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

In the Matter of                )
                                )
SEPTIC SAFETY, INC.             )  File No. EB-04-TC-064
                                )  NAL/Acct. No. 200532170005
Apparent Liability for Forfeiture  )    FRN 0012636247

           NOTICE OF APPARENT LIABILITY FOR FORFEITURE

 Adopted:  February 2, 2005              Released:  February 3, 
                              2005

By the Chief, Telecommunications Consumers Division,  Enforcement 
Bureau:

I.   INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''),1 we find that Septic Safety, Inc. (``Septic Safety'')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  at  least   two 
unsolicited, prerecorded advertising messages to two  consumers.3  
Based on the facts  and circumstances surrounding these  apparent 
violations, we find that Septic Safety is apparently liable for a 
forfeiture in the amount of $14,500.

II.  BACKGROUND

     2.   On April 30, 2004,  in response to consumer  complaints 
alleging  that   Septic   Safety   had   delivered   unsolicited, 
prerecorded  advertising  messages  to  several  consumers,   the 
Commission staff  issued a citation to Septic Safety4 pursuant to 
section 503(b)(5) of the Act.  The staff cited Septic Safety  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.5   According to  the 
consumers, the  unsolicited  advertisements  offered  information 
concerning septic  tank  treatments.6  The  citation,  which  the 
staff  served  by  certified  mail,  return  receipt   requested, 
informed Septic Safety 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 letters that formed 
the basis of the citation.   The citation informed Septic  Safety 
that within 30 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 Septic  Safety's receipt  of the  citation on  May  5, 
2004.  Septic Safety 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 Septic Safety apparently continued  to 
send  illegal  prerecorded,   unsolicited  advertisements   after 
receiving the citation.7  As discussed below, we base our  action 
here on  this information  from  consumers alleging  that  Septic 
Safety sent  unsolicited prerecorded  advertising messages  after 
the date of the citation, and  that the messages did not  qualify 
for any exemption  from the  prohibition provided  by our  rules.  
Although we  are  acting  on relatively  few  complaints  against 
Septic Safety  here,  we take  action  now to  protect  consumers 
because Septic Safety has continued to violate the law since  our 
April 2004 citation.

III. DISCUSSION

     A.   Violations  of  the   Commission's  Rules   Restricting 
          Prerecorded Messages

     4.   Section 227(b)(B) of the Act prohibits any person  from 
initiating ``any telephone call to any residential telephone line 
using any  artificial or  prerecorded  voice to  deliver  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.''8   Section 64.1200(a)(2)  of  the 
Commission's rules  provides exemptions  for calls:  1) made  for 
emergency purposes; 2) made for non-commercial purposes; 3)  made 
for commercial purposes  that do  ``not include  or introduce  an 
unsolicited   advertisement9    or   constitute    a    telephone 
solicitation'';10 4) to  persons ``with  whom the  caller has  an 
established business  relationship11  at  the time  the  call  is 
made''; and 5) ``made by or  on behalf of a tax-exempt  nonprofit 
organization.''12      

     5.   As noted  above,  Septic Safety  initiated  prerecorded 
messages  that  invited   customers  to  try   its  septic   tank 
treatments.  Based  on the  record before  us, we  find that  the 
prerecorded  messages  at  issue  here  were  not  made  for  any 
emergency or non-commercial purposes, and were not on behalf of a 
tax-exempt, nonprofit organization, 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.''13  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.'''14 

     6.   The record also  indicates that Septic  Safety did  not 
have the prior express consent  of the consumers here to  deliver 
this unsolicited advertising  message or telephone  solicitation.  
In  fact,  Septic  Safety   continued  to  deliver  messages   to 
complainant Jim Keehner after his repeated requests to refrain.15   
Further, Septic Safety has provided neither argument nor evidence 
in response to our citation to prove tax-exempt nonprofit  status 
or an established business relationship with any of the consumers 
that it was calling.   Nor has Septic  Safety provided any  other 
information that might  provide a defense  to the allegations  at 
issue here.   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)(1)(B) of the 
Act16 and Section 64.1200(a)(2)17 of the Commission's rules.

     B.   Proposed Forfeiture

     7.   We conclude that Septic Safety apparently willfully  or 
repeatedly violated the Act and the Commission's rules and orders 
by  delivering  unsolicited,  prerecorded  advertising  messages.  
Septic Safety 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 Septic  Safety  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.

