Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

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
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   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

   1

   2

   Federal Communications Commission DA 07-2827

References

   Visible links
   1. http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS503&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw
   2. http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS227&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw
   3. http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS227&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw
   4. http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS64%2E1200&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw