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                           Before the
                Federal Communications Commission
                    Washington, D.C.   20554

                                              
In the Matter of                )
                                )
                                )
ELF PAINTING AND WALLPAPERING   )    File No. EB-03-TC-004
                                )    NAL/Acct. No. 200432170003
                                )
Apparent Liability for          )    FRN 0012251880
Forfeiture                      )
                                )


           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted:  November 30, 2004                           Released:  
December 1, 2004

By the Chief, Enforcement Bureau:

I.                   INTRODUCTION

     1.   In this Notice of Apparent Liability For Forfeiture 
(?NAL?)1, we find that Elf Painting and Wallpapering (?Elf?)2 
apparently willfully or repeatedly violated section 227 of the 
Communications Act of 1934, as amended (?Act?), and the 
Commission's rules and orders by delivering unsolicited 
advertisements to the telephone facsimile machines of at least 
five consumers.3  Based on the facts and circumstances 
surrounding these apparent violations, we find that Elf is 
apparently liable for a forfeiture in the amount of $22,500. 



II.  BACKGROUND

     2.   On February 4, 2003, in response to a consumer 
complaint alleging that Elf had faxed an unsolicited 
advertisement, the Commission staff issued a citation4 to Elf, 
pursuant to section 503(b)(5) of the Act.5  The staff cited Elf 
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.  According to the complaints, the 
unsolicited advertisement offered painting and wallpapering 
services.6  The citation, which the staff served by certified 
mail, return receipt requested, informed Elf that subsequent 
violations could result in the imposition of monetary forfeitures 
of up to $11,000 per violation, and included a copy of the 
consumer complaint that formed the basis of the citation.  The 
citation informed Elf that within 21 days of the date of the 
citation, it could either request a personal interview at the 
nearest Commission office, or could provide a written statement 
responding to the citation.  The Commission received a signed 
return receipt evidencing that Elf had received the citation on 
February 8, 2003.  Elf did not respond to the citation.   

     3.   Despite the citation's warning that subsequent 
violations could result in the imposition of monetary 
forfeitures, the Commission has received additional consumer 
complaints indicating that Elf continued to engage in such 
conduct after receiving the citation.7  We base our action here 
on this information from consumers alleging that Elf sent 
unsolicited advertisements to telephone facsimile machines after 
the date of the citation.8  

III.                           DISCUSSION

     A.   Violations of the Commission's Rules Restricting 
     Unsolicited Facsimile Advertisements 

     4.   Section 227(b)(1)(C) of the Act makes it ?unlawful for 
any person within the United States, or any person outside the 
United States if the recipient is within the United States . . . 
to use a telephone facsimile machine, computer, or other device 
to send an unsolicited advertisement to a telephone facsimile 
machine.?9  The term ?unsolicited advertisement? is defined in the 
Act and the Commission's rules as ?any material advertising the 
commercial availability or quality of any property, goods, or 
services which is transmitted to any person without that person's 
prior express invitation or permission.?  Under Commission rules 
and orders currently in effect, the Commission views an 
established business relationship between a fax sender and 
recipient as constituting prior express invitation or permission 
to send a facsimile advertisement. 10 

     5.   This NAL is based on evidence that five consumers 
received unsolicited fax advertisements from Elf after the 
Bureau's citation.  Each of those facsimile transmissions 
describes the same commercial service:  ?For High Quality 
Interior/Exterior Painting Service For Your Home Contact Elf 
Painting and Wallpapering Today and Start Saving on Your Next 
Interior Project!? with a local number to call for ?special 
savings.?  We find that these facsimiles fall within the 
definition of an unsolicited advertisement.11  According to their 
declarations, none of the consumers had an established business 
relationship with Elf, and the consumers did not give Elf 
permission to send the facsimile transmissions.  Therefore, Elf 
appears to have sent each facsimile transmission without prior 
express consent of the consumers.  Mere distribution or 
publication of a fax number does not establish consent to receive 
advertisements by fax.12  Based on the entire record, including 
declarations, we find that Elf apparently violated Section 227 of 
the Act and the Commission's related rules and orders by sending 
unsolicited advertisements to the five consumers' facsimile 
machines.

     B.   Proposed Forfeiture

     6.   We conclude that Elf apparently willfully or repeatedly 
violated the Act and the Commission's rules and orders by using a 
telephone facsimile machine, computer, or other device to send 
unsolicited advertisements to telephone facsimile machines.  Elf 
apparently did not cease its unlawful conduct even after the 
Commission staff issued a citation warning that it was engaging 
in unlawful conduct and could be subject to monetary forfeitures.  
In fact, Elf apparently intentionally ignored the Commission's 
citation.  Accordingly, a proposed forfeiture is warranted 
against Elf for its apparent willful or repeated violations of 
section 227 of the Act and of the Commission's rules and orders 
regarding the faxing of unsolicited advertisements. 

     7.   Section 503(b) of the Act authorizes the Commission to 
assess a forfeiture of up to $11,000 for each violation of the 
Act or of any rule, regulation, or order issued by the Commission 
under the Act by a non-common carrier or other entity not 
specifically designated in section 503 of the Act.13  In 
exercising such authority, we are to 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 such other matters 
as justice may require."14

     8.   Although the Commission's Forfeiture Policy Statement 
does not establish a base forfeiture amount for violating the 
prohibition on using a telephone facsimile machine to send 
unsolicited advertisements, the Commission has previously 
considered $4,500 per unsolicited fax advertisement to be an 
appropriate base amount.15  We apply that base amount to each of 
five of the apparent violations.  This results in a proposed 
total forfeiture of $22,500.  Elf shall have the opportunity to 
submit evidence and arguments in response to this NAL to show 
that no forfeiture should be imposed or that some lesser amount 
should be assessed.16


IV.  CONCLUSION AND ORDERING CLAUSES

             9.               We have determined that Elf 
Painting and Wallpapering apparently violated section 227 of the 
Act and the Commission's rules and orders by using a telephone 
facsimile machine, computer, or other device to send the five 
unsolicited advertisements to the consumers identified above.  We 
have further determined that Elf Painting and Wallpapering is 
apparently liable for forfeiture in the amount of $22,500.

            10.     Accordingly, IT IS ORDERED, pursuant to 
Section 503(b) of the Act, and Section 1.80 of the Rules, and 
authority delegated by Sections 0.111 and 0.311 of the Rules, 47 
C.F.R.   0.111, 0.311, that Elf Painting and Wallpapering is 
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in 
the amount of Twenty-Two Thousand Five Hundred Dollars ($22,500) 
for willful or repeated violations of section 227(b)(1)(C) of the 
Communications Act, 47 U.S.C.  227(b)(1)(C), sections 
64.1200(a)(3) of the Commission's rules, 47 C.F.R.  
64.1200(a)(3), and the related orders described in the paragraphs 
above.

     11.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Commission's Rules,17 within thirty days of the release date 
of this Notice of Apparent Liability for Forfeiture, Elf Painting 
and Wallpapering SHALL PAY the full amount of the proposed 
forfeiture or SHALL FILE a written statement seeking reduction or 
cancellation of the proposed forfeiture.

     12.  Payment of the forfeiture must be made by check or 
similar instrument, payable to the order of the Federal 
Communications Commission.  The payment must include the 
NAL/Acct. No.  referenced above.  Payment by check or money order 
may be mailed to Forfeiture Collection Section, Finance Branch, 
Federal Communications Commission, P.O. Box 73482, Chicago, 
Illinois  60673 -7482.  Payment by overnight mail may be sent to 
Bank One/LB 73482, 525 West Monroe, 8th Floor Mailroom, Chicago, 
IL  60661.  Payment by wire transfer may be made to ABA Number 
071000013, receiving bank Bank One, and account number 1165259.18  

          13.  The response if any must be mailed to the Office 
of the Secretary, Federal Communications Commission, 445 12th 
Street, S.W., Washington, D.C.   20554, ATTN:  Enforcement Bureau 
- Telecommunications Consumers Division, and must include the 
NAL/Acct. No. referenced in the caption.

     14.  The Commission will not consider reducing or canceling 
a forfeiture in response to a claim of inability to pay unless 
the petitioner submits: (1) federal tax returns for the most 
recent three-year period; (2) financial statements prepared 
according to generally accepted accounting practices ; or (3) 
some other reliable and objective documentation that accurately 
reflects the petitioner's current financial status.  Any claim of 
inability to pay must specifically identify the basis for the 
claim by reference to the financial documentation submitted.  

