******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the Word or WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) EB-99-OR-270 Diamond Services Corporation ) NAL/Acct. No. X15OR0003 Morgan City, Louisiana ) FORFEITURE ORDER Adopted: August 28, 2000 Released: August 31, 2000 By the Chief, Enforcement Bureau: I. INTRODUCTION 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. II. BACKGROUND 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. III. DISCUSSION 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 require. 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.