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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
21st Century Fax(es) Ltd. )
File No. EB-00-TC-174
a.k.a. 20th Century Fax(es) )
)
Apparent Liability for Forfeiture ) NAL/Acct. No.
X3217-009
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 4, 2000 Released:
December 7, 2000
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(NAL), we find that 21st Century Fax(es) Limited (21st Century
Fax)1 apparently willfully or repeatedly violated section 227
of the Communications Act of 1934, as amended (Act), and the
Commission's rules and orders, by sending unsolicited
advertisements to telephone facsimile machines on 152 separate
occasions.2 Based on the facts and circumstances surrounding
these apparent violations, we find that 21st Century Fax is
apparently liable for forfeiture in the amount of $1,107,500.3
II. BACKGROUND
2. On March 8, 2000, in response to several consumer
letters indicating that 21st Century Fax had sent unsolicited
advertisements to consumers' telephone facsimile machines, the
Commission staff issued a citation to 21st Century Fax,
pursuant to section 503(b)(5) of the Act.4 The staff cited
21st Century Fax for allegedly using a telephone facsimile
machine, computer, or other device to send unsolicited
advertisements to another telephone facsimile machine, in
violation of section 227 of the Act and the Commission's rules
and orders. The unsolicited advertisements offer consumers the
opportunity to vote on several opinion polls by calling certain
fax numbers at a cost of $2.95 per minute. The citation, which
the staff served by certified mail, return receipt requested,
informed 21st Century Fax that subsequent violations could
result in the imposition of monetary forfeitures of up to
$11,000 per violation and included copies of 14 consumer
letters that formed the basis of the citation. The citation
informed 21st Century Fax that within 21 days of the date of
the citation, it could either request a personal interview at
the nearest Commission field office, or could provide a written
statement responding to the citation. The Commission received
a signed return receipt evidencing 21st Century Fax's receipt
of the citation on March 17, 2000.
3. On March 20, 2000, the Commission received a written
response from 21st Century Fax in which the company stated that
its acts did not contravene the TCPA because all of the faxes
it sent allegedly originated outside of the United States.5 The
company submitted no proof supporting this claim, however. On
March 28, 2000, Commission staff met with representatives from
21st Century Fax at the company's request. During that
meeting, the staff again notified 21st Century Fax that it is
unlawful to send unsolicited advertisements to telephone
facsimile machines, as defined by the Telephone Consumer
Protection Act (TCPA) and the Commission's rules.6 In a letter
dated April 12, 2000, 21st Century Fax stated that it had
implemented a system that would allow fax recipients to delete
their names from its database and that it planned to resume
faxing advertisements, which it had temporarily ceased
following receipt of the citation.7
4. Despite the citation's warning that subsequent
violations could result in the imposition of monetary
forfeitures, the Commission received several consumer letters
stating that 21st Century Fax had continued to engage in such
conduct after receiving the citation.8 We base our action here
on this information from consumers alleging that 21st Century
Fax sent unsolicited advertisements on or after March 8, 2000.9
5. The Koch Industries Letter. Janet L. Heck, Attorney
for Koch Industries, Inc. (Koch), states that 21st Century Fax
faxed 78 unsolicited advertisements to Koch from May 15, 2000
to July 12, 2000.10 Ms. Heck states that after receiving the
unsolicited advertisement on May 15, 2000, and before June 22,
2000, Koch employees called 21st Century Fax and requested that
21st Century Fax remove Koch's fax numbers from their database.
Ms. Heck further states that Koch employees received a message
that Koch's fax number would be removed within 7 to 10 days.
Despite 21st Century Fax's response, Ms. Heck states that the
company continued to fax unsolicited advertisements to Koch.
Ms. Heck further states that employees contacted the website
registrant for 21st Century, AT&T, ICN Corporation,11 Bell
Atlantic (now Verizon Communications) and Southwestern Bell
(now SBC Telecommunications, Inc.) in order to obtain
information about 21st Century Fax. Ms. Heck states that Koch
then sent a letter to ICN on June 23, 2000 requesting that they
cease transmission of the unsolicited facsimile advertisements.
