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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Travel Club Marketing Inc.
dba Travelink Corp
) File No. EB-10-TC-428
dba Proven Results Direct Marketing
Inc. ) File No. EB-10-TC-473
dba Direct Marketing Travel Services ) NAL/Acct. No. 201232170001
) FRN: 0021255427
dba Diamond Vacations
dba Great Vacations
Apparent Liability for Forfeiture
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 31, 2011 Released: October 31, 2011
By the Commission:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Travel Club Marketing Inc. ("Travel Club") has apparently
willfully and repeatedly violated section 227(b)(1) of the
Communications Act of 1934, as amended ("Communications Act" or "Act")
and section 64.1200(a) of the Commission's rules by delivering 185
unsolicited, prerecorded messages to 142 telephone numbers assigned
either to cell phones or residential telephone lines. Moreover, in
the case of at least one of the prerecorded calls, Travel Club also
apparently violated section 64.1601(e) of the Commission's rules,
requiring that telemarketers transmit caller identification
information. Based on the facts and circumstances surrounding Travel
Club's apparent violations of the prohibitions against unsolicited,
prerecorded messages, we find that Travel Club is apparently liable
for a proposed forfeiture in the amount of $2,960,000.
2. The Telephone Consumer Protection Act of 1991 ("TCPA") was enacted to
address problems of abusive telemarketing, including unsolicited
prerecorded calls. Section 227(b)(1)(A)(iii) of the Communications Act
and section 64.1200(a)(1)(iii) of the Commission's rules make 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 initiate calls using an automatic telephone dialing system
or an artificial or prerecorded voice to, inter alia, any cellular
telephone number. The Act and the rules provide exceptions when the
call is made (1) for emergency purposes or (2) with the prior express
consent of the called party.
3. Separately, section 227(b)(1)(B) of the Act prohibits any person from
initiating "any telephone call to any residential telephone line using
an 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 to this prohibition for calls: 1) made for
emergency purposes; 2) not made for a commercial purpose; 3) "made for
a commercial purpose but [that do] not include or introduce an
unsolicited advertisement or constitute a telephone solicitation;" 4)
made to any person "with whom the caller has an established business
relationship at the time the call is made;" or 5) "made by or on
behalf of a tax-exempt nonprofit organization" (footnotes added).
4. In addition, section 64.1601(e) of the Commission's rules requires
telemarketers to transmit caller identification information.
Telemarketers are specifically required to deliver caller ID
information that permits consumers to make a do-not-call request
during regular business hours.
5. On July 29, 2010, and September 28, 2010, in response to consumer
complaints concerning unsolicited prerecorded calls, the Enforcement
Bureau ("Bureau") issued citations to Travel Club, pursuant to section
503(b)(5) of the Act. Travel Club responded to the first citation by
letter, dated September 7, 2010, over the signature of Olen Miller,
stating that "Travel Club Marketing & Travelink Corp. are two (2)
Florida Corporations that are deceased and are no longer functioning.
. . . The primary function of these deceased businesses were
marketing, travel services for timeshares and travel clubs to only
business customers. Not residential or consumers." Further, the
company asserted that it had "taken the proper measures in making sure
that we have scrubbed our business list\leads against the Federal Do
Not Call list and have removed any and all consumer & residential
phone numbers. We have ceased on leaving all types of messages to
businesses [sic]." Travel Club did not respond to the second citation.
6. Despite the citations' warnings that subsequent violations could
result in the imposition of monetary forfeitures, and Travel Club's
claims that two of its businesses were "deceased" and that it had
taken steps to remove residential numbers from its call lists, we have
received 142 additional consumer complaints indicating that Travel
Club continued to deliver unsolicited prerecorded calls to residential
consumers and cell phones after the dates of the citations. These
calls occurred from November 1, 2010 through October 11, 2011.
A. Apparent Violations of Section 227(b)(1) of the Act and the
Commission's Rules Restricting Unsolicited Prerecorded Calls
7. We find that Travel Club has apparently violated section
227(b)(1)(A)(iii) of the Act and section 64.1200(a)(1)(iii) of the
Commission's rules by delivering 144 unsolicited, prerecorded messages
to 113 cellular telephone numbers. According to the complaints, these
messages were not made either for an emergency purpose or with the
prior express consent of the called party. Almost all of the
complainants state that the messages promoted travel deals, vacation
packages, free vacations, and time-shares. Based on the entire record,
including the consumer complaints, we conclude that Travel Club has
apparently violated section 227(b)(1)(A)(iii) of the Act and section
64.1200(a)(1)(iii) of the Commission's rules by delivering 144
unsolicited prerecorded messages to 113 cellular telephone numbers.
