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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Diamond Services Corporation ) NAL/Acct. No.
Morgan City, Louisiana )
Adopted: August 28, 2000 Released: August 31,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of five hundred dollars ($500)
against Diamond Services Corporation (``Diamond'') for willful
violation of Section 1.89(b) of the Commission's Rules.1 The
noted violation involves failure to respond to written
communications from the Commission.
2. On October 29, 1999, the District Director of the New
Orleans Field Office issued Diamond a Notice of Apparent
Liability for Forfeiture (``NAL'') in the amount of four thousand
dollars ($4,000).2 Diamond filed a response to the NAL on
November 9, 1999. For the reasons stated herein, we reduce the
amount of the forfeiture to $500.
3. Section 17.4 of the Commission's Rules3 requires owners
of antenna structures to register the structures with the
Commission and post the assigned registration numbers in a
conspicuous place at the base of the structure. On August 5,
1999, an agent from the New Orleans Field Office inspected an
antenna structure near Amelia, Louisiana that did not have a
registration number posted at its base. A review of the
Commission's records revealed that the structure was registered,
and that the owner of the structure was Diamond, a Commission
licensee in the private land mobile service. On August 6, 1999,
the New Orleans Field Office issued a Notice of Violation to
Diamond for failure to post the antenna structure registration
number as required. Pursuant to Section 1.89(b) of the
Commission's Rules, the Notice of Violation specifically required
a written response from Diamond within ten days, but Diamond did
not submit a response to the New Orleans Field Office. The New
Orleans Field Office sent a letter to Diamond on September 2,
1999, informing it that no reply had been received and cautioning
that failure to respond could result in a monetary forfeiture.
Diamond also did not submit a written response to the second
request, and made no effort to contact the New Orleans Field
Office by telephone or any other means.
4. In its response to the NAL, Diamond asserts that it did
not respond to the Notice of Violation because it had sold the
subject antenna structure to another entity, American Tower,
L.P., prior to the date of the inspection, and had forwarded the
Notice of Violation to the new owner. Diamond relied on American
Tower to respond to the Notice of Violation, but made no attempt
to contact the New Orleans Field Office to inform the Field
Office of that fact, or to acknowledge receipt of the Notice of
Violation. After Diamond's response to the NAL was received,
American Tower submitted a response to the Commission, on
November 15, 1999, verifying that it had purchased the antenna
structure from Diamond on May 28, 1999, prior to the inspection,
and that the underlying violation addressed by the Notice of
Violation (the posting of the antenna structure registration
number) had been rectified.
5. Section 1.89(b) of the Commission's Rules explicitly
requires the recipient of a Notice of Violation to respond in
writing to that Notice within ten days of receipt or any other
time period specified within the Notice of Violation. If an
answer or acknowledgement of the Notice of Violation cannot be
made within the specified period due to ``illness or other
unavoidable circumstance,'' a response still must be submitted
``at the earliest practicable date with a satisfactory
explanation of the delay.''4 Failure to respond to
communications from the Commission is subject to a base
forfeiture amount of $4,000 under the Commission's guidelines for
assessing forfeitures.5 When assessing forfeiture amounts,
Section 503(b)(2)(D) of the Communications Act of 1934, as
amended (``Act''), 6 requires the Commission to take into account
the nature, circumstances, extent, and gravity of the violations,
as well as the violator's degree of culpability, history of prior
offenses, ability to pay, and other matters as justice may
6. ``The Commission relies upon licensees to respond to
correspondence inquiring about compliance with its rules and
regulations, particularly when the information requested is known
only by the licensee.'' Crystal Communications, 12 FCC Rcd
22044, 22045 (Compl. & Inf. Bur. 1997). Diamond Services failed
to respond to or otherwise acknowledge the Notice of Violation
until after it received the NAL, even though Diamond was warned
in writing that failure to respond to the Notice of Violation
could result in a forfeiture.
7. Although Diamond's response to the NAL offers no
evidence of ``unavoidable circumstances'' that would explain its
delayed response to the Notice of Violation, under the
circumstances here, we believe it is appropriate to reduce the
amount of this forfeiture to $500. Diamond was not the owner of
the antenna structure that was the basis of the underlying
violation at the time of the inspection,7 and therefore was not
responsible for posting the antenna structure registration
number. Diamond notified the new owner of the tower so that the
violation could be promptly rectified, and relied on the owner to
respond to the Notice of Violation. While this may have been a
reasonable error initially, we believe that the second notice
from the New Orleans Field Office that no response had been
received should have prompted some effort from Diamond to contact
the Commission directly, given that Diamond had been warned that
failure to respond could result in a forfeiture. Nonetheless,
because Diamond apparently believed that American Tower was
responsible for responding, and taking into account all the
factors required under Section 503(b)(2)(D) of the Act, we find
that the proposed forfeiture should be reduced to $500.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,8 and Sections 0.111, 0.311 and 1.80(f)(4) of
the Commission's Rules,9 Diamond Services Corporation IS LIABLE
FOR A MONETARY FORFEITURE in the amount of $500 for violating
Section 1.89(b) of the Commission's Rules, which requires the
recipient of a Notice of Violation to respond in writing within a
specific time period.
9. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Commission's Rules10 within
30 days of the release of this Order. If the forfeiture is not
paid within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.11 Payment may be made by credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995
or by mailing a check or similar instrument, payable to the order
of the ``Federal Communications Commission,'' to the Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. referenced
above. Requests for full payment under an installment plan
should be sent to: Chief, Credit and Debt Management Center, 445
12th Street, S.W., Washington, D.C. 20554.12
10. IT IS FURTHER ORDERED that a copy of this
Forfeiture Order shall be sent by Certified Mail Return Receipt
Requested to Oscar E. Reed Jr., Esquire, counsel of record for
Diamond Services Corporation, at The Laborde Law Firm, LLC, 102
Asma Boulevard, Suite 100, Lafayette, Louisiana 70508.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 1.89.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
X15OR0003 (New Orleans Field Office, released October 29, 1999).
3 47 C.F.R. § 17.4.
4 47 C.F.R. § 1.89(b).
5 See 47 C.F.R. § 1.80(b)(4).
6 47 U.S.C. § 503(b)(2)(D).
7 Although no longer the tower owner, Diamond was still
using the tower as licensee of private land mobile Station KEY428
at the time of the inspection.
8 47 U.S.C. § 503(b).
9 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
10 47 C.F.R. § 1.80.
11 47 U.S.C. § 504(a).
12 See 47 C.F.R. § 1.1914.