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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                               
                                                                         
                                         )                               
                                                                         
                                         )                               
                                                                         
     In the Matter of                    )   File No. EB-05-TC-032       
                                                                         
     New England Industrial Roofing      )   NAL/Acct. No. 200732170061  
                                                                         
     Apparent Liability for Forfeiture   )   FRN: 0016654089             
                                                                         
                                         )                               
                                                                         
                                         )                               
                                                                         
                                         )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted:   June 27, 2007   Released:  June 28, 2007

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that New England Industrial Roofing ("NEIR") 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 one unsolicited advertisement  to the telephone
       facsimile machine of at least one consumer. Based on the facts and
       circumstances surrounding the  apparent violation, we find that New
       England Industrial Roofing is apparently liable for a forfeiture in
       the amount of $10,000.00.

   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, to a telephone
       facsimile machine, an unsolicited advertisement."  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 in writing or otherwise." 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 April 14, 2005, in response to one or more consumer complaints
       alleging that NEIR  had faxed unsolicited advertisements, the
       Commission staff issued a citation to NEIR, pursuant to section
       503(b)(5) of the Act. The staff cited NEIR  for using a telephone
       facsimile machine, computer, or other device, to send unsolicited
       advertisements for the installation and repair of commercial and
       industrial flat roofs  to a telephone facsimile machine, in violation
       of section 227 of the Act and the Commission's related rules and
       orders. The citation, which the staff served by certified mail, return
       receipt requested, warned  NEIR  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 NEIR that within 30
       days of the date of the citation, it could either request an interview
       with Commission staff, or could provide a written statement responding
       to the citation. NEIR  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 an
       additional consumer complaint indicating that NEIR continued to engage
       in such conduct after receiving the citation.  We base our action here
       specifically on a  complaint filed by  one  consumer establishing that
       NEIR continued to send  at least one unsolicited advertisement to
       telephone facsimile machines after the date of the 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 NEIR 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 one unsolicited
       advertisement to the consumer identified in the Appendix. This NAL is
       based on evidence that the consumer received an unsolicited fax
       advertisement from NEIR after the Bureau's citation. The facsimile
       transmission advertises the installation and repair of commercial and
       industrial flat roofs. Further, according to the complaint, the
       consumer neither had an established business relationship with NEIR
       nor gave NEIR  permission to send the facsimile transmission.  The fax
       at issue here therefore falls within the definition of an "unsolicited
       advertisement."  Based on the entire record, including the consumer
       complaint, we conclude that NEIR apparently violated section 227 of
       the Act and the Commission's related rules and orders by sending one
       unsolicited advertisement to one consumer's  facsimile machine.

    B. Proposed Forfeiture

    7. We find that NEIR is apparently liable for a forfeiture in the amount
       of $10,000.00.  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. Where the consumer requests the company to stop sending
       facsimile messages, and the company continues to send them, however,
       the Commission has previously considered $10,000 per unsolicited fax
       advertisement the appropriate forfeiture for such egregious
       violations. Here, the consumer specifically requested that NEIR cease
       sending facsimiles. Notwithstanding these requests, an additional
       facsimile was sent to this consumer. Thus, we apply the $10,000 amount
       to the apparent violation here. Thus, a total forfeiture of $10,000.00
       is proposed. NEIR 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

    8. We have determined that New England Industrial Roofing 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 one unsolicited advertisement to the consumer
       identified in the Appendix. We have further determined that New
       England Industrial Roofing is apparently liable for a forfeiture in
       the amount of $10,000.00.

    9. 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 New England
       Industrial Roofing is hereby NOTIFIED of this APPARENT LIABILITY FOR A
       FORFEITURE in the amount of $10,000.00 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.

   10. 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, New England
       Industrial Roofing SHALL PAY the full amount of the proposed
       forfeiture or SHALL FILE a written statement seeking reduction or
       cancellation of the proposed forfeiture.

   11. 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.
       200732170061.

   12. 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.

   13. 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.

   14. 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.

   15. 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 New England Industrial Roofing, Attention: Robert J.
       Stevens, Owner, and Linda Mitchell, 1154 Dixwell Avenue - #158A,
       Hamden, Connecticut 06516.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

                                    APPENDIX


     Complainant sent facsimile solicitations after       Violation Date(s)  
     requesting no more be sent                                              

     Cathy L. Bergman                                     August 25, 2006    


   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, New England Industrial
   Roofing is also doing business as East Coast Roofing. Therefore, all
   references in this NAL to "New England Industrial Roofing" encompass New
   England Industrial Roofing as well as East Coast Roofing. New England
   Industrial Roofing has  offices at 1154 Dixwell Avenue - #158A, Hamden,
   Connecticut 06516. Robert J. Stevens, Owner, and Linda Mitchell are listed
   as the contact persons for New England Industrial Roofing. Accordingly,
   all references in this NAL to New England Industrial Roofing also
   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 and Third Order on Reconsideration, 21 FCC
   Rcd 3787 (2006).

   47 U.S.C. S 227(b)(1)(C); 47 C.F.R. S 64.1200(a)(3).

   47 U.S.C. S227(a)(4); 47 C.F.R. S64.1200 (f)(13).

   An "established business relationship" is defined as a prior or existing
   relationship formed by a voluntary two-way communication "with or without
   an 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-05-TC-032, issued to
   New England Industrial Roofing on April 14, 2005.

   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).

   Commission staff mailed the citation to 1154 Dixwell Avenue - #158A,
   Hamden, Connecticut 06514. See n.2, supra.

   See Appendix for a listing of the consumer complaint against NEIR
   requesting Commission action.

   We note that evidence of additional instances of unlawful conduct by NEIR
   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).

   See, e.g., complaint dated September 18, 2006, from Cathy L. Bergman
   (stating that she had not purchased anything from NEIR, that she had not
   made an inquiry or application to NEIR, and that she had not given consent
   to NEIR to send her the fax). The complainant involved in this action is
   listed in the Appendix below.

   See 47 U.S.C. S 227(a)(4); 47 C.F.R. S 64.1200(f)(13) (definition
   previously at S 64.1200(f)(10)).

   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 Carolina Liquidators, Inc., Notice of Apparent Liability for
   Forfeiture, 15 FCC 16,837, 16,842 (2000); 21^st Century Fax(es) Ltd., AKA
   20^th Century Fax(es), 15 FCC Rcd 24,406, 24,411 (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 07-2852

   1

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   Federal Communications Commission DA 07-2852

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