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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB- 07-TC-2540
Tropical Travel Marketing ) NAL/Acct. No. 200832170068
Apparent Liability for Forfeiture ) FRN: 0017919812
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 2, 2008 Released: October 7, 2008
By the Commission:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Tropical Travel Marketing ("Tropical Travel") 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 21 unsolicited advertisements to the
telephone facsimile machines of at least 17 consumers. Based on the
facts and circumstances surrounding these apparent violations, we find
that Tropical Travel is apparently liable for a forfeiture in the
amount of $94,500.
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 June 29, 2007, in response to one or more consumer complaints
alleging that Tropical Travel had faxed unsolicited advertisements,
the Enforcement Bureau ("Bureau") issued a citation to Tropical
Travel, pursuant to section 503(b)(5) of the Act. The Bureau cited
Tropical Travel for using a telephone facsimile machine, computer, or
other device, to send unsolicited advertisements for vacation travel
packages to a telephone facsimile machine, in violation of section 227
of the Act and the Commission's related rules and orders. The citation
warned Tropical Travel 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 Tropical Travel 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. Tropical Travel did not request an interview or
otherwise respond to the citation.
4. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, we have received 17
additional consumer complaints indicating that Tropical Travel
continued to engage in such conduct after the citation was issued. We
base our action here specifically on 17 complaints filed by 17
consumers establishing that Tropical Travel continued to send 21
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. The maximum penalty for such a violation is
$11,000 for a violation occurring before September 2, 2008, and
$16,000 for a violation occurring on or after September 2, 2008. 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
A. Violations of the Commission's Rules Restricting Unsolicited Facsimile
6. We find that Tropical Travel 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 21
unsolicited advertisements to the 17 consumers identified in the
Appendix. This NAL is based on evidence that 17 consumers received
unsolicited fax advertisements from Tropical Travel after the Bureau's
citation. The facsimile transmissions advertise vacation travel
packages. Further, according to the complaints, the consumers neither
had an established business relationship with Tropical Travel nor gave
Tropical Travel 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 Tropical Travel apparently
violated section 227 of the Act and the Commission's related rules and
orders by sending 21 unsolicited advertisements to 17 consumers'
B. Proposed Forfeiture
7. We find that Tropical Travel is apparently liable for a forfeiture in
the amount of $94,500. 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 21 apparent violations.
Thus, a total forfeiture of $94,500 is proposed. Tropical Travel 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 Tropical Travel Marketing 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 21 unsolicited advertisements to the 17 consumers
identified in the Appendix. We have further determined that Tropical
Travel Marketing is apparently liable for a forfeiture in the amount
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 Tropical Travel Marketing is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of $94,500 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, Tropical Travel
Marketing SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
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). Tropical Travel Marketing will
also send electronic notification on the date said payment is made to
Johnny.firstname.lastname@example.org. 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 Certified Mail Return Receipt Requested
and regular mail to Tropical Travel Marketing, Attention: Louis Quiles,
CEO, 1450 Eden Drive, Deltona, FL 32725-3766.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Complainants and Violation Dates
Complainant received facsimile Violation Date(s)
Paul Wharton, Homestar Direct 10/15/2007
Hannah Graves 10/15/2007
Suzanne Steele 10/17/2007
Misty Elkins, Niche Jewelry 10/17/2007
Michael Carpenter 10/17/2007
Karl Kohl, Gold'n Country Gifts LLC 10/16/2007
Edward Paladino 10/18/2007
Mark Lebovitz, L2 Consulting Services, Inc. 10/15/2007, 10/17/2007
Christy McGinty 10/17/2007
Rae Weese, Durango Button Company, Inc. 10/24/2007
Walter Alexander 10/24/2007
Jewel Clay, Troutman Sanders LLP 10/17/2007, 10/30/2007
Thomas Walsh, International Protein 10/30/2007
Charles Somerville, Eastman Kodak Company 10/30/2007
Joe Shields, Lockheed Martin 10/30/2007 (three faxes)
Mel Manuel 10/30/2007
Patrick Ross, Palmer Disposable Products 10/30/2007
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).
According to publicly available information, Tropical Travel has offices
at 1450 Eden Drive, Deltona, FL 32725-3766. Louis Quiles, CEO, is listed
as the contact person for Tropical Travel. Accordingly, all references in
this NAL to "Tropical Travel" also encompass the foregoing individual and
all other principals and officers of this entity, as well as the corporate
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-07-TC-2540 issued to
Tropical Travel on June 29, 2007.
See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
to non-common carriers for violations of the Act or of the Commission's
rules and orders).
Commission staff mailed the citation to: Tropical Travel Marketing, Attn:
Louis Quiles, CEO, 1450 Eden Drive, Deltona, FL 32725-3766. See n.2,
See Appendix for a listing of the consumer complaints against Tropical
Travel requesting Commission action.
Following the issuance of this citation, the Commission continued to
receive complaints from multiple consumers alleging that Tropical Travel
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 Tropical Travel in the amount of
$49,500. Tropical Travel, Notice of Apparent Liability for Forfeiture, FCC
08-162, released July 3, 2008. We note that evidence of additional
instances of unlawful conduct by Tropical Travel 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)
first to $11,000 and more recently to $16,000. 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)
(forfeiture maximum for this type of violator set at $11,000); Amendment
of Section 1.80(b) of the Commission's Rules and Adjustment of Forfeiture
Maxima to Reflect Inflation, 19 FCC Rcd 10945 (2004) (amendment of section
1.80(b) to reflect inflation left the forfeiture maximum for this type of
violator at $11,000); Amendment of Section 1.80(b) of the Commission's
Rules, Adjustment of Forfeiture Maxima to Reflect Inflation, FCC 08-154,
rel. June 13, 2008.( amendment of section 1.80(b) to reflect inflation
left the forfeiture maximum for this type of violator at $16,000).
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 October 15, 2007, from Paul Wharton, Homestar
Direct (stating that he has never done any business with the fax
advertiser, never made an inquiry or application to the fax advertiser,
and never gave permission 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.
Federal Communications Commission FCC 08-234
Federal Communications Commission FCC 08-234