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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
US Notary, Inc. )
) File No. EB-00-TC-011
Apparent Liability for ) NAL/Acct. No. X3217-006
Adopted: October 3, 2001 Released: October 12,
By the Commission: Commissioner Abernathy issuing a statement.
1. In this order, we issue a monetary forfeiture in the
amount of $90,000 against US Notary, Inc. (US Notary) for
willfully or repeatedly violating Section 227(b)(1)(C) of the
Communications Act of 1934, as amended (the Act), and the
Commission's related rules and orders.1 US Notary sent
unsolicited advertisements to telephone facsimile machines on 20
2. On July 12, 1999, in response to several consumer
letters indicating that US Notary had faxed unsolicited
advertisements, the Commission staff issued a citation to US
Notary, pursuant to section 503(b) of the Act. Specifically, the
staff cited US Notary for allegedly using a telephone facsimile
machine, computer, or other device to send unsolicited
advertisements to a telephone facsimile machine in violation of
section 227 of the Act and the Commission's rules and orders.
The unsolicited advertisements at issue offered a ``One Day
Training Seminar'' to become a Notary Public. The citation
included copies of the consumer letters and informed US Notary
that subsequent violations could result in the imposition of
monetary forfeitures of up to $11,000 per violation. The owner
of US Notary, Bruce Johnson, met with the Commission staff on
August 3, 1999. During that meeting, the staff reiterated to Mr.
Johnson that it is unlawful to send unsolicited advertisements to
telephone facsimile machines, as defined by the Telephone
Consumer Protection Act (TCPA) and the Commission's rules, and
provided him with a copy of the TCPA. Despite the citation and
the subsequent August 3, 1999 meeting, the Commission later
received several letters stating that US Notary had continued to
fax unsolicited advertisements after receiving the citation.2 On
August 1, 2000, the Commission issued a Notice of Apparent
Liability (NAL) against US Notary that proposed a forfeiture
amount of $90,000 for 20 apparent violations. The NAL was based
on unsolicited advertisements that US Notary had apparently sent
since July 17, 1999, the day US Notary received the staff's
citation.3 US Notary filed its response to the NAL on November
3. In its response to the NAL, US Notary argues that it
should not be found liable for violations of the TCPA. It argues
specifically that: 1) another company doing business with
complainant Arrick Robotics may have given the Arrick Robotics
facsimile number to US Notary's advertising department; 2) the
fax sent to complainant William Pratt does not have a header and
US Notary is unable to track it; 3) US Notary had an established,
ongoing business relationship with complainant Joe Shields'
employer, Lockheed Martin, and had provided training to other
NASA employees; 4) the fax sent to the Texas Attorney General's
office (another complainant) was either requested by another
division of the Attorney General's office, or, alternatively, the
Texas Secretary of State's office, which had reviewed US Notary's
advertising in the past and may have forwarded the flyer to the
office of the Attorney General; 5) the Lone Star Report (another
complainant) wanted US Notary to advertise in its publication and
had requested that US Notary fax an ad for purposes of
determining what it would cost to run the advertisement in the
Lone Star Report; and 6) US Notary's questions regarding
applicability of state and federal laws had gone unanswered by
the Commission staff.4 US Notary further stated that it intended
to cease business by January 1, 2001.5 As discussed below, we
reject each of US Notary's arguments.
4. The Arrick Robotics Complaint: Roger Arrick, in his
Requests for Commission Action, states that he received three
unsolicited advertisements by fax from US Notary in December
1999, March 2000, and on April 28, 2000. In its response, US
Notary indicates that it is not certain why Arrick Robotics
received these faxes, but suggests that perhaps another company
with whom Mr. Arrick does business had given his fax number to US
Notary's advertising department.6 US Notary requests that the
Commission refrain from imposing a forfeiture for these apparent
violations. We are not convinced by US Notary's argument. The
Commission has previously stated that by merely publishing or
distributing its facsimile number, the owner of the facsimile
machine has not given prior express permission or invitation to
receive advertisements.7 The Commission also indicated that
given the wide variety of circumstances in which telephone
facsimile numbers might be distributed (i.e., business cards,
advertisements, directory listings, trade journals, or
association membership), it would treat the issue of consent to
receive fax advertisements on a case-by-case basis.8 We do not
believe that obtaining a third party's fax number from a business
associate establishes a business relationship with the third
party, nor does it demonstrate prior express permission or
invitation from the third party to receive facsimile
advertisements.9 US Notary's speculation as to how it obtained
Arrick Robotics' facsimile number confirms Mr. Arrick's statement
that US Notary did not have either prior express permission to
send the fax or an established business relationship with Mr.
Arrick or Arrick Robotics.10 We therefore reject US Notary's
arguments with respect to the Arrick Robotics Complaint and
impose a forfeiture for these violations.
5. The William Pratt Complaint: In his Request for
Commission Action, William Pratt states that he received one
unsolicited facsimile advertisement from US Notary. US Notary
argues that it is impossible to track the letter sent to Mr.
Pratt because the ``faxes no longer have a header.''11 As
described in the NAL, however, Mr. Pratt stated that the
facsimile did not have a header when received.12 The TCPA makes
it unlawful for any person to send any message via a telephone
facsimile machine ``unless such person clearly marks, in a margin
at the top or bottom of each transmitted page of the message or
on the first page of the transmission, the date and time it is
sent and an identification of the business, other entity, or
individual sending the message and the telephone number of the
sending machine or of such business, other entity, or
individual.''13 On the facts presented, we find that the fax
advertisement sent to Mr. Pratt did not include a header. While
the failure to include this information on the fax in no way
excuses US Notary from the prohibition on sending unsolicited fax
advertisements, it does confirm another potential violation of
the TCPA. Moreover, US Notary has offered no evidence to rebut
the fact that the advertisement was for US Notary's services. We
reject US Notary's arguments as to the William Pratt Complaint
and impose a forfeiture for faxing the unsolicited
6. The Joe Shields Complaint: In his Requests for
Commission Action, Joe Shields, Engineering Specialist, Lockheed
Martin/Johnson Space Center, states that US Notary used a
telephone facsimile machine to send 12 unsolicited advertisements
to Johnson Space Center fax machines in October and December
1999, and again in February, March, and May 2000.15 According to
Mr. Shields, US Notary sent advertisements to several different
facsimile machines at the Johnson Space Center in Houston, Texas.
US Notary argues, however, that it has an ongoing relationship
with Mr. Shields's employer at the Johnson Space Center, Lockheed
Martin, and further argues that it also has an ongoing
relationship with NASA. In its response, US Notary provides the
names of seven students from Lockheed Martin and six students
from NASA who were trained by US Notary and the dates they
attended US Notary seminars.16 As a result of having trained
those students, US Notary claims that it has an established
relationship with the students' employers, Lockheed Martin and
7. The Enforcement Bureau (Bureau) staff was able to
contact five of the NASA students and five of the Lockheed Martin
students trained by US Notary. Eight of the students said that
they had not contacted US Notary prior to receiving information
about the seminar. Seven of the students recall that they
registered for the training as the result of their office having
received an unsolicited fax regarding the training. The others
did not recall how they learned about the training. None of the
NASA students contacted were located in Texas. One of the
Lockheed Martin students was located in Dallas, Texas. The
office that received the faxes that are the subject of this
complaint is located several hundred miles away in Houston,
Texas. Based on this information, we find that US Notary has not
shown that it has an established relationship with Lockheed
