**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Wanda Doonan Trust ) File No. EB-03-KC-030

Owner of Antenna Supporting Structure 1203563 ) NAL/Acct. No.
200332560018

Great Bend, Kansas ) FRN 0006-1633-98

)

)

## FORFEITURE ORDER 

**Adopted: August 4, 2004 Released: August 6, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of one thousand dollars (\$1,000) to Wanda
    Doonan Trust, owner of antenna structure number 1203563 in Great
    Bend, Kansas, for willful violation of Section 17.50 of the
    Commission's Rules ("Rules").[^1] The noted violation involves Wanda
    Doonan Trust's failure to repaint the antenna structure as often as
    necessary to maintain good visibility.

2.  On March 3, 2003, the Commission's Kansas City, Missouri District
    Office ("Kansas City Office") issued a *Notice of Apparent Liability
    for Forfeiture* ("*NAL*") to Wanda Doonan Trust for a forfeiture in
    the amount of ten thousand dollars (\$10,000) for willful and
    repeated violation of Section 17.50 of the Rules.[^2] Wanda Doonan
    Trust filed a response to the *NAL* on March 24, 2003 and
    supplemented its response on April 10, 2003.

**II. BACKGROUND**

3.  On February 12, 2003, the antenna structure located at or near
    geographic coordinates 38° 22' 42"N / 098° 45' 52"W in Great Bend,
    Kansas, was inspected by an agent of the Kansas City Office. The
    Commission's antenna structure registration ("ASR") database showed
    this structure (antenna structure number 1203563) was registered to
    Wanda Doonan Trust and that the tower required marking and lighting.
    At the time of the inspection the paint on the tower was badly faded
    and peeling, resulting in poor visibility of the structure. On
    February 24, 2003, the agent interviewed an employee of Doonan
    Trucking, who stated the tower was leased to a communications
    company that was entirely responsible for all tower painting and
    lighting.

4.  On March 3, 2003, the Kansas City Office issued the subject *NAL*
    for a \$10,000 forfeiture to Wanda Doonan Trust for failing to
    maintain good visibility of the antenna structure in willful and
    repeated violation of Section 17.50 of the Rules. In its response to
    the *NAL*, Wanda Doonan Trust does not dispute that its tower was
    poorly painted on February 12, 2003, resulting in poor visibility of
    the structure. However, Wanda Doonan Trust states that the *NAL* was
    issued less than 30 days after the inspection, that it is
    "attempting to comply" with Commission Rules and "denies its action
    to have been willful and repeated." Wanda Doonan Trust also provides
    copies of its tax returns for 1999, 2000 and 2001 because the "Trust
    has very limited assets", and requests cancellation of the
    forfeiture, implying that it cannot afford to pay the proposed
    \$10,000 forfeiture. Finally, it supplements its response stating
    that it will paint the tower on or about April 15, 2003.

```{=html}
<!-- -->
```
III. **DISCUSSION**

```{=html}
<!-- -->
```
5.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended, ("Act"),[^3] Section 1.80 of the Rules,[^4] and *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*, 12 FCC
    Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999) ("*Policy
    Statement*"). In examining Wanda Doonan Trust's response, Section
    503(b) 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.[^5]

6.  Section 17.50 of the Rules requires that antenna structures
    requiring painting shall be cleaned or repainted as often as
    necessary to maintain good visibility. Wanda Doonan Trust is the
    registered owner of antenna structure number 1203563, and is
    responsible for maintaining the structure's marking.[^6] The ASR for
    this structure requires that the structure be painted. Wanda Doonan
    Trust does not dispute that over a period of time, it failed to
    clean or repaint the antenna structure as often as necessary to
    maintain good visibility of the antenna structure markings.
    Accordingly, we conclude that Wanda Doonan Trust willfully[^7] and
    repeatedly[^8] violated Section 17.50 of the Rules.[^9]

7.  Further, Wanda Doonan Trust's efforts to "attempt to comply" with
    the Rules and remedial efforts to correct the violation after the
    FCC inspection are not mitigating factors warranting cancellation of
    the proposed forfeiture.[^10] It is well established that
    "corrective action to come into compliance with Commission rules or
    policy is expected, and does not nullify or mitigate any prior
    forfeitures or violations."[^11] However, Wanda Doonan Trust
    provides its tax returns for 1999, 2000 and 2001 in support of its
    claimed inability to pay the proposed forfeiture. The Commission has
    repeatedly held that a company's gross revenues are the best
    indicator of its ability to pay a forfeiture.[^12] After considering
    the financial documentation submitted by Wanda Doonan Trust, we
    conclude that reduction of the forfeiture amount to \$1,000 is
    appropriate.

8.  We have examined Wanda Doonan Trust's response to the *NAL* pursuant
    to the statutory factors above, and in conjunction with the *Policy
    Statement* as well. As a result of our review, we conclude that
    Wanda Doonan Trust willfully violated Section 17.50 of the Rules,
    but we reduce the forfeiture proposed for this violation from
    \$10,000 to \$1,000.[^13]

#### IV. ORDERING CLAUSES

9.  Accordingly, **IT IS ORDERED** that, pursuant to Section 503 of the
    Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^14]
    Wanda Doonan Trust **IS LIABLE FOR A MONETARY FORFEITURE** in the
    amount of one thousand dollars (\$1,000) for repeated violation of
    Section 17.50 of the Rules.

10. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules 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.[^15] Payment may be made 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 reference NAL/Acct. No. 200332560018 and FRN
    0006-1633-98. Requests for full payment under an installment plan
    should be sent to: Chief, Revenue and Receivables Operations Group,
    445 12th Street, S.W., Washington, D.C. 20554.[^16]

11. **IT IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    by First Class and Certified Mail, Return Receipt Requested, to
    Wanda Doonan Trust, c/o Mr. Steve Dillinger, Doonan Truck and
    Equipment Inc., Hwy 56 & 156 Jct., Great Bend, KS. 67530, and to its
    counsel, Hugh D. Mauch, Jackson Square Office Building, 1027
    Jackson, P.O. Box 1444, Great Bend, Kansas, 67530-1444.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 17.50.

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332560018 (Enf. Bur., Kansas City Office, released March 3,
    2003).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: *See* 47 C.F.R. § 17.6(a).

[^7]: 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 . .
    . ." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387-88
    (1991).

[^8]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues for more than one day. The *Conference
    Report* for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn 56 (2003).

[^9]: Contrary to Wanda Doonan Trust's response, the fact that the *NAL*
    was issued less than 30 days after the inspection by the Kansas City
    Office and Wanda Doonan Trust's efforts to comply with Commission
    Rules are not dispositive as to whether its actions are "willful" or
    "repeated" under the Communications Act or Commission Rules. Our
    conclusion that the violations were willful and repeated is based on
    our findings at the time of the inspection. Therefore, Wanda Doonan
    Trust's post-inspection compliance efforts and the timing of the
    issuance of the *NAL* have no bearing on whether its actions are
    willful or repeated.

[^10]: *See AT&T Wireless Services, Inc.*, 17 FCC Rcd 21866, 21871
    (2002); *Station KGVL, Inc.*, 42 FCC 2d 258, 259 (1973).

[^11]: *Seawest Yacht Brokers,* 9 FCC Rcd 6099, 6099 (1994).

[^12]: *See Long Distance Direct, Inc.*, 15 FCC Rcd 3297, 3305 (2000);
    *PJB Communications of Virginia, Inc.*, 7 FCC Rcd 2088, 2089 (1991).

[^13]: *See* *WGPS, Inc.,* 18 FCC Rcd 11332 (Enf. Bur. 2003).

[^14]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^15]: 47 U.S.C. § 504(a).

[^16]: *See* 47 C.F.R. § 1.1914.