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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)
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Federal Communications Commission DA 07-2852
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Federal Communications Commission DA 07-2852
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