Martin or NASA. It has not provided any documentation
demonstrating that anyone at the Johnson Space Center had given
their prior express invitation or permission to receive the
advertisements. Our investigation does not support US Notary's
argument that it had an ongoing business relationship with NASA
or Lockheed Martin. The mere fact that US Notary provided notary
training to some employees of Lockheed Martin and NASA does not
by itself establish a business relationship with the students'
employers. Each student who recalled how they learned of the
training stated they were informed about the training by an
unsolicited fax advertisement. Hence, it appears that any
relationships US Notary had with these parties were initiated by
unlawful fax advertising. We therefore find that US Notary has
failed to substantiate its claim of a prior established business
relationship with NASA or Lockheed Martin. Finally, US Notary
also states in its response that none of the faxes display in the
header or footer the number of the receiving fax machine. The
TCPA does not require fax machines to indicate the number of the
receiving facsimile machine. It does, however, require the
telephone number of the sending machine.18 Consequently, we must
reject US Notary's arguments regarding the Joe Shields Complaint
and impose a forfeiture for faxing the unsolicited
8. The Lone Star Report Complaint: US Notary contends
that it transmitted a copy of its flyer to the Lone Star Report
to obtain a quote for the cost of an advertisement.19 US Notary
indicates that the Lone Star Report solicited its advertising
business.20 US Notary has not, however, provided any evidence in
the way of affidavits or documentation to support its claim. In
the absence of such documentation, we reject US Notary's claim.
9. The Texas Attorney General Complaint: We also reject
US Notary's arguments with respect to the faxes received by the
Texas Attorney General's Office. In his Request for Commission
Action, C. Brad Schuelke, Assistant Attorney General, Texas
Attorney General's Office, states that he forwarded to the
Commission two unsolicited advertisements that were faxed to the
Texas Attorney General's Office together with a fax received by
Texas State government employee, Bernice Tesmer, who stated that
she received one unsolicited advertisement by fax from US Notary.
US Notary argues that because it has conducted training for other
government agencies, it is not unusual for the company to fax its
seminar schedule to government agencies at their request. US
Notary did not indicate that it has provided training for anyone
at the Texas Attorney General's office. US Notary further argues
that the Office of the Attorney General may have requested a list
of seminar dates and that perhaps another division in the
Attorney General's Office requested the information, but that
someone else received the fax. Finally, US Notary argues that
the Texas Secretary of State's office, which had reviewed US
Notary's advertising in the past, may have forwarded the seminar
schedule to the Attorney General's Office.21 Regardless of its
speculation, US Notary has failed to provide us with any evidence
indicating the existence of a business relationship with the
Texas Attorney General's Office. Given the absence of such
evidence, or any evidence that the Texas Attorney General's
Office had given US Notary prior express permission or invitation
to send facsimile advertisements, we reject US Notary's argument
as to the Texas Attorney General complaint.
10. The Applicability of State and Federal Statutes: US
Notary argues that questions it posed to the Commission staff
regarding the applicability of State and Federal statutes
allegedly went unanswered, and that it believed its
advertisements sent to facsimile machines in Texas were permitted
under Texas law. Specifically, US Notary included in its
Response a copy of a letter it purportedly sent to Mr. (Glenn)
Reynolds on August 13, 1999, asking, among other things, whether
the TCPA prohibition against sending unsolicited faxes
``trumped'' laws enacted in California and New York which
appeared to permit the sending of unsolicited faxes to other fax
machine within the same state.22 US Notary also states that
after consulting with its counsel, it determined that there
should not be a problem faxing to customers in Texas because it
believed Texas law allows unsolicited facsimile advertising.23
As stated in the NAL,24 Commission staff met with the owner of US
Notary on August 3, 1999, and (1) specifically advised him that
it is unlawful to send unsolicited advertisements to telephone
facsimile machines, as set out in the TCPA and the Commission's
rules and orders,25 and (2) provided him with a copy of the TCPA.
At least from the time US Notary received our citation, it had
actual notice of the TCPA's prohibition against unsolicited fax
advertising. The fact that the company had questions regarding
the precise scope of the prohibition does not excuse its failure
to comply with the law. Moreover, the applicability of state law
is not relevant to questions of compliance with federal law here.
