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Federal Communications Commission DA 04-3834
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
WARRIOR CUSTOM GOLF, INC. ) File No. EB-03-TC-036
a.k.a. WARRIOR GOLF ) NAL/Acct. No. 200432170004
) FRN 0012264933
Apparent Liability for )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 7, 2004 Released: December 8,
By the Chief, Enforcement Bureau:
1. In this Notice of Apparent Liability For Forfeiture
(“NAL”)1, we find that Warrior Custom Golf, Inc., a.k.a. Warrior Golf
(“WCG”),2 apparently willfully or repeatedly violated section 227
of the Communications Act of 1934, as amended (the “Act”), and
the Commission's rules and orders, by delivering at least four
unsolicited, prerecorded advertising messages to at least three
consumers.3 Based on the facts and circumstances surrounding
these apparent violations, we find that WCG is apparently liable
for forfeiture in the amount of $23,500.
2. On April 29, 2003, in response to a consumer complaint
alleging that WCG had left three, unsolicited, prerecorded
advertisement messages on the consumer’s voicemail, the
Commission staff issued a citation4 to WCG, pursuant to section
503(b)(5) of the Act.5 The staff cited WCG for delivering one or
more prerecorded, unsolicited advertisements to a residential
telephone line, in violation of section 227 of the Act and the
Commission's rules and orders.6 According to the consumer, the
unsolicited advertisements offered the opportunity to try custom
golf clubs without charge and requested that the consumer call a
toll-free number to take advantage of the special offer.7 The
citation, which the staff served by certified mail, return
receipt requested, informed WCG 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 letter that
formed the basis of the citation. The citation informed WCG that
within 21 days of the date of the citation, it could either
request a personal interview at the nearest Commission field
office, or could provide a written statement responding to the
citation. The Commission received a signed return receipt
evidencing WCG's receipt of the citation on May 20, 2003.
3. WCG responded to the citation, apologizing to the consumer
for any inconvenience caused by the telephonic messages, but
denying any violations, claiming mistake or inadvertence.8 WCG
At the outset, by copy of this letter to Mr.
Pollard, WCG apologizes to him for any
inconveniences caused by telephonic messages
[sic] he may have received. And, to the
extent WCG may have violated FCC rules and
regulations pertaining to the sending of
prerecorded messages, which event WCG denies,
any such purported violation was done through
mistake or inadvertence.9
WCG also stated that it had reorganized its marketing strategy
and telephone communications systems to ensure compliance with
FCC rules and regulations regarding unsolicited prerecorded
messages and “to ensure that unwanted prerecorded messages are
not sent to anyone except to those customers with whom [sic] WCG
has a pre-existing relationship.”10
4. 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 WCG apparently continued to send illegal prerecorded,
unsolicited advertisements after receiving the citation.11 The
complaints indicate that the prerecorded messages were
substantially the same as those described in the citation.12
A. Violations of the Commission’s Rules Restricting
5. Section 227(b)(B) of the Act prohibits any person from
initiating "any telephone call to any residential telephone line
using an artificial or prerecorded voice to deliver a message
without the prior express consent of the called party, unless the
call is initiated for emergency purposes or is exempted by rule
or order by the Commission.”13 Section 64.1200(a)(2) of the
Commission’s rules provides exemptions for calls made for: 1)
emergency purposes; 2) non-commercial purposes; 3) commercial
purposes that do “not include or introduce an unsolicited
advertisement14 or constitute a telephone solicitation”;15 4) calls
to persons “with whom the caller has an established business
relationship16 at the time the call is made;” and 5) calls “made
by or on behalf of a tax-exempt nonprofit organization.”17
6. As noted above, WCG initiated prerecorded messages that
invited customers to try, without charge, custom golf clubs and
requested that the consumer call a toll-free number to take
advantage of the special offer. We find that the prerecorded
messages at issue here were not made for any emergency, non-
commercial, or non-profit purposes, but were commercial in nature
and included or introduced “unsolicited advertisements” or
constituted “telephone solicitations.” We have previously found
that “prerecorded messages containing free offers and information
about goods and services that are commercially available are
prohibited to residential telephone subscribers, if not otherwise
exempt.18 The Commission’s rationale was based on a finding by
Congress that consumers considered the prerecorded telephone
calls to be “‘a nuisance and an invasion of privacy.’”19
7. The record also indicates that WCG did not have the prior
express consent of the consumers here to deliver this unsolicited
advertisement or telephone solicitation. In fact, WCG continued
to deliver the messages to one consumer even after a request to
refrain.20 The record also indicates that WCG did not have
established business relationships with any of the three
consumers whose complaints form the basis of this action.21
Despite conversations with counsel for WCG regarding the consumer
complaints at issue, WCG has provided no argument nor submitted
evidence to prove an established business relationship, a tax-
exempt status, or any other evidence to provide a defense to the
allegations at issue here.22 Therefore, based on the evidence in
the record, including the consumers’ affidavits, we find that the
prerecorded messages were unsolicited advertisements or telephone
solicitations that were prohibited by section 227(b)(B) of the
Act23 or section 64.1200 (a)(2)24 of the Commission’s rules.
