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Before the
Federal Communications Commission
Washington, D.C. 20554

)
)
)
) File No. EB-03-TC-004
In the Matter of )
) NAL/Acct. No. 200432170003
Elf Painting and Wallpapering )
) FRN 0012251880
)
)
)

ORDER OF FORFEITURE

Adopted: March 9, 2006 Released: March 10, 2006

By the Chief, Enforcement Bureau:

I. INTRODUCTION

1. In this Order of Forfeiture, we assess a monetary forfeiture of $22,500
against Elf Painting and Wallpapering ("Elf") for willful or repeated
violations of Section 227 of the Communications Act of 1934, as amended
("Act"), and the Commission's rules and orders, by delivering unsolicited
advertisements to telephone facsimile machines of at least five consumers.

II. BACKGROUND

2. On February 4, 2003, the Commission staff issued a citation to Elf
pursuant to Section 503(b)(5) of the Act. The staff cited Elf for 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. The citation, which
the staff sent by First Class and Certified Mail Return Receipt Requested
to Elf's last known address, informed Elf that subsequent violations could
result in the imposition of monetary forfeitures of up to $11,000 per
violation. The citation included a copy of the consumer complaint that
formed the basis of the citation.

3. 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 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, however, did not
respond to the citation. Despite the citation's warning that subsequent
violations could result in the imposition of monetary forfeitures, the
Commission received several consumer complaints stating that Elf had
continued to engage in such conduct after receiving the citation.

4. On December 1, 2004, the Bureau issued a Notice of Apparent Liability
for Forfeiture ("NAL") in the amount of $22,500 for at least 5 apparent
violations. The NAL, which the staff sent by First Class and Certified
Mail Return Receipt Requested to Elf's last two known addresses, informed
Elf that it had 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. The NAL ordered
Elf to pay the forfeiture or respond to the notice within 30 days
submitting evidence and arguments in response to this NAL to show that no
forfeiture should be imposed or that some lesser amount should be
assessed.

5. Elf did not respond to the NAL or pay the proposed forfeiture amount.
The United States Postal Service returned the copies of the NAL to the
Commission on December 3, 2004, and December 27, 2004, marked "unclaimed."
On January, 25, 2005, the Commission staff personally served a copy of the
NAL to Elf at 1835 Monroe Street, N.W. Washington, DC. As of the date of
the release of this order, Elf has still not filed a response to the
citation, and has not paid the forfeiture amount or submitted a response
to the NAL.

III. DISCUSSION

6. 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. 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."

7. 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. We apply that base amount
to each of five apparent violations here. Elf has failed to identify facts
or circumstances to persuade us that there is a basis for modifying the
proposed forfeiture, and we are not aware of any further mitigating
circumstances sufficient to warrant a reduction of the forfeiture penalty.
In fact, Elf is continuing to ignore its apparent violations of the Act
and the Commission's rules by continuing to send unsolicited faxes,
despite the citation and its failure to respond to the Bureau's NAL. For
these reasons, we hereby impose a total forfeiture of $22,500 for Elf's
willful or repeated violation of Section 227 of the Act and the
Commission's related rules and orders as set forth in the NAL.

IV. ORDERING CLAUSES

8. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S 503(b), and Section
1.80 of the Commission's rules, 47 C.F.R. S 1.80, and authority delegated
by Sections 0.111 and 0.311 of the Rules, 47 C.F.R. SS 0.111, 0.311, that
Elf Painting and Wallpapering SHALL FORFEIT to the United States
government the sum of $22,500 for willfully and repeatedly violating the
Commission's rules.

9. 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. 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. 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. and
FRN No. referenced above. Payment by check or money order may be mailed to
Forfeiture Collection Section, Finance Branch, Federal Communications
Commission, P.O. Box 358340, Pittsburgh, Pennsylvania 15251. Payment by
overnight mail may be sent to Mellon Client Service Center, 500 Ross
Street, Room 670, Pittsburgh, Pennsylvania 15262-0001, Attn: FCC Module
Supervisor. Payment by wire transfer may be made to: ABA Number 043000261,
receiving bank Mellon Bank, and account number 911- 6229. Please include
your NAL/Acct. No. with your wire transfer remittance. Requests for full
payment under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12^th Street, S.W., Washington, D.C.,
20554.

10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt requested to Ed Faust, Elf
Painting and Wallpapering at 10309 Cherry View Court, Oakton, Virginia,
22124-2530, and Ed Faust, Elf Painting and Wallpapering at 1835 Monroe
Street, N.W., Washington, DC 20010-1014.

FEDERAL COMMUNICATIONS COMMISSION

Kris A. Monteith

Chief, Enforcement Bureau

See 47 U.S.C. S 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 [1]47 U.S.C. S 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 does not hold a Commission
authorization 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);
47 U.S.C. S 227(b)(1)(C); 47 C.F.R. S 64.1200(a)(3); Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Report and
Order, 18 FCC Rcd 14014, 14124-28 (2003) (2003 TCPA Report and Order).

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; 47 U.S.C. S 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).

See Elf Painting and Wallpapering, Notice of Apparent Liability For
Forfeiture, 19 FCC Rcd. 23,517 (Enf. Bur. 2004) ("NAL").

Id.

According to our research, Elf's two addresses are: 10309 Cherry View
Court, Oakton, Virginia, 22124-2530; and, 1835 Monroe Street, N.W.,
Washington, DC 20010-1014

See NAL, 19 FCC Rcd 23,517 (Enf. Bur. 2004); 47 U.S.C. S 503(b)(4)(C); 47
C.F.R. S 1.80(f)(3).

Section 503(b)(2)(C) provides for forfeitures up to $10,000 for each
violation in 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. S 503(b). Pursuant to the Debt Collection Improvement Act of
1996, P.L. 104-134, 110 Stat. 1321-358, the statutory maximum amount for a
forfeiture penalty shall be adjusted for inflation at least once every
four years. Accordingly, the $10,000 forfeiture ceiling has been adjusted
to $11,000. 47 C.F.R. S 1.80(b)(5). Amendment of Section 1.80 of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, 15 FCC Rcd 18221 (2000); Amendment of Section 1.80 of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, 19 FCC Rcd 10945 (2004).

47 U.S.C. S 503(b)(2)(D); 47 C.F.R. S 1.80(b)(4).

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).

On September 28, 2005, four unsolicited faxes were sent by Elf to a
Commission facsimile machine.

47 U.S.C S 504(a).

See 47 U.S.C S 1.1914.

Federal Communications Commission DA 06-562

References

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