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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
SEPTIC SAFETY, INC. ) File No. EB-04-TC-064
) NAL/Acct. No. 200532170005
Apparent Liability for Forfeiture ) FRN 0012636247
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 2, 2005 Released: February 3,
By the Chief, Telecommunications Consumers Division, Enforcement
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''),1 we find that Septic Safety, Inc. (``Septic Safety'')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 at least two
unsolicited, prerecorded advertising messages to two consumers.3
Based on the facts and circumstances surrounding these apparent
violations, we find that Septic Safety is apparently liable for a
forfeiture in the amount of $14,500.
2. On April 30, 2004, in response to consumer complaints
alleging that Septic Safety had delivered unsolicited,
prerecorded advertising messages to several consumers, the
Commission staff issued a citation to Septic Safety4 pursuant to
section 503(b)(5) of the Act. The staff cited Septic Safety for
delivering one or more prerecorded, unsolicited advertisements to
a residential telephone line, in violation of section 227 of the
Act and the Commission's rules and orders.5 According to the
consumers, the unsolicited advertisements offered information
concerning septic tank treatments.6 The citation, which the
staff served by certified mail, return receipt requested,
informed Septic Safety 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 letters that formed
the basis of the citation. The citation informed Septic Safety
that within 30 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 Septic Safety's receipt of the citation on May 5,
2004. Septic Safety 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 Septic Safety apparently continued to
send illegal prerecorded, unsolicited advertisements after
receiving the citation.7 As discussed below, we base our action
here on this information from consumers alleging that Septic
Safety sent unsolicited prerecorded advertising messages after
the date of the citation, and that the messages did not qualify
for any exemption from the prohibition provided by our rules.
Although we are acting on relatively few complaints against
Septic Safety here, we take action now to protect consumers
because Septic Safety has continued to violate the law since our
April 2004 citation.
A. Violations of the Commission's Rules Restricting
4. Section 227(b)(B) of the Act prohibits any person from
initiating ``any telephone call to any residential telephone line
using any artificial or prerecorded voice to deliver message
without the prior express consent of the called party, unless the
call is initiated for emergency purposes or is exempted by rule
or order by the Commission.''8 Section 64.1200(a)(2) of the
Commission's rules provides exemptions for calls: 1) made for
emergency purposes; 2) made for non-commercial purposes; 3) made
for commercial purposes that do ``not include or introduce an
unsolicited advertisement9 or constitute a telephone
solicitation'';10 4) to persons ``with whom the caller has an
established business relationship11 at the time the call is
made''; and 5) ``made by or on behalf of a tax-exempt nonprofit
5. As noted above, Septic Safety initiated prerecorded
messages that invited customers to try its septic tank
treatments. Based on the record before us, we find that the
prerecorded messages at issue here were not made for any
emergency or non-commercial purposes, and were not on behalf of a
tax-exempt, nonprofit organization, but were commercial in nature
and included or introduced ``unsolicited advertisements'' or
constituted ``telephone solicitations.'' We have previously
found that ``prerecorded messages containing free offers and
information about goods and services that are commercially
available are prohibited to residential telephone subscribers, if
not otherwise exempt.''13 The Commission's rationale was based
on a finding by Congress that consumers considered the
prerecorded telephone calls to be ```a nuisance and an invasion
6. The record also indicates that Septic Safety did not
have the prior express consent of the consumers here to deliver
this unsolicited advertising message or telephone solicitation.
In fact, Septic Safety continued to deliver messages to
complainant Jim Keehner after his repeated requests to refrain.15
Further, Septic Safety has provided neither argument nor evidence
in response to our citation to prove tax-exempt nonprofit status
or an established business relationship with any of the consumers
that it was calling. Nor has Septic Safety provided any other
information that might provide a defense to the allegations at
issue here. Therefore, based on the evidence in the record,
including the consumers' affidavits, we find that the prerecorded
messages were unsolicited advertisements or telephone
solicitations that were prohibited by section 227(b)(1)(B) of the
Act16 and Section 64.1200(a)(2)17 of the Commission's rules.
B. Proposed Forfeiture
7. We conclude that Septic Safety apparently willfully or
repeatedly violated the Act and the Commission's rules and orders
by delivering unsolicited, prerecorded advertising messages.