Regardless of what state law does or does not require, US Notary
had an independent obligation to comply with the TCPA and the
Commission's associated rules.
11. US Notary's Claim That It Would Cease Operations: In
its response to the NAL, US Notary stated, apparently as part of
its argument that we should reduce or rescind the proposed
forfeiture, that its owner had decided to close the company and
cease business by January 1, 2001.26 On May 30, 2001, Bureau
staff contacted the toll-free telephone number listed on the
advertisements that were the subject of the US Notary NAL. A
recorded message on the original US Notary toll-free number
referred Commission staff to a new toll-free number, which was
answered as ``Notary Services.'' When asked if this was the
number for US Notary, Bureau staff was told by the telephone
operator that they disseminated information and handled
registration for US Notary. In response to a request for
information on notary training seminars, Bureau staff received,
on May 31, 2001, a fax advertisement for notary training.27
Based upon the staff inquiries, it is apparent that US Notary has
not ceased operations and is continuing to offer notary training.
We therefore cannot accept US Notary's claim to have ceased
operations and we decline to reduce or rescind the proposed
forfeiture on this basis. Moreover, even if US Notary had ceased
operations, it would still be liable for TCPA violations
committed prior to its ceasing operation.
12. After reviewing the information filed by US Notary in
its Response, we find that US Notary has failed to identify facts
or circumstances to persuade us that that there is any basis for
reducing or rescinding the forfeiture proposed in the US Notary
NAL. We therefore impose a $90,000 forfeiture penalty.
V. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b)(5) of the Act, as amended, 47 U.S.C. § 503(b)(5), and
section 1.80 of the Commission's Rules, 47 C.F. R. § 1.80, that
US Notary, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the
amount $90,000 for willful or repeated violations of section
227(b)(1)(C) of the Act, 47 U.S.C. § 227(b)(1)(C), sections
64.1200(a)(3) and 64.1200(f)(5) of the Commission's Rules, 47
C.F.R. §§ 64.1200(a)(3), 64.1200(f)(5), and the related orders.
14. Payment of the forfeiture shall be made in the manner
provided for in section 1.80 of the Commission's Rules within 30
days of the release of this Order.28 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.29 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.
15. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order shall be sent by Certified Mail Return Receipt Requested to
Bruce Johnson, Owner, US Notary, Inc., 1033 Vista Sierra Dr., El
Cajon, California 92019.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
SEPARATE STATEMENT OF COMMISSIONER KATHLEEN ABERNATHY
In re: US Notary, Inc. Apparent Liability for Forfeiture,
I support today's Forfeiture Order holding US Notary
monetarily liable for distributing unsolicited faxes.
However, I write separately to emphasize the continued
importance of vigorously enforcing this and other statutory
The fundamental duty of the FCC is to implement
statutes promulgated by Congress. In 1992, Congress
recognized the need to provide relief to consumers plagued
by unsolicited fax advertising by enacting the Telephone
Consumer Protection Act.30 Unfortunately, the Commission
did not bring its first enforcement action under the TCPA's
ban on unsolicited faxes for 7 years.31
I am heartened that in recent years the FCC has begun
to enforce its rules more regularly. Today, by imposing a
$90,000 forfeiture on US Notary, we further demonstrate that
eliminating unsolicited faxes is a priority of this
Commission. I also want to take this opportunity to
encourage consumers to complain to the offending companies
and the Commission after receiving unsolicited faxes.
For the sake of consumers and the entities we regulate,
it is imperative that we enforce our rules vigorously and
dependably. Otherwise, we simultaneously ignore our
statutory duty to uphold the public interest and leave a
cloud of doubt over how seriously this Commission takes its
1 See 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. §
64.1200(a)(3); Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd
8752, 8779 ¶ 54 (1992) (TCPA Report and Order) (stating that
Section 227 of the Act prohibits the use of telephone facsimile
machines to send unsolicited advertisements); see also 47 U.S.C.