     8.   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.18    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."19

     9.   Although the Commission's  Forfeiture Policy  Statement 
does not establish  a base  forfeiture amount  for violating  the 
prohibition on  delivering unsolicited,  prerecorded  advertising 
messages to a residential telephone line, we recently found these 
violations to be similar in  nature to violating the  prohibition 
on delivering unsolicited  advertisements to telephone  facsimile 
machines.  In  Warrior  Custom  Golf,20  the  Enforcement  Bureau 
(``Bureau'')  considered  $4,500  per  pre-recorded   advertising 
message to  be an  appropriate  base amount,  and we  apply  that 
amount  to  the  apparent  unsolicited,  prerecorded  advertising 
violation evidenced  by Richard  Cusick's complaint.21   We  find 
that the  other apparent  violation, presented  by Jim  Keehner's 
complaint, justifies a higher proposed forfeiture because  Septic 
Safety continued to deliver messages to this consumer even  after 
his repeated requests  to refrain.  Where  a party has  delivered 
pre-recorded advertising messages  after a request  to stop,  the 
Bureau has  increased  the  proposed forfeiture  to  $10,000  per 
violation.22   Accordingly,  we  find  Septic  Safety  apparently 
liable in the amount  of $10,000 for  the violation where  Septic 
Safety ignored the Mr. Keehner's specific requests to discontinue 
the calls.  This  results  in  a  proposed  total  forfeiture  of 
$14,500.  Septic  Safety shall  have  the opportunity  to  submit 
evidence and arguments  in response  to this  Notice of  Apparent 
Liability for Forfeiture  to show  that no  forfeiture should  be 
imposed or that some lesser amount should be assessed.23

IV.   CONCLUSION AND ORDERING CLAUSES

     10.  We  have  determined  that  Septic  Safety   apparently 
violated section  227 of  the Act  and the  Commission's  related 
rules and  orders  by  delivering  the  unsolicited,  prerecorded 
advertising  messages   identified   above.   We   have   further 
determined  that  Septic  Safety  is  apparently  liable  for   a 
forfeiture in the amount of $14,500.

     11.  ACCORDINGLY, IT IS ORDERED, pursuant to section  503(b) 
of the  Communications  Act of  1934,  as amended,  47  U.S.C.   
503(b)(5),24 and  section  1.80  of the  Commission's  rules,  47 
C.F.R.   1.80,  and under  the authority  delegated by  sections 
0.111 and 0.311  of the  Commission's rules, 47  C.F.R.   0.111, 
0.311, that Septic Safety, Inc. IS hereby NOTIFIED of an Apparent 
Liability for Forfeiture in the amount of  $14,500 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 
above.

     12.  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 
submitted.

     13.  Requests for payment under  an installment plan  should 
be sent to: Chief, Revenue  and Receivable Operations Group,  445 
12th Street, S.W., Washington, D.C. 20554.25

     14.  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 date of this Notice of Apparent Liability for 
Forfeiture, Septic Safety, Inc. SHALL PAY the full amount of  the 
proposed forfeiture26 or  SHALL FILE a  response showing why  the 
proposed forfeiture should not be imposed or should be reduced.

     15.  IT IS FURTHER  ORDERED that  a copy of  this Notice  of 
Apparent Liability for  Forfeiture shall be  sent by first  class 
mail and certified  mail return receipt  requested to Mr.  Joseph 
Carney   and  Mr.  Sean  Carney,  Septic  Safety,  Inc.,  at  the 
following seven addresses: 316  Prospect Avenue, Hackensack,  New 
Jersey 07601-2625;  205  Anderson Avenue,  Fairview,  New  Jersey 
07022; 344 Broad  Avenue, Palisades  Park, New  Jersey 07650;  43 
Industrial Avenue,  Fairview, New  Jersey  07022; P.O.  Box  397, 
Fairview, New Jersey 07022; 44 Washington Avenue, Suite 109, Toms 
River, New Jersey 08754;  and P.O. Box  625, Palisades Park,  New 
Jersey 07650. 




