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
)
Travelcomm Industries, Inc.
)
d/b/a Travel Comm, Inc.
)
d/b/a Canadian Travel
)
d/b/a Patriot Travel File No. EB-05-TC-031
)
d/b/a Cheap Tickets Cancun NAL/Acct. No.
) 200732170058
d/b/a Cancun Adventures
) FRN: 0016560401
d/b/a CancunAllInclusive.net
)
d/b/a International Resort Reservations
)
d/b/a Mxresorts
)
d/b/a Mexico Marketing LLC
)
Apparent Liability for Forfeiture
)
)
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
Travelcomm Industries, Inc. ("Travelcomm") apparently willfully or
repeatedly violated section 227 of the Communications Act of 1934, as
amended ("Act"), and the Commission's rules and orders by delivering at
least one unsolicited, prerecorded advertising message to a consumer.
Based on the facts and circumstances surrounding this apparent violation,
we find that Travelcomm is apparently liable for a forfeiture in the
amount of $4,500.
II. BACKGROUND
2. Section 227(b)(1)(B) of the Act prohibits any person from initiating
"any telephone call to any residential telephone line using any artificial
or prerecorded voice to deliver a message without the prior express
consent of the called party, unless the call is initiated for emergency
purposes or is exempted by rule or order by the Commission." Section
64.1200(a)(2) of the Commission's rules provides exemptions for calls: 1)
made for emergency purposes; 2) made for non-commercial purposes; 3) made
for commercial purposes that do "not include or introduce an unsolicited
advertisement or constitute a telephone solicitation"; 4) to persons
"with whom the caller has an established business relationship at the time
the call is made"; and 5) "made by or on behalf of a tax-exempt nonprofit
organization."
3. On April 15, 2005, in response to a complaint alleging that Travelcomm
had delivered unsolicited, prerecorded advertising messages to a consumer,
the Commission staff issued a citation to Travelcomm pursuant to section
503(b)(5) of the Act. The staff cited Travelcomm for delivering one or
more prerecorded, unsolicited advertisements to a residential telephone
line, in violation of section 227 of the Act and the Commission's rules
and orders. According to the consumer, the unsolicited advertisements
offered information concerning vacation travel tickets. The citation,
which the staff served by certified mail, return receipt requested,
informed Travelcomm 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 complaint that formed the basis of the
citation. The citation informed Travelcomm that within 30 days of the
date of the citation, it could either request a personal interview at the
nearest Commission field office, or could provide a written statement
responding to the citation. The Commission received a signed return
receipt evidencing Travelcomm's receipt of the citation on April 21, 2005.
Travelcomm did not respond to the citation.
4. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, the Commission has obtained
evidence indicating that Travelcomm apparently continued to violate the
ban on sending unsolicited prerecorded advertising messages. Specifically,
on August 12, 2006, Travelcomm apparently contacted a consumer and left a
prerecorded message advertising Travelcomm's discount, vacation travel
tickets to Cancun. The consumer has indicated that he did not have an
established business relationship with Travelcomm. As discussed below, we
base our action here on this consumer information. Although we are acting
on a single complaint against Travelcomm here, we take action now to
protect consumers because Travelcomm has continued to violate the law
since our April 2005 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 Prerecorded Messages
6. As noted above, Travelcomm initiated prerecorded messages that invited
customers to try its travel vacation tickets. Based on the record before
us, we find that the prerecorded message at issue here was not made for
any emergency or non-commercial purposes, and was not on behalf of a
tax-exempt, nonprofit organization, but was commercial in nature and
included or introduced an "unsolicited advertisement" or constituted a
"telephone solicitation." We have previously found that "prerecorded
messages containing free offers and information about goods and services
that are commercially available are prohibited to residential telephone
subscribers, if not otherwise exempt." The Commission's rationale was
based on a finding by Congress that consumers considered the prerecorded
telephone calls to be "a nuisance and an invasion of privacy."
7. The record also indicates that Travelcomm did not have the prior
express consent of the consumer here to deliver this unsolicited
advertising message or telephone solicitation. Further, Travelcomm has
provided neither argument nor evidence in response to our citation to
prove tax-exempt nonprofit status or an established business relationship
with any of the consumers that it was calling. Nor has Travelcomm
provided any other information that might provide a defense to the
allegations at issue here. Therefore, based on the evidence in the
record, including the consumer's affidavit, we find that the prerecorded
message was an unsolicited advertisement or telephone solicitation that
was prohibited by section 227(b)(1)(B) of the Act and Section
64.1200(a)(2) of the Commission's rules.
B. Proposed Forfeiture
8. We conclude that Travelcomm apparently willfully or repeatedly violated
the Act and the Commission's rules and orders by delivering unsolicited,
prerecorded advertising messages. Travelcomm apparently did not cease its
unlawful conduct even after the Commission staff issued a citation warning
that it was engaging in unlawful conduct and could be subject to monetary
forfeitures. Accordingly, a proposed forfeiture is warranted against
Travelcomm for its apparent willful or repeated violations of section 227
of the Act and of the Commission's rules and orders regarding restrictions
on telephone solicitations.
9. Although the Commission's Forfeiture Policy Statement does not
establish a base forfeiture amount for violating the prohibition on
delivering unsolicited, prerecorded advertising messages to a residential
telephone line, we recently found these violations to be similar in nature
to violating the prohibition on delivering unsolicited advertisements to
telephone facsimile machines. In Warrior Custom Golf, we considered
$4,500 per pre-recorded advertising message to be an appropriate base
amount, and we apply that amount to the apparent unsolicited, prerecorded
advertising violation evidenced by James Rayburn's complaint. This
results in a proposed total forfeiture of $4,500. Travelcomm shall have
the opportunity to submit evidence and arguments in response to this
Notice of Apparent Liability for Forfeiture to show that no forfeiture
should be imposed or that some lesser amount should be assessed.
V. CONCLUSION AND ordering clauses
10. We have determined that Travelcomm Industries, Inc. apparently
violated section 227 of the Act and the Commission's related rules and
orders by delivering the unsolicited, prerecorded advertising message
identified above. We have further determined that Travelcomm Industries,
Inc. is apparently liable for a forfeiture in the amount of $4,500.
11. ACCORDINGLY, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S: 503(b)(5), and
section 1.80 of the Commission's 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: 0.111, 0.311, that Travelcomm Industries, Inc. IS hereby
NOTIFIED of an Apparent Liability for Forfeiture in the amount of $4,500
for willful or repeated violations of section 227(b)(1)(B) of the Act, 47
U.S.C. S: 227(b)(1)(B), section 64.1200(a)(2) of the Commission's rules,
47 C.F.R. S: 64.1200(a)(2), and the related orders described 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, Travelcomm Industries, 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. 200732170058.
14. 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.
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. Rigoberto Sotolongo, Travelcomm Industries at 5850 Lakehurst Drive, #
280, Orlando, Florida 32819 and c/o Dorough, Calzada & Hamner, P.L., 419
North Magnolia Avenue, Orlando, Florida 32801.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief
Enforcement Bureau
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 (A) such person 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 resident; and (C) subsequently engages in conduct
of the type described in the citation).
According to publicly available information, Travelcomm is also doing
business as "Travel Comm, Inc.," "Canadian Travel," "Patriot Travel,"
"Cheap Tickets Cancun," "Cancun Adventures," "CancunAllInclusive.net,"
"International Resort Reservations," "Mxresorts" and "Mexico Marketing
LLC." Therefore, all references in this NAL to Travelcomm encompass
Travelcomm Industries, Inc. as well as "Travel Comm, Inc.," "Canadian
Travel," "Patriot Travel," "Cheap Tickets Cancun," "Cancun Adventures,"
"CancunAllInclusive.net," "International Resort Reservations," "Mxresorts"
and "Mexico Marketing LLC." Travelcomm has offices at 5850 Lakehurst
Drive, #280, Orlando, FL 32819 and 5895 Carrier Drive, Orlando, FL 32819.
Rigoberto Sotolongo is listed as contact person for Travelcomm.
Accordingly, all references in this NAL to Travelcomm also encompass the
foregoing individual and all other principals and officers of this entity,
as well as the corporate entity itself. The Registered Agent for
Travelcomm is listed as Dorough, Calzada & Hamner, P.L., 419 North
Magnolia Avenue, Orlando, FL 32801.
See 47 U.S.C. S: 227(b)(1)(B); 47 C.F.R. S:S: 64.1200(a)(2); see also
Rules and Regulations Implementing the Telephone Consumer Protection Act
of 1991, CG Docket No. 02-278, Report and Order, 18 FCC Rcd 14014 (2003) (
TCPA Revisions Report and Order).
47 U.S.C. S: 227(b)(1)(B).
"Unsolicited advertisement" means "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." 47 C.F.R. S: 64.1200(f)(13).
"Telephone solicitation" means "the initiation of a telephone call or
message for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted to any
person." 47 C.F.R. S: 64.1200(f)(12).
An "established business relationship" is defined as "a prior or existing
relationship formed by a voluntary two-way communication between a person
or entity and a residential subscriber with or without an exchange of
consideration, on the basis of the subscriber's purchase or transaction
with the entity within the eighteen (18) months immediately preceding the
date of the telephone call or on the basis of the subscriber's inquiry or
application regarding products or services offered by the entity within
the three months immediately preceding the date of the call, which
relationship has not been previously terminated by either party." 47
C.F.R. S: 64.1200(f)(4).
47 C.F.R. S: 64.1200(a)(2).
See Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, issued to Travelcomm on April 15,
2005.
See 47 U.S.C. S: 503(b)(5) (requiring the Commission to issue citations to
non-common carriers for violations of the Act or of the Commission's rules
and orders).
See December 27, 2004, email complaint of Arlene Reardon requesting
Commission action, which was attached to the citation.
See the consumer complaint of James Rayburn requesting Commission action,
filed August 12, 2006 (received prerecorded message on August 12, 2006),
and affidavit provided by Mr. Rayburn.
Id.
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). The Commission has amended its
rules to increase the maximum penalties to account for inflation since the
last adjustment of the penalty rates. The new amounts apply to violations
that occurred after September 7, 2004. Amendment of Section 1.80(b) of the
Commission's Rules and Adjustment of Forfeiture Maxima to Reflect
Inflation, Order, 19 FCC Rcd 10945 (2004) ($11,000 statutory maximum
remained unchanged).
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, 17100-17101, (1997),
recon. denied, 15 FCC Rcd 303 (1999); Get-Aways, Inc., Forfeiture Order,
15 FCC Rcd 4843 (2000).
TCPA Revisions Report and Order, 18 FCC Rcd at 14097-98 (2003).
Id. at 14,097. The Commission also noted that Congress had determined that
the prerecorded messages "cause greater harm to consumers' privacy than
telephone solicitations by live telemarketers" because consumers feel
powerless to stop the messages, which are often delivered to answering
machines and often provide no means to request placement on a do-not-call
list. Id.
47 U.S.C. S: 227(b)(1)(B).
47 C.F.R. S: 64.1200(a)(2).
See Warrior Custom Golf, Inc., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd. 23648, 23652 (Enf. Bur. 2004) (" Warrior Custom
Golf") (first NAL to address pre-recorded advertising messages); see also
Septic Safety, Inc., Apparent Liability for Forfeiture, 21 FCC Rcd. 6868
(Enf. Bur. 2006); 1 Home Lending Corporation, d/b/a Capital Line
Financial, LLC., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd.
11852 (Enf. Bur. 2006).
See Warrior Custom Golf at P: 10 n.27 (citing Get-Aways, Inc., Notice of
Apparent Liability for Forfeiture, 15 FCC Rcd 4843 (2000); 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); Carolina Liquidators, Inc., Notice of Apparent Liability for
Forfeiture, 15 FCC Rcd 16837 (2000); Carolina Liquidators, Inc.,
Forfeiture Order, 15 FCC Rcd 21775 (2000); 21st Century Fax Ltd., Notice
of Apparent Liability for Forfeiture, 15 FCC Rcd 24406 (2000); 21st
Century Fax Ltd., Forfeiture Order, 17 FCC Rcd 1384 (2002)).
See 47 U.S.C. S: 503(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).
47 U.S.C. S: 503(b)(5).
47 C.F.R. S: 1.80.
47 C.F.R. S: 1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 07-3375
2
Federal Communications Commission DA 07-3375