     15.  Requests for payment of the full amount of this Notice 
of Apparent Liability for Forfeiture under an installment plan 
should be sent to: Chief, Revenue and Receivables Operations 
Group, 445 12th Street, S.W., Washington, D.C.  20554.19 

     16.  IT IS FURTHER ORDERED that a copy of this Notice of 
Apparent Liability for Forfeiture shall be sent by Certified Mail 
Return Receipt Requested to, Mr. Ed Faust, Owner, Elf Painting 
and Wallpapering, 10309 Cherry View Court, Oakton, Virginia  
22124-2530, and Mr. Ed Faust, Owner, Elf Painting and 
Wallpapering, 1835 Monroe Street, N.W., Washington, DC  
20010-1014.

     
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau


_________________________

1 See 47 U.S.C.  503(b)(1).  The Commission has the authority 
under this section of the Act to assess a forfeiture against any 
person who has "willfully or repeatedly failed to comply with any 
of the provisions of this Act or of any rule, regulation, or 
order issued by the Commission under this Act ...." See also 47 
U.S.C.  503(b)(5) (stating that the Commission has the authority 
under this section of the Act to assess a forfeiture penalty 
against any person who is not a common carrier so long as such 
person (A) is first issued a citation of the violation charged; 
(B) is given a reasonable opportunity for a personal interview 
with an official of the Commission, at the field office of the 
Commission nearest to the person's place of residence; and (C) 
subsequently engages in conduct of the type described in the 
citation).
2 According to our research, Elf is headquartered at 10309 Cherry 
View Court, Oakton, Virginia, 22124-2530; an alternate address is 
provided at 1835 Monroe Street, N.W., Washington, DC  20010-1014. 
The owner is Ed Faust.  Elf Painting and Wallpapering claims in 
its advertising to specialize in re-coating large scale 
residential properties and commercial and industrial facilities.  
Elf Painting and Wallpapering is not registered as a small 
business in the State of Virginia or the District of Columbia, 
nor is it listed as a corporation in the State of Virginia or 
District of Columbia.  
 
3 See 47 U.S.C.  227(b)(1)(C); 47 C.F.R.  64.1200(a)(3); see 
also Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991, Report and Order, 7 FCC Rcd 8752, 8779,  
54 (1995) (TCPA Report and Order) (stating that Section 227 of 
the Act prohibits the use of telephone facsimile machines to send 
unsolicited advertisements).   

4 Citation from Kurt A. Schroeder, Deputy Chief, 
Telecommunications Consumers Division, Enforcement Bureau, File 
No. EB-03-TC-004, issued to Elf on February 4, 2003. 
5 See 47 U.S.C.  503(b)(5) (authorizing the Commission to issue 
citations to non-common carriers for violations of the Act or of 
the Commission's rules and orders).
6 See consumer complaint requesting Commission action from Bonnie 
Algera, IC No. 00-W27340, received February 7, 2000, which was 
attached to the citation (stating that she received an 
unsolicited advertisement via facsimile from Elf on December 12, 
1999, without her permission, after which she called Elf to 
request removal from their list; on February 7, 2000, she 
received another unsolicited advertisement via facsimile from Elf 
without her permission at 2:43 A.M.)
7 See the following consumer complaints requesting Commission 
action:  (1) David T. Prescott, via email, Director, 
Communications and Crisis Management Center, Office of Homeland 
Security, Enforcement Bureau, Federal Communications Commission 
(April 14, 2004) (received unsolicited facsimile on April 14, 
2004); (2) Robert D. Baldwin, via letter, Director of Learning 
Resources, Allegany College of Maryland (May 24, 2004) (received 
unsolicited facsimile on May 24, 2004); (3) Dennis C. Brown, via 
letter (April 1, 2004) (received unsolicited facsimile March 14, 
2004); (4) Eric M. Uslander, via letter (May 3, 2004) (received 
unsolicited facsimile May 3, 2004); (5) Robert Chapman, IC 
04-W8312285 (April 29, 2004) (received unsolicited facsimile 
April 29, 2004).
8 We note that evidence of additional instances of unlawful 
conduct by Elf may form the basis of subsequent enforcement 
action.
9 47 U.S.C.  227(b)(1)(B).
10 Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991, Memorandum Opinion and Order, 10 FCC Rcd 
12391, 12405 (1995) (1995 TCPA Reconsideration Order).  In June 
2003, the Commission amended its rules to specify that prior 
express invitation or permission to receive a facsimile 
advertisement must be recorded in a ?signed written statement that 
includes the facsimile number to which any advertisements may be 
sent and clearly indicates the recipient's consent to receive 
such facsimile advertisements from the sender.? 2003 TCPA Report 
and Order, 18 FCC Rcd at 14124-28 (adopting new section 
64.1200(a)(3)(i).  This new provision, which supercedes the 
established business relationship exception, is scheduled to take 
effect June 30, 2005.  Rules and Regulations Implementing the 
Telephone Consumer Protection Act of 1991, Order, FCC 04-223 
(rel. Oct. 1, 2004); Rules and Regulations Implementing the 
Telephone Consumer Protection Act of 1991, Order, FCC 03-230 
(rel. Oct. 3, 2003).  The Commission is currently considering 
petitions that seek to retain the established business 
relationship exception or require methods other than a signed 
written statement to demonstrate prior express consent to receive 
fax advertising.
11 47 U.S.C.  227(a)(4); 47 C.F.R.  64.1200(f)(10).  Under 
Section 64.1200(f)(10), the term ?unsolicited advertisement? means 
?any material advertising the commercial availability or quality 
of any property, goods, or services which is transmitted to any 
person without that person's prior express invitation or 
permission.?
121995 Reconsideration Order, 10 FCC Rcd at 12408-09; see also 
2003 TCPA Report and Order, 18 FCC Rcd at 14128 (concluding that 
publication of a fax number in a trade publication or directory 
does not demonstrate consent to receive fax advertising).
13 Section 503(b)(2)(C) provides for forfeitures up to $10,000 
for each violation by cases not covered by subparagraph (A) or 
(B), which address forfeitures for violations by licensees and 
common carriers, among others.  See 47 U.S.C.  503(b).  In 
accordance with the inflation adjustment requirements contained 
in the Debt Collection Improvement Act of 1996, Pub. L. 104-134, 
Sec. 31001, 110 Stat. 1321, the Commission implemented an 
increase of the maximum statutory forfeiture under section 
503(b)(2)(C) to $11,000.  See 47 C.F.R. 1.80(b)(3); Amendment of 
Section 1.80 of the Commission's Rules and Adjustment of 
Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221 (2000); 
see also Amendment of Section 1.80(b) of the Commission's Rules 
and Adjustment of Forfeiture Maxima to Reflect Inflation, FCC 
04-139 (released June 18, 2004) (this recent amendment of Section 
1.80(b) to reflect inflation left the forfeiture maximum for this 
type of violator at $11,000).   
14 47 U.S.C.  503(b)(2)(D); The Commission's Forfeiture Policy 
Statement and Amendment of Section 1.80 of the Rules to 
Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC 
Rcd 17087, 17100-17101, (1997), recon. denied, 15 FCC Rcd 303 
(1999) (Forfeiture Policy Statement).
15 See Get-Aways, Inc., Notice of Apparent Liability For 
Forfeiture, 15 FCC Rcd 1805 (1999); Get-Aways, Inc., Forfeiture 
Order, 15 FCC Rcd 4843 (2000); see also US Notary, Inc., Notice 
of Apparent Liability for Forfeiture, 16 Rcd 18,298 (2001); US 
Notary, Inc., Forfeiture Order, 16 FCC Rcd 18,398 (2001); 
Carolina Liquidators, Inc. Notice of Apparent Liability For 
Forfeiture, 15, FCC Rcd 26,837 (2000), Carolina Liquidators, 
Inc., Forfeiture Order 15 FCC Rcd 21,775 (2000); Tri-Star 
Marketing, Inc., Notice of Apparent Liability For Forfeiture, 15 
FCC Rcd 11, 295 (2000); Tri-Star Marketing, Inc., Forfeiture 
Order, 15 FCC Rcd 23, 198 (2000).
16 See 47 U.S.C.  503(b)(4)(C); 47 C.F.R.  1.80(f)(3).
17 47 C.F.R.  1.80.
18 See 47 C.F.R.  1.1914
19  Id.