Ms. Heck states that on July 5, 2000 Koch received a letter
from 21st Century Fax indicating that Koch's numbers were
deleted from its database. Despite this response, Koch
continued to receive unsolicited facsimile advertisements.12
Koch subsequently contacted the Federal Bureau of Investigation
(FBI) and requested its assistance. The FBI contacted the
Commission regarding Koch's complaint. Ms. Heck states that
neither she nor anyone else at Koch ever gave 21st Century Fax
permission or an invitation to send these advertisements, and
that Koch does not have an established business relationship
with 21st Century Fax.13
6. The I.E.C.C. Letter. John Levine, Owner, I.E.C.C.,
states that 21st Century Fax sent 5 unsolicited advertisements
to I.E.C.C.'s fax machine on May 27, 2000, June 8, 2000, July
17, 2000, August 2, 2000, and September 7, 2000.14 Mr. Levine
states that neither he nor anyone else at I.E.C.C. authorized
21st Century Fax to send the advertisements and that I.E.C.C.
does not have an established business relationship with 21st
Century Fax.
7. The Honorable Bob Goodlatte Letter. Representative
Bob Goodlatte, Member (Virginia), U.S. House of
Representatives, states that 21st Century Fax sent an
unsolicited advertisement to his Roanoke District Office fax
machine in October 2000.15 Representative Goodlatte states
that neither he nor anyone else at his Roanoke District Office
gave 21st Century Fax prior express permission or invitation to
send advertisements to his fax machine and that he does not
have an established business relationship with 21st Century
Fax. Representative Goodlatte previously requested Commission
action in December 1999 stating that 21st Century Fax sent
unsolicited advertisements to his home fax machine in September
1999 and in December 1999.16
8. The other faxes. The remaining consumer letters
supporting this NAL are factually similar to the allegations in
the consumer letters described above.17 In each case, the
consumer states that 21st Century Fax used a telephone
facsimile machine to send an unsolicited advertisement to the
consumer's telephone facsimile machine. In each case, the
consumer states that 21st Century Fax (a) was not authorized to
send the unsolicited facsimile to the consumer's fax machine,
and (b) does not have an established business relationship with
the consumer.
III. DISCUSSION
A. Violations Evidenced in the Letters.
9. Section 227(b)(1)(C) of the Act prohibits any person
from using ``a telephone facsimile machine, computer, or other
device to send an unsolicited advertisement to a telephone
facsimile machine.''18 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.''19 The Commission has determined,
however, that an established business relationship demonstrates
consent to receive telephone facsimile advertisement
transmissions.20 The mere distribution or publication of a
telephone facsimile number does not confer invitation or
permission to transmit advertisements to a particular telephone
facsimile machine.21
10. As discussed above, each facsimile transmission upon
which this NAL is based offered consumers the opportunity to
participate in a poll at a cost of $2.95 per minute. We find
that these facsimiles clearly fall within the definition of an
``advertisement.'' Additionally, 21st Century Fax appears to
have sent each facsimile transmission without the prior express
invitation or permission of the recipient. The record
indicates that none of the consumers at issue had an
established business relationship with 21st Century Fax. The
record further indicates that 21st Century Fax continued to
send facsimiles to one consumer who specifically requested that
21st Century Fax refrain from sending additional unsolicited
facsimiles. Such evidence, along with the consumers'
declarations, demonstrates that 21st Century Fax did not have
any prior express permission or invitation to send the
facsimile transmissions.