B. Proposed Forfeiture
8. We conclude that WCG apparently willfully or repeatedly
violated the Act and the Commission's rules and orders by
delivering unsolicited, prerecorded advertisement messages. WCG
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.
Accordingly, a proposed forfeiture is warranted against WCG for
its apparent willful or repeated violations of section 227 of the
Act and of the Commission's rules and orders regarding
restrictions on telephone solicitations.
9. 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.25 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."26
10. Although the Commission's Forfeiture Policy Statement
does not establish a base forfeiture amount for violating the
prohibition on delivering unsolicited, prerecorded advertisement
messages to a residential telephone line, we believe these
violations are similar in nature to violating the prohibition on
delivering unsolicited advertisements to telephone facsimile
machines. The Commission has previously considered $4,500 per
unsolicited fax advertisement as an appropriate base amount27 and
we apply that amount here to each of three of the four apparent
unsolicited, prerecorded advertisement violations. We find that
the other apparent violation at issue here justifies a higher
proposed forfeiture because WCG continued to deliver the messages
to this consumer even after repeated requests to refrain. Where
a party has delivered unsolicited advertisements to a telephone
facsimile machine after a request to stop, the Commission has
increased the forfeiture to $10,000 per violation.28 Accordingly,
we find WCG apparently liable in the amount of $10,000 for the
violation where WCG ignored the specific consumer requests to
discontinue the calls.29 This results in a proposed total
forfeiture of $23,500. WCG 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
IV. CONCLUSION AND ORDERING CLAUSES
11. We have determined that WCG apparently violated section
227 of the Act and the Commission's rules and orders by
delivering at least four unsolicited, prerecorded advertisement
messages as identified above. We have further determined that
WCG is apparently liable for forfeitures in the amount of
12. ACCORDINGLY, IT IS ORDERED, pursuant to section
503(b)(5) of the Communications Act of 1934, as amended, 47
U.S.C. § 503(b)(5), and section 1.80 of the Commission's rules,
47 C.F.R. § 1.80, and under the authority delegated by section
0.11 and 0.311 of the Commission’s rules, 47 C.F.R. §§ 0.11,
0.311, that WCG, Inc. IS HEREBY NOTIFIED of an Apparent Liability
for Forfeiture in the amount of $23,500 for willful or repeated
violations of section 227(b)(1)(B) of the Act, 47 U.S.C. §
227(b)(1)(B), section 64.1200(a)(2) of the Commission's rules, 47
C.F.R. §§ 64.1200(a)(2), and the related orders described in the
13. 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 (“GAAP”); 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
14. Requests for payment of the full amount of
this Notice of Apparent Liability under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.31
15. IT IS FURTHER ORDERED, pursuant to section 1.80 of the
Commission's rules, 47 C.F.R. § 1.80, that within thirty (30)
days of the release of this Notice, WCG, Inc. SHALL PAY the full
amount of the proposed forfeiture32 OR SHALL FILE a response
showing why the proposed forfeiture should not be imposed or
should be reduced.
16. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture SHALL BE SENT by certified mail
to Brendan Flaherty, President, and H. Peter Wheelahan, Vice
President, 15 Mason, Suite A, Irvine, California 92618 and to
Joseph R. Donahue, Esq., 4621 Teller Avenue, Suite 200, Newport
Beach, California 92660.
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 does not fall within certain categories
(e.g., common carrier, broadcaster, cable operator, radio
licensee), 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 resident; and (c) subsequently engages in conduct of the type
described in the citation).
2 WCG is headquartered at 15 Mason, Suite A, Irvine, CA 92618.
3 See 47 U.S.C. § 227(b)(1)(B) and section 64.1200(a)(2) of the
Commission's rules, 47 C.F.R. §§ 64.1200(a)(2); see also Rules
and Regulations Implementing the Telephone Consumer Protection
Act of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd
14014 (2003) (TCPA Revisions Report and Order).
4 See Citation from Kurt A. Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, issued
to WCG on April 29, 2003 (“April 29, 2003 Citation”).
5 See 47 U.S.C. § 503(b)(5) (requiring the Commission to issue
citations to non-common carriers for violations of the Act or of
the Commission's rules and orders).
6 See 47 U.S.C. § 227; 47 C.F.R. § 64.1200.
7 See consumer complaint from Todd Pollard, dated August 15,
2002, which was attached to the citation.
8 See Letter from Joseph R. Donahue, Law Offices of Joseph R.
Donahue & Associates, dated May 27, 2003, to Kurt A. Schroeder,
Deputy Chief, Telecommunications Consumers Division, Enforcement
Bureau (“WCG Response”). The WCG Response was misdated as 2002
on the first page. Additionally, a previous response letter,
also misdated as May 19, 2002, was not signed.
11 See the following consumer complaints: 1) Monte J. Dye, IC No.
04-W7795243, received February 16, 2004 (stating that prerecorded
message was received on February 15, 2004); 2) Andrew Pong, IC
No. 04-W7875742, received February 27, 2004 (stating that
prerecorded message was received on February 15, 2004); and 3)
Mark James, received February 20, 2004 (stating that prerecorded
messages were received November 13, 2003 and February 13, 2004).
All complainants signed declarations stating that they did not
have established business relationships with WCG. With regard to
the prerecorded message received by Mark James on November 13,
2003, WCG entered into a Tolling Agreement (the “Agreement”) with
the Bureau, whereby the one-year statute of limitations set forth
in 47 U.S.C. § 503(b)(6) is tolled from September 10, 2004 until
the earlier of: (a) the date the FCC releases a NAL regarding any
of the alleged violations described in the Agreement; (b) the
date the FCC informs WCG in writing that it has terminated the
investigation; or (c) 180 days after the date of the Agreement.
See the Agreement, signed on behalf of Kurt Schroeder of the
Bureau on September 2, 2004 and by Brendan Flaherty, President of
WCG, on September 10, 2004.
12 See the Declarations of Monte J. Dye, Andrew Pong, and Mark
James, all declaring under penalty of perjury that the messages
advertised golf products offered by Warrior Custom Golf, Inc.
13 47 U.S.C. § 227(b)(1)(B).
14 “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.” 47 C.F.R. §
15 “Telephone solicitation” means “the initiation of a telephone
call or message for the purpose of encouraging the purchase or
rental of, or investment in, property, goods, or services, which
is transmitted to any person.” 47 C.F.R. § 64.1200(f)(9).
16 An “established business relationship” is defined as “a prior
or existing relationship formed by a voluntary two-way
communication between a person or entity and a residential
subscriber with or without an exchange of consideration, on the
basis of the subscribers purchase or transaction with the entity
within the eighteen (18) months immediately preceding the date of
the telephone call or on the basis of the subscriber’s inquiry or
application regarding products or services offered by the entity
within the three months immediately preceding the date of the
call, which relationship has not been previously terminated by
either party.” 47 C.F.R. § 64.1200(f)(3).
17 47 C.F.R. § 64.1200(a)(2).
18 TCPA Revisions Report and Order, 18 FCC Rcd at 14097-98 (2003).
19 Id. at 14,097. The Commission also noted that Congress had
determined that the prerecorded messages “cause greater harm to
consumers’ privacy than telephone solicitations by live
telemarketers” because consumers feel powerless to stop the
messages, which are often delivered to answering machines and
often provide no means to request placement on the do-not-call
20 See the complaint of Mark James (stating, “I telephoned Warrior
Custom Golf regarding the first call at 1-800-600-5113. I was
directed to a ‘Mr. Ross’ who called me back shortly. . . ‘Mr.
Ross’ became rude and informed me that my name and number would
be removed from their database. . . After that conversation,
calls from the company ceased for several months. Recently, I
received at least two more calls, including the February 13th
21 See the Declarations of Monte J. Dye, Andrew Pong, and Mark
James, all declaring under penalty of perjury that: “To the best
of my knowledge, at no time did I or anyone else in my household
give Warrior Custom Golf, Inc. prior express consent to deliver
an artificial or prerecorded voice advertisement to my
residential telephone line. Nor, to the best of my knowledge,
did I or anyone else in my household (a) have any transaction
with, including any purchase from, this entity within the 18
months immediately preceding the date(s) of the above-referenced
call(s); or (b) make any inquiry or application to this entity
within the three months immediately preceding the date(s) of the
22 On September 9, 2004, during one of numerous telephone calls
between Bureau staff and WCG counsel, Mr. Joseph R. Donahue, Mr.
Donahue requested copies of the consumer complaints at issue to
ascertain whether WCG had established business relationships with
these consumers. The requested consumer complaint information
was sent by facsimile to Mr. Donahue on September 10, 2004. To
date, however, despite many more communications between Bureau
staff and Mr. Donahue by telephone and email, no claims of
established business relationships or other defenses have been
23 47 U.S.C. § 227(b)(1)(B).
24 47 C.F.R. § 64.1200(a)(2).
25 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). The Commission recently
amended its rules to increase the maximum penalties to account
for inflation since the last adjustment of the penalty rates.
The new rates will apply to violations that occur after September
7, 2004. In the Matter of Amendment of Section 1.80(b) of the
Commission’s Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, Order, FCC 04-139 (rel. June 18, 2004).
26 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).
27 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); Tri-Star Marketing, Inc., Notice
of Apparent Liability For Forfeiture, 15 FCC Rcd 11,295 (2000)
(Tri-Star Marketing NAL); Tri-Star Marketing, Inc., Forfeiture
Order, 15 FCC Rcd 23,198 (2000) (Tri-Star Marketing Forfeiture
Order); Carolina Liquidators, Inc., Notice of Apparent Liability
for Forfeiture, 15 FCC Rcd. 16,837 (2000) (Carolina Liquidators
NAL); Carolina Liquidators, Inc., Forfeiture Order, 15 FCC Rcd
21,775 (2000) (Carolina Liquidators Forfeiture Order); 21st
Century Fax(es) Ltd. a.k.a. 20th Century Fax(es), Notice of
Apparent Liability for Forfeiture, 15 FCC Rcd 24,406 (2000); 21st
Century Fax(es) Ltd. a.k.a. 20th Century Fax(es), Forfeiture
Order, 17 FCC Rcd 1384 (2002).
28 See Tri-Star Marketing NAL, 15 FCC Rcd at 11,300; Carolina
Liquidators NAL, 15 FCC Rcd at 16,842.
29 See Tri-Star Marketing NAL, 15 FCC Rcd at 11,300; Carolina
Liquidators NAL, 15 FCC Rcd at 16,842.
30 See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).
31 47 C.F.R. § 1.1914.
32 The forfeiture amount should be paid by check or money order
drawn to the order of the Federal Communications Commission.
Reference should be made on WCG's check or money order to
"NAL/Acct/ No. 200432170004." Such remittances must be mailed to
Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois