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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

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


             NOTICE OF APPARENT LIABILITY FOR FORFEITURE

                                              Released:  November 
                                                         16, 2005

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

I.   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).

II.  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

      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 bycheck 
 or money order may be mailed to Federal Communications 
 Commission, P.O. Box358340,Pittsburgh, PA 15251-8340. 
 Payment by overnight mail may be sent toMellon 
 Bank/LB358340,500 Ross Street, Room 1540670, Pittsburgh, PA 
 15251. Payment by wire transfer may be made to ABA 
 Number043000261, receiving bankMellon Bank, and account 
 number911-6106.

      10.      The response, if any, must be mailed to Federal 
 Communications Commission, Enforcement Bureau, Western Region, 
 Seattle District Office, 11410 N.E. 122nd 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
_________________________

147 C.F.R.  1.903(a).
247 U.S.C.  503(b).  
3Section 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).
4Section 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.'' 
512 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 
47 C.F.R. 1.80.
647 U.S.C.  503(b)(2)(D).
7See File No.  0002175507, filed May  25, 2005.  The  application 
was granted on June 8, 2005. 
8AT&T Wireless Services, Inc., 17 FCC Rcd 21866, 21871 (2002).
9Dominic DeNaples, 19 FCC Rcd 12303 (EB 2004).
1047 U.S.C.  503(b), 47 C.F.R.  0.111, 0.311, 0.314, 1.80, 
1.903(a).
11See 47 C.F.R.  1.1914.