B. Forfeiture Amount.
11. We conclude that 21st Century Fax apparently
willfully or repeatedly violated the Act and the Commission's
rules and orders by using a telephone facsimile machine to send
unsolicited advertisements to other telephone facsimile
machines. 21st Century Fax apparently did not cease its
unlawful conduct even after the Commission staff issued a
citation warning that it was engaging in unlawful conduct and
could be subject to monetary forfeitures.22 Accordingly, a
proposed forfeiture is warranted against 21st Century Fax for
its apparent willful or repeated violations of section 227 of
the Act and of the Commission's rules and orders regarding the
faxing of unsolicited advertisements.
12. 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.23
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.''24
13. Although the Commission's Forfeiture Policy Statement
does not establish a base forfeiture amount for violating the
prohibition on using a telephone facsimile machine to send
unsolicited advertisements, we have previously considered
$4,500 per unsolicited fax advertisement as an appropriate base
amount.25 We apply that base amount to each of 75 of the
apparent violations. We find that the other 77 apparent
violations justify a higher proposed forfeiture because Koch
specifically notified 21st Century Fax to cease its unlawful
conduct and refrain from faxing additional unsolicited
advertisements, but 21st Century Fax willfully and repeatedly
continued to do so. We believe that assessing a higher
forfeiture amount is warranted based on the nature and gravity
of the violations and the continued need to ensure compliance
with section 227 of the Act and the Commission's rules and
orders.26 Accordingly, for 77 of its 78 apparent violations
involving Koch, we find 21st Century Fax apparently liable in
the amount of $10,000 for each such violation.27 This results
in a proposed total forfeiture of $1,107,500. 21st Century Fax
shall 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.28
IV. CONCLUSION AND ORDERING CLAUSES
14. We have determined that 21st Century Fax apparently
violated section 227 of the Act and the Commission's rules and
orders by using a telephone facsimile machine, computer, or
other device to send the 152 unsolicited advertisements
identified above. We have further determined that 21st Century
Fax is apparently liable for forfeitures in the amount of
$1,107,500.
15. Accordingly, IT IS ORDERED, pursuant to section
503(b)(5) of the Act, as amended, 47 U.S.C. § 503(b)(5), and
section 1.80 of the Commission's rules, 47 C.F.R. § 1.80, that
21st Century Fax(es) Ltd. IS HEREBY NOTIFIED of an Apparent
Liability for Forfeiture in the amount of $1,107,500 for
willful or repeated violations of section 227(b)(1)(C) of the
Act, 47 U.S.C. § 227(b)(1)(C), sections 64.1200(a)(3) and
64.1200(f)(5) of the Commission's rules, 47 C.F.R. §§
64.1200(a)(3), 64.1200(f)(5), and the related orders described
in the paragraphs above.
16. IT IS FURTHER ORDERED, pursuant to section 1.80 of
the Commission's rules, 47 C.F.R. § 1.80, that within thirty
(30) days of the release of this Notice, 21st Century Fax(es)
Limited SHALL PAY the full amount of the proposed forfeiture29
OR SHALL FILE a response showing why the proposed forfeiture
should not be imposed or should be reduced.
17. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture SHALL BE SENT by certified
mail to 21st Century Fax(es) Limited, 532 LaGuardia Place, PMB
201, New York, New York 10012.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Se-
cretary
Attachment A
(1) Janet L. Heck, Attorney for Koch Industries, Inc. (Koch),
Request for Commission Action (July 16, 2000) (stating that
Koch received 78 unsolicited facsimile advertisements from
21st Century Fax);
(2) Brian A. Twitchell, Owner of C-Prompt Computer Service (C-
Prompt), Request for Commission Action (May 26, 2000)
(stating that C-Prompt received 2 unsolicited advertisements
by fax from 21st Century Fax on May 3, 2000, and May 17,
2000);
(3) William D. Schneider, Request for Commission Action (July
12, 2000) (stating that 21st Century Fax used a telephone
facsimile machine to send 1 unsolicited advertisement to his
fax machine on June 7, 2000);
(4) John Levine, Owner, I.E.C.C., Request for Commission
Action (August 3, 1999) (stating that 21st Century Fax faxed
5 unsolicited advertisements to I.E.C.C's fax machine on May
27, 2000, June 8, 2000, July 17, 2000, August 2, 2000 and
September 7, 2000);
(5) Lawrence N. Finch, Request for Commission Action (June 21,
2000) (stating that he received 3 unsolicited advertisements
by facsimile from 21st Century Fax on June 20, 2000, In July
2000, and on August 15, 2000);
(6) Janice Singleton, Ad Review Specialist, Better Business
Bureau of Asheville and Western North Carolina (Better
Business Bureau), Request for Commission Action (May 26,
2000, September 12, 2000) (stating that the Better Business
Bureau received 4 unsolicited advertisements from 21st
Century Fax on May 11, 2000, May 19, 2000, August 21, 2000
and September 12, 2000);
(7) Jeffrey C. Honig, Request for Commission Action (July 10,
2000, July 31, 2000) (stating that 21st Century Fax used a
telephone facsimile machine to send 3 unsolicited
advertisements to his fax machine on June 19, 2000, July 26,
2000 and in August 2000);
(8) Fred Gottfried, President, Ashland Scale Company, Inc.
