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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
ELF PAINTING AND WALLPAPERING ) File No. EB-03-TC-004
) NAL/Acct. No. 200432170003
)
Apparent Liability for ) FRN 0012251880
Forfeiture )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: November 30, 2004 Released:
December 1, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability For Forfeiture
(?NAL?)1, we find that Elf Painting and Wallpapering (?Elf?)2
apparently willfully or repeatedly violated section 227 of the
Communications Act of 1934, as amended (?Act?), and the
Commission's rules and orders by delivering unsolicited
advertisements to the telephone facsimile machines of at least
five consumers.3 Based on the facts and circumstances
surrounding these apparent violations, we find that Elf is
apparently liable for a forfeiture in the amount of $22,500.
II. BACKGROUND
2. On February 4, 2003, in response to a consumer
complaint alleging that Elf had faxed an unsolicited
advertisement, the Commission staff issued a citation4 to Elf,
pursuant to section 503(b)(5) of the Act.5 The staff cited Elf
for allegedly using a telephone facsimile machine, computer, or
other device, to send unsolicited advertisements to a telephone
facsimile machine, in violation of section 227 of the Act and the
Commission's rules and orders. According to the complaints, the
unsolicited advertisement offered painting and wallpapering
services.6 The citation, which the staff served by certified
mail, return receipt requested, informed Elf that subsequent
violations could result in the imposition of monetary forfeitures
of up to $11,000 per violation, and included a copy of the
consumer complaint that formed the basis of the citation. The
citation informed Elf that within 21 days of the date of the
citation, it could either request a personal interview at the
nearest Commission office, or could provide a written statement
responding to the citation. The Commission received a signed
return receipt evidencing that Elf had received the citation on
February 8, 2003. Elf did not respond to the citation.
3. Despite the citation's warning that subsequent
violations could result in the imposition of monetary
forfeitures, the Commission has received additional consumer
complaints indicating that Elf continued to engage in such
conduct after receiving the citation.7 We base our action here
on this information from consumers alleging that Elf sent
unsolicited advertisements to telephone facsimile machines after
the date of the citation.8
III. DISCUSSION
A. Violations of the Commission's Rules Restricting
Unsolicited Facsimile Advertisements
4. Section 227(b)(1)(C) of the Act 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 a telephone facsimile machine, computer, or other device
to send an unsolicited advertisement to a telephone facsimile
machine.?9 The term ?unsolicited advertisement? is defined in the
Act and the Commission's rules 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.? Under Commission rules
and orders currently in effect, the Commission views an
established business relationship between a fax sender and
recipient as constituting prior express invitation or permission
to send a facsimile advertisement. 10
5. This NAL is based on evidence that five consumers
received unsolicited fax advertisements from Elf after the
Bureau's citation. Each of those facsimile transmissions
describes the same commercial service: ?For High Quality
Interior/Exterior Painting Service For Your Home Contact Elf
Painting and Wallpapering Today and Start Saving on Your Next
Interior Project!? with a local number to call for ?special
savings.? We find that these facsimiles fall within the
definition of an unsolicited advertisement.11 According to their
declarations, none of the consumers had an established business
relationship with Elf, and the consumers did not give Elf
permission to send the facsimile transmissions. Therefore, Elf
appears to have sent each facsimile transmission without prior
express consent of the consumers. Mere distribution or
publication of a fax number does not establish consent to receive
advertisements by fax.12 Based on the entire record, including
declarations, we find that Elf apparently violated Section 227 of
the Act and the Commission's related rules and orders by sending
unsolicited advertisements to the five consumers' facsimile
machines.
B. Proposed Forfeiture
6. We conclude that Elf apparently willfully or repeatedly
violated the Act and the Commission's rules and orders by using a
telephone facsimile machine, computer, or other device to send
unsolicited advertisements to telephone facsimile machines. Elf
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.
In fact, Elf apparently intentionally ignored the Commission's
citation. Accordingly, a proposed forfeiture is warranted
against Elf 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.
7. 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.13 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."14
8. 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, the Commission has previously
considered $4,500 per unsolicited fax advertisement to be an
appropriate base amount.15 We apply that base amount to each of
five of the apparent violations. This results in a proposed
total forfeiture of $22,500. Elf 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.16
IV. CONCLUSION AND ORDERING CLAUSES
9. We have determined that Elf
Painting and Wallpapering 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 five
unsolicited advertisements to the consumers identified above. We
have further determined that Elf Painting and Wallpapering is
apparently liable for forfeiture in the amount of $22,500.
10. Accordingly, IT IS ORDERED, pursuant to
Section 503(b) of the Act, and Section 1.80 of the Rules, and
authority delegated by Sections 0.111 and 0.311 of the Rules, 47
C.F.R. §§ 0.111, 0.311, that Elf Painting and Wallpapering is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of Twenty-Two Thousand Five Hundred Dollars ($22,500)
for willful or repeated violations of section 227(b)(1)(C) of the
Communications Act, 47 U.S.C. § 227(b)(1)(C), sections
64.1200(a)(3) of the Commission's rules, 47 C.F.R. §
64.1200(a)(3), and the related orders described in the paragraphs
above.
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules,17 within thirty days of the release date
of this Notice of Apparent Liability for Forfeiture, Elf Painting
and Wallpapering 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/Acct. No. referenced above. Payment by check or money order
may be mailed to Forfeiture Collection Section, Finance Branch,
Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673 -7482. Payment by overnight mail may be sent to
Bank One/LB 73482, 525 West Monroe, 8th Floor Mailroom, Chicago,
IL 60661. Payment by wire transfer may be made to ABA Number
071000013, receiving bank Bank One, and account number 1165259.18
13. The response if any must be mailed to the Office
of the Secretary, Federal Communications Commission, 445 12th
Street, S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau
- Telecommunications Consumers Division, and must include the
NAL/Acct. No. referenced in the caption.
