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Federal Communications Commission
Washington, D.C. 20554
) File No. EB- 05-TC-032
In the Matter of
) NAL/Acct. No. 200732170061
New England Industrial Roofing
) FRN: 0016654089
Adopted: April 18, 2008 Released: April 22, 2008
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of $10,000 against New England Industrial Roofing ("NEIR") for
willful or repeated violations of section 227 of the Communications Act of
1934, as amended, ("Act") and the Commission's related rules and orders,
by delivering at least one unsolicited advertisement to the telephone
facsimile machine of at least one consumer.
2. The facts and circumstances surrounding this case are set forth in the
Commission's Notice of Apparent Liability for Forfeiture and need not be
reiterated at length.
3. Section 227(b)(1)(C) of the Act makes it "unlawful for any person
within the United States, or any person outside the United States if the
recipient is within the United States . . . to use any telephone facsimile
machine, computer, or other device to send, to a telephone facsimile
machine, an unsolicited advertisement." The term "unsolicited
advertisement" is defined in the Act and the Commission's rules as "any
material advertising the commercial availability or quality of any
property, goods, or services which is transmitted to any person without
that person's prior express invitation or permission in writing or
otherwise." Under the Commission's rules, an "established business
relationship" exception permits a party to deliver a message to a consumer
if the sender has an established business relationship with the recipient
and the sender obtained the number of the facsimile machine through the
voluntary communication by the recipient, directly to the sender, within
the context of the established business relationship, or through a
directory, advertisement, or a site on the Internet to which the recipient
voluntarily agreed to make available its facsimile number for public
4. On April 14, 2005, in response to one or more consumer complaints
alleging that NEIR had faxed unsolicited advertisements, the Enforcement
Bureau ("Bureau") issued a citation to NEIR, pursuant to section 503(b)(5)
of the Act. The Bureau cited NEIR for using a telephone facsimile machine,
computer, or other device, to send unsolicited advertisements, in
violation of section 227 of the Act and the Commission's related rules and
orders. The citation, which was served by certified mail, return receipt
requested, warned NEIR 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 complaints that formed the basis of the
citation. The citation informed NEIR that within thirty (30) days of the
date of the citation, it could either request an interview with Commission
staff, or could provide a written statement responding to the citation.
NEIR did not request an interview or otherwise respond to the citation.
5. Following the issuance of the citation, the Commission received at
least one complaint from a consumer alleging that NEIR faxed at least one
unsolicited advertisement. This violation, which occurred after the
Bureau's citation, resulted in the issuance of a Notice of Apparent
Liability for Forfeiture against NEIR on June 28, 2007 in the amount of
$10,000. The NAL ordered NEIR to either pay the proposed forfeiture amount
within thirty (30) days or submit evidence or arguments in response to the
NAL to show that no forfeiture should be imposed or that some lesser
amount should be assessed. NEIR did not respond to the NAL or pay the
proposed forfeiture amount.
6. 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. 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."
7. Although the Commission's Forfeiture Policy Statement does not
establish a base forfeiture amount for violating the prohibition against
using a telephone facsimile machine to send unsolicited advertisements,
the Commission has previously considered $4,500 per unsolicited fax
advertisement to be an appropriate base amount. In addition, where the
consumer requests the company to stop sending facsimile messages, and the
company continues to send them, the Commission has previously considered
$10,000 per unsolicited fax advertisement as the appropriate forfeiture
for such egregious violations. Here, one consumer specifically requested
that NEIR cease sending facsimiles. Notwithstanding these requests, one
additional facsimile was sent to this consumer. Thus, we apply the $10,000
amount to one apparent violation.
8. NEIR did not respond to the NAL or pay the proposed forfeiture amount.
NEIR has failed to identify facts or circumstances to persuade us that
there is a basis for modifying the proposed forfeiture, and we are not
aware of any further mitigating circumstances sufficient to warrant a
reduction of the forfeiture penalty. For these reasons, and based on the
information before us, we hereby impose a total forfeiture of $10,000 for
NEIR's willful or repeated violation of section 227 of the Act and the
Commission's related rules and orders, as set forth in the NAL.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S: 503(b), and section
1.80(f)(4) of the Commission's rules, 47 C.F.R. S: 1.80(f)(4), and under
authority delegated by sections 0.111, 0.311 of the Commission's rules, 47
C.F.R. S:S: 0.111, 0.311, that New England Industrial Roofing IS LIABLE
FOR A MONETARY FORFEITURE to the United States Government the sum of
$10,000 for willfully and repeatedly violating section 227(b)(1)(c) of the
Communications Act, 47 U.S.C. S: 227(b)(1)(c), section 64.1200(a)(3) of
the Commission's rules, 47 C.F.R. S: 64.1200(a)(3), and the related orders
as described in the paragraphs above.
10. 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/Account Number and FRN Number referenced above.
Payment by check or money order may be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by
overnight mail may be sent to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire
transfer may be made to ABA Number 021030004, receiving bank TREAS/NYC,
and account number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form 159,
enter the NAL/Account number in block number 23A (call sign/other ID), and
enter the letters "FORF" in block number 24A (payment type code). Requests
for full payment under an installment plan should be sent to: Chief
Financial Officer -- Financial Operations, 445 12th Street, S.W., Room
1-A625, Washington, D.C. 20554. Please contact the Financial Operations
Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any
questions regarding payment procedures.
11. IT IS FURTHER ORDERED that a copy of the Forfeiture Order shall be
sent by first class mail and certified mail return receipt requested to
New England Industrial Roofing, Attn: Robert J. Stevens, Owner, and Linda
Mitchell, 1154 Dixwell Avenue - #158A, Hamden, Connecticut 06516.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
See 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 license, permit,
certificate or other authorization issued by the Commission or an
applicant for any of those listed instrumentalities so long as such person
(A) is first issued a citation of the violation charged; (B) is given a
reasonable opportunity for a personal interview with an official of the
Commission, at the field office of the Commission nearest to the person's
place of residence; and (C) subsequently engages in conduct of the type
described in the citation).
New England Industrial Roofing, Notice of Apparent Liability For
Forfeiture, 22 FCC Rcd 11590 (Enf. Bur. 2007).
47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3).
See 47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13).
An "established business relationship" is defined as a prior or existing
relationship formed by a voluntary two-way communication "with or without
an exchange of consideration, on the basis of an inquiry, application,
purchase or transaction by the business or residential subscriber
regarding products or services offered by such person or entity, which
relationship has not been previously terminated by either party." 47
C.F.R. S: 64.1200(f)(5).
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3)(i), (ii).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No.EB-05-TC-032, issued to
New England Industrial Roofing on April 14, 2005, 20 FCC Rcd 7915 (E.B.
See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
to persons who do not hold a license, permit, certificate or other
authorization issued by the Commission or an applicant for any of those
listed instrumentalities for violations of the Act or of the Commission's
rules and orders).
Bureau staff mailed the citation to New England Industrial Roofing,
Attention: Robert J. Stevens, Owner, and Linda Mitchell, 1154 Dixwell
Avenue - #158A, Hamden, Connecticut 06514.
See n.2 supra; see also 47 U.S.C. S: 503(b)(1).
Section 503(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). 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. S:1.80(b)(3); Amendment of Section 1.80 of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, 15 FCC Rcd 18221 (2000); see also Amendment of Section 1.80(b)
of the Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, 19 FCC Rcd 10945 (2004) (this most recent amendment of section
1.80(b) maintained the forfeiture maximum for this type of violator at
See 47 U.S.C. S: 503(b)(2)(D); see also 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, 17100-01 para.
27 (1997) (Forfeiture Policy Statement), recon. denied, 15 FCC Rcd 303
See Get-Aways, Inc., Notice of Apparent Liability For Forfeiture, 15 FCC
Rcd 1805 (1999); Get-Aways, Inc., Forfeiture Order, 15 FCC Rcd 4843
(2000); see also US Notary, Inc., Notice of Apparent Liability for
Forfeiture, 15 Rcd 16999 (2000); US Notary, Inc., Forfeiture Order, 16 FCC
Rcd 18398 (2001); Tri-Star Marketing, Inc., Notice of Apparent Liability
For Forfeiture, 15 FCC Rcd 11295 (2000); Tri-Star Marketing, Inc.,
Forfeiture Order, 15 FCC Rcd 23198 (2000).
See Carolina Liquidators, Inc., Notice of Apparent Liability for
Forfeiture, 15 FCC 16,837, 16,842 (2000); 21st Century Fax(es) Ltd., AKA
20th Century Fax(es), Notice of Apparent Liability for Forfeiture, 15 FCC
Rcd 24,406, 24,411 (2000).
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Federal Communications Commission DA 08-909
Federal Communications Commission DA 08-909