8. We also find that Travel Club has apparently violated section
227(b)(1)(B) of the Act and section 64.1200(a)(2) of the Commission's
rules by delivering 41 unsolicited, prerecorded advertising messages
to the residential telephone lines of 29 consumers. According to the
complaints, these unsolicited, prerecorded messages were received at
residential telephone lines, were not made for any emergency or
non-commercial purposes, were not on behalf of a tax-exempt, nonprofit
organization, and were commercial in nature. All complainants also
indicated that they neither had an established business relationship
with Travel Club nor gave Travel Club permission to deliver the
unsolicited, prerecorded messages. Thus, these messages were not
exempt from the prohibitions against delivery of unsolicited,
prerecorded messages. As in the case of the calls to cell phones,
these solicitations offered travel and vacation packages, and
time-shares. The prerecorded messages at issue here therefore fall
within the definition of an "unsolicited advertisement." Based on the
entire record, including the consumer complaints, we conclude that
Travel Club has apparently violated section 227(b)(1)(B) of the Act
and section 64.1200(a)(2) of the Commission's rules by delivering 41
unsolicited prerecorded advertising messages to the residential
telephone lines of 29 consumers.
9. We also find that Travel Club has apparently violated section
64.1601(e) of the Commission's rules, which requires that
telemarketers transmit caller identification information, including
information that permits consumers to make do-not-call requests during
regular business hours, on at least one occasion. One consumer who
received a prerecorded solicitation to a residential phone also said
that caller ID information for the call was blocked.
B. Proposed Forfeiture
10. After we have first issued a citation to a person, as we have in this
case, section 503(b) of the Act authorizes the Commission to propose a
forfeiture against that person when it subsequently determines that
such person has willfully or repeatedly failed to comply with the Act,
or any rule, regulation, or order issued by the Commission under the
Act. Section 503(b)(2)(E) mandates that, "[i]n determining the amount
of such a forfeiture penalty, the Commission or its designee shall
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." Our forfeiture guidelines set
forth the base amount for penalties for certain kinds of violations,
and identify criteria, consistent with the section 503(b)(2)(E)
factors, that may influence whether we adjust the base amount downward
or upward. For example, we may adjust a penalty upward for
"[e]gregious misconduct," an "[i]ntentional violation," or where the
subject of an enforcement action has engaged in "[r]epeated or
continuous violation." The maximum penalty for each such violation in
the present case is $16,000.
11. We propose the maximum penalty of $16,000 for each of Travel Club's
185 apparent violations at issue in this NAL, for a total proposed
forfeiture of $2,960,000. This penalty is based on the number of
apparent willful, repeated violations involved, as well as Travel
Club's apparent deceptive and evasive conduct, as explained below.
12. The Commission has previously considered $4,500 per message to be an
appropriate base amount for delivering an unsolicited, prerecorded
message. The Commission's penalty structure for prerecorded call
violations is based on its approach for "junk fax" violations - the
sending of unsolicited advertisements via fax. Recently, we began to
adjust upward the base forfeiture for multiple, repeated violations of
the junk fax rules, finding that application of only the base
forfeiture "has failed to deter the more persistent wrongdoers," and
that as a result, "different and harsher penalties than those we have
imposed in the past are appropriate for entities who engage in a
significant number of violations." We find that we should continue to
model our approach for violations of our prerecorded calls after that
for junk fax rules, and thus will adjust upward the base forfeiture
for multiple, repeated violations of our rules against prerecorded
calls. The magnitude of the adjustment will depend on the facts we are
presented with in each case.
13. The magnitude of the adjustment we propose here is based not only on
the number of multiple, repeated apparent violations at issue, but
also, in the words of section 503(b)(2)(E), the "circumstances ... of
the violation," the "culpability" of the violator, and "such other
matters as justice may require." Travel Club has engaged in at least
185 prerecorded call violations - after being warned through not one
but two citations that its conduct was unlawful. This suggests that
Travel Club consciously and deliberately disregarded - and therefore
intentionally violated - Commission rules. In addition, as noted,
Travel Club appears to have violated not only our prerecorded call
rules, but also certain of our caller identification rules.