Septic Safety 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. Accordingly, a proposed forfeiture is warranted
against Septic Safety for its apparent willful or repeated
violations of section 227 of the Act and of the Commission's
rules and orders regarding restrictions on telephone
8. 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.18 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."19
9. Although the Commission's Forfeiture Policy Statement
does not establish a base forfeiture amount for violating the
prohibition on delivering unsolicited, prerecorded advertising
messages to a residential telephone line, we recently found these
violations to be similar in nature to violating the prohibition
on delivering unsolicited advertisements to telephone facsimile
machines. In Warrior Custom Golf,20 the Enforcement Bureau
(``Bureau'') considered $4,500 per pre-recorded advertising
message to be an appropriate base amount, and we apply that
amount to the apparent unsolicited, prerecorded advertising
violation evidenced by Richard Cusick's complaint.21 We find
that the other apparent violation, presented by Jim Keehner's
complaint, justifies a higher proposed forfeiture because Septic
Safety continued to deliver messages to this consumer even after
his repeated requests to refrain. Where a party has delivered
pre-recorded advertising messages after a request to stop, the
Bureau has increased the proposed forfeiture to $10,000 per
violation.22 Accordingly, we find Septic Safety apparently
liable in the amount of $10,000 for the violation where Septic
Safety ignored the Mr. Keehner's specific requests to discontinue
the calls. This results in a proposed total forfeiture of
$14,500. Septic Safety shall have the opportunity to submit
evidence and arguments in response to this Notice of Apparent
Liability for Forfeiture to show that no forfeiture should be
imposed or that some lesser amount should be assessed.23
IV. CONCLUSION AND ORDERING CLAUSES
10. We have determined that Septic Safety apparently
violated section 227 of the Act and the Commission's related
rules and orders by delivering the unsolicited, prerecorded
advertising messages identified above. We have further
determined that Septic Safety is apparently liable for a
forfeiture in the amount of $14,500.
11. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b)
of the Communications Act of 1934, as amended, 47 U.S.C. §
503(b)(5),24 and section 1.80 of the Commission's rules, 47
C.F.R. § 1.80, and under the authority delegated by sections
0.111 and 0.311 of the Commission's rules, 47 C.F.R. § 0.111,
0.311, that Septic Safety, Inc. IS hereby NOTIFIED of an Apparent
Liability for Forfeiture in the amount of $14,500 for willful or
repeated violations of section 227(b)(1)(B) of the Act, 47 U.S.C.
§ 227(b)(1)(B), section 64.1200(a)(2) of the Commission's rules,
47 C.F.R. § 64.1200(a)(2), and the related orders described
12. 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 (``GAAP'');
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
13. Requests for payment under an installment plan should
be sent to: Chief, Revenue and Receivable Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.25
14. 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 date of this Notice of Apparent Liability for
Forfeiture, Septic Safety, Inc. SHALL PAY the full amount of the
proposed forfeiture26 or SHALL FILE a response showing why the
proposed forfeiture should not be imposed or should be reduced.
15. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture shall be sent by first class
mail and certified mail return receipt requested to Mr. Joseph
Carney and Mr. Sean Carney, Septic Safety, Inc., at the
following seven addresses: 316 Prospect Avenue, Hackensack, New
Jersey 07601-2625; 205 Anderson Avenue, Fairview, New Jersey
07022; 344 Broad Avenue, Palisades Park, New Jersey 07650; 43
Industrial Avenue, Fairview, New Jersey 07022; P.O. Box 397,
Fairview, New Jersey 07022; 44 Washington Avenue, Suite 109, Toms
River, New Jersey 08754; and P.O. Box 625, Palisades Park, New
FEDERAL COMMUNICATIONS COMMISSION
Colleen K. Heitkamp
Chief, Telecommunications Consumers
11. 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).
2Septic Safety also does business as ``Environmental Safety
International, Inc.,'' ``Environmental Products International,''
``DJC Holding Company,'' ``SAACA Industries, Inc.,'' ``EPI,
Inc.,'' and ``ESI Products.'' Accordingly, this Order applies to
these companies as well. Our research revealed that all of the
companies' offices are in New Jersey, and that for all of the
companies, Joseph Carney is listed as the President and Sean
Carney is listed as the Vice President.
3See 47 U.S.C. § 227(b)(1)(B); 47 C.F.R. §§ 64.1200(a)(2); see
also Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, CG Docket No. 02-278, Report and Order,
18 FCC Rcd 14014 (2003) (TCPA Revisions Report and Order).
4See Citation from Kurt A. Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, issued
to Septic Safety on April 30, 2004.