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 documentation submitted.
15. Requests for payment of the full amount of this Notice
of Apparent Liability for Forfeiture under an installment plan
should be sent to: Chief, Revenue and Receivables Operations
Group, 445 12th Street, S.W., Washington, D.C. 20554.19
16. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture shall be sent by Certified Mail
Return Receipt Requested to, Mr. Ed Faust, Owner, Elf Painting
and Wallpapering, 10309 Cherry View Court, Oakton, Virginia
22124-2530, and Mr. Ed Faust, Owner, Elf Painting and
Wallpapering, 1835 Monroe Street, N.W., Washington, DC
20010-1014.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 See 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 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).
2 According to our research, Elf is headquartered at 10309 Cherry
View Court, Oakton, Virginia, 22124-2530; an alternate address is
provided at 1835 Monroe Street, N.W., Washington, DC 20010-1014.
The owner is Ed Faust. Elf Painting and Wallpapering claims in
its advertising to specialize in re-coating large scale
residential properties and commercial and industrial facilities.
Elf Painting and Wallpapering is not registered as a small
business in the State of Virginia or the District of Columbia,
nor is it listed as a corporation in the State of Virginia or
District of Columbia.
3 See 47 U.S.C. § 227(b)(1)(C); 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).
4 Citation from Kurt A. Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, File
No. EB-03-TC-004, issued to Elf on February 4, 2003.
5 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).
6 See consumer complaint requesting Commission action from Bonnie
Algera, IC No. 00-W27340, received February 7, 2000, which was
attached to the citation (stating that she received an
unsolicited advertisement via facsimile from Elf on December 12,
1999, without her permission, after which she called Elf to
request removal from their list; on February 7, 2000, she
received another unsolicited advertisement via facsimile from Elf
without her permission at 2:43 A.M.)
7 See the following consumer complaints requesting Commission
action: (1) David T. Prescott, via email, Director,
Communications and Crisis Management Center, Office of Homeland
Security, Enforcement Bureau, Federal Communications Commission
(April 14, 2004) (received unsolicited facsimile on April 14,
2004); (2) Robert D. Baldwin, via letter, Director of Learning
Resources, Allegany College of Maryland (May 24, 2004) (received
unsolicited facsimile on May 24, 2004); (3) Dennis C. Brown, via
letter (April 1, 2004) (received unsolicited facsimile March 14,
2004); (4) Eric M. Uslander, via letter (May 3, 2004) (received
unsolicited facsimile May 3, 2004); (5) Robert Chapman, IC
04-W8312285 (April 29, 2004) (received unsolicited facsimile
April 29, 2004).
8 We note that evidence of additional instances of unlawful
conduct by Elf may form the basis of subsequent enforcement
action.
9 47 U.S.C. § 227(b)(1)(B).
10 Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, Memorandum Opinion and Order, 10 FCC Rcd
12391, 12405 (1995) (1995 TCPA Reconsideration Order). In June
2003, the Commission amended its rules to specify that prior
express invitation or permission to receive a facsimile
advertisement must be recorded in a ?signed written statement that
includes the facsimile number to which any advertisements may be
sent and clearly indicates the recipient's consent to receive
such facsimile advertisements from the sender.? 2003 TCPA Report
and Order, 18 FCC Rcd at 14124-28 (adopting new section
64.1200(a)(3)(i). This new provision, which supercedes the
established business relationship exception, is scheduled to take
effect June 30, 2005. Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, Order, FCC 04-223
(rel. Oct. 1, 2004); Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, Order, FCC 03-230
(rel. Oct. 3, 2003). The Commission is currently considering
petitions that seek to retain the established business
relationship exception or require methods other than a signed
written statement to demonstrate prior express consent to receive
fax advertising.
11 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(10). Under
Section 64.1200(f)(10), 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.?
121995 Reconsideration Order, 10 FCC Rcd at 12408-09; see also
2003 TCPA Report and Order, 18 FCC Rcd at 14128 (concluding that
publication of a fax number in a trade publication or directory
does not demonstrate consent to receive fax advertising).
13 Section 503(b)(2)(C) provides for forfeitures up to $10,000
for each violation by cases not covered by subparagraph (A) or
(B), which address forfeitures for violations by licensees and
common carriers, among others. See 47 U.S.C. § 503(b). 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) to $11,000. See 47 C.F.R. §1.80(b)(3); Amendment of
Section 1.80 of the Commission's Rules and Adjustment of
Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221 (2000);
see also Amendment of Section 1.80(b) of the Commission's Rules
and Adjustment of Forfeiture Maxima to Reflect Inflation, FCC
04-139 (released June 18, 2004) (this recent amendment of Section
1.80(b) to reflect inflation left the forfeiture maximum for this
type of violator at $11,000).
14 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, 17100-17101, (1997), recon. denied, 15 FCC Rcd 303
(1999) (Forfeiture Policy Statement).
15 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, 16 Rcd 18,298 (2001); US
Notary, Inc., Forfeiture Order, 16 FCC Rcd 18,398 (2001);
Carolina Liquidators, Inc. Notice of Apparent Liability For
Forfeiture, 15, FCC Rcd 26,837 (2000), Carolina Liquidators,
Inc., Forfeiture Order 15 FCC Rcd 21,775 (2000); Tri-Star
Marketing, Inc., Notice of Apparent Liability For Forfeiture, 15
FCC Rcd 11, 295 (2000); Tri-Star Marketing, Inc., Forfeiture
Order, 15 FCC Rcd 23, 198 (2000).
16 See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).
17 47 C.F.R. § 1.80.
18 See 47 C.F.R. § 1.1914
19 Id.