14. Moreover, Travel Club's response to the citation appears to have been
deceptive, evasive, and misleading - if not completely false. As
explained above, Travel Club claims in its 2010 response that "Travel
Club Marketing & Travelink Corp. ... are deceased and no longer
functioning [and] have been out of business since 2010 [so] you can
rest assured that this type of violation will never happen again."
Other facts suggest, however, that Travel Club became inactive as a
legal matter much earlier, and that its unlawful activities have
continued under different business names. Official records from the
Florida Department of State Division of Corporations indicate that
"Travel Club Marketing Inc.," with a mailing address of 5700 Memorial
Highway in Tampa, and an officer and registered agent of "Olen
Miller," became inactive in September 2008, and that "Travellink
Corp.," with the same address, a principal of "Okie O. Miller," and a
registered agent of "Olen Miller" became inactive in 2009. Just a few
months before Travel Club Marketing Inc. became inactive, businesses
by the name of "Direct Marketing Travel Services Inc." and "Proven
Results Direct Marketing Inc." - with the same mailing addresses,
officers, and registered agents as Travel Club Marketing Inc. and
Travellink Corp. - appear to have been formed or reinstated. Proven
Results Direct Marketing Inc., in turn, became inactive not long after
Mr. Miller responded to our citation - and shortly thereafter we began
to receive complaints about prerecorded calls from "Diamond Vacations"
and "Great Vacations," apparently using a telephone number that we
have established is assigned to "Travellink Corp." The fact that Mr.
Miller, as the principal of Travel Club, appears to be engaged in
creating and shutting down different businesses to conduct the same or
similar unlawful activities that have led to the issuance of this NAL
suggests a degree of culpability that our proposed forfeiture must
15. Years before we began assessing upward adjustments for multiple,
repeated violations of our "junk fax" rules, we imposed the statutory
maximum forfeiture against an egregious violator of those rules,
Fax.com. Our decision to assess the maximum penalty there was based
on the fact "that Fax.com's primary business activity itself
constitutes a massive on-going violation of [the junk fax provisions
of the Act and the Commission's rules], and Fax.com is well aware of
this fact." The Commission in the NAL explained that Fax.com's
business was a fax broadcasting service "that clearly does not comply
with federal restrictions governing facsimile advertisements";
explained how Fax.com had made deceptive, if not false, statements, to
consumers, courts, and the Commission; and proposed a forfeiture based
on nearly 500 instances of noncompliance. While the specific facts
differ between Fax.com and the instant case, the two cases are similar
in a few fundamental respects: the wrongdoers engaged in mass
violations, undertook such violations intentionally, and were
deceitful in their dealings with the Commission and the public. For
these reasons, we find, as we did in Fax.com, that the statutory
maximum per violation forfeiture is appropriate. As today's action
shows, we intend to use the full extent of our forfeiture authority
against entities who persist in violating our consumer protection
rules - and we will not hesitate to impose the maximum penalty
permitted by law in appropriate circumstances.
16. We conclude that Travel Club Marketing Inc. apparently has violated
section 227(b)(1) of the Act and section 64.1200(a) of the
Commission's rules by delivering 185 unsolicited, prerecorded
advertising messages to the 142 consumers identified in the
Appendices, and apparently has violated section 64.1601(e) of the
Commission's rules by failing to deliver caller identification
information in the case of a call to at least one consumer. We further
conclude that Travel Club Marketing, Inc. is apparently liable for a
forfeiture in the amount of $2,960,000 for its apparent violations of
section 227(b)(1) of the Act and section 64.1200(a) of the
V. ordering clauses
17. 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 of the Commission's rules, 47 C.F.R. S: 1.80, that Travel
Club Marketing Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of $2,960,000 for willful and repeated
violations of sections 227(b)(1)(A)(iii) and 227(b)(1)(B) of the
Communications Act, 47 U.S.C. S: 227(b)(1)(A)(iii), 47 U.S.C. S:
227(b)(1)(B), and sections 64.1200(a)(1)(iii) and 64.1200(a)(2) of the
Commission's rules, 47 C.F.R. S:S: 64.1200(a)(1)(iii), 64.1200(a)(2).
18. 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, Travel Club
Marketing Inc. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
19. 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 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). Travel Club shall also send
electronic notification on the date said payment is made to
Johnny.Drake@fcc.gov. 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.
20. The response, if any, must be mailed both to: Marlene H. Dortch,
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
Consumers Division; and to Richard A. Hindman, 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.
