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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) )
) NAL/Acct. No. X3217-009
Apparent Liability for Forfeiture ) FRN: 0006-
Adopted: January 9, 2002 Released: January
By the Commission:
1. In this Order, we issue a monetary forfeiture in the
amount of $1,107,500 against 21st Century Fax(es) Limited
(21st Century)1 for willfully or repeatedly violating
section 227 of the Communications Act of 1934, as amended
(the Act), and the Commission's rules and orders.2 21st
Century sent unsolicited advertisements to telephone
facsimile machines on 152 separate occasions.
2. On March 8, 2000, the Commission staff issued a
citation to 21st Century, pursuant to section 503(b)(5) of
the Act.3 The staff cited 21st Century 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(b)(1)(C) of
the Act and the Commission's rules and orders. 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
had continued to engage in such conduct after receiving the
citation. On December 7, 2000 the Commission released a
Notice of Apparent Liability for Forfeiture against 21st
Century that proposed a forfeiture amount of $1,107,500 for
152 separate violations.4 Commission rules provide that a
cited party must either respond to the NAL or pay the full
amount of the proposed forfeiture within 30 days of issuance
of an NAL. 5 On December 14, 2000, 21st Century Fax
responded to the NAL.6
3. The Commission may impose a forfeiture penalty upon any
person who it determines, by a preponderance of the
evidence, to have willfully or repeatedly failed to comply
with any of the provisions of the Act, or any rule or order
issued by the Commission under the Act.7 In its Response,
21st Century argues: (1) that it is not subject to the
Telephone Consumer Protection Act (TCPA) because its faxes
are sent from the United Kingdom (UK) or, alternatively,
because the company itself is located in the UK; and (2)
that the TCPA violates the First Amendment to the United
States Constitution. We have reviewed and investigated the
information provided by 21st Century to determine whether a
forfeiture penalty is warranted by a preponderance of the
evidence. As discussed below, we reject 21st Century's
arguments and issue a monetary forfeiture in the amount of
$1,107,500 against the company.
A. Applicability of the TCPA to Foreign Entities and Faxes
Sent from Foreign Locations
4. The TCPA prohibits ``any person within the United
States'' from sending unsolicited fax advertisements.8 21st
Century argues that it has not violated the TCPA both
because its faxes originate in the UK and because the TCPA
does not apply to faxes that originate outside the United
States.9 21st Century also suggests that even if its faxes
were sent from the United States, it is not liable under the
TCPA because it is foreign-owned, registered, and located.10
As proof of its assertion that its faxes are sent from
overseas, 21st Century provided long distance telephone
invoices and telephone bills on CD-ROMs dating from July
through September 2000. 21st Century states that this
evidence shows that its fax calls originate in the UK.11
21st Century points to language in the TCPA that prohibits
``any person within the United States'' from sending
unsolicited facsimile advertisements and claims that the
Commission may not enforce the TCPA and issue a monetary
forfeiture against the company because its faxes were not
sent by a ``person within the United States.''12
5. We disagree with 21st Century's arguments. The TCPA
It shall be unlawful for any person within the
. . . to use any telephone facsimile machine,
computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine.''13
We believe that this statutory language covers faxes sent to
the United States from foreign points so long as the company
has a presence within the United States. In this regard, the
phrase ``within the United States'' modifies ``any person''14
and thus specifies the location of the ``person'' that engages
in prohibited faxing rather than the originating and
terminating points of the faxes themselves. Congress could
have written the statute to say that the device used to send
the fax must be located in the United States, as 21st Century
would read the language, but it did not. Rather, consistent
with the private right of action permitted in state court to
enforce the statute, 47 U.S.C. § 227(b)(3), Congress focused
on the violator having a presence in the United States such
that the state courts would have personal jurisdiction.
Interpreting the statute to cover international faxes if the
person doing the faxing has a presence in the United States is
consistent with the broad jurisdictional scope of the
Communications Act which was adopted for the purpose of
regulating ``all interstate and foreign communication by wire
or radio . . . .''15 Accordingly, we conclude that the TCPA
prohibits the faxing of unsolicited advertisements either to
or from the United States by any entity that is located
``within the United States.'' Moreover, the term ``person''
in Section 227(b)(1) includes the individual who actually
performs the faxing as well as the corporate entity on whose
behalf he or she is acting.16
6. Contrary to 21st Century's suggestion, its status as a
foreign-registered and controlled company with its principal
place of business in the UK does not preclude a finding that
the company also is ``within the United States.'' The U.S.
Supreme Court has determined that certain minimum contacts
and activities that are systematic and continuous establish
an entity's presence within a locality for jurisdictional
purposes.17 21st Century admits that it has agents,
employees, and offices in the United States and that it
regularly faxes advertisements or ``polls'' to United States
consumers.18 Consumers who choose to respond to 21
Century's ``polls'' lodge their responses by calling
interstate 900 numbers operated by 21st Century.19 In
addition, 21st Century's faxes offer recipients two means to
remove their fax numbers from the company's distribution
list:20 a New York City telephone number and an 800 number
that is operated by ICN Corporation, which is located in
Delray Beach, Florida.21 For over two years, 21st Century
has solicited business by sending faxes throughout the
United States. Its conduct within the United States makes
it foreseeable that it may be subject to suits and
enforcement actions under the TCPA. 21st Century has
continuous contacts with United States consumers, and these
contacts, along with its staff, establish its presence
within the country. As such, 21st Century is ``within the
United States,'' and Section 227 of the Act is applicable to
B. First Amendment Issue
7. 21st Century also contends that the TCPA violates the
free speech guarantee of the First Amendment to the United
States Constitution.22 The company argues that unsolicited
fax advertisements are less intrusive than other forms of
advertisements such as telephone calls and direct mail and
that the cost of receiving an unsolicited fax advertisement
should not be placed above First Amendment rights.23 21st
Century Fax also states that unsolicited fax advertisements
produce more complaints because of the cost to the
recipient, which 21st Century estimates at 2 cents per fax.
The company states that the ``TCPA legislation as regards
the advertising fax is denying the majority what they want
and giving in to the stingy minority purely because they
shout louder than the majority over this matter of 2
8. Federal courts have previously considered similar
arguments. The Court of Appeals for the Ninth Circuit, for
example, has determined that the TCPA does not violate the
First Amendment's protection of commercial speech.25
Moreover, administrative agencies are to presume that the
statutes that Congress directs them to implement are
constitutional.26 Accordingly, we reject 21st Century's
arguments in this regard.
9. After reviewing the information filed by 21st Century
Fax in its Response, we find that it has failed to identify
facts or circumstances that persuade us that that there is
any basis for reducing or rescinding the forfeiture proposed
in the NAL. We therefore issue a monetary forfeiture in the
amount of $1,107,500 against 21st Century Fax(es) Limited
for willfully or repeatedly violating section 227(b)(1)(C)
of the Act and the Commission's rules and orders.27
V. ORDERING CLAUSES
10. 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) Limited IS LIABLE FOR A MONETARY
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), section 64.1200(a)(3) of the
Commission's rules, 47 C.F.R. § 64.1200(a)(3), and the
11. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Commission's Rules
within 30 days of the release of this Order.28 If the
forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection
pursuant to section 504(a) of the Act.29 Payment may be
made to the Commission's Credit and Debt Management Center
by mailing a check or similar instrument, payable to the
order of the Federal Communications Commission, to the
Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. The payment MUST INCLUDE the FCC
Registration Number (FRN) referenced above, and also should
note the NAL/Acct. No. referenced above.
12. IT IS FURTHER ORDERED that a copy of this Forfeiture
Order SHALL BE SENT by certified mail to Gordon Ritchie,
21st Century Fax(es) Limited, 20 Bourne Court, Southend
Road, Woodford Green, Essex, IG8 8HD.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
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. The
company, through its British solicitors, has acknowledged
having staff at 138 West Houston Street, New York, NY 10012.
See Letter from Magrath & Co., Solicitors, to Kurt A.
Schroeder, Deputy Chief, Telecommunications Consumers
Division, Enforcement Bureau, at 2, dated March 16, 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 Letter from Kurt A. Schroeder to 21st Century Fax(es)
Ltd. et. al dated March 8, 2000 (Citation); see also 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).
4 See 21st Century Fax, Notice of Apparent Liability For
Forfeiture, FCC 00-425 (released December 7, 2000) (NAL).
5 47 C.F.R. § 1.80.
6 See Letter from Gordon Ritchie, 21st Century Faxes Ltd.,
to Catherine Seidel, Chief, Telecommunications Consumers
Division, Enforcement Bureau, dated December 10, 2000
7 47 U.S.C. § 503. See, e.g., Tuscola Broadcasting Co.,
Memorandum Opinion and Order, 76 FCC 2d 367, 371 (1980)
(applying preponderance of the evidence standard in reviewing
Bureau level forfeiture order). Cf. 47 U.S.C. § 312(d)
(assigning burden of proof in hearings to Commission).
