Click here for Adobe Acrobat version

This document was converted from
WordPerfect or Word to ASCII Text format.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Adobe Acrobat version (above).


                          Before the
                    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-

                       FORFEITURE ORDER

Adopted:  January 9, 2002               Released:      January 
11, 2002

By the Commission:

                       I.   INTRODUCTION

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.

                        II.  BACKGROUND

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 

                     III.      DISCUSSION

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 
   provides that 

        It shall  be  unlawful for  any  person within  the 
        United States

        . .  .  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.

                       IV.   CONCLUSION

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 
   related orders. 

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.


                         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 
(Magrath Letter).

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.

12   Id.

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, 
316 (1945))). 

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.

23   Id.

24   Id. 

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 
administrative agencies.'')

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).