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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-06-TC-250
RMG Communications ) NAL/Acct. No. 200732170075
Apparent Liability for Forfeiture ) FRN: 0016773590
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 11, 2008 Released: June 12, 2008
By the Commission:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that RMG Communications ("RMG") apparently willfully or repeatedly
violated section 227 of the Communications Act of 1934, as amended
("Act"), and the Commission's related rules and orders, by delivering
at least eleven unsolicited advertisements to the telephone facsimile
machines of five consumers. Based on the facts and circumstances
surrounding these apparent violations, we find that RMG is apparently
liable for a forfeiture in the amount of $49,500.
2. 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
3. On September 9, 2006, in response to one or more consumer complaints
alleging that RMG had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to RMG, pursuant to
section 503(b)(5) of the Act. The Bureau cited RMG for using a
telephone facsimile machine, computer, or other device, to send
unsolicited advertisements for health and life insurance and t-shirts
with company logo to a telephone facsimile machine, 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 RMG 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 RMG that within 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. RMG did not request an interview or otherwise respond to
4. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, we have received additional
consumer complaints indicating that RMG continued to engage in such
conduct after issuance of the citation. We base our action here
specifically on complaints filed by five consumers establishing that
RMG continued to send eleven unsolicited advertisements to telephone
facsimile machines after the date of the citation.
5. 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."
A. Violations of the Commission's Rules Restricting Unsolicited Facsimile
6. We find that RMG apparently violated section 227 of the Act and the
Commission's related rules and orders by using a telephone facsimile
machine, computer, or other device to send at least eleven unsolicited
advertisements to the five consumers identified in the Appendix. This
NAL is based on evidence that five consumers received unsolicited fax
advertisements from RMG after the Bureau's citation. The facsimile
transmissions advertise health and life insurance, and t-shirts with
company logo. Further, according to the complaints, the consumers
neither had an established business relationship with RMG nor gave RMG
permission to send the facsimile transmissions. The faxes at issue
here therefore fall within the definition of an "unsolicited
advertisement." Based on the entire record, including the consumer
complaints, we conclude that RMG apparently violated section 227 of
the Act and the Commission's related rules and orders by sending
eleven unsolicited advertisements to five consumers' facsimile
B. Proposed Forfeiture
7. We find that RMG is apparently liable for a forfeiture in the amount
of $49,500. 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. We
apply that base amount to each of the eleven apparent violations.
Thus, a total forfeiture of $49,500 is proposed. RMG will have the
opportunity to submit evidence and arguments in response to this NAL
to show that no forfeiture should be imposed or that some lesser
amount should be assessed.
IV. CONCLUSION AND ORDERING CLAUSES
8. We have determined that RMG Communications apparently violated section
227 of the Act and the Commission's related rules and orders by using
a telephone facsimile machine, computer, or other device to send at
least eleven unsolicited advertisements to the five consumers
identified in the Appendix. We have further determined that RMG
Communications is apparently liable for a forfeiture in the amount of
9. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act, 47
U.S.C. S: 503(b), and section 1.80 of the rules, 47 C.F.R. S: 1.80,
that RMG Communications is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of $49,500 for willful or repeated
violations of section 227(b)(1)(C) of the Communications Act, 47
U.S.C. S: 227(b)(1)(C), sections 64.1200(a)(3) of the Commission's
rules, 47 C.F.R. S: 64.1200(a)(3), and the related orders described in
the paragraphs above.
10. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, RMG Communications
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
11. 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). RMG will
also send electronic notification on the date said payment is made to
Johnny.email@example.com. 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.
12. The response, if any, must be mailed both to the Office of the
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
Consumers Division, and to Colleen Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications Commission,
445 12th Street, SW, Washington, DC 20554, and must include the NAL/Acct.
No. referenced in the caption.
13. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits: (1)
federal tax returns for the most recent three-year period; (2) financial
statements prepared according to generally accepted accounting practices;
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.
14. 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 RMG Communications, Attention: Greg Horne, 3401
Norman Berry Drive, Suite 114, East Point, GA 30344, 6009 W. Parker Road,
Suite 149-114, Plano, TX 75093, and 16901 Dallas Parkway, Addison, TX
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Complainants and Violation Dates
Complainant received facsimile Violation Date(s)
Drago, Paul 6/13/07
Wolf, Arthur 6/24/07, 7/2/07, 7/12/07, 7/13/07
(2), 7/20/07, 7/23/07
Brady, Ashley 7/9/07
Montovani, Michael 8/2/07
Jacobs, Don 8/19/07
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).
RMG Communications has offices at 3401 Norman Berry Drive, Suite 114, East
Point, GA 30344, 6009 W. Parker Road, Suite 149-114, Plano, TX 75093, and
16901 Dallas Parkway, Addison, TX 75001. Greg Horne is listed as the
contact person for RMG. Accordingly, all references in this NAL to RMG
also encompass the foregoing individual and all other principals and
officers of this entity, as well as the corporate entity itself.
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3); see also
Rules and Regulations Implementing the Telephone Consumer Protection Act
of 1991, Report and Order and Third Order on Reconsideration, 21 FCC Rcd
47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3).
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-06-TC-250, issued to
RMG Communications on September 9, 2006.
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
instrumentalities for violations of the Act or of the Commission's rules
Commission staff mailed the citation to the following addresses: 3401
Norman Berry Drive, Suite 114, East Point, GA 30344, and 6009 W. Parker
Road, Suite 149-114, Plano, TX 75093. See n.2, supra.
Following the issuance of the citation, the Commission continued to
receive complaints from multiple consumers alleging that RMG faxed
unsolicited advertisements to them. These complaints, received after the
Commission's citation, resulted in the issuance of a Notice of Apparent
Liability for Forfeiture against RMG on September 10, 2007 in the amount
of $71,500. RMG Communications, Notice of Apparent Liability for
Forfeiture, FCC-07-153 (September 10, 2007).
See Appendix for a listing of the consumer complaints against RMG
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by RMG
may form the basis of subsequent enforcement action.
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. 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 recent amendment of section
1.80(b) to reflect inflation left the forfeiture maximum for this type of
violator at $11,000).
47 U.S.C. S: 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, 17100-01 para. 27 (1997)
(Forfeiture Policy Statement), recon. denied, 15 FCC Rcd 303 (1999).
See, e.g., complaint dated June 24, 2007, from Arthur Wolf (stating that
he has never purchased anything from the company being advertised in the
fax or made an inquiry or application to the company or given consent for
the company to send the fax). The complainants involved in this action are
listed in the Appendix.
See 47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13) (definition
previously at S: 64.1200(f)(10)).
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 47 U.S.C. S: 503(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).
47 C.F.R. S: 1.80.
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Federal Communications Commission FCC 08-150
Federal Communications Commission FCC 08-150