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                           Before the
                FEDERAL COMMUNICATIONS COMMISSION
                     Washington, D.C. 20554

In the Matter of                   )
                              )    File No. EB-02-TC-120
Fax.com, Inc.                                )    NAL/Acct. No. 
200232170004
                              )    FRN 0007-2970-47
Apparent Liability for Forfeiture       )                        


                       ORDER OF FORFEITURE

 Adopted:  December 31, 2003              Released:  January 5, 
                              2004

By the Commission:

                        I.   INTRODUCTION

 1.  In this Order of Forfeiture, we assess a monetary forfeiture 
of $5,379,000 against  Fax.com, Inc. (Fax.com)1  for willful  and 
repeated violations of the Communications Act of 1934, as amended 
(Act), and our rules and orders. For the reasons set forth below, 
we find that  Fax.com willfully and  repeatedly violated  section 
227(b)(1)(C) of the Act,2 as well as the Commission's rules3  and 
orders4  by  sending  unsolicited  advertisements  to   telephone 
facsimile machines  on  behalf of  its  clients on  489  separate 
occasions.  We also  require Fax.com  to file a  report with  the 
Enforcement Bureau within 30 days of this order regarding whether 
it has come into compliance with the Act and our rules and orders 
prohibiting unsolicited  commercial  faxes.  This  report,  along 
with any additional  complaints and information  we may  receive, 
will be used to  consider any additional appropriate  enforcement 
action against Fax.com  or entities  on whose  behalf Fax.com  is 
acting.

                         II.  BACKGROUND

 2.  The facts and  circumstances surrounding this  case are  set 
forth  in  the  Notice   of  Apparent  Liability  (Fax.com   NAL) 
previously issued by the Commission,  and need not be  reiterated 
at length.5  Fax.com,  according to its  website, specializes  in 
transmitting its clients'  advertisements to telephone  facsimile 
machines whose numbers are contained in the Fax.com database.  In 
its promotional  materials,  Fax.com  also offers  to  design  or 
improve its clients' advertising copy.  The unsolicited facsimile 
advertisements that were the subject  of the Fax.com NAL are  the 
product  of  Fax.com's  broadcasting  enterprise.   Most  of  the 
advertisements  do  not  promote  products,  goods,  or  services 
provided by  Fax.com  but, instead,  promote  a wide  variety  of 
products, goods, or  services offered by  numerous entities  that 
have employed Fax.com to  send their advertisements to  telephone 
facsimile machines. 6

 3.      In  2001,  after  receiving  numerous  complaints   from 
consumers  alleging  that  they  had  received  unsolicited   fax 
advertisements sent on  behalf of six  of Fax.com's clients,  the 
Enforcement Bureau of the Commission issued citations to  Fax.com 
pursuant to  section 503(b)(5)  of the  Act.7  The  Bureau  cited 
Fax.com  for  violating  section  227(b)(1)(C)  of  the  Act   by 
transmitting unsolicited advertisements  to consumers'  telephone 
facsimile machines on behalf of the six clients.8  

 4.  The   TCPA   prohibits    the   delivery   of    unsolicited 
advertisements to telephone facsimile machines ``so that costs of 
advertising could not be shifted  to the recipients of  facsimile 
advertisements.'' 9  Section  227(b)(1)(C) of  the Act  prohibits 
any person from using ``a telephone facsimile machine,  computer, 
or other  device  to  send  an  unsolicited  advertisement  to  a 
telephone facsimile  machine.''10   The Act  defines  ``telephone 
facsimile machine'' as ``equipment  which has the capacity:   (A) 
to transcribe  text  or  images,  or both,  from  paper  into  an 
electronic signal  and to  transmit that  signal over  a  regular 
telephone line, or  (B) to  transcribe text or  images (or  both) 
from an electronic signal received over a regular telephone  line 
onto paper.''11  

 5.  The Commission warned Fax.com in the citations that it could 
face monetary forfeitures  of up to  $11,000 for each  subsequent 
violation if  Fax.com either:   (1)  was ``highly  involved''  on 
behalf of the sender of any unsolicited facsimile advertisements, 
or (2) continued to  transmit advertisements for  any of the  six 
named clients without taking steps to ensure that those  entities 
had   obtained   permission   from   recipients   to   fax    the 
advertisements.12  

    6.    In response to the citations, Fax.com acknowledged that 
it had  indeed  provided  the  lists  of  fax  numbers  to  which 
advertisements were sent for each of the six clients at  issue.13  
Fax.com also conceded that it  ``has historically taken no  steps 
to verify consent or established business relationships.''14   It 
noted, however, that its clients' advertisements contain a  toll-
free ``opt-out'' number that fax  recipients may call if they  do 
not wish to receive additional advertisements.15 

 7.  Despite our  warning to  Fax.com,  we continued  to  receive 
information from consumers indicating that Fax.com was conducting 
its fax broadcasting activities in a manner that violated section 
227(b)(1)(C) of the Act and section 64.1200(a)(3) of the rules.16  
Based on this additional  information, which included  complaints 
of  unsolicited   facsimile   advertisements   received   by   46 
individuals,  businesses,   or   government   offices17   between 
September 2001 and June 2002,18 the Commission issued the Fax.com 
NAL on August  7, 2002.   There, the  Commission determined  that 
Fax.com had apparently violated  section 227 of  the Act and  the 
Commission's   rules   and   orders   by   sending    unsolicited 
advertisements to telephone  facsimile machines  on 489  separate 
occasions.19  The Commission also stated that Fax.com's ``primary 
business itself constitutes a massive on-going violation'' of the 
law, and that Fax.com's citation  responses, as well as  publicly 
available information contained  on its  website, suggested  that 
Fax.com apparently intentionally and  willfully violated the  Act 
and  our  rules  and  orders.20   As  a  result,  the  Commission 
determined that  Fax.com was  apparently  liable for  a  proposed 
forfeiture of $5,379,000, the statutory maximum.21  Fax.com filed 
a response to the Fax.com NAL on August 21, 2003.22

 8.  Subsequent to the release of the Fax.com NAL, the Commission 
issued citations  that included  letters of  inquiry  (hereafter, 
``citations/letters of inquiry'') to 104 businesses that had used 
Fax.com's  fax  broadcasting  service  to  transmit   unsolicited 
advertisements to consumers' telephone facsimile machines.23   In 
these documents,  the Commission  advised the  businesses of  the 
August 7, 2002 NAL against Fax.com and informed the businesses of 
their  potential  liability  for  monetary  forfeitures  if  they 
continued  to  send   unsolicited  advertisements  to   telephone 
facsimile machines -- either through Fax.com, through some  other 
entity, or on their own.   The citations/letters of inquiry  also 
sought  information   concerning,   among   other   things,   the 
businesses' involvement with Fax.com.  The businesses'  responses 
to these citations/letters of inquiry are discussed below. 