(ASCI), Request for Commission Action (August 17, 2000)
(stating that 21st Century Fax used a telephone facsimile
machine to send 1 unsolicited advertisement to ASCI's fax
machine on August 15, 2000);
(9) David Riggs, Computer Specialist, Smithsonian Institute-
Office of Information Technology (SIOIT), Request for
Commission Action (May 10, 2000) (stating that 21st Century
Fax used a telephone facsimile machine to send 2 unsolicited
advertisements to SIOIT's fax machine on April 20, 2000 and
May 3, 2000);
(10) Samuel J. Semel, President, Chemung Electronics,
Inc., Request for Commission Action (July 12, 2000) (stating
that 21st Century Fax used a telephone facsimile machine to
send 2 unsolicited advertisements to Chemung Electronics
Inc.'s fax machine in July 2000 and on September 13, 2000);
(11) Ronald J. Gadow, Owner, Hemingway Printers, Inc.,
Request for Commission Action (July 13, 2000) (stating that
21st Century Fax used a telephone facsimile machine to send
1 unsolicited advertisement to Hemingway Printers, Inc's fax
machine on July 7, 2000);
(12) T.A. Wells, Request for Commission Action (May 15,
2000) (stating that 21st Century Fax used a telephone
facsimile machine to send 1 unsolicited advertisement to his
fax machine in May 2000);
(13) George J. Rocheleau, Request for Commission Action
(May 22, 2000) (stating that 21st Century Fax used a
telephone facsimile machine to send 1 unsolicited
advertisement to his fax machine in May 2000);
(14) Robert Chartener, Request for Commission Action (July
10, 2000) (stating that 21st Century Fax used a telephone
facsimile machine to send 1 unsolicited advertisement to his
fax machine on June 30, 2000);
(15) Tony Leonhardt, Request for Commission Action (July
24, 2000) (stating that 21st Century Fax used a telephone
facsimile machine to send 1 unsolicited advertisement to his
fax machine on July 18, 2000);
(16) Judith L. Morgan, Owner, Morgan & Associates, Request
for Commission Action (September 6, 2000) (stating that 21st
Century Fax used a telephone facsimile machine to send 4
unsolicited advertisements to Morgan & Associates' fax
machine on June 30, 2000, August 7, 2000, August 10, 2000
and September 12, 2000);
(17) James N. Falkenberg, Request for Commission Action
(August 10, 2000) (stating that 21st Century Fax used a
telephone facsimile machine to send 2 unsolicited
advertisements to his fax machine in July 2000);
(18) Thomas J. Mott, Request for Commission Action (August
7, 2000) (stating that 21st Century Fax used a telephone
facsimile machine to send 5 unsolicited advertisements to
his fax machine in July 2000 and September 2000);
(19) Lewis Rosenberger, Regional Manager, KSB, Inc.,
Request for Commission Action (July 6, 2000, August 2, 2000
and October 1, 2000) (stating that 21st Century Fax used a
telephone facsimile machine to send 5 unsolicited
advertisements to KSB's fax machine on June 28, 2000, June
29, 2000, July 31, 2000, September 26, 2000 and September
28, 2000);
(20) Carmen M. McGee, Request for Commission Action
(August 22, 2000) (stating that 21st Century Fax used a
telephone facsimile machine to send 4 unsolicited
advertisements to her fax machine on August 10, 2000, August
15, 2000, September 15, 2000 and September 20, 2000);
(21) Arthur K. Salomon, Request for Commission Action
(September 6, 2000) (stating that 21st Century Fax used a
telephone facsimile machine to send 2 unsolicited
advertisements to his fax machine in August 2000 and on
September 12, 2000);
(22) Roger Arrick, Owner, Arrick Robotics, Request for
Commission Action (May 31, 2000, July 28, 2000) (stating
that 21st Century Fax used a telephone facsimile machine to
send 3 unsolicited advertisements to Arrick Robotic's fax