8 47 U.S.C. § 227(b)(1)(C).
9 Response at 2-3.
10 Response at 3 (``[W]e could actually have fax
broadcasting machines in the US as long as we ourselves were
in the UK, which we are.'')
11 Id. at 2-3.
13 47 U.S.C. § 227(b)(1)(C).
14 Section 3 of the Act defines ``person'' as ``an
individual, partnership, association, joint-stock company,
trust, or corporation.'' 47 U.S.C. § 153(32). We find that
21st Century is a ``person'' within this definition.
15 47 U.S.C. § 151. See also 47 U.S.C. § 152(a) (``The
provisions of this act shall apply to all interstate and
foreign communications by wire or radio and all interstate and
foreign transmission of energy by radio, which originates
and/or is received within the United States. . . .''). The
TCPA also covers intrastate communications. 47 U.S.C. §
152(b); 47 U.S.C. § 227(e), (f).
16 See fn. 14, supra. Furthermore, section 217 of the Act
provides that ``[i]n construing and enforcing the provisions
of this Act, the act, omission, or failure of any officer,
agent, or other person acting for or employed by any common
carrier or user, acting within the scope of his employment,
shall in every case be also deemed to be the act, omission, or
failure of such carrier or user as well as that of the
person.'' 47 U.S.C. § 217 (emphasis added).
17 See International Shoe Co. v. State of Washington, 326
U.S. 310 (1945) (International Shoe) (finding that a company
incorporated in Delaware with its principal place of business
in Missouri was subject to jurisdiction of Washington State
because of its significant and continuous activities within
the state); see also Burnham v. Superior Court of California,
County of Marin, 495 U.S. 604, 605-18 (1990); Kernan v. Kurz-
Hastings, 175 F.3d 236, 242-4 (2d. Cir. 1999) (Kernan). In
Kernan, the court found it was reasonable and consistent with
due process to subject a foreign manufacturing company that
was organized under the laws of Japan and did not transact or
solicit business in New York, to personal jurisdiction in New
York. The court found that the company had sufficient minimum
contacts with New York to support jurisdiction, stating that
the due process clause ``permits a state to exercise personal
jurisdiction over a non-resident defendant with whom it has
`certain minimum contacts ... such that the maintenance of the
suit does not offend traditional notions of fair play and
substantial justice.''' 175 F.3d at 242 (citing Calder v.
Jones, 465 U.S. 783, 788 (1984) (quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940) and International Shoe, 326 U.S. 310,
18 See Response at 2-3; Magrath Letter at 2. At the
company's request, the Commission staff held a teleconference
with 21st Century's New York City staff on March 28, 2000.
19 See NAL at ¶ 10.
20 As we have noted previously, some consumers have
continued to receive 21st Century's faxes after following
instructions for removing their fax numbers and even after
receiving a message that no more faxes would be sent. NAL at
21 See Citation at 4; NAL at n. 11.
22 Response at 4-5.
25 See Destination Ventures v. FCC, 46 F.3d 54, 55-57 (9th
Cir. 1995). The Court determined that the TCPA's ban on
unsolicited fax advertisements does not violate the
advertiser's First Amendment rights given that the TCPA
restrictions reasonably fit the government's interest in
preventing the shifting of advertisement costs to consumers.
See also Kenro, Inc. v. Fax Daily, Inc., 962 F.Supp. 1162,
1167-69 (S.D. Ind. 1997). The Court determined in Kenro that
the TCPA's ban on unsolicited fax advertisements is narrowly
tailored to achieve the government's intended purpose and does
not violate the First Amendment guarantee of commercial free
26 Johnson v. Robison, 415 U.S. 361, 368 (1974) quoting
Oestereich v. Selective Service Board, 393 U.S. 233, 242
(1968) (Harlan, J., concurring in result) (``Adjudication of
the constitutionality of congressional enactments has
generally been thought beyond the jurisdictions of
27 See 47 U.S.C. § 227; 47 C.F.R. § 64.1200(a)(3); see also
TCPA Report and Order, 7 FCC Rcd 8752, 8779 ¶ 54 (1995).
28 47 C.F.R. § 1.80(f)(4).
29 47 U.S.C. § 504(a).