Documents sent by overnight mail (other than United States Postal
Service Express Mail) must be addressed to: Marlene H. Dortch,
Secretary, Federal Communications Commission, Office of the Secretary,
9300 East Hampton Drive, Capitol Heights, MD 20743. Hand or
messenger-delivered mail should be directed, without envelopes, to
Marlene H. Dortch, Secretary, Federal Communications Commission,
Office of the Secretary, 445 12th Street, SW, Washington, DC 20554
(deliveries accepted Monday through Friday 8:00 a.m. to 7:00 p.m.
only). See www.fcc.gov/osec/guidelines.html for further instructions
on FCC filing addresses.
21. The Commission will not consider reducing or canceling a proposed
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.
22. 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 First Class mail to Travel Club Marketing Inc. dba
Travelink Corp., Attention: Mr. Olen Miller, 3240 S. Dale Mabry Hwy.,
33629; 324 N. Dale Mabry Hwy., Tampa, FL 33609; and 5700 Memorial Hwy.,
Tampa, FL 33615, and to Proven Results Direct Marketing, Inc., Attention:
Olen Miller, 5700 Memorial Hwy., Tampa, FL 33615.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Complainants and Violation Dates
Complainants who received unsolicited Violation Date(s)
prerecorded messages at a cellular phone
J. Compton 11/1/2010
W. Strenger 11/1/2010
T. Fitzsimmons 11/2/2010
R. Augenstein 11/2/2010
B. White 11/04/2010
R. Boyle 11/8/2010
G. On 11/8/2010
S. Forslund 11/9/2010
J. Brown 11/9/2010
D. Boackle 11/9/2010
R. McMullen 11/10/2010
D. Allen 11/11/2010 (3 messages)
L. Schuman 11/13/2010
J. Erickson 11/14/2010
L. Binder 11/15/2010
M. Glazer 11/16/2010
E. Vagnoni 11/16/2010
J. Pierce 11/16/2010
C. Hermoza 11/17/2010
S. Barron 11/17/2010
D. Cook 11/17/2010
N. Schrade 11/17/2010
J. Irby 11/18/2010
G. Williams 11/20/2010
A. Ferreira 11/22/2010
R. Ghaul 11/23/2010
T. Swanson 11/23/2010
S. Anderson 11/26/2010
R. McDonald 11/27/2010
J. Costaldi 11/27/2010
J. Wagg 11/18/2010 (2 messages);
J. Sims 11/30/2010
W. Gerhardt 11/30/2010
S. Bartlette 12/1/2010
M. Summey 12/1/2010
L. Knight 12/7/2010
S. Eddy 12/9/2010
B. Perry 12/7/2010; 12/9/2010
G. Yancey 12/11/2010
A. Taylor 12/15/2010
W. Nemath 1/6/2011
S. Donahue 1/7/2011
C. DeShazo 1/12/2011
L. Pope 1/14/2011
G. Baker 1/14/2011
T. Wheeler 1/18/2011
A. Grayson 1/19/2011
R. Partin 1/4/2011; 1/7/2011;
T. Stephens 1/23/2011
T. Fields 1/26/2011
A. Hayes 2/2/2011
R. Gilbert 2/4/2011
C. Davis 2/4/2011
B. Berry 2/4/2011; 2/8/2011
C. Braden 2/10/2011
E. Lawrence 2/1/2011; 2/15/2011
J. Augustine 2/17/2011; 2/18/2011
T. Phillips 2/25/2011
R. Thompson 2/27/2011
C. Clemons 2/22/2011; 2/28/2011
G. Merkle 2/12/2011; 3/2/2011
L. Miller 3/3/2011
I. Houser 3/7/2011; 3/17/2011
D. James 3/21/2011
J. Hurd 3/21/2011 (3 calls)
C. Smith 3/17/2011; 3/18/2011;
M. Friedel 2/17/2011; 3/17/2011;
I. Parker 4/4/2011
J. Young 4/10/2011; 4/11/2011
M. Henderson 4/12/2011
D. Snyder 4/18/2011; 4/19/2011;
B. Boerner 4/26/2011; 4/28/2011 (2
B. Sheffron 5/4/2011
D. Fowler 5/7/2011
W. Cleveland 4/30/2011; 5/13/2011
M. Fares 5/13/2011
E. Alford 5/18/2011
K. Lolans 5/18/2011
W. Malaise 5/18/2011
B. Rawls 5/21/2011
J. Koonce 5/23/2011
M. Minor 5/24/2011
B. Kramer 5/31/2011
M. Wainwright 5/31/2011
S. Likins 6/2/2011; 6/13/2011
