    the frequency stated in its authorization.[^9] Applying the
    *Forfeiture Policy Statement*, Section 1.80, and the statutory
    factors to the instant case, we conclude that Red Diamond is
    apparently liable for a forfeiture of \$4,000.

# IV. ORDERING CLAUSES {#iv.-ordering-clauses .unnumbered}

7.  Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Sections 0.111, 0.311,
    0.314, and 1.80 of the Commission\'s Rules, Red Diamond Construction
    Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
    in the amount of four thousand dollars (\$4,000) for violations of
    Section 1.903(a) of the Act.[^10]

8.  IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
    Commission\'s Rules within thirty days of the release date of this
    Notice of Apparent Liability for Forfeiture, Red Diamond
    Construction 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.  Payment of the forfeiture must be made by check or similar
    instrument, payable to the order of the Federal Communications
    Commission.  The payment must include the NAL/Acct. No. and FRN No.
    referenced above.  Payment by check or money order may be mailed to
    Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA
    15251-8340.  Payment by overnight mail may be sent to Mellon
    Bank /LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, PA
    15251.   Payment by wire transfer may be made to ABA
    Number 043000261, receiving bank Mellon Bank, and account
    number 911-6106.

10. The response, if any, must be mailed to Federal Communications
    Commission, Enforcement Bureau, Western Region, Seattle District
    Office, 11410 N.E. 122^nd^ Way, Suite 312, Kirkland, WA 98034-6927,
    and must include the NAL/Acct. No. referenced in the caption.

11. 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.

12. Requests for payment of the full amount of this Notice of Apparent
    Liability for Forfeiture under an installment plan should be sent
    to: Associate Managing Director -- Financial Operations, Room 1A625,
    445 12th Street, S.W., Washington, D.C. 20554.[^11]

13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent
    Liability for Forfeiture shall be sent by Certified Mail, Return
    Receipt Requested, and regular mail, to Red Diamond Construction
    Inc.

FEDERAL COMMUNICATIONS COMMISSION

Steven Houser

Acting District Director

Seattle Office

Western Region

Enforcement Bureau

[^1]: 47 C.F.R. § 1.903(a).

[^2]: 47 U.S.C. § 503(b).

[^3]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to violations for which forfeitures are assessed under Section
    503(b) of the Act, provides that \"\[t\]he term \'willful\', when
    used with reference to the commission or omission of any act, means
    the conscious and deliberate commission or omission of such act,
    irrespective of any intent to violate any provision of this Act or
    any rule or regulation of the Commission authorized by this
    Act....\" *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^4]: Section 312(f)(2) of the Act, 47 U.S.C. § 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."

[^5]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999);
    47 C.F.R. §1.80.

[^6]: 47 U.S.C. § 503(b)(2)(D).

[^7]: *See* File No. 0002175507, filed May 25, 2005. The application was
    granted on June 8, 2005.

[^8]: *AT&T Wireless Services, Inc.*, 17 FCC Rcd 21866, 21871 (2002).

[^9]: *Dominic DeNaples*, 19 FCC Rcd 12303 (EB 2004).

[^10]: 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80,
    1.903(a).

[^11]: *See* 47 C.F.R. § 1.1914.