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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No.: EB-10-TC-478
National Employee Benefits Group NAL/Acct. No.: 201232170005
Apparent Liability for Forfeiture FRN: 0021538509
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 28, 2012 Released: February 29, 2012
By the Commission:
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that National Employee Benefits Group apparently willfully and
repeatedly violated section 227(b)(1)(C) of the Communications Act of
1934, as amended (the Communications Act or Act), and section
64.1200(a)(3) of the Commission's rules, by sending 97 unsolicited
advertisements, or "junk faxes," to the telephone facsimile machines
of 79 consumers. Based on the facts and circumstances surrounding
these apparent violations, we find that National Employee Benefits
Group is apparently liable for a forfeiture in the amount of $603,000.
2. The Telephone Consumer Protection Act of 1991 (TCPA) was enacted by
Congress to address problems of abusive telemarketing, including junk
faxes. Unsolicited faxes often impose unwanted burdens on the called
party, including costs of paper and ink, and making fax machines
unavailable for legitimate business messages. Section 227(b)(1)(C) of
the Act thus 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...."
3. On October 22, 2010, in response to a consumer complaint alleging that
National Employee Benefits Group had faxed an unsolicited
advertisement, the Enforcement Bureau (Bureau) issued a citation to
National Employee Benefits Group pursuant to section 503(b)(5) of the
Act. The Bureau cited National Employee Benefits Group for using a
telephone facsimile machine, computer, or other device, to send an
unsolicited advertisement for financial services to a telephone
facsimile machine in violation of section 227(b)(1)(C) of the Act and
section 64.1200(a)(3) of the Commission's rules. The citation informed
National Employee Benefits Group that within 30 days of the date of
the citation, it could either request an interview with Commission
staff, or provide a written statement responding to the citation.
National Employee Benefits Group did not respond.
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 National Employee Benefits Group
continued to send unsolicited facsimiles after the date of the
citation. This NAL is based on complaints filed by 79 consumers
establishing that National Employee Benefits Group continued to send
97 unsolicited advertisements to telephone facsimile machines between
March 1, 2011 and August 24, 2011.
A. Apparent Violations of Section 227(b)(1)(C) of the Act and the
Commission's Rules Restricting Unsolicited Facsimile
5. Each of the consumers listed in the Appendix has provided evidence
that National Employee Benefits Group used a telephone facsimile
machine, computer, or other device to send the consumer at least one
unsolicited advertisement. The facsimile transmissions at issue
advertise financial services. The faxes therefore fall within the
definition of an "unsolicited advertisement." Further, according to
the complaints, none of the consumers had an "established business
relationship" with National Employee Benefits Group, which would have
authorized the company to send the faxes to the consumer, and none of
the complainants gave National Employee Benefits Group permission to
send the facsimile transmissions. Based on the record before us, we
conclude that National Employee Benefits Group apparently violated
section 227(b)(1)(C) of the Act and section 64.1200(a)(3) of the
Commission's rules by sending 97 unsolicited advertisements to 79
consumers' facsimile machines.
A. Proposed Forfeiture
6. After we have first issued a citation to an entity, as we have in this
case, section 503(b) of the Act authorizes the Commission to propose a
forfeiture for each subsequent violation of the Act, or of 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 "[p]rior violations of
any FCC requirements" or a "[r]epeated or continuous violation."
Currently, the maximum penalty that the Commission may impose against
an entity such as National Employee Benefits Group is $16,000 per
7. The Commission has generally considered $4,500 per unsolicited fax
advertisement to be an appropriate base amount for violating the
prohibition against sending them. In addition, where the consumer
requests that the company stop sending facsimile messages, and the
company continues to do so, the Commission has previously considered
$10,000 per unsolicited fax advertisement the appropriate forfeiture
for such egregious violations. Consistent with this approach, we apply
the $4,500 base forfeiture to 94 of the apparent violations at issue
in this NAL and a $10,000 forfeiture for three of the apparent
violations in this NAL where the consumer received a facsimile from
National Employee Benefits Group after specifically requesting that
National Employee Benefits Group cease sending them. Based on the
application of these standards, National Employee Benefits Group is
apparently liable for a base forfeiture of $453,000.
8. Recently, we have begun to impose upward adjustments for multiple,
repeated violations of our junk fax rules. The amount of these upward
adjustments has varied according to the number of violations at issue,
and has ranged from $50,000 (40 violations) to $150,000 (approximately
100 violations). Given that this case also involves approximately 100
violations, we propose to apply a $150,000 upward adjustment, for a
total proposed forfeiture of $603,000. ($453,000 + $150,000 =
$603,000) As we explained in the prior case where we proposed a
$150,000 upward adjustment against an entity that had engaged in a
total of over 100 violations, the magnitude of this adjustment is
based on the fact that "[a]ll of the apparent violations, except those
that formed the basis of the original citation, occurred after the
Bureau first warned [the company] that its conduct violated the
law.... The penalty that we proposed must take into account, in the
language of section 503(b)(2)(E), this `degree of culpability,' and
`history of prior offenses,' and in the language of the forfeiture
guidelines, such `intentional misconduct' and `prior violations of ...
FCC requirements.'" This reasoning is equally applicable here.
9. We have determined that National Employee Benefits Group apparently
violated section 227(b)(1)(C) of the Act and section 64.1200(a)(3) of
the Commission's rules, by using a telephone facsimile machine,
computer, or other device to send 97 unsolicited advertisements to the
79 consumers identified in the Appendix. We have further determined
that National Employee Benefits Group is apparently liable for a
forfeiture in the amount of $603,000.
V. ORDERING CLAUSES
10. 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
National Employee Benefits Group is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of $603,000 for willful and
repeated violations of section 227(b)(1)(C) of the Communications Act,
47 U.S.C. S: 227(b)(1)(C), and section 64.1200(a)(3) of the
Commission's rules, 47 C.F.R. S: 64.1200(a)(3).
11. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, National
Employee Benefits Group SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
12. 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). National Employee Benefits Group
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, SW, 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.
13. 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.
14. 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
15. 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 National Employee Benefits Group,
Attn: Tim Gibbons, President, 795 Folsom Street, 1st Floor, San
Francisco, CA 94107; and National Employee Benefits Group, Attn: Tim
Gibbons, President, 1560 Youd Road, Winton, CA 95388.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Complainants and Apparent Violation Dates
Complainant received facsimile Violation Date(s)
Armstrong, A. 3/1/11
Barrett, S. 6/21/11
Berman, A. 3/2/11
Beck, J. 5/10/11
Becker, K. 6/15/11
Bell, T. 5/24/11
Benefield, R. 5/23/11, 6/20/11
Botnick, B. 5/31/11
Can, V. 7/18/11
Cantrell, P. 6/21/11
Chase, D. 3/16/11
Chafey, T. 3/4/11
Cheifetz, A. 3/2/11
Coleman, M. 3/7/11
Cooper, J. 7/19/11
Copperman, H. 3/5/11
Dean, R. 4/18/11
DeLong, J. 3/1/11, 4/19/11, 7/25/11,
Eliopoulos, S. 4/25/11
Field, D. 5/9/11
Fletcher, D. 5/31/11
Gelbard, A. 7/18/11
Graham, S. 7/18/11
Grout, S. 3/23/11
Gubnitsky, M. 3/23/11, 4/11/11
Hartglass, L. 3/2/11
Haskell, J. 4/25/11
Heddy, R. 6/1/11
Higgins, D. 6/16/11
Highcove, J. 3/8/11, 4/21/11, 5/31/11
Hudkins, J. 4/19/11, 5/26/11, 7/25/11
Humphreys, D. 6/15/11
Jensen, G. 3/28/11, 6/3/11
Johnson, W. 5/16/11
Ko, A. 5/9/11
Korver, A. 3/23/11
Kressman, D. 6/9/11
Kunin, M. 5/11/11
Lavado, H. 3/4/11, 6/27/11
Longo, R. 3/16/11, 6/9/11
MacIntyre, A. 4/27/11, 8/2/11
McCarthy, T. 3/9/11
McCracken, A. 3/16/11
McFate, P. 3/28/11
Montgomery, R. 6/30/11
Newberg, B. 4/28/11, 6/14/11, 8/8/11
Ogle, J. 6/27/11
Oliveira, B. 6/21/11
Orlaski, S. 5/9/11
Ostroff, E. 5/12/11
Page, B. 3/4/11, 5/16/11
Pappas, H. 7/18/11
Peoples, L. 4/18/11, 6/1/11
Rader, M. 6/14/11
Richard, R. 4/11/11
Robbins, V. 6/1/11
Russell, B. 6/30/11
Schaffer, M. 3/8/11
Schroeder, J. 5/24/11
Sosnowitz, B. 5/12/11
Sherman, M. 3/2/11, 6/20/11
Smith, W. 3/4/11
Stainbrook, C. (Premium Industrial Parts) 3/21/11
Swearingen, V. 3/16/11
Tanenbaum, M. 5/23/11
Toglia, P. 3/31/11
Turner, A. 6/6/11
Traves, S. 5/26/11
Walker, S. 7/19/11
Walter, B. 7/21/11
Williams, G. 9/22/11
Wismer, R. 3/16/11
Woods, A. 6/3/11
Worthington, B. 8/3/11
Zelik, J. 4/5/11
Zieten, P. 3/2/11
Complainant received facsimile solicitations after Violation Date(s)
requesting no more be sent
Cho, S. 7/13/11
Izumi, J. 7/25/11
Jacobs, L. 5/23/11
According to publicly available information, Tim Gibbons is listed as the
president and contact person of National Employee Benefits Group. All
references in this NAL to National Employee Benefits Group also encompass
the foregoing individual, as well as the corporate entity itself.
Moreover, we note that National Employee Benefits Group appears to be
related to Benchmark Mortgage, in that Benchmark Mortgage manages and
oversees the financial programs and portfolios of the National Employee
Benefits Group, and both entities share Mr. Gibbons as a point of contact,
as well as the same physical address. See The Employee Benefits Group:
Important Notice to All Homeowners, Benchmarkmortgagebank.com,
(last visited Jan. 23, 2012).
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
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat.
2394 (1991) (codified at 47 U.S.C. S: 227). See also Junk Fax Prevention
Act of 2005, Pub. L. No. 109-21, 119 Stat. 359 (2005).
47 U.S.C. S: 227(b)(1)(C). The prohibition is subject to certain
exceptions, such as if the sender has an "established business
relationship" (EBR) with the recipient, and the sender obtained the
facsimile number from the recipient through voluntary communication in the
context of an EBR, or from a directory, advertisement, or website on which
the recipient voluntarily made its facsimile number available for public
distribution. In addition, the unsolicited ad must notify the recipient of
how to opt out of receiving future such ads, subject to certain
requirements. The Commission has adopted implementing rules. See 47 C.F.R.
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 who are not applicants for any
of those listed instrumentalities, for violations of the Act, the
Commission's rules, or the Commission's orders).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-10-TC-478, issued to
National Employee Benefits Group on October 22, 2010.
Our records indicate that National Employee Benefits Group acknowledged
receipt of the citation, as evidenced by a signed United States Postal
Service return receipt, Article Number 7008 0500 0000 9339 3528.
See Appendix for a listing of the consumer complaints against National
Employee Benefits Group requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
National Employee Benefits Group may form the basis of subsequent
See 47 U.S.C. S: 227(a)(5); 47 C.F.R. S: 64.1200(f)(13). The term
"unsolicited advertisement" means "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." Id.
See 47 C.F.R. S: 64.1200(a)(3)(i).
47 U.S.C. S: 503(b)(5).
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 17087, 17110
47 C.F.R. S: 1.80(b)(4) note.
47 U.S.C. S: 503(b)(2)(C). Section 503(b)(2)(C) provides for forfeitures
of up to $10,000 for each violation by an entity such as National Employee
Benefits Group. See 47 U.S.C. S: 503(b)(2)(C). 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). See also Amendment of Section 1.80(b) of the
Commission's Rules, Adjustment of Forfeiture Maxima to Reflect Inflation,
23 FCC Rcd 9845 (2008) (amendment of section 1.80(b) to reflect an
increase in the maximum forfeiture for this type of violator to $16,000).
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 FCC 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 Rcd 16,837, 16,842 (2000); 21st Century Fax(es) Ltd.,
AKA 20th Century Fax(es), 15 FCC Rcd 24,406, 24,411 (2000).
See Laser Technologies, Notice of Apparent Liability for Forfeiture, 26
FCC Rcd 10792 (2011).
Presidential Who's Who, Notice of Apparent Liability for Forfeiture, 26
FCC Rcd 8989 (2011) (Presidential Who's Who NAL). Since beginning to
adjust the forfeiture upward for multiple, repeated violations of our junk
fax rules, we have also proposed an adjustment of $75,000 for 62
violations. The Street Map Company, Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 8318 (2011).
The upward adjustment of $150,000 amounts to approximately $1,595 for each
of the 94 apparent violations at issue in this NAL that are not already
subject to upward adjustment (i.e., all of the violations except the three
for which we assess a $10,000 penalty). The combination of the base
forfeiture and the upward adjustment for each of the 94 violations is
therefore approximately $6,095.
Presidential Who's Who NAL, 26 FCC Rcd at 8994.
47 C.F.R. S: 1.80.
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Federal Communications Commission FCC 12-24
Federal Communications Commission FCC 12-24