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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.