Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

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
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                           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.

III.      DISCUSSION

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  willfully7 and  repeatedly8 
  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.  97th  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.