§ 503(b)(5) (authorizing the Commission to determine forfeiture
liability subsequent to issuing a citation to a non-regulatee for
violations of the Act or of the Commission's rules and orders).
2 See US Notary, Inc., Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 16999, 17000 ¶ 3 (2000) (``US Notary
3 Id. at 17001 ¶ 3.
4 US Notary Response to the NAL (``Response'').
5 Response at 4.
6 Response at 2.
7 See Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Memorandum Opinion and Order, 10
FCC Rcd 12391, 12408 ¶ 37 (1995) (``TCPA Memorandum Opinion and
8 Id. at 12408-09 ¶ 37.
9 See 47 U.S.C. § 227(a)(4); see also 47 C.F.R. §
10 See Declaration of Roger Arrick, owner of Arrick Robotics.
11 Response at 3.
12 US Notary NAL, 15 FCC Rcd at 17001 ¶ 6.
13 47 U.S.C. § 227(d)(1)(B). Although the advertisement
received by Mr. Pratt did not include a header that contained the
information required by this section of the Act, the
advertisement offered notary training in April 2000 by US Notary
at four Texas locations. See Declaration of William Pratt.
14 We did not propose a forfeiture based on the failure to
include the fax header and do not impose one here.
15 In an amendment dated June 25, 2001, Mr. Shields modified
his declaration to correctly state his fax number at the Johnson
16 Response at 1.
17 The Commission's rules define an established business
relationship as a relationship created as a result of ``voluntary
two-way communication'' between the parties. 47 C.F.R. §
18 See ¶ 5, supra.
19 See Request for Commission Action from David Guenthrer, The
Lone Star Report (via the Texas Attorney General's Office)
stating that The Lone Star Report received one unsolicited
advertisement by fax from US Notary.
20 Response at 3.
21 Response at 3.
22 US Notary also asked: 1) whether the California and New York
laws were valid; 2) how to determine when a business relationship
ends; 3) what the liability is for faxing at the request of one
employee if the fax is received by another individual in the
company; 4) how long a business relationship must exist before
faxing can commence; 5) how long after service is rendered is a
business allowed to continue faxing ads for its services; and 6)
if one branch of a company uses its service, can US Notary
contact other branches of the company for the same services. See
the copy of US Notary's letter to Mr. Reynolds that is attached
to its Response at Exhibit A. We note that US Notary's
obligation to comply with federal law was not suspended simply
because it sent these inquiries to our staff.
23 Response at 2.
24 US Notary NAL, 15 FCC Rcd at 17000 ¶ 2.
25 See 47 U.S.C. § 227; 47 C.F.R. § 64.1200(a)(3). See also 47
U.S.C. § 227(e) (allowing states to impose more restrictive
intrastate requirements on the use of telephone facsimile
machines or other electronic devises to send unsolicited
26 Response at 4.
27 According to Dun & Bradstreet Information Report, US Notary,
Inc. continues to be headquartered at 1033 Vista Sierra Drive, El
Cajon, California, as a provider of schooling or educational
services, specializing in educational services on notary law.
See Dun & Bradstreet Business Information Report, May 9, 2001.
Commission staff also searched the California Secretary of State
Business Service Center website, which listed US Notary as an
active corporation. See California Secretary of State Business
Service Center Corporation Report, June 10, 2001.
28 47 C.F.R. § 1.80(f)(4).
29 47 U.S.C. § 504(a).
30 Pub. L. 102-556, Title IV, § 402, 106 Stat. 4194 (1992)
(codified at 47 U.S.C. § 227(b)(1)(c).
31 See Get-Aways, Inc., File No. ENF-99-TC-001, Notice of
Apparent Liability, 15 FCC Rcd 1805 (1999).