machine in May 2000, July 2000 and September 2000);
(23) Susan Ajemian, Property Administrator, The Regency
Group, Inc. (TRGI), Request for Commission Action (May 8,
2000, September 21, 2000) (stating that 21st Century Fax
used a telephone facsimile machine to send 4 unsolicited
advertisements to TRGI's fax machine in May 2000, on May 5,
2000, on September 20, 2000 and on October 26, 2000);
(24) Larry Steiner, General Manager, Spectrum Home
Entertainment (Spectrum), Request for Commission Action
(July 3, 2000) (stating that 21st Century Fax used a
telephone facsimile machine to send 1 unsolicited
advertisement to Spectrum's fax machine in June 2000);
(25) Tom Mulhern, Request for Commission Action (June 6,
2000) (stating that 21st Century Fax used a telephone
facsimile machine to send 2 unsolicited advertisements to
his fax machine on May 24, 2000 and June 1, 2000);
(26) Francis M. Simonds, Jr., Request for Commission
Action (September 6, 2000) (stating that 21st Century Fax
used a telephone facsimile machine to send 1 unsolicited
advertisement to his fax machine in August 2000);
(27) Dennis J. Blahofski, President, db enterprise,
Request for Commission Action via Avonne M. Seals, Assistant
Attorney General, Office of the Illinois Attorney General,
(May 24, 2000) (stating that 21st Century Fax used a
telephone facsimile machine to send 1 unsolicited
advertisement to db enterprise's fax machine in May 2000);
(28) Warren Ford, Owner, The Mail Center (TMC), Request
for Commission Action (August 22, 2000) (stating that 21st
Century Fax used a telephone facsimile machine to send 1
unsolicited advertisement to TMC's fax machine in August
2000);
(29) Jack Crobaugh, President, Jack Crobaugh & Associates
(JC&A), Request for Commission Action, (May 26, 2000)
(stating that 21st century fax used a telephone facsimile
machine to send 2 unsolicited advertisements to JC&A's fax
machine on May 10, 2000 and May 23, 2000);
(30) Mrs. John R. Dixon, Request for Commission Action
(August 16, 2000) (stating that 21st Century Fax used a
telephone facsimile machine to send 1 unsolicited
advertisement to her fax machine on July 27, 2000);
(31) Ygal Giramberk, Owner, Corporate International
Operations, Request for Commission Action (June 23, 2000)
(stating that 21st Century Fax used a telephone facsimile
machine to send 1 unsolicited advertisement to Corporate
International Operations' fax machine in June 2000);
(32) James L. McCormick, Request for Commission Action
(August 1, 2000) (stating that 21st Century Fax used a
telephone facsimile machine to send 2 unsolicited
advertisement to his fax machine in July 2000);
(33) Dewitt Foster, Owner, Stockbrokers Training School
(STS), Request for Commission Action (July 23, 2000)
(stating that 21st Century Fax used a telephone facsimile
machine to send 1 unsolicited advertisement to STS' fax
machine in June 2000);
(34) Mark A. Kruchowsky, Owner, Animal Aid Veterinary
Medical Center (AAVMC), Request for Commission Action (July
5, 2000) (stating that 21st Century Fax used a telephone
facsimile machine to send 1 unsolicited advertisement to
AAVMC's fax machine on June 20, 2000);
(35) Vernon J. Schryver, Request for Commission Action
(June 11, 2000, July 24, 2000) (stating that 21st Century
Fax used a telephone facsimile machine to send 3 unsolicited
advertisements to his fax machine on June 5, 2000, July 24,
2000 and September 5, 2000);
(36) Kevin Orlin Johnson, President, Pangaeus Companies,
Request for Commission Action (June 20, 2000) (stating that
21st Century Fax used a telephone facsimile machine to send
1 unsolicited advertisement to Panageus Companies' fax
machine in June 2000); and
(37) The Honorable Bob Goddlatte, Member (Virginia), U.S.