                        III.   DISCUSSION

 9.  In its Response, Fax.com argues that it should not be  found 
liable  because:  1)  the  prohibition  on  sending   unsolicited 
facsimile advertisements is unconstitutional under the First  and 
Fifth Amendments to the Constitution; 2) the forfeiture is  based 
on allegations of misconduct that were not sufficiently described 
in the  NAL; and  3) the  amount of  the proposed  forfeiture  is 
excessive  under  the  Eighth  Amendment.   As  discussed  below, 
Fax.com's arguments lack merit.

A.   First Amendment Issue

    10.   Fax.com  argues  that   the  TCPA's   ban  on   sending 
unsolicited facsimile advertisements violates its  constitutional 
right to free  speech under  the First  Amendment.  According  to 
Fax.com,  it   has   raised   a  colorable   challenge   to   the 
constitutionality of the Commission's  actions taken pursuant  to 
the TCPA.  Fax.com relies primarily on Missouri v. American Blast 
Fax, a subsequently reversed 2002  decision by the U.S.  District 
Court for  the Eastern  District of  Missouri that  dismissed  an 
action by the state  of Missouri against  American Blast Fax  and 
Fax.com for  violations  of  the  TCPA on  the  ground  that  the 
prohibition  infringed   on  the   defendant's  First   Amendment 
rights.24 The  U.S.  Court  of Appeals  for  the  Eighth  Circuit 
determined  that  the  TCPA  does  not  violate  Fax.com's  First 
Amendment free  speech protections.   The  court found  that  the 
government had demonstrated a legitimate interest in  restricting 
unwanted  facsimile  advertising  to  prevent  the  shifting   of 
advertising costs to  unwilling consumers  and interference  with 
the reception of their facsimile machines.25  The Eighth  Circuit 
also rejected  the argument  that the  TCPA was  unconstitutional 
because it treated  commercial speech  differently, deferring  to 
Congress'   determination    in   enacting    the   TCPA,    that 
``noncommercial calls  are less  intrusive to  consumers  because 
they are more expected.''26   For  the reasons set forth in  that 
decision, as  well  as  other  court  decisions  on  point,27  we 
conclude that the prohibition on unsolicited commercial faxes  is 
constitutional under the First Amendment.

 11.      We also find that  Fax.com's erroneous belief that  its 
violations were permissible  under the  First Amendment,  whether 
colorable or not, does not  insulate it from enforcement  action.  
Fax.com transmitted nearly 90 percent of the facsimiles that form 
the basis for  our forfeiture  action before  the Missouri  court 
issued its ruling -- at a  time when Fax.com could not have  been 
relying on  the Missouri  court's erroneous  decision.   Further, 
Fax.com is well aware that prior to the Missouri court's  ruling, 
and since that decision  was overturned, federal legal  precedent 
has fully  supported the  constitutionality  of the  TCPA.28   We 
followed this  clear precedent  in issuing  citations to  Fax.com 
that warned the company that it was engaging in unlawful  conduct 
that  could  subject  it  to  monetary  forfeitures  for   future 
violations.29  With respect to these pre-Missouri decision faxes, 
Fax.com  thus  knew,   or  should  have   known,  that  its   fax 
broadcasting activities violated the TCPA and could result in the 
assessment of a  forfeiture.  Consequently, we  find no merit  in 
Fax.com's contention that, based  on the subsequently issued  and 
subsequently reversed Missouri district court's ruling, Fax.com's 
conduct  prior  to   that  erroneous  ruling   did  not   warrant 
enforcement action.30  

 12.      Moreover,  the  faxes  that  Fax.com  sent  after   the 
Missouri court's ruling represent a continuation of the company's 
unlawful activity, rather than any ``reliance'' on the ruling  in 
the Missouri case. The fact  that Fax.com continued this  pattern 
of misconduct  -- despite  our warning  citations and  the  court 
cases confirming  the statutory  prohibition on  unsolicited  fax 
advertising -- demonstrates Fax.com's utter disregard for the law 
or, at the very least, its conscious decision to accept the  risk 
that the  anomalous  Missouri  district  court  ruling  would  be 
overturned, which it was.  Moreover,  as we observed in the  NAL, 
the Missouri court's ruling  was not germane  to the Fax.com  NAL 
because, to  our knowledge,  none of  the fax  transmissions  for 
which we assessed forfeitures  was received in  or sent from  the 
eastern judicial district  of Missouri, a  fact that Fax.com  has 
not disputed.31  In short, Fax.com's First Amendment argument  is 
without support in fact or law.


B.   Vagueness Issue

 13.      Fax.com also contends that the TCPA is unconstitutional 
under the  ``void for  vagueness'' doctrine  because the  statute 
fails to  give  potential fax  senders  adequate warning  of  the 
conduct it proscribes or which entities may be found liable under 
the Act.32  Fax.com asserts that ``the TCPA fails to specify what 
parties may be liabile under the Act.''33  Fax.com also maintains 
that it is ``often impossible for an ordinary person to determine 
whether a fax advertises `the commercial availability or  quality 
of any property, goods or services' and thus is prohibited by the 
TCPA.''34  These claims too are without merit.

 14.      Only a statute  that ``either forbids  or requires  the 
doing of  an act  in  terms so  vague  that [persons]  of  common 
intelligence must necessarily guess at its meaning and differ  as 
to its application'' is considered  void for vagueness under  the 
Fifth Amendment; the government must ``articulate its aims with a 
reasonable degree  of clarity.''35   We disagree  with  Fax.com's 
arguments that the TCPA's  commercial fax solicitation ban  fails 
to meet this test or that it is insufficiently precise to  ensure 
that it  is  not  enforced  in  an  arbitrary  or  discriminatory 
manner.36  We have no doubt that the TCPA provides more than such 
reasonable  clarity   and  precision   for  persons   of   common 
intelligence.  Indeed, since we first warned Fax.com specifically 
with our citations that its activities violated the law,  Fax.com 
has been apprised of the fact  that its faxes were prohibited  by 
the TCPA.  Fax.com therefore knew, or clearly should have  known, 
what was  necessary  to avoid  continuing  to violate  the  TCPA.  
Fax.com cannot  now credibly  argue  that it  did not  know  what 
conduct the TCPA prohibited. 

III.      Sufficiency of the Record

 15.      Fax.com next contends that it cannot be held liable for 
the proposed forfeiture because the NAL is based ``in substantial 
part on allegations of misconduct which have not previously  been 
raised [and] which are not  sufficiently described in the NAL  to 
permit Fax.com to respond.''37
 
 16.      Fax.com is  incorrect.   As  a  threshold  matter,  the 
staff's citations provided  Fax.com with actual  notice that  its 
fax broadcasting activities violated federal law -- as well as  a 
warning  that  future  misconduct  would  not  be  tolerated.  38  
Fax.com cannot now feign ignorance that its behavior would result 
in penalty.   Moreover, the  staff's citations  informed  Fax.com 
that the very nature of its  business -- the practice of  sending 
unsolicited fax advertisements  -- was in  flagrant violation  of 
the TCPA.   Despite  such  notification,  Fax.com  continued  its 
pattern of  misconduct, as  evidenced  by the  numerous  consumer 
complaints that formed the basis for the NAL. 39

 17.      Nor do  we  find  merit in  Fax.com's  claim  that  its 
misconduct was  not  ``sufficiently  described'' in  the  NAL  to 
permit it to respond in an appropriate manner.40  Fax.com credits 
the Commission with  attaching copies  of specific  faxes to  the 
citations (``so that Fax.com had the opportunity to review  those 
faxes  and  respond  to  them  with  particularity....'').41   By 
contrast, Fax.com complains, the Commission did not attach copies 
of the  489  suspect faxes  to  the NAL,  instead  providing  the 
following information for  each fax: the  name of the  recipient; 
the date of transmission; the name of the entity whose  property, 
goods or  services were  advertised;  and the  toll-free  opt-out 
numbers, each traced to Fax.com, that appeared on the face of the 
advertisements.  Fax.com contends that, without copies of the 489 
faxes, it is  not able to  ``confirm or deny  whether any of  the 
allegedly violative faxes listed in  the table were in fact  sent 
by Fax.com.''42

 18.      Contrary to  Fax.com's  contentions,  the  Fax.com  NAL 
described  in  detail  the  evidence  upon  which  the   proposed 
forfeiture was based, including the numerous consumer complaints; 
the sworn declarations filed in support of these complaints;  and 
the  unsolicited  advertisements   that  Fax.com   sent  to   the 
complainants' facsimile  machines.43  Indeed,  the NAL  contained 
all the information required by  section 503(b)(4) of the  Act.44  
Beyond these  basic  statutory  requirements, it  is  within  the 
Commission's discretion  to  present  the evidence  in  the  most 
useful format.45   Moreover,  each  document cited  in  the  NAL, 
including copies of all 489 faxes, has been available for Fax.com 
to examine since the issuance of the NAL.  Indeed, the record  of 
every forfeiture proceeding is available to alleged  violators.46  
Hence, Fax.com could easily have obtained copies of any or all of 
the faxes listed in Table 1 to the NAL.47  

 19.      Without having  reviewed the  faxes at  issue,  Fax.com 
questions, in its initial Response  to the NAL, the  Commission's 
determination that Fax.com transmitted the faxes listed in  Table 
1 to the NAL.48  Fax.com asserts that neither the toll-free  opt-
out numbers displayed in the  allegedly violative faxes, nor  the 
telephone fax number displayed  in many of  the headers of  these 
faxes, establish  that Fax.com  sent out  the faxes  at  issue.49  
Significantly, however, Fax.com  does not directly  deny that  it 
sent the faxes at issue.  

 20.      Fax.com  reiterates  these  arguments  in  a   ``Second 
Supplement'' to its Response, which it filed after obtaining  and 
reviewing  the  materials  cited  in  the  Fax.com  NAL.    These 
materials included all  of the complaints  that formed the  basis 
for the NAL, as well as all associated faxes.  Despite its review 
of  the  record,  however,  Fax.com  continues  to  advance   its 
unsupported assertions,  and, once  again, fails  to provide  any 
specific information to  counter the  Commission's findings  that 
Fax.com sent the faxes at issue, and that these faxes  constitute 
prohibited advertisements as  defined in section  227 of the  Act 
and the Commission's rules and orders.50

 21.      Further, Fax.com  does  not  dispute  the  Commission's 
finding that Fax.com's toll-free  opt-out numbers appear on  each 
prohibited advertisement.  Indeed, as the Commission noted in the 
NAL, the wording of Fax.com's opt-out notices, and the fact  that 
these notices  were  included in  advertisements  for  individual 
entities, is  a transparent  attempt  to deceive  consumers  into 
believing  that  the   opt-out  numbers   were  associated   with 
individual advertisers  rather  than with  Fax.com.51   Nor  does 
Fax.com dispute the Commission's conclusion that Fax.com was  the 
subscriber for the  opt-out numbers  at the time  the faxes  were 
sent.  Fax.com  also fails  to present  evidence to  counter  our 
finding that  Fax.com held  the telephone  number printed  on  at 
least one client's  advertisement as the  contact number for  the 
advertised product.

 22.      In sum, the record before us confirms Fax.com's  direct 
involvement in the fax transmissions at issue. Despite this clear 
evidence, Fax.com speculates  that some of  these businesses  may 
have appropriated  Fax.com's  toll-free  numbers  and  unlawfully 
tampered with  the  originating  facsimile  machines  to  falsify 
automatic identification data -  - either inadvertently, or  with 
the purpose of sending faxes that would be attributed to Fax.com. 
We find  such speculation  to be  disingenuous, considering  that 
Fax.com has  not  directly denied  sending  the faxes  at  issue.  
Moreover, the record  contains abundant  evidence from  Fax.com's 
own clients  that  confirms  Fax.com's  involvement  in  the  fax 
transmissions at issue.52  

 23.      As  noted  above,  the  Commission  sought   additional 
information after  the  release of  the  Fax.com NAL  by  issuing 
citations and letters  of inquiry  to businesses  that had  hired 
Fax.com to transmit unsolicited advertisements on their behalf to 
consumers' telephone facsimile machines.  The Commission  advised 
the businesses  of the  August 7,  2002 NAL  against Fax.com  and 
informed  them  of   their  potential   liability  for   monetary 
forfeitures if they continued to send unsolicited  advertisements 
to telephone facsimile machines, either through Fax.com,  through 
some other entity, or on their own.53  

 24.      The businesses' responses,  which we have  incorporated 
into  the  record,  provide  additional  evidence  that   Fax.com 
transmitted the  faxes at  issue in  the NAL.   For example,  the 
response from  Direct  Source  Copiers, Inc.,  one  of  Fax.com's 
clients, confirms that not only did Fax.com transmit  unsolicited 
advertisements on behalf  of Direct Source  Copiers, but  Fax.com 
also went to great lengths to deceive Direct Source copiers  into 
facilitating Fax.com's unlawful activities.  According to  Direct 
Source Copiers' president, Fax.com  initially told Direct  Source 
Copiers that  Fax.com's  activities complied  with  federal  law.  
Then, after  the  Commission  issued  the  Fax.com  NAL,  Fax.com 
continued to assure Direct Source Copiers that it offered clients 
a  ``fully  legal  service,''   and  that  Fax.com  had   ``prior 
permission'' to send fax ads on Direct Source Copiers' behalf  to 
the  contacts  in  Fax.com's  database  -  statements  that   are 
blatantly false, as  the consumer  declarations demonstrate.   As 
Direct  Source  Copiers  later   learned,  the  ``contacts''   in 
Fax.com's database had  not given Fax.com  permission to  receive 
fax advertising.54

 25.      The response from  Quality Auto  Mart also  illustrates 
Fax.com's  unscrupulous  practices.55   In  a  response  to   the 
Commission's citation letter, the president of Quality Auto  Mart 
recounts how he had to demand that Fax.com stop sending faxes  on 
his company's behalf after learning that the opt-out numbers that 
Fax.com had  printed  on his  company's  faxes were  not  working 
numbers.56  Similarly,  John  Jurcisin,  D.P.M,  and  Great  West 
Funding explain  that  they eventually  realized  that  Fax.com's 
service was unlawful,  despite Fax.com's  claims that  it was  in 
compliance with state and federal requirements.57  Both companies 
were  forced   to  demand   that  Fax.com   cease  its   unlawful 
activities.58  In light of such responses and the other  evidence 
of record, we affirm the Commission's determination that the  489 
faxes detailed  in  Table  1  to the  Fax.com  NAL  are  unlawful 
unsolicited advertisements, and  that Fax.com sent  the faxes  at 
issue. 

IV.  Appropriateness of Assessed Forfeiture Amount

 26.      As discussed in the Fax.com NAL, 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.59   In exercising  such authority,  we have  the 
discretion to apply an upward adjustment of the forfeiture amount 
based  on  the   particular  facts  and   circumstances  of   the 
violation(s).60  In the Fax.com NAL, we noted that the Commission 
had   previously   considered   $4,500   per   unsolicited    fax 
advertisement  as  an  appropriate   base  amount,61  which   the 
Commission has adjusted  upwards to $10,000  per unsolicited  fax 
advertisement in  those instances  where  the fax  recipient  had 
previously  asked  the   sender  to  refrain   from  faxing   the 
materials.62  In  the  instant  case,  we  assessed  the  maximum 
forfeiture of $11,000  per unsolicited  fax advertisement,  based 
upon evidence that Fax.com's business itself is predicated upon a 
knowing and willful violation of the federal restrictions on  fax 
advertising contained in the Act  and the Commission's rules  and 
orders.63

 27.      Fax.com contends that our proposed forfeiture  violates 
the  due  process  guarantee  of  the  Fifth  Amendment  and  the 
excessive  penalties  clause  of  the  Eighth  Amendment  to  the 
Constitution.64  Fax.com argues  that forfeitures  such as  those 
considered in the Fax.com NAL ``can  go so far beyond the  actual 
damages suffered  that the  statutory  damages come  to  resemble 
punitive damages.''65   Fax.com also  asserts that  our  proposed 
forfeiture is disproportionate because it is ``220,000 times  the 
harm alleged,'' which Fax.com calculates  at ``pennies a page  in 
paper and  toner.''66   Finally,  Fax.com contends  that  in  the 
Fax.com  NAL,  we   relied  upon  ``supposedly   non-decisional'' 
information of  ``dubious  reliability''  to  conclude  that  the 
maximum forfeiture is warranted for Fax.com's egregious  conduct.  
Fax.com characterizes  our  forfeiture  rationale  as  ``at  best 
disingenuous, if  not  affirmatively misleading,''  and  requests 
that we reissue an NAL that does not describe such conduct.67

 28.      Contrary to Fax.com's argument, the fact that we 
described numerous examples of Fax.com's egregious conduct in 
addition to the 489 violative faxes does not mean that these 
examples formed the sole basis for our decision to impose the 
maximum forfeiture.  Indeed, we specifically stated:

     It is clear  from Fax.com's own  promotional materials 
     and its  responses  to  our citations  that  Fax.com's 
     primary business activity itself constitutes a massive 
     on-going violation of section 227(b)(1)(C) of  the Act 
     and section 64.1200(a)(3)  of the Commission's  rules, 
     and  that  Fax.com  is   well  aware  of   this  fact.  
     Fax.com's  primary  commercial   offering  is  a   fax 
     broadcasting service that clearly does not comply with 
     federal     restrictions      governing      facsimile 
     advertisements.   As  outlined   above,  by  its   own 
     admission  and   as  demonstrated   by  the   consumer 
     information,  Fax.com  generally   conducts  its   fax 
     broadcasting without  any regard  to  whether the  fax 
     recipient has  an  established  business  relationship 
     with  either  Fax.com   or  the  advertiser,   or  has 
     otherwise   granted   express   permission   for   the 
     advertisement to  be  sent.   We  conclude  that  this 
     unlawful undertaking  merits  maximum forfeitures  for 
     each of  the violations  at issue  here.  Although  we 
     believe that  the nature  of  Fax.com's enterprise  by 
     itself warrants imposition of a maximum forfeiture for 
     each violation,  we  discuss  below  the  particularly 
     egregious aspects of Fax.com's conduct.68

Fax.com's insistence that we reissue the NAL without descriptions 
of  Fax.com's  egregious  conduct  is  clearly  unavailing.   The 
Fax.com NAL proposed the maximum  forfeiture for each of the  489 
violative faxes because of Fax.com's fax broadcasting activities, 
which, by Fax.com's own admission, were undertaken without regard 
to the  requirements  of federal  law.69   Any other  aspects  of 
Fax.com's business activities that are described in the NAL  were 
not of decisional significance in setting the forfeiture  amount, 
and we clearly emphasized this fact.  We are entitled to  include 
such publicly available ``background'' information in our orders, 
as long  as any  proposed penalties  are fully  supported by  the 
evidence  of  record.   In  the  instant  proceeding,  we   cited 
extensive record  evidence to  support our  proposed  forfeiture. 
Even after finally taking advantage of the opportunity to  review 
these cited  materials,  which  have been  available  for  public 
inspection since August 7, 2002, Fax.com continues to attack  our 
conclusions without addressing any specific supporting  materials 
or  providing  any   information  to   discredit  our   extensive 
documentation.70

    29.   Further,  we   find   that   Fax.com's   constitutional 
arguments reflect a fundamental  misunderstanding of the  purpose 
of Commission  forfeiture policies  and procedures.   Forfeitures 
are not meant to serve as compensatory damages for harms  caused, 
but rather  are  meant to  penalize  unlawful activity.   In  the 
instant  proceeding,  we  sought  to  penalize  Fax.com  for  its 
egregiously unlawful conduct.   As detailed in  the Fax.com  NAL, 
Fax.com not  only  subjected  consumers  to  greater  numbers  of 
unlawful  faxes,   its   deceptive  marketing   also   left   its 
predominantly  small  business  clients  vulnerable  to  federal, 
state,  and  private   enforcement  actions   that  may   involve 
substantial monetary penalties.  The record further  demonstrates 
that  Fax.com  failed  to  disclose  to  its  clients  the  broad 
prohibition  on  faxing  unsolicited  advertisements  imposed  by 
section 227 of  the Act  and the Commission's  rules and  orders.   
Fax.com  also  affirmatively  misstated  federal  law   governing 
unsolicited facsimile  advertisements.   In  light  of  Fax.com's 
egregiously unlawful  activity,  we conclude  that  our  proposed 
forfeiture did not violate Fax.com's constitutional rights.

 30.      Moreover, the  Supreme Court  has held  that a  penalty 
violates due process only when  it is ``so severe and  oppressive 
as to be  wholly disproportionate to  the offense, and  obviously 
unreasonable.''71   In  the  instant  proceeding,  we   carefully 
calculated  the  proposed  forfeiture  in  direct  proportion  to 
Fax.com's offense,  which, as  discussed above,  was in  flagrant 
violation of the law.  Hence, we affirm our conclusion in the NAL 
that  Fax.com's   unlawful   undertaking  merited   the   maximum 
forfeiture for  each of  the violations  at issue  --particularly 
because the  illegal nature  of  Fax.com's enterprise  by  itself 
warrants imposition of the maximum forfeiture for each violation.


              V.   CONCLUSION AND ORDERING CLAUSES

 31.      After reviewing the information filed by Fax.com in its 
Responses to the NAL, we find that Fax.com has failed to identify 
facts or circumstances to persuade us that there is any basis for 
modifying  the  forfeiture  proposed  in  the  Fax.com  NAL.   As 
discussed  above,   Fax.com   has  not   shown   any   mitigating 
circumstances sufficient to warrant a reduction of the forfeiture 
penalty.

 32.      Accordingly, IT IS ORDERED, pursuant to section  503(b) 
of the Act, 47  U.S.C.  503(b), and  section 1.80 (f)(4) of  the 
Commission's rules, 47  C.F.R.  1.80(f)(4),  that Fax.com,  Inc. 
SHALL  FORFEIT  to  the  United  States  Government  the  sum  of 
$5,379,000 for willfully and repeatedly violating section 227  of 
the Act, 47  U.S.C.   227, section 64.1200  of the  Commission's 
rules,  47  C.F.R.     64.1200,  and  the  Commission's   orders 
concerning the Telephone Consumer Protection Act.72

 33.      IT IS  FURTHER ORDERED  that a  copy of  this Order  of 
Forfeiture SHALL  BE  SENT  by  certified  mail  to  Kevin  Katz, 
President, Fax.com, Inc., 120  Columbia Street, Suite 500,  Aliso 
Viejo, California   92656  and Kevin  Katz,  President,  Fax.com, 
Inc., 30872  South  Coastal  Highway, Suite  201,  Laguna  Beach, 
California  92651.  In  addition, IT  IS FURTHER  ORDERED that  a 
copy of this Order of Forfeiture SHALL BE SENT by certified  mail 
to Harry F.  Cole, Esquire,  Fletcher, Heald  & Hildreth  P.L.C., 
1300 N. 17th Street - 11th Floor, Arlington, VA  22209, and  Mary 
Ann L. Wymore,  Esquire, Greensfelder,  Hemker &  Gale, P.C.,  10 
South Broadway, Suite 2000, St. Louis, Missouri  63102, Fax.com's 
attorneys of record.

 34.      IT IS  FURTHER ORDERED  that a  copy of  this Order  of 
Forfeiture SHALL  BE  SENT by  certified  mail to  the  following 
affiliated entities, successors or assigns of Fax.com, Inc.:
     Tech Access Systems Corporation, 280 W. Sierra Madre  Blvd., 
     #231, Sierra Madre, California   91024; Tech Access  Systems 
     Corporation, 521  South  Myrtle Avenue, Suite 1,  Monrovia, 
     California  91016; Telecom Tech Support, 26081 Merit Circle, 
     #112, Laguna Hills, California  92653; Telecom Tech  Support 
     c/o Robert Battaglia, 3621  Vista Campana South,  Oceanside, 
     California   92057;  Everglades  Enterprises,  c/o  Cozen  & 
     O'Connor, 200 Four  Falls Corp  Center, #400,  Conshohocken, 
     Pennsylvania    19428    (Attention:   Shari    Odenheimer); 
     Everglades Enterprises,  c/o  Joe Garson,  352  South  Canon 
     Drive,  Beverly   Hills,   California    90212;   Lighthouse 
     Marketing, LLC, 23411 Laguna  Hills Drive, Suite K25,  Aliso 
     Viejo, California  92656l; Lighthouse Marketing, LLC,  15440 
     Laguna  Canyon  Road,  Irvine,  California   92618;   Impact 
     Marketing Solutions, LLC, 5404 Alton Parkway, Suite 5A #114, 
     Irvine, California  92604; Impact Marketing Solutions,  LLC, 
     15440 Laguna Canyon  Road, Irvine,  California  92618;  Data 
     Research Systems,  Inc., 26895  Aliso  Creek Road,  Suite  B 
     #681, Aliso Viejo, California  92656; Data Research Systems, 
     Inc., 92 Argonaut, Aliso  Viejo, California  92656; and  its 
     attorney of record, David Felsenthal, Esquire,1900 Avenue of 
     the Stars, Lost Angeles, California  90067.

 35.      IT IS FURTHER ORDERED that  Fax.com, Inc. SHALL FILE  a 
report with  the  Chief, Telecommunications  Consumers  Division, 
Enforcement Bureau, FCC, within 30 days from the release of  this 
Order, on whether it  has come into compliance  with the Act  and 
our rules and orders as cited  in this Order of Forfeiture;  such 
report shall encompass the activities of all persons and entities 
described in footnote 1, supra.

                         FEDERAL COMMUNICATIONS COMMISSION




                         Marlene H. Dortch
                         Secretary
_________________________

1    Fax.com, a California-based company that began operating  in 
1998, characterizes itself as a ``fax broadcaster,'' transmitting 
messages to  telephone  facsimile  machines on  behalf  of  other 
entities for  a fee.   For purposes  of this  Order,  ``Fax.com'' 
encompasses its  president,  Kevin Katz,  as  well as  its  other 
corporate officers, including  Thomas Roth,  Jeffrey Dupree,  and 
Eric Wilson.   In addition,  Fax.com encompasses  all  affiliated 
entities, successors, and assigns of Fax.com, including, but  not 
limited to, Tech Access Systems Corporation; Telcom Tech Support; 
Everglades  Enterprises,   Lighthouse  Marketing,   LLC;   Impact 
Marketing Solutions, LLC; and Data Research Systems, Inc.

2     See 47 U.S.C.  227(b)(1)(C).  Section 227 was added to the 
Act by the Telephone Consumer Protection Act of 1991, Pub.L. 102-
243, 105 Stat. 2394, 2402 (1991),  and is most commonly known  as 
the ``TCPA.''

3     See 47  C.F.R.  64.1200(a)(3).   In Rules and  Regulations 
Implementing the  Telephone  Consumer  Protection  Act  of  1991, 
Report and Order, 18  FCC Rcd 14,014 (2003)  (2003 TCPA Report  & 
Order), the Commission  amended the rules  that govern  telephone 
solicitations and  unsolicited  advertisements,  including  those 
sent by facsimile machines.  In  this Order, however, we cite  to 
the rule sections in effect at the time of Fax.com's violations.

4      See  Rules  and  Regulations  Implementing  the  Telephone 
Consumer Protection  Act of  1991, Report  and Order,  7 FCC  Rcd 
8752, 8779 (1992) (stating that section 227 prohibits the use  of 
telephone facsimile machines to send unsolicited advertisements).

5      See  Fax.com,  Inc.,  Notice  of  Apparent  Liability  for 
Forfeiture, 17 FCC Rcd 15,927  (2002) (Fax.com NAL). The  Fax.com 
NAL was issued pursuant  to section 503(b)(1)  of the Act,  which 
gives the Commission authority 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  . .  . .''   47 
U.S.C.  503(b)(1).

6     See Fax.com NAL, 17 FCC Rcd at 15,928.

7    See 47 U.S.C.  503(b)(5).   This section provides that  the 
Commission may not assess a forfeiture penalty against any person 
that does  not  hold a  license,  permit, certificate,  or  other 
Commission authorization,  and  is  not  an  applicant  for  such 
instruments, unless ``(A) such person 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.''  

8    47 U.S.C.  227(b)(1)(C).   We also issued citations to  the 
following Fax.com clients for  alleged violations of section  227 
and the Commission's rules and  orders: Platinum Travel Club  and 
Teleconcepts Technologies;  Colorjet, Inc.;  Millenium  Marketing 
and Sales, Ltd.;  Website University; US  Travel Services,  Inc.; 
and Advanced Cellular Communications, Inc.   We did not, however, 
propose further enforcement action against these companies.   Id. 
at 15,929 n.10. 

9    See  Rules  and   Regulations  Implementing  the   Telephone 
Consumer Protection Act of 1991,  10 FCC Rcd 12391, 12405  (1995) 
(1995 TCPA  Reconsideration Order)  (citing  H.R. Rep.  No.  317, 
102nd Cong., 1st Sess. 25 (1991)).

10   This  blanket   prohibition  applies   to  all   unsolicited 
advertisements transmitted to telephone facsimile machines.   The 
Act  prohibits  the  sending  of  unsolicited  advertisements  by 
facsimile to either business  or residential telephone  facsimile 
machines.  In addition,  the prohibition  on sending  unsolicited 
fax advertisements  applies  to both  interstate  and  intrastate 
transmissions.  See  47  U.S.C.   152(b);  47 U.S.C.    227(e).  
Section 227  is  not  subject to  the  provision  that  generally 
excludes  Commission   jurisdiction  over   intrastate   matters.  
Section 227 does  not, however,  preempt state  law that  imposes 
more restrictive intrastate requirements than those set forth  in 
the Act.   The Act  defines an  ``unsolicited advertisement''  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. 47 U.S.C.  227(a)(4); 47 C.F.R  64.1200(f)(5).  The 
Commission originally  determined  that an  established  business 
relationship between  a  fax sender  and  recipient  demonstrates 
consent to receive facsimile advertisements.  Recently,  however, 
the   Commission   concluded   that   an   established   business 
relationship does  not  constitute prior  express  invitation  or 
permission to  send fax  advertisements,  and that  a  consumer's 
invitation or permission  must be recorded  in a signed,  written 
statement that contains the telephone  number where faxes may  be 
delivered and that  clearly evinces the  consumer's agreement  to 
receive fax advertising from the sender.  See 2003 TCPA Report  & 
Order, 18 FCC Rcd at  14,014.   The written consent  requirement, 
but not  the  overall  prohibition,  was  recently  stayed,  thus 
reinstating the ``established business relationship'' option on a 
temporary  basis.    Rules  and   Regulations  Implementing   the 
Telephone Consumer Protections Act of 1991, FCC 03-230 (rel. Oct. 
3, 2003). 

11   47 U.S.C.  227(b)(1)(C). 

12   See Fax.com NAL, 17 FCC Rcd at 15,929.

13   Fax.com responded to the citations on January 31, 2001, June 
1, 2001,  and June  21, 2001,  with pleadings   filed jointly  on 
behalf of Fax.com and its six cited clients. 

14   See Fax.com January 31  Response at 30;  June 1 Response  at 
31-32; June 21 Response at 30.

15   January 31 Response at 28-29;  June 11 Response at 27;  June 
21 Response at 27-28.  Fax.com asserted that it only  transmitted 
advertisements that contain such an opt-out number.  Id.

16   As the Commission noted in the Fax.com NAL, several 
consumers describe being awakened very late at night or in the 
early hours of the morning by the noise of their fax machines 
receiving an unsolicited advertisement from a Fax.com client.  
See Fax.com NAL, 17 FCC Rcd at 15,931-32.  Some of the consumers 
also described their unsuccessful  -- and frustrating -- efforts 
to remove their telephone facsimile numbers from Fax.com's 
database.  Id. 

17   Each complainant  signed  a declaration,  under  penalty  of 
perjury, attesting  that s/he   (1)  is either  the owner  of  or 
responsible for the telephone facsimile machine that received the 
advertisement(s);  (2)  did  not  have  an  established  business 
relationship with either  Fax.com or the  entity whose  products, 
goods, or services were being  advertised; and (3) did not  grant 
prior express permission or invitation for the faxes to be  sent.  
See Fax.com NAL, 17 FCC Rcd at 15,931.  

18   In the Fax.com  NAL, the Commission  mistakenly stated  that 
the faxes at issue were received from September 2001 until  March 
2002.  See Fax.com NAL,  17 FCC Rcd at  15,930 n.17.  Table 1  to 
the NAL,  however, correctly  designates that  the  transmissions 
were received from September 2001 until June 2002.   This mistake 
does not, however, affect the violations at issue in this order.

19   In Table 1 to the Fax.com NAL, the Commission listed the 489 
unsolicited fax advertisements that formed the basis of the 
Fax.com NAL.  The Commission explained that the record linked 
Fax.com with each of the telephone subscribers for (1) the toll-
free opt-out telephone numbers that were displayed on each 
advertisement and/or  (2) the telephone facsimile machine numbers 
from which various advertisements were sent.  See Fax.com NAL, 17 
FCC Rcd at 15,930-31.

20   See Fax.com NAL, 17 FCC Rcd at 15,938.

21   See id. at 15,943.

22   Fax.com Response, Aug. 21, 2003 (Response).   Fax.com had 
longer than the usual 30-day period in which to file its 
response, see 47 C. F.R.  1.80(f)(3), because of an order issued 
by the U.S. District Court for the Eastern District of Missouri 
on August 29, 2002, staying the Fax.com forfeiture proceeding 
until further notice.   See discussion infra at paragraph 10.  On 
August 26, 2003, after reversal of that decision, Fax.com 
supplemented its response with a supporting declaration from 
Kevin Katz, the President of Fax.com.  See Fax.com Supplement to 
Response, filed Aug. 26, 2003.  On September 11, 2003, pursuant 
to a request from Fax.com's attorney, Commission staff granted 
Fax.com an additional 10 business days to review the record of 
the forfeiture proceeding and file any necessary supplemental 
response.  In a letter filed on September 15, 2003, Fax.com 
argued that 10 days was not an adequate period of time for it to 
obtain and review all of the evidence of record, and to prepare a 
response.  See Letter from Harry F. Cole, counsel for Fax.com, to 
Colleen A. Heitkamp, Chief, TCD, Sept. 15, 2003.  In an effort to 
allow Fax.com to develop a more complete response to the Fax.com 
NAL, Commission staff granted Fax.com an additional 10 business 
days to review the record and file any supplementary response.  
See Letter from Colleen A. Heitkamp, Chief, TCD, to Harry F. 
Cole, counsel for Fax.com, Oct. 8, 2003.  Fax.com filed its 
supplementary response on Oct. 20, 2003.  In total, Fax.com had 
90 days from the date on which the forfeiture proceeding 
recommenced in which to file a complete response to the Fax.com 
NAL. 