J. Bledsoe 6/8/2011; 6/13/2011
J. Lambert 6/16/2011
M. Marcinko 6/16/2011
D. Herrera 6/18/2011
H. Stauffer 6/21/2011
B. Joffrion 6/24/2011
S. Purvis 6/24/2011
A. Boerngen 7/1/2011
C. Milbourne 7/6/2011
G. Harris 7/14/2011
L. Murray 7/21/2011
C. Stiehl 7/21/2011
D. Zimmerman 7/19/2011; 7/22/2011
T. Kimura 7/23/2011
C. Clifton 7/28/2011
A. Vazquez 8/15/2011
C. Curtis 8/17/2011
L. LaVecchio 8/17/2011
K. Post 8/17/2011
R. Squier 8/22/2011
E. Sommerfeld 8/27/2011
R. Smith 8/31/2011
W. DuVall 9/1/2011
J. Weeks 9/5/2011
R. Pearce 9/27/2011
C. Humphreys 10/5/2011
R. Marsh 10/5/2011
D. Cantor 10/11/2011
Complainants and Violation Dates
Complainants who received unsolicited Violation Date(s)
prerecorded messages at a residential phone
T. Fox 1/5/2011
M. Mandeville 1/10/2011
L. Perrigin 1/25/2011
J. LaPoint 2/8/2011
D. Goodwin 3/1/2011
P. Szydlo 3/1/2011; 3/3/2011
E. Eck 3/3/2011
C. Fonville 3/9/2011; 3/22/2011
J. Carmack 3/16/2011; 3/23/2011
B. Veenstra 5/19/2011
G. Bumgardner 5/24/2011
C. Smith 5/31/2011
M. Robertson 6/1/2011
S. Fountain 6/20/2011 (2 messages);
6/21/2011 (2 messages)
J. Krohne 6/22/2011
W. Newman 7/2/2011
K. Johnson 7/5/2011
B. Koscher 7/11/2011
A. Nevelos 7/21/2011
S. Waters 8/3/2011 (2 messages)
D. Groth 8/24/2011
P. Fagley 9/1/2011
C. Kariya 9/12/2011
E. Frierson 9/14/2011; 9/15/2011
M. Hillman 9/17/2011
J. Rinehart 9/24/2011 (3 messages);
F. Reynolds 9/27/2011; 9/28/2011
E. Moscicki 9/28/2011
Complainants and Violation Dates
Complainant who received unsolicited prerecorded
messages at a residential phone and also did not Violation Date
receive Caller ID information
J. Wolfe 12/29/2010
According to publicly available information, Travel Club also appears to
do business as, or use the names of, Travelink Corp., Proven Results
Direct Marketing Inc., Direct Marketing Travel Services Inc., Diamond
Vacations and Great Vacations. See infra para. 14. Therefore, all
references in this NAL to "Travel Club Marketing Inc." or "Travel Club"
encompass Travelink Corp., Proven Results Direct Marketing Inc., Direct
Marketing Travel Services Inc., Diamond Vacations, Great Vacations, and
any other names used by Travel Club or its President, Mr. Olen Miller as
well. Travel Club has offices at 3240 S. Dale Mabry Hwy., Tampa, FL 33629,
324 N. Dale Mabry Hwy., Tampa, FL 33609 and 5700 Memorial Hwy., Tampa, FL
33615. Mr. Olen Miller, aka Mr. Okie Miller, is listed as the contact
person for Travel Club. Accordingly, all references in this NAL to Travel
Club Marketing Inc. or Travel Club also encompass the foregoing individual
and all other principals and officers of this entity, as well as the
corporate entity itself.
47 U.S.C. S: 227(b)(1); 47 C.F.R. S: 64.1200(a).
47 C.F.R. S: 64.1601(e)(1).
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat.
2394 (codified at 47 U.S.C. S: 227).
47 U.S.C. S: 227(b)(1)(A)(i)-(iii); 47 C.F.R. S: 64.1200(a)(1)(i)-(iii).
47 U.S.C. S: 227(b)(1)(A); 47 C.F.R. S: 64.1200(a)(1). See also 47 C.F.R.
S: 64.1200(a)(1)(iv) (caller is not liable for call to wireless number,
when call is voice call, not knowingly made to a wireless number, within
15 days of porting from wireline, and number is not on national
do-not-call registry or company-specific do-not call list).
47 U.S.C. S: 227(b)(1)(B); 47 C.F.R. S: 64.1200(a)(2).
An "unsolicited advertisement" is defined 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." 47 U.S.C. S:
227(a)(5); 47 C.F.R. S: 64.1200(f)(13).
A "telephone solicitation" is defined as "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, but such term does not include a call or message (A) to any
person with that person's prior express invitation or permission, (B) to
any person with whom the caller has an established business relationship,
or (C) by a tax- exempt nonprofit organization. " 47 U.S.C. S: 227(a)(4).
See also 47 C.F.R. S: 64.1200(f)(12).
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 subscriber's 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. S: 64.1200(f)(4). See also 47 U.S.C. S: 227(a)(2).
47 C.F.R. S: 64.1200(a)(2).
47 C.F.R. S: 64.1601(e). See also Truth in Caller ID Act of 2009, Pub. L.
No. 111-331, 124 Stat. 3572 (2010) (codified at 47 U.S.C. S: 227(e)).
47 C.F.R. S: 64.1601(e)(1).
Citation from Joshua Zeldis, Assistant Division Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-10-TC-428, issued to
Travel Club (July 29, 2010); Citation from Joshua Zeldis, Assistant
Division Chief, Telecommunications Consumers Division, Enforcement Bureau,
File No. EB-10-TC-473, issued to Travel Club (Sept. 28, 2010).
See 47 U.S.C. S: 503(b)(5) (requiring the Commission to issue citations to
persons who do not hold a license, permit, certificate, or other
authorization issued by the Commission, or who are not an applicant for
any of those listed instrumentalities, for violations of the Act or of the
Commission's rules and orders).
Letter from Olen Miller, Travel Club, File No. EB-10-TC-428, to Joshua
Zeldis, Assistant Division Chief, Telecommunications Consumers Division,
Enforcement Bureau (dated Sept. 7, 2010) ("Citation Response").
See Appendices A, B, and C for a listing of the consumer complaints
against Travel Club requesting Commission action.
47 U.S.C. S: 227(b)(1)(A)(iii); 47 C.F.R. S: 64.1200(a)(1)(iii).
See, e.g., complaint dated November 2, 2010 from R. Augenstein (stating
that she had never done any business with the company, never made an
inquiry or application to the company, and never gave permission for the
company to make the call). The complaints involving prerecorded calls to
cellular phones are listed in Appendix A below.
Although some of the complaints state that the messages ostensibly offered
free services or products, or are silent as to whether the call was
commercial in nature, our finding of a violation remains the same. The
fact that some calls appeared to offer free vacations does not change the
commercial nature of these prerecorded calls. The Commission has
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
exempted." Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, Report and Order, CG Docket No. 02-278, 18 FCC Rcd
14014, 14097-98, para. 140 (2003). Furthermore, the complaints that failed
to specify whether the call was commercial in nature were based on calls
made to wireless devices and thus are prohibited under the Commission's
rules regardless of whether the call was made for commercial purposes. See
47 C.F.R. S: 64.1200(a)(1)(iii).
47 U.S.C. S: 227(b)(1)(B); 47 C.F.R. S: 64.1200(a)(2).
See 47 U.S.C. S: 227(a)(5); 47 C.F.R. S: 64.1200(f)(13). Supra note 9.
See complaint dated December 29, 2010 from J. Wolfe (stating that "[t]he
call history on my phone said that the origin number of the call was
blocked. When I tried *57, it said that the number was untraceable or had
call forward blocked.") In addition, the complainant reports difficulty
making a do-not-call request when she finally was able to reach the
company, stating that the first operator refused to record the do-not-call
request "unless I gave her more information to verify that I `qualified'
for the service they were trying to sell." This complaint is listed in
Appendix C below.
47 U.S.C. S: 503(b)(1)(B). See also 47 U.S.C. S: 503(b)(5) (the Commission
may 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).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80(b)(4) note. The absence of a particular type of
violation from the forfeiture guidelines must "not be taken to mean that
the violation is unimportant or nonexistent," and "the Commission retains
discretion to impose forfeitures for other violations." Commission's
Forfeiture Policy Statement, Report & Order, 12 FCC Rcd 17,087, 17,110
47 C.F.R. S: 1.80(b)(4) note.
Section 503(b)(2)(D) of the Act provides for forfeitures of up to $10,000
for each violation by a person who is not a regulated entity such as a
broadcast station licensee or common carrier. 47 U.S.C. S: 503(b)(2)(D).
The Commission adjusts this amount for inflation. 47 C.F.R. S: 1.80(b)(5).
The Commission has made such inflation adjustments and the current maximum
forfeiture is $16,000 for each violation under section 503(b)(2)(D). 47
C.F.R. S: 1.80(b)(5)(iii).
See Warrior Custom Golf, Inc., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 23648, 23652 (2004) ("Warrior Custom Golf") (first
NAL to address pre-recorded advertising messages); see also Septic Safety,
Inc., Notice of Apparent Liability for Forfeiture, 20 FCC Rcd. 2179
(2005); Septic Safety, Inc., Forfeiture Order, 21 FCC Rcd 6868 (2006); 1
Home Lending Corporation, d/b/a Capital Line Financial, LLC, Notice of
Apparent Liability for Forfeiture, 21 FCC Rcd 11852 (2006); 1 Home
Lending Corporation, d/b/a Capital Line Financial, LLC., Forfeiture Order,
24 FCC Rcd 2888 (2009).
Warrior Custom Golf, 19 FCC Rcd at 23652.
Presidential Who's Who, Notice of Apparent Liability for Forfeiture, FCC
11-95 (rel. June 13, 2011) ("Presidential Who's Who"); The Street Map Co.,
Notice of Apparent Liability for Forfeiture, 26 FCC Rcd. 8318 (2011)
("Street Map"). See also Laser Technologies, Notice of Apparent Liability
for Forfeiture, FCC 11-112 (rel. Jul. 18, 2011).
47 U.S.C. S: 503(b)(2)(E).
See supra note 25. Although we do not propose a specific penalty for the
apparent caller identification rule violation because we have not
previously cited Travel Club for such violations, section 503(b)(2)(E)
empowers us to consider the presence of this additional apparent violation
when assessing the penalty for the prerecorded call violations. See 47
U.S.C. S: 503(b)(2)(E) ("In determining the amount of . . . a forfeiture
penalty, the Commission . . . shall 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, .
. . and such other matters as justice may require.") (emphasis added).
Because Travel Club's apparent failure to comply with our caller
identification rules is relevant to our assessment of the appropriate
amount of forfeiture penalty, we may consider Travel Club's apparent
caller ID violation in this proceeding. Indeed, the Commission has
previously adjusted upward the base forfeiture for prerecorded call
violations when they have been coupled with caller identification rule
violations. See, e.g., Security First of Alabama, LLC, Notice of Apparent
Liability for Forfeiture, 26 FCC Rcd 6490, 6493 (2011).
The Commission and the courts have long stated that `[w]here the statutory
purpose could . . . be easily frustrated through the use of separate . . .
entities, the Commission is entitled to look through corporate form and
treat the separate entities as one and the same for purpose of
regulation.'" Improving Public Safety Communications in the 800 MHz Band,
Fifth Report and Order, Eleventh Report and Order, Sixth Report and Order,
and Declaratory Ruling, 25 FCC Rcd 13874, 13887-88 (2010). Further, "the
Commission has treated affiliated entities collectively where necessary to
ensure compliance with the Communications Act and Commission policies and
regulations. In the enforcement context, for example, the Commission has
imposed a monetary forfeiture on a parent corporation for rule violations
by a wholly owned subsidiary. In other enforcement actions, the
Commission has looked to the financial status of affiliates in deciding
whether to reduce the amounts of monetary forfeitures imposed on
corporations holding Commission licenses." Id. at 13888 (footnotes
See supra P: 12.
Fax.com, Notice of Apparent Liability for Forfeiture, 17 FCC Rcd 15927
(2002) ("Fax.com"), aff'd 19 FCC Rcd 748 (2004).
17 FCC Rcd at 15938.
Id. at 15938-15943.
Although Security First also involved apparent violations of the
provisions governing prerecorded calls and caller identification, we find
Travel Club's conduct to be more egregious. Travel Club not only engaged
in a much higher number of apparent violations, but, as noted, also
pursued its conduct in a manner that appears intentionally designed to
evade law enforcement and deceitful in terms of its interaction with the
47 C.F.R. S: 1.80.
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