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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
File No. EB-04-TC-102
TRI-STATE PRINTER & COPIER SUPPLY )
NAL/Acct. No. 200732170059
CO., INC. )
FRN: 0016644700
Apparent Liability for Forfeiture )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 26, 2007 Released: June 27, 2007
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Tri-State Printer & Copier Supply Co., Inc. ("Tri-State")
apparently willfully or repeatedly violated section 227 of the
Communications Act of 1934, as amended ("Act"), and the Commission's
related rules and orders, by delivering at least two unsolicited
advertisements to the telephone facsimile machines of at least two
consumers. Based on the facts and circumstances surrounding these
apparent violations, we find that Tri-State is apparently liable for a
forfeiture in the amount of $9,000.
II. BACKGROUND
2. 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 any telephone
facsimile machine, computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine." 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 the Commission's Rules, an "established business
relationship"exception permits a party to deliver a message to a
consumer if the sender has an established business relationship with
the recipient and the sender obtained the number of the facsimile
machine through the voluntary communication by the recipient, directly
to the sender, within the context of the established business
relationship, or through a directory, advertisement, or a site on the
Internet to which the recipient voluntarily agreed to make available
its facsimile number for public distribution.
3. On June 4, 2004, in response to consumer complaints alleging that
Tri-State had faxed unsolicited advertisements, the Commission staff
issued a citation to Tri-State, pursuant to section 503(b)(5) of the
Act. The staff cited Tri-State 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 related rules and orders. According to the
complaints, the unsolicited advertisements offered printer and copier
supplies. The citation, which the staff served by facsimile and by
certified mail, return receipt requested, warned Tri-State 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 complaints that formed the basis of the citation. The
citation informed Tri-State that within 30 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. Tri-State did not request an interview or otherwise
respond to the citation.
4. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, we have received additional
consumer complaints indicating that Tri-State continued to engage in
such conduct after receiving the citation. We base our action here
specifically on complaints from two consumers who contend that
Tri-State continued to send unsolicited advertisements to their
telephone facsimile machines after the date of our citation.
5. 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."
III. DISCUSSION
A. Violations of the Commission's Rules Restricting Unsolicited Facsimile
Advertisements
6. We find that Tri-State apparently violated section 227 of the Act and
the Commission's related rules and orders by using a telephone
facsimile machine, computer, or other device to send at least two
unsolicited advertisements to the two consumers identified in the
Appendix. This NAL is based on evidence that these two consumers
received unsolicited fax advertisements from Tri-State after the
Bureau's citation. Each of those facsimile transmissions advertises
printer and copier supplies.
7. A prime example of Tri-State's facsimile advertisements is one that
begins with a page-long joke entitled "A Bad Day," followed by the
phrase, "Hope this brought a smile to your day. Give us a call we will
give you another smile!" The advertisement then proceeds to list the
name and number of Tri-State, followed by an offer for copier and
printer toner at low prices. Neither complainant ordered copier or
printer toner from Tri-State. The above-described facsimile, which is
representative of the other facsimile on which this NAL is based,
falls within the definition of an "unsolicited advertisement" in
effect at the time of the alleged violations.
8. Further, according to the information provided by the complainants,
they neither had an established business relationship with Tri-State
nor gave Tri-State permission to send the facsimile transmissions.
Tri-State did not respond to the Commission's citation and thus has
offered no evidence or arguments to defend or justify its faxing
practices. Based on the entire record, including the consumers'
complaints, we conclude that Tri-State apparently violated section 227
of the Act and the Commission's related rules and orders by sending at
least two unsolicited advertisements to at least two consumers'
facsimile machines.
B. Proposed Forfeiture
9. We find that Tri-State is apparently liable for a forfeiture in the
amount of $9,000. Although the Commission's Forfeiture Policy
Statement does not establish a base forfeiture amount for violating
the prohibition against 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 the two apparent
violations, for a total proposed forfeiture of $9,000. Tri-State will
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.
IV. CONCLUSION AND ORDERING CLAUSES
10. We have determined that Tri-State Printer & Copier Supply Co., Inc.
apparently violated section 227 of the Act and the Commission's
related rules and orders by using a telephone facsimile machine,
computer, or other device to send at least two unsolicited
advertisements to the two consumers identified in the Appendix. We
have further determined that Tri-State Printer & Copier Supply Co.,
Inc. is apparently liable for a forfeiture in the amount of $9,000.
11. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act, 47
U.S.C. S 503(b), and section 1.80 of the Rules, 47 C.F.R. S 1.80, and
under the authority delegated by sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. SS 0.111, 0.311, that Tri-State Printer
& Copier Supply Co., Inc. is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of $9,000 (nine thousand
dollars) for willful or repeated violations of section 227(b)(1)(C) of
the Communications Act, 47 U.S.C. S 227(b)(1)(C), sections
64.1200(a)(3) of the Commission's rules, 47 C.F.R. S 64.1200(a)(3),
and the related orders described in the paragraphs above.
12. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, Tri-State Printer &
Copier Supply Co., Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
13. Payment by check or money order, payable to the order of the "Federal
Communications Commission," may be mailed to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission, P.O. Box
358340, Pittsburgh, PA 15251. Payment by overnight mail may be sent to
Mellon Client Service Center, 500 Ross Street, Room 670, Pittsburgh,
PA 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. The payment should note NAL/Acct. No.
200732170059.
14. The response, if any, must be mailed both to the Office of the
Secretary, Federal Communications Commission, 445 12^th Street, SW,
Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
Consumers Division, and to Colleen Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications
Commission, 445 12^th Street, SW, Washington, DC 20554, and must
include the NAL/Acct. No. referenced in the caption.
15. 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.
16. 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, SW,
Washington, DC 20554.
17. 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. John Smith, Mr. Domenica Gambino and Mr. Harry
Samuel, Tri-State Printer & Copier Supply Co., Inc., at the following
addresses: 930 Briars Bend, Alpharetta, Georgia, 30004; 16 Court
Street, Brooklyn, New York, 11241-0102; 71 N. Franklin Street,
Hempstead, New York, 11550-3049; and 660 2^nd S. Place, Garden City,
New York, 11530-5204.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant Violation Date
Andrew R. Palumbo, Paradigm Network, Inc. 1/29/07
Joseph Zelik, Joseph Real Estate 10/25/06
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 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).
According to publicly available information, Tri-State has offices at
several locations: 930 Briars Bend, Alpharetta, Georgia, 30004; 16 Court
Street, Brooklyn, New York, 11241-0102; 71 N. Franklin Street, Hempstead,
New York, 11550-3049; and 660 2^nd S. Place, Garden City, New York,
11530-5204. For all the foregoing locations, John Smith is listed as the
owner; Domenica Gambino, as the Chairman, and Harry Samuel as a contact
person. Accordingly, all references in this NAL to "Tri-State" encompass
the foregoing individuals, and all other principals and officers of this
entity, as well as the corporate entity itself.
See [2]47 U.S.C. S [3]227(b)(1)(C); [4]47 C.F.R. S 64.1200(a)(3); see
also Rules and Regulations Implementing the Telephone Consumer Protection
Act of 1991, Report and Order, 18 FCC Rcd 14014, 14124, para. 185 (2003)
(TCPA Report and Order) (stating that section 227 of the Act prohibits the
use of telephone facsimile machines to send unsolicited advertisements).
See 47 U.S.C. S 227(b)(1)(C); 47 C.F.R. S 64.1200(a)(3).
See 47 U.S.C. S 227(a)(4); 47 C.F.R. S 64.1200(f)(13).
An "established business relationship" is defined as a prior or existing
relationship formed by a voluntary two-way communication "with or without
the exchange of consideration, on the basis of an inquiry, application,
purchase or transaction by the business or residential subscriber
regarding products or services offered by such person or entity, which
relationship has not been previously terminated by either party." 47
C.F.R. S 64.1200(f)(5).
See 47 C.F.R. S 64 (a)(3)(i), (ii).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-04-TC-102, issued to
Tri-State on June 4, 2004.
See 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, e.g., Complaint from Ginnine Fried, IC # 03-W5924843, dated May 16,
2003, which was attached to the Citation (stating that Ms. Fried received
an unwanted fax advertisement from Tri-State at 2:31 a.m.).
Commission staff mailed the citation to all of Tri-State's known
addresses.
See Appendix for a listing of the consumer complaints requesting
Commission action. We note that evidence of additional instances of
unlawful conduct by Tri-State may form the basis of subsequent enforcement
action.
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. S 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. S1.80(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, 19 FCC Rcd 10945 (2004) (this recent amendment of section
1.80(b) to reflect inflation left the forfeiture maximum for this type of
violator at $11,000).
47 U.S.C. S 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, 17100-01 para. 27 (1997)
(Forfeiture Policy Statement), recon. denied, 15 FCC Rcd 303 (1999).
The complaints and associated information are set forth in the Appendix to
this Order.
See, e.g., Palumbo Complaint, dated Jan. 29, 1997.
See Palumbo Complaint and associated information, dated Jan. 29, 2007 and
June 12, 2007; Zelik Complaint and associated information, dated Oct. 26,
2006 and June 12, 2007.
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, 15 Rcd 16999 (2000); US Notary, Inc., Forfeiture Order, 16 FCC
Rcd 18398 (2001); Tri-Star Marketing, Inc., Notice of Apparent Liability
For Forfeiture, 15 FCC Rcd 11295 (2000); Tri-Star Marketing, Inc.,
Forfeiture Order, 15 FCC Rcd 23198 (2000).
See 47 U.S.C. S 503(b)(4)(C); 47 C.F.R. S 1.80(f)(3).
47 C.F.R. S 1.80.
47 C.F.R. S 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 07-2827
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Federal Communications Commission DA 07-2827
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