23   See, e.g., Market Wizard Alerts, Citation and Letter of 
Inquiry, TCD (Aug. 13, 2002); Burt Custom Finance, Citation and 
Letter of Inquiry, TCD (Aug. 13, 2002).

24   Missouri ex. rel. Nixon v. American Blast Fax, Inc & 
Fax.com, Inc., 196 F. Supp.2d 920, 933 (E.D. Mo. 2002) (American 
Blast Fax).  In American Blast Fax, in which the Commission and 
the United States intervened to defend the constitutionality of 
the TCPA's fax restriction, the district court determined, among 
other things, that the government had failed to meet its burden 
of demonstrating that the harms from unsolicited advertisements 
were significant, and that the restriction on unsolicited 
commercial advertising would alleviate them to a material degree.  
American Blast Fax, 196 F.Supp. at 933.  The government appealed, 
and the district court issued a stay of the Fax.com forfeiture 
proceeding, pending further judicial proceedings.  On September 
6, 2002, Commission staff notified those companies to which it 
had issued or planned to issue citations and letters of inquiry 
in connection with the Fax.com NAL that they need not respond 
until further notice.  See supra footnote 22.

25   Id. at 655. 

26    Id.

27   See Destination Ventures v. FCC, 46 F.3d 54, 55-57 (9th Cir. 
1995) (ban on unsolicited fax advertisements does not violate the 
advertiser's First Amendment rights because it reasonably fits 
the government's interest in preventing the shifting of 
advertising costs to consumers); Minnesota v. Sunbelt 
Communications and Marketing, 282 F. Supp. 2d 976, 981-84 
(D.Minn. 2002); Texas v. American Blast Fax, 121 F. Supp. 2d 
1085, 1091-92 (W.D. Tex. 2000); Kenro, Inc. v. Fax Daily, Inc., 
962 F.Supp. 1162, 1167-69 (S.D. Ind. 1997) (ban on unsolicited 
fax advertisements is narrowly tailored to achieve the 
government's intended purpose and does not violate the First 
Amendment guarantee of commercial free speech).
 
28    See  Fax.com NAL,  17 FCC  Rcd at  15,939; see  also  supra 
footnote 27; infra footnote 31.

29   See id.

30    Response at 5. 

31   Id.  The Commission and the United States intervened in the 
American Blast Fax case to defend the constitutionality of the 
TCPA's fax advertising restriction.  Despite the Missouri 
district court's ruling in favor of Fax.com in that forum, every 
other federal court that considered the constitutionality of the 
fax advertising restriction, both before and after the Missouri 
court's ruling, found the restriction constitutional.  See 
Destination Ventures v. FCC, 46 F.3d 54, 55-57 (9th Cir. 1995) 
(ban on unsolicited fax advertisements does not violate the 
advertiser's First Amendment rights because it reasonably fits 
the government's interest in preventing the shifting of 
advertising costs to consumers); Minnesota v. Sunbelt 
Communications and Marketing, 282 F.Supp.2d 976, 981-84 (D.Minn. 
2002); Texas v. American Blast Fax, 121 F. Supp. 2d 1085, 1091-92 
(W.D. Tex. 2000); Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 
1162, 1167-69 (S.D. Ind. 1997) (ban on unsolicited fax 
advertisements is narrowly tailored to achieve the government's 
intended purpose and does not violate the First Amendment 
guarantee of commercial free speech).  State courts have also 
overwhelmingly upheld the legal validity of the restriction.  
Texas v. Fax.com, Inc., No A-02-CA-080 JN, Report and 
Recommendation (W.D. Tex. May 23, 2003); Covington & Burling v. 
International Marketing & Research, Inc., Civ. No. 01-4360, Order 
(D.C. Super Ct. Apr. 17, 2003); Whiting Corp. v. MSI Marketing, 
Inc., No. 02 CH 6332, Opinion and Order (Ill. Circ. Ct. Apr. 3, 
2003); Mark Chair Co. v. Mortgage Managers, Inc., Case No. 02 LK 
247, Order (Ill. Circ. Ct. Dec. 20, 2002); Levitt v. Fax.com, 
Inc., No. 42-C-01-2218, Memorandum Opinion and Order (Md. Circ. 
Ct. Nov. 27, 2002); Robin Hill Development Co. v. JD&T 
Enterprises, Inc., No. 01 L 527, Order (Ill. Circ. Ct. Oct. 3, 
2002); Micro Engineering, Inc. v. St. Louis Assoc. of Credit 
Mgmt., Inc., Cause No. 02AC-008238 X CV, Order (Mo. Circ. Ct. 
Aug. 13, 2002); Kaufman v. ACS Sys., Inc., Case No. BC222588, 
Decision (Cal. Super. Ct. Dec 12, 2001).  But see Bonime v.Perry 
Johnson, Inc., No. 61977/01, Decision and Order (N.Y. Civ. Ct. 
2002) (relying on American Blast Fax district court ruling, since 
reversed), appeal pending; Rudgayzer & Gratt v. Enine, Inc., 193 
Misc.2d 449 (N.Y. Civ. Ct. 2002) (relying on American Blast Fax 
district court ruling, since reversed), appeal pending.  To have 
considered the Missouri court's decision binding on nationwide 
federal enforcement of the restriction would have resulted in 
nullification of every other court's constitutional decisions to 
the contrary, and would have created a gross legal inequity that 
would have left only Fax.com and its clients immune from federal 
enforcement.  Such ``immunity'' from FCC (or state and private 
right of action) enforcement would clearly contravene Congress's 
goals in enacting the TCPA.  Even if the Missouri district 
court's decision had not been reversed, it would not have 
affected all other judicial decisions to the contrary.
 
32   See Response at 5-6.
 
33   Id. at 8.

34   Id.
 
35   Roberts v. United  States Jaycees,  468 U.S.  609, 629,  104 
S.Ct. 3244, 82 L.Ed.2d 462 (1984).
 
36   Fax.com asserts that the court in Texas v. American Blast 
Fax rejected our interpretation of who is liable under the TCPA 
for unsolicited fax advertising - fax boadcasters or the 
underlying advertiser.  See Response at 8 (citing Texas v. 
American Blast Fax, 121 F. Supp. 2d 1085, 1090-92 (W.D. Tex. 
2000)).  In fact, the court simply chose to follow the explicit 
statutory language of the TCPA rather than a Commission order.  
See 121 F. Supp. 2d at 1089 (noting that the TCPA says that ``any 
person'' sending unsolicited fax advertisements is liable).  This 
led the court to exactly the same conclusion that we reach here - 
that a fax broadcaster that serves as ``more than a mere conduit 
for third party faxes'' is liable under the TCPA.  See id. at 
1089-90 & n. 6 (under the allegations in the case, the fax 
broadcaster at issue ``does more than `simply provide 
transmission facilities' for the faxes at issue'') (citing Rules 
and Regulations Implementing the Telephone Consumer Protection 
Act of 1991, 7 FCC Rcd 8752 (1992) and the 1995 TCPA 
Reconsideration Order).

37   See Response at Introduction, ii.
 
38   See, e.g., Decorize, Inc., Citation and Letter of Inquiry, 
TCD, Aug. 15, 2002.

39   See Fax.com NAL, 17 FCC Rcd at 15,939.
 
40   See id.
 
41   Id.
 
42   Id.

43   See Fax.com NAL, 17 FCC Rcd at 15,931-33. 

44   47 U.S.C.  503(b)(4).   This subsection requires, inter 
alia, that the Commission issue a written notice of apparent 
liability or a notice of opportunity for hearing prior to 
assessing a forfeiture.  Such a notice must identify the legal 
provision that has apparently been violated, set out the nature 
of the act or omission and the underlying facts, and must state 
the date on which the apparently unlawful conduct occurred.  In 
the instant proceeding, we complied with these requirements.  

45   See Business Discount Plan, Inc., Order on Reconsideration, 
15 FCC Rcd 24,396; 24,401 (2000).

46   The Commission does not disclose documents that would 
interfere with ongoing law enforcement efforts, reveal the 
Commission's internal deliberative process, or compromise the 
Commission's attorney-client or attorney work product privileges.  
See 47 U.S.C.  552(B)(5), (7).  Otherwise, virtually all of the 
materials underpinning an NAL are available upon request for 
public review.  In some cases, including this one, certain 
information is withheld from public inspection to protect the 
personal privacy of individuals who have provided information to 
the Commission.  For instance, in this case, we do not publicly 
disclose the home telephone numbers of individuals who received 
Fax.com's transmissions. 

47   Notwithstanding the opportunity afforded Fax.com to review 
this evidence upon the issuance of the NAL , the Commission 
granted Fax.com additional time for to obtain and review the 
record of the proceeding and to file any supplemental response to 
the NAL.  See supra footnote 20.

48   Response at 16. 

49   Id.
 
50   See Second Supplement to Response of Fax.com, filed Oct. 20, 
2003.  Specifically, Fax.com asserts, without any further 
explanation or proof, that ``[r]eview of the materials [that were 
cited in the Fax.com NAL] confirms the validity of the arguments 
presented by Fax.com in its [initial] Response [to the Fax.com 
NAL].  The Commission has no reliable basis for its allegations 
against Fax.com.''  Second Supplement to Response at 1.
 
51   Fax.com NAL, 17 FCC Rcd at  15938 n.47.

52   See infra footnotes 53-57.  Many of those clients submitted 
copies of contracts with Fax.com that included ``indemnification 
provisions'' whereby Fax.com assured the businesses that the fax 
transmissions were lawful, and agreed to represent the businesses 
in any legal actions for TCPA violations.  These indemnification 
provisions are entirely inconsistent with Fax.com's position that 
advertisers acted alone to send the faxes at issue.  

53   See Fax.com NAL, 17 FCC Rcd at 15,937. 

54   Direct Source Copiers, Inc., Response to Citation, filed 
Oct. 20, 2003.  While some of the businesses we cited did not 
recall doing business directly with Fax.com, the record 
demonstrates that, in many instances, these businesses contracted 
with marketing or advertising firms that, in turn, had used 
Fax.com's fax services.  Hence, many businesses were unaware that 
Fax.com was ultimately responsible for transmitting their 
unsolicited advertisements. 

55   Quality Auto Mart, Response to Citation, filed Aug. 30, 
2002.

56   See id.

57   See John Jurcisin, D.P.M, Response to Citation, filed Sept. 
10, 2002; Great West Funding, Response to Citation, filed Oct. 3, 
2003.  See also American Marble Liquidators, Inc., Response to 
Citation, filed Nov. 10, 2003.

58   See id.

59   See section 503(b)(2)(C).  This section provides for 
forfeitures up to $10,000 for each violation for cases not 
covered by subparagraph (A) or (B), which address forfeitures for 
violations by licensees and common carriers, among others.  47 
U.S.C.  503(b)(2)(C).  In accordance with the inflation 
adjustment requirements contained in the Debt Collection 
Improvement Act of 1996, Pub. L. 104-134, Sec. 31001, 110 Sta. 
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).

60   See 47 U.S.C.  503(b)(2)(D); The Commission's Forfeiture 
Policy Statement and Amendment of Section 1.80 of the 
Commission's Rules to Incorporate the Forfeiture Guidelines, 
Report and Order, 12 FCC Rcd 17087, 17100-17101 (1997), recon. 
denied, 15 RCC Rcd 303 (1999) (Forfeiture Policy Statement).

61   See Fax.com NAL,  17 FCC  Rcd at  15,942 (citing  Get-Aways, 
Inc., Notice of  Apparent Liability For  Forfeiture, 15 FCC  Rcd. 
1805, 1812 (1999)); see  also Carolina Liquidators, Inc.,  Notice 
of Apparent Liability  for Forfeiture,  15 FCC  Rcd 16837,  16842 
(2000) (Carolina Liquidators NAL); Tri-Star Marketing, Notice  of 
Apparent Liability for Forfeiture, 15 FCC Rcd 11295, 11300 (2000) 
(Tri-Star NAL); US Notary, Inc. Notice of Apparent Liability  for 
Forfeiture, 15 FCC Rcd 16999, 17003 (2000). 

62   Fax.com  NAL,  17  FCC   Rcd  at  15,942  (citing   Carolina 
Liquidators NAL, 15 FCC Rcd at 16842; Tri-Star NAL, 15 FCC Rcd at 
11300).  In the  Fax.com NAL, the  Commission also noted  several 
instances  in   which  Fax.com   apparently  continued   to   fax 
unsolicited advertisements to consumers even after they attempted 
to stop such faxes  by calling one or  more of Fax.com's  opt-out 
numbers.  Id at  15,933.    

63   See Fax.com NAL, 17 FCC Rcd at 15,942.

64   See Response at 9-14.
 
65   Id. at 10.  

66   Id. at 12-13.  Fax.com ignores the substantial expense and 
disruption that can occur when businesses are blanketed with 
large numbers of unsolicited faxes.  See Fax.com NAL, 17 FCC Rcd 
at 15,931-32  (describing publicly available reports of how, 
inter alia, Fax.com transmissions not at issue in this proceeding 
interfered with work at a law firm that received over 1,500 faxes 
from Fax.com during one week, and shut down fax servers at two 
other businesses).

67   See Response at 18.

68   Fax.com NAL, 17 FCC Rcd at 15,938 (emphasis added, footnote 
omitted).

69   See supra paragraph 4.

70   See Second Supplement to Response of Fax.com, Inc. at 1-2.

71   See St. Louis, Iron Mt. & S. Ry. Co. v. Williams, 251 U.S. 
63, 67, 40 S.Ct. 71, 73, 64 L.Ed. 139 (1919) (Williams).
 
72   The forfeiture amount should be paid by check or money order 
drawn to the order of the Federal Communications Commission.  
Fax.com should include the reference, ``NAL/Acct. No. 
200232170004'' on Fax.com's check or money order.  Such 
remittance must be mailed to Forfeiture Collection Section, 
Finance Branch, Federal Communications Commission, P.O. Box 
73482, Chicago, Illinois 60673-7482.  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.  See 47 C.F.R.  1.1914.