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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB-06-TC-875
Aras Marketing, Inc. ) NAL/Acct. No. 200732170065
Apparent Liability for Forfeiture ) FRN: 0061739682
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 23, 2007 Released: July 23, 2007
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Aras Marketing, Inc. ("Aras") 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 Aras is apparently
liable for a forfeiture in the amount of $4,500.
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 October 19, 2006, in response to one or more consumer complaints
alleging that Aras had faxed unsolicited advertisements, the
Commission staff issued a citation to Aras, pursuant to section
503(b)(5) of the Act. The staff cited Aras for using a telephone
facsimile machine, computer, or other device, to send unsolicited
advertisements to purchase a business 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 Aras 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 Aras 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. Aras 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 Aras 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
Aras continued to send an 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 Aras 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 Aras after the Commission staff's citation. The
facsimile transmission advertises an offer to purchase a business from
the existing owner. Further, according to the complaint, the consumer
neither had an established business relationship with Aras nor gave
Aras 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 Aras apparently violated section 227 of
the Act and the Commission's related rules and orders by sending an
unsolicited advertisement to one consumer's facsimile machine.
B. Proposed Forfeiture
7. We find that Aras is apparently liable for a forfeiture in the amount
of $4,500. 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 apparent violations. Thus, a
total forfeiture of $4,500 is proposed. Aras 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 Aras Marketing, 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 one unsolicited advertisement to the consumer identified
in the Appendix. We have further determined that Aras Marketing, Inc.
is apparently liable for a forfeiture in the amount of $4,500.
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. S:S: 0.111, 0.311, that Aras Marketing,
Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of $4,500 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, Aras Marketing, Inc.
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.
200732170065.
12. The response, if any, must be mailed both to the Office of the
Secretary, Federal Communications Commission, 445 12th 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 12th 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 Aras Marketing, Inc., Attention: Sara Wang, 530
Buckingham Road, Apartment 314, Richardson, TX 75081.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant sent facsimile solicitations Violation Date(s)
Warren Davis 2/27/07
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 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).
Aras has offices at 530 Buckingham Road, Apartment 314, Richardson, TX
75081. Sara Wang, Director, is listed as the contact person for Aras.
Accordingly, all references in this NAL to "Aras" also encompass the
foregoing individual and all other principals and officers of this entity,
as well as the corporate entity itself.
See 47 U.S.C. S: 227(b)(1)(C); 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. 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
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-06-TC-875, issued to
Aras on October 19, 2006.
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 530 Buckingham Road, Apartment
314, Richardson, TX 75081. See n.2, supra.
See Appendix for a listing of the consumer complaint against Aras
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by Aras
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. S:1.80(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 February 28, 2007 from Warren Davis (stating
that an unsolicited junk fax was received on February 27, 2007 offering to
buy out his business and noting that there is no established business
relationship with Aras). 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 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.
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Federal Communications Commission DA 07-3374
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Federal Communications Commission DA 07-3374