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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-04-TC-064
SEPTIC SAFETY, INC. ) NAL/Acct. No. 200532170005
Apparent Liability for Forfeiture ) FRN 0012636247
ORDER OF FORFEITURE
Adopted: June 22, 2006 Released: June 23, 2006
By the Chief, Enforcement Bureau:
1. In this Order of Forfeiture, we assess a monetary forfeiture of $9,000
against Septic Safety, Inc. and its affiliated companies for willful
or repeated violations of 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.
2. The facts and circumstances surrounding this case are set forth in the
Notice of Apparent Liability for Forfeiture issued by the
Telecommunications Consumers Division ("the Division") of the
Enforcement Bureau ("Bureau") on February 3, 2005, and need not be
reiterated at length. Septic Safety, Inc. and its affiliated companies
(Environmental Safety International, Inc., Environmental Products
International, DJC Holding Company, SAACA Industries, Inc., Inc., EPI,
Inc., and ESI Products) (hereafter referred to collectively as "ESI")
are headquartered in New Jersey. Research revealed that Mr. Joseph
Carney serves as the president of all of these companies, with Mr.
Sean Carney listed as the vice president.
3. In the NAL, the Division found that ESI, using the name "Septic
Safety," initiated prerecorded messages that invited customers to try
its septic tank treatments. The Division determined that the messages
were not made for emergency or non-commercial purposes or on behalf of
a tax-exempt, non-profit organization. Rather, the Division determined
that the messages were commercial in nature and included or introduced
"unsolicited advertisements" or constituted "telephone solicitations."
Based on the record, the Division found that ESI lacked the prior
express consent of the consumers at issue to deliver the unsolicited
messages or solicitations. Accordingly, the Division concluded that
ESI had apparently violated section 227(b)(1)(B) of the Act and
section 64.1200(a)(2) of the Commission's rules, and ordered ESI to
pay the proposed forfeiture of $14,500 or respond to the NAL within 30
4. On February 18, 2005, prior to filing a response to the NAL, Mr.
Joseph Carney, the president of ESI, sent a letter to the Division
stating that Septic Safety, Inc. and another affiliated company, DJC
Holdings, are no longer in business. Mr. Carney further stated,
however, that since 1999, he has been selling septic treatment
products under the names "Environmental Safety International, Inc."
and "Environmental Products" in Ridgefield, New Jersey and Toms River,
New Jersey, respectively. Mr. Carney alleged that his competitors use
the name "Septic Safety" in their advertising, and that he is being
blamed unfairly for violations of section 227 of the Act because "our
name are [sic] on the corporate books." Further, Mr. Carney asserted
that he "abides by the Federal Trade Commission's do-not call list,"
and that he uses a service called "Call Compliance, Inc." to ensure
that he does not violate the do-not-call rules. Finally, Mr. Carney
contended that his companies have an "in house" do-not-call list that
is updated daily.
5. On March 4, 2005, Mr. Carney filed a Response to the NAL on behalf of
ESI. With regard to the Cusick complaint, ESI claims that the phone
number listed in the complaint belongs to one of its septic product
customers, Ms. Linda Peek. As to the Keehner complaint, ESI admits
that it called Keehner in November 2004, but claims that it complied
with Keehner's request to be added to ESI's do-not-call list. Mr.
Carney denies that ESI called Mr. Keehner in July 2004. Finally, ESI
reiterates that it is no longer named Septic Safety, and asserts that
it is "call compliant." In light of the foregoing, ESI asks the Bureau
to rescind the proposed forfeiture. As discussed below, we conclude
that the facts and circumstances before us do not warrant cancellation
of the proposed forfeiture. We do, however, reduce the forfeiture
assessed in connection with the Keehner complaint.