House of Representatives, Request for Commission Action (
October 24, 2000) (stating that 21st Century Fax used a
telephone facsimile machine to send 1 unsolicited
advertisement to his Roanoke District Office fax machine in
October 2000).
_________________________
1 21st Century Fax(es) Ltd. lists several addresses on its
faxes including 532 LaGuardia Place, PMB 201, New York, New
York 10012 and 331 West 57th Street, New York, NY 10019.
According to Dun & Bradstreet Business Information Report, 21st
Century Fax's address is 260 Hillsdale Ave, Santa Clara,
California 95051. See Dun & Bradstreet Business Information
Report, October 4, 2000.
2 See 47 U.S.C. § 227; 47 C.F.R. § 64.1200(a)(3); see also
Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, Report and Order, 7 FCC Rcd 8752, 8779,
¶ 54 (1995) (TCPA Report and Order) (stating that Section 227
of the Act prohibits the use of telephone facsimile machines to
send unsolicited advertisements).
3 47 U.S.C. § 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. § 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 is not a
common carrier so long as (A) such person 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 resident; and (C) subsequently engages in
conduct of the type described in the citation).
4 See 47 U.S.C. § 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).
5 Section 227(b)(1)(c) of the Act provides that ``[i]t shall
be unlawful for any person within the United States'' to send
unsolicited fax advertisements. (Emphasis added.)
6 See 47 U.S.C. § 227; 47 C.F.R. § 64.1200(a)(3).
7 Letter from Miss Sarah Lee, Call Centre Manager, 21st
Century Fax Ltd., dated April 12, 2000. During the March 8,
2000 meeting with the Commission staff, 21st Century Fax stated
that it had temporarily stopped its transmission of faxes after
receiving the citation.
8 See Attachment A.
9 We note that evidence of additional instances of unlawful
conduct by 21st Century Fax may form the basis of subsequent
enforcement action.
10 See Declaration of Janet Heck, Attorney, Koch Industries,
Inc. Ms. Heck states that Koch received unsolicited
advertisements via facsimile from 21st Century Fax on the
following dates: (1) one on May 15, 2000; (2) ten on June 22,
2000 between 9:48 a.m. and 2:04 p.m.; (3) thirteen on June 23,
2000 between 10:02 a.m. and 4:15 p.m.; (4) nineteen on June 26,
2000 between 10:00 am and 6:19 p.m.; (5) eight on June 27, 2000
between 8:00 am and 1:17 p.m.; (6) three on June 28, 2000
between 9:17 a.m. and 12:20 p.m.; (7) one on June 29, 2000 at
approximately 10:52 a.m.; (8) two on July 6, 2000 between 5:00
p.m. and 6:21 p.m.; (9) seven on July 7, 2000 between 8:54 a.m.
and 5:50 p.m.; (10) six on July 10, 2000 between 10:54 a.m. and
4:10 p.m.; (11) six on July 11, 2000 between 12:21 p.m. and
6:52 p.m.; and (12) two on July 12, 2000 between 8:24 a.m. and
9:19 a.m.