51. See 47 U.S.C. § 503(b)(5) (requiring the Commission to
issue citations to non-common carriers for violations of the Act
or of the Commission's rules and orders).
61. See, e.g., Letter from Gerald Baldwin requesting
Commission action, which was attached to the citation, along with
four other such complaints.
71. See the following consumer complaints requesting
Commission action: 1) Complaint of Jim Keehner, filed July 26,
2004 (received prerecorded message on July 17, 2004); 2)
Complaint of Richard Cusick, filed August 30, 2004 (received
prerecorded message on August 30, 2004). Both of the
complainants signed declarations stating that the messages they
received advertised Septic Safety's septic tank treatments, and
that they did not have established business relationships with
81. 47 U.S.C. § 227(b)(1)(B).
91. ``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.''
47 C.F.R. § 64.1200(f)(10).
101. ``Telephone solicitation'' means ``the initiation
of a telephone call or message for the purpose of encouraging the
purchase or rental of, or investment in, property, goods, or
services, which is transmitted to any person.'' 47 C.F.R. §
111. An ``established business relationship'' is
defined as ``a prior or existing relationship formed by a
voluntary two-way communication between a person or entity and a
residential subscriber with or without an exchange of
consideration, on the basis of the subscribers purchase or
transaction with the entity within the eighteen (18) months
immediately preceding the date of the telephone call or on the
basis of the subscriber's inquiry or application regarding
products or services offered by the entity within the three
months immediately preceding the date of the call, which
relationship has not been previously terminated by either
party.'' 47 C.F.R. § 64.1200(f)(3).
121. 47 C.F.R. § 64.1200(a)(2).
131. TCPA Revisions Report and Order, 18 FCC Rcd at
141. Id. at 14,097. The Commission also noted that
Congress had determined that the prerecorded messages ``cause
greater harm to consumers' privacy than telephone solicitations
by live telemarketers'' because consumers feel powerless to stop
the messages, which are often delivered to answering machines and
often provide no means to request placement on a do-not-call
151. See Complaint of Jim Keehner (stating that when
Mr. Keehner received a call from Septic Safety on July 17, 2004,
it was the ``third time [he had] been contacted by [Septic
Safety] in Greenville, North Carolina in the last year'').
161. 47 U.S.C. § 227(b)(1)(B).
171. 47 C.F.R. § 64.1200(a)(2).
181. Section 503(b)(2)(C) provides for forfeitures up
to $10,000 for each violation in 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). The
Commission recently amended its rules to increase the maximum
penalties to account for inflation since the last adjustment of
the penalty rates. The new amounts apply to violations that
occurred after September 7, 2004. Amendment of Section 1.80(b)
of the Commission's Rules and Adjustment of Forfeiture Maxima to
Reflect Inflation, Order, 19 FCC Rcd 10,945 (2004) ($11,000
statutory maximum remained unchanged).
191. 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); Get-Aways, Inc., Forfeiture Order, 15 FCC Rcd 4843
201. See Warrior Custom Golf, Inc., Notice of Apparent
Liability for Forfeiture, DA 04-3834 at ¶ 10 (Enf. Bur., rel.
Dec. 8, 2004) (``Warrior Custom Golf'') (first NAL to address
pre-recorded advertising messages).
211. See Warrior Custom Golf at ¶ 10 n.27 (citing
Get-Aways, Inc., Notice of Apparent Liability for Forfeiture, 15
FCC Rcd 4843 (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);
Carolina Liquidators, Inc., Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 16,837 (2000); Carolina Liquidators, Inc.,
Forfeiture Order, 15 FCC Rcd 21,775 (2000); 21st Century Fax
Ltd., Notice of Apparent Liability for Forfeiture, 15 FCC Rcd
24,406 (2000); 21st Century Fax Ltd., Forfeiture Order, 17 FCC
Rcd 1384 (2002)).
221. See Warrior Custom Golf at ¶ 10.
231. See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. §
241. 47 U.S.C. § 503(b)(5).
251. 47 C.F.R. § 1.1914.
261. 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 Septic Safety's check or
money order to ``NAL/Acct. No. 200532170005.'' Such remittance
must be mailed to the Forfeiture Collection Section, Finance
Branch, Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482.