6. As noted above, the Division concluded that ESI apparently violated
section 227(b)(1)(B) of the Act and section 64.1200(a)(2) of the
Commission's rules. Section 227(b)(1)(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 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." 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 advertisement or
constitute a telephone solicitation"; 4) to persons "with whom the
caller has an established business relationship at the time the call
is made"; and 5) "made by or on behalf of a tax-exempt nonprofit
7. The proposed forfeiture in this case was assessed in accordance with
section 503(b) of the Act, section 1.80 of the Commission's rules, and
the Commission's Forfeiture Policy Statement. In examining ESI's
response, section 503(b) of the Act requires that we take into account
the nature, circumstances, extent and gravity of the violations and
with respect to the violator, the degree of culpability, any history
of prior offenses, ability to pay, and such matters as justice may
8. ESI asserts that we should rescind our proposed forfeiture because it
no longer does business under the name "Septic Safety," although it
has sold septic treatment products under the company names
"Environmental Safety International, Inc." and "Environmental
Products" since 1999. We disagree. As described in the NAL, each of
the complainants submitted complaints alleging that they received
unsolicited, prerecorded advertising messages from a company
identifying itself as "Septic Safety." In proposing a forfeiture
against Septic Safety, the Division noted that Septic Safety also does
business as numerous New Jersey-based companies, including
Environmental Safety International, Inc., Environmental Products
International, DJC Holding Company, SAACA Industries, Inc., EPI, Inc.,
and ESI Products. The Division explained that all of these companies
are run by Joseph and Sean Carney, and specifically stated that the
NAL "applies to these companies as well." In light of this statement,
we conclude that Septic Safety's affiliated companies are liable for
the forfeiture amount discussed below. ESI cannot escape liability for
violations of our rules and orders simply by hiding behind a variety
of company names.
9. Nor do we find persuasive ESI's contention that it is being fined for
the actions of "competitors" that use the name "Septic Safety" in
their advertising. ESI has submitted no evidence regarding these
alleged competitors, such as their identities or their contact
information. Nor has ESI provided any consumer declarations describing
any alleged competitors' telemarketing practices. In fact, in its
response to the NAL, ESI acknowledges calling at least one of the two
complainants, Mr. Keehner, which undermines ESI's argument that
competitors masquerading as "Septic Safety" made the calls at issue.
As noted in the NAL, Mr. Keehner stated that he received prerecorded,
unsolicited advertisements from a company that identified itself as
10. ESI also argues that we should modify our proposed forfeiture based on
information concerning the Cusick complaint. First, ESI claims,
without providing supporting documentation, that the phone number
listed in the Cusick complaint belongs to one of its septic product
customers, a woman named "Linda Peek." Our research, however,
demonstrates that the phone number belonged to Mr. Cusick during the
period that the prerecorded message was delivered. Mr. Cusick alleged
that ESI delivered its prerecorded message on August 30, 2004, and our
research establishes that Mr. Cusick subscribed to the number from at
least August 2002 through August 2004. Hence, if a consumer named
Linda Peek did, in fact, hold the phone number at issue at some point
in time, it would have been prior to August 2002, more than two years
before the prerecorded message was delivered. Further, even if ESI had
believed that it had an "established business relationship" with Ms.
Peek that allowed it to deliver a prerecorded message, it would have
been unreasonable for ESI to have assumed that such a relationship
extended back for two years or more. Section 64.1200(f)(3) of the
Commission's rules specifically states that the established business
relationship exemption for prerecorded calls is limited in duration to
eighteen months from any purchase or transaction and three months from
any inquiry or application. Accordingly, we find no merit in ESI's
unsubstantiated claim. Hence, we impose a $4,500 forfeiture for the
violation associated with ESI's prerecorded call to Mr. Cusick, as
proposed in the NAL.
11. Upon consideration of the NAL response, however, we will modify the
$10,000 increased forfeiture amount that the Division proposed in
connection with the Keehner complaint. In cases where a party has
continued to deliver prerecorded messages after a request to stop, we
have increased the forfeiture amount to $10,000 per violation.
Although Mr. Keehner contends that he received his third prerecorded
message from ESI on July 17, 2004, the record lacks adequate evidence
that Mr. Keehner affirmatively requested before that time that ESI
refrain from delivering messages to his residence. Rather, the record
reflects that when ESI delivered an unsolicited, prerecorded
advertising message in November 2004, Mr. Keehner was able to then
request that the messages cease. As noted above, ESI admits that it
called Mr. Keehner in November 2004, but claims that it complied with
his request to be added to ESI's do-not-call list at that time. Based
on ESI's admission that it called Mr. Keehner in November 2004, we
impose a $4,500 forfeiture for the violation associated with ESI's
prerecorded call to Mr. Keehner. We emphasize, however, that
regardless of whether ESI abides by the Commission's do-not-call
rules, as it claims, it nevertheless violated the Commission's
separate rules and orders prohibiting the delivery of unsolicited,
prerecorded advertising messages. Hence, ESI's assertions that it
complies with do-not-call requirements are not relevant to the instant
violations. As described above, the use of prerecorded advertising or
solicitation messages is unlawful under most circumstances, even if
the recipient has not made a do-not-call request.
IV. CONCLUSION AND ORDERING CLAUSES
12. We have examined ESI's response to the NAL pursuant to the statutory
factors set forth in section 503(b) of the Act, as well as in
conjunction with the Forfeiture Policy Statement. Based on our review
of the record, we hereby impose a forfeiture of $9,000 for ESI's
willful or repeated violation of section 227 of the Act and the
Commission's rules and orders by delivering at least two unsolicited,
prerecorded advertising messages to two consumers.
13. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S 503(b), section
1.80 of the Commission's rules, 47 C.F.R. S 1.80, and authority
delegated by sections 0.111 and 0.311 of the Rules, 47 C.F.R. SS
0.111, 0.311, that Septic Safety, Inc., and all of its affiliated
companies, including Environmental Safety International, Inc.,
Environmental Products International, Environmental Products, EPI,
EPIU, DJC Holding Company, SAACA Industries, Inc., EPI, Inc., and ESI
Products, SHALL FORFEIT to the United States Government the sum of
$9,000 for willfully and repeatedly violating the Communications Act
and the Commission's rules and orders.
14. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Commission's rules within 30 days of the release
of this Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
collection pursuant to Section 504(a) of the Act. Payment of the
forfeiture must be made by check or similar instrument, payable to the
order of the Federal Communications Commission. The payment must
include the NAL/Acct. No. and FRN No. referenced above. Payment by
check or money order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box 358340,
Pittsburgh, Pennsylvania 15251. Payment by overnight mail may be sent
to Mellon Client Service Center, 500 Ross Street, Room 670,
Pittsburgh, Pennsylvania 15262-0001, Attn: FCC Module Supervisor.
Payment by wire transfer may be made to: ABA Number 043000261,
receiving bank Mellon Bank, and account number 911-6229. Please
include your NAL/Acct. No. with your wire transfer remittance.
Requests for full payment under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12^th Street,
S.W., Washington, D.C., 20554.
15. IT IS FURTHER ORDERED that a copy of this Order shall be sent by first
class mail and certified mail return receipt requested to Mr. Joseph
Carney, President, Environmental Safety International, Inc.,
Environmental Products International, Environmental Products, EPI,
EPI, Inc., EPIU, SAACA Industries, Inc., and ESI Products, 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 Street, Suite 109, Toms River, New Jersey 08753; and
P.O. Box 625, Palisades Park, New Jersey 07650.
FEDERAL COMMUNICATIONS COMMISSION
Kris A. Monteith
Chief, Enforcement Bureau
47 U.S.C. S 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. S 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 hold a Commission authorization 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 residence, and (C) subsequently engages in
conduct of the type described in the citation).
See infra paragraph 2.
See 47 U.S.C. S 227(b)(1)(B); 47 C.F.R. SS 64.1200(a)(2); see also Rules
and Regulations Implementing the Telephone Consumer Protection Act of
1991, Report and Order, 18 FCC Rcd 14014 (2003) (TCPA Revisions Report and
See Septic Safety, Inc., Notice of Apparent Liability, 20 FCC Rcd 2179
("NAL"). Prior to issuance of the NAL, Commission staff issued a citation
to Septic Safety and its affiliated companies on April 30, 2004 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. See Citation from Kurt A. Schroeder, Deputy
Chief, Telecommunications Consumers Division, Enforcement Bureau, April
30, 2004. Despite receipt of the citation, Septic Safety did not file a
response. When the Commission continued to receive complaints indicating
that a company identifying itself as "Septic Safety" apparently continued
its practices after receiving the citation, the Division issued its NAL.
See NAL, 20 FCC Rcd at 2179 n.2. The NAL was sent to all of the known
addresses for Septic Safety and its affiliated companies via certified
mail and electronic mail.
We note that Environmental Safety Products, Inc.'s letterhead stationery
includes the exact telephone number that had belonged to Septic Safety,
(201) 313-0031. Indeed, the Lexis/Nexis database also has Septic Safety
listed at the same address printed on Environmental Safety Products'
letterhead, 205 Anderson Avenue, Fairview, New Jersey 07022.
Additional research revealed that "Environmental Products" also does
business as "EPI" and "EPIU," both listed at 205 Anderson Avenue,
Fairview, New Jersey 07022, with Joseph Carney associated with both
companies. Accordingly, this forfeiture order applies to the latter two
companies as well.
Against this backdrop, the Commission has continued to receive consumer
complaints similar to the ones upon which this forfeiture is based, all of
which allege violations that appear to be attributable to ESI. See, e.g.,
Complaint of Ben Banks, filed June 27, 2005 (alleging he received an
unsolicited prerecorded message on June 26, 2005 from a company
identifying itself as "Septic Safety"); Complaint of Leonard Ledoux, filed
March 19, 2006 (alleging he received an unsolicited prerecorded call on
March 19, 2006 from a company identifying itself as "Septic Safety").
Section 502(b)(2)(C) provides for forfeitures of 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. S 503(b). Pursuant to the Debt Collection Improvement Act of
1996, P.L. 104-134, 110 Stat. 1321-358, the statutory maximum amount for a
forfeiture penalty shall be adjusted for inflation at least once every
four years. Accordingly, the $10,000 forfeiture ceiling has been adjusted
to $11,000. 47 C.F.R. S 1.80(b)(5). Amendment of Section 1.80 of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, 15 FCC Rcd 18221 (2000); Amendment of Section 1.80 of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, 19 FCC Rcd 10945 (2004).
See 47 C.F.R. S 1.80.
See The Commission's Forfeiture Policy Statement and Amendment of Section
1.80 of the Commission's Rules to Incorporate the Forfeiture Guidelines,
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
See 47 U.S.C. S 503(b)(2)(D); 47 C.F.R. S 1.80(b)(4).
See NAL, 20 FCC Rcd at 2180. We note that, through a clerical error, the
complainants' declarations were not forwarded to them for signature until
after the NAL was issued. The record before us includes both consumers'
sworn declarations, in addition to their complaints.
See id. at 2179 n.2.
See ESI Response to NAL, filed March 4, 2005.
See NAL at 2181.
See E-mail from Earvenia Brooks, BellSouth, Compliance & Governance (Nov.
26, 2005, 9:18 EST) (confirming "Richard Cusick" as the billing name, and
at the address and phone number listed in Cusick's complaint, from August
2002 through August 2004). See also E-mail from Rick Cusick, (March 29,
2005, 11:44 EST) (stating that he has owned his telephone number since
July 2000, and that he is unaware of the identity of "Linda Peek").
See 47 C.F.R. S 64.1200(a)(2)(iv), which provides an exemption to the
prohibition against the delivery of unsolicited prerecorded advertising
messages to residents with whom the caller has an established business
47 C.F.R. S 64.1200(f)(3); see also TCPA Revisions Report and Order, 18
FCC Rcd 14014, 14043 n.156 (2003).
See Warrior Custom Golf, Inc., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 23648, 23652 (EB 2004) (Warrior Custom Golf).
Nonetheless, we expect that ESI will continue its compliance efforts,
including maintenance of its do-not-call list in accordance with
47 U.S.C S 504(a).
See 47 U.S.C S 1.1914.
(Continued from previous page)
Federal Communications Commission DA 06-1304
Federal Communications Commission DA 06-1304