11 In the Citation issued to 21st Century Fax, the Commission
notes that it obtained information indicating that ICN
Corporation (ICN) is the subscriber for 1-800-606-5720, an opt-
out number that appears on 21st Century Fax's advertisements.
The Commission further notes that ICN is listed as the customer
of the 800 number account in the underlying carrier's business
customer database.
12 Id.
13 Id.
14 See Declaration of John Levine, Owner, I.E.C.C.
15 See Declaration of The Honorable Bob Goodlatte, Member,
U.S. House of Representatives, State of Virginia.
16 For purposes of this NAL, a forfeiture amount is only
proposed for the unsolicited facsimile advertisement received
by Representative Bob Goodlatte after Match 8, 2000, the date
the Commission issued a citation to 21st Century Fax.
17 See Attachment A (listing the consumer letters that form
the basis for this NAL). We have obtained declarations from
all consumers listed in Attachment A.
18 47 U.S.C. § 227(b)(1)(C). Section 227 defines a telephone
facsimile machine as ``equipment which has the capacity (A) to
transcribe text or images, or both, from paper into an
electronic signal and to transmit that signal over a regular
telephone line, or (B) to transcribe text or images (or both)
from an electronic signal received over a regular telephone
line onto paper.'' Id. § 227(a)(2). This blanket prohibition
applies to all unsolicited advertisements transmitted by
telephone facsimile machines. The Act does not permit the
sending of unsolicited advertisements by facsimile to either
business or residential telephone facsimile machines.
19 47 C.F.R. § 64.1200(f)(5).
20 See Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Memorandum Opinion and Order,
10 FCC Rcd 12391, 12408, ¶ 37 (1995) (TCPA Memorandum Opinion
and Order).
21 Id.
22 Although 21st Century Fax asserted in its response to the
citation that its conduct did not violate section 227 because
none of its faxes originate within the United States, it has
yet to submit any proof in support of this claim. In the
absence of any record on this issue, we are not in a position
to evaluate any hypothetical legal and factual issues that may
be raised by facsimiles originating outside the United States.
23 Section 503(b)(2)(C) provides for forfeitures up to
$10,000 for each violation by cases not covered by
subparagraphs (A) or (B), which address forfeitures for
violations by licensees and common carriers, among others. See
47 U.S.C. § 503(b). The Commission amended its rules by adding
a new subsection to its monetary forfeiture provisions that
incorporates by reference the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996, Pub.
L. 104-134, Sec. 31001, 110 Stat. 1321, enacted on April 26,
1996. Thus, the maximum statutory forfeiture pursuant to
section 503(b)(2)(C) increased from $10,000 to $11,000. See
Amendment of Section 1.80 of the Commission's Rules, 12 FCC Rcd
1038 (1997).
24 47 U.S.C. § 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, 17152-17101, ¶ 27 (1997), recon. denied, 15 FCC Rcd
303 (1999) (Forfeiture Policy Statement).
25 See Get-Aways, Inc., Notice of Apparent Liability For
Forfeiture, 15 FCC Rcd. 1805 (1999); Get-Aways, Inc, Forfeiture
Order, FCC 00-67 (released March 2, 2000); see also Tri-Star
Marketing, Inc., Notice of Apparent Liability For Forfeiture,
FCC 00- 219 (released June 22, 2000).
26 See Tri-Star Marketing, Inc., Notice of Apparent Liability
For Forfeiture, FCC 00- 219 (released June 22, 2000).
27 Id.
28 See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).
29 The forfeiture amount should be paid by check or money
order drawn to the order of the Federal Communications
Commission. Reference should be made on 21st Century Fax,
Inc.'s check or money order to ``NAL/Acct/ No. X3217-009.''
Such remittances must be mailed to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482.