                         FEDERAL COMMUNICATIONS COMMISSION



                         Colleen K. Heitkamp
                         Chief,   Telecommunications    Consumers 
Division
                         Enforcement Bureau
_________________________

     11.  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 (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 resident; and (C) subsequently engages in 
conduct of the type described in the citation).
     2.   
2Septic Safety  also  does  business  as  ``Environmental  Safety 
International, Inc.,'' ``Environmental Products  International,'' 
``DJC  Holding  Company,''  ``SAACA  Industries,  Inc.,''  ``EPI, 
Inc.,'' and ``ESI Products.''  Accordingly, this Order applies to 
these companies as well.  Our  research revealed that all of  the 
companies' offices are  in New Jersey,  and that for  all of  the 
companies, Joseph  Carney is  listed as  the President  and  Sean 
Carney is listed as the Vice President.

3See 47 U.S.C.   227(b)(1)(B); 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).

4See   Citation   from   Kurt   A.   Schroeder,   Deputy   Chief, 
Telecommunications Consumers Division, Enforcement Bureau, issued 
to Septic Safety on April 30, 2004.

     51.  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).
     2.   
     61.  See, e.g., Letter from Gerald Baldwin requesting 
Commission action, which was attached to the citation, along with 
four other such complaints.
     2.   
     71.   See the following consumer complaints requesting 
Commission action:  1) Complaint of  Jim Keehner, filed July 26, 
2004 (received prerecorded message on July 17, 2004); 2) 
Complaint of Richard Cusick, filed August 30, 2004 (received 
prerecorded message on August 30, 2004).  Both of the 
complainants signed declarations stating that the messages they 
received advertised Septic Safety's septic tank treatments, and 
that they did not have established business relationships with 
Septic Safety.
     2.     
     81.   47 U.S.C.  227(b)(1)(B).
     2.   
     91.   ``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.  64.1200(f)(10).
     2.   
     101.       ``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).
     2.   
     111.       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).
     2.   
     121.       47 C.F.R.  64.1200(a)(2).
     2.   
     131.       TCPA Revisions Report and Order, 18 FCC Rcd at 
14097-98 (2003).
     2.   
     141.       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 a do-not-call 
list.  Id.
     2.   
     151.       See Complaint of Jim Keehner (stating that when 
Mr. Keehner received a call from Septic Safety on July 17, 2004, 
it was the ``third time [he had] been contacted by [Septic 
Safety] in Greenville, North Carolina in the last year'').
     2.   
     161.       47 U.S.C.  227(b)(1)(B).
     2.   
     171.       47 C.F.R.  64.1200(a)(2).
     2.   
     181.       Section 503(b)(2)(C) provides for forfeitures up 
to $10,000 for each violation in 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 amounts apply to violations that 
occurred after September 7, 2004.  Amendment of Section 1.80(b) 
of the Commission's Rules and Adjustment of Forfeiture Maxima to 
Reflect Inflation, Order,  19 FCC Rcd 10,945 (2004) ($11,000 
statutory maximum remained unchanged).
     2.   
     191.      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); Get-Aways, Inc., Forfeiture Order, 15 FCC Rcd 4843 
(2000).
     2.    
     201.       See Warrior Custom Golf, Inc., Notice of Apparent 
Liability for Forfeiture, DA 04-3834 at  10 (Enf. Bur., rel. 
Dec. 8, 2004) (``Warrior Custom Golf'') (first NAL to address 
pre-recorded advertising messages).
     2.   
     211.       See Warrior Custom Golf at  10 n.27  (citing 
Get-Aways, Inc., Notice of Apparent Liability for Forfeiture, 15 
FCC Rcd 4843 (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); 
Carolina Liquidators, Inc., Notice of Apparent Liability for 
Forfeiture, 15 FCC Rcd 16,837 (2000); Carolina Liquidators, Inc., 
Forfeiture Order, 15 FCC Rcd 21,775 (2000); 21st Century Fax 
Ltd., Notice of Apparent Liability for Forfeiture, 15 FCC Rcd 
24,406 (2000); 21st Century Fax Ltd., Forfeiture Order, 17 FCC 
Rcd 1384 (2002)).
     2.   
     221.       See Warrior Custom Golf at  10.
     2.   
     231.       See 47 U.S.C.  503(b)(4)(C); 47 C.F.R.  
1.80(f)(3).
     2.    
     241.      47 U.S.C.  503(b)(5).
     2.   
     251.      47 C.F.R.  1.1914.
     2.   
     261.      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 Septic Safety's check or 
money order to ``NAL/Acct. No. 200532170005.''  Such remittance 
must be mailed to the Forfeiture Collection Section, Finance 
Branch, Federal Communications Commission, P.O. Box 73482, 
Chicago, Illinois 60673-7482.