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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Red Rose International
)
d/b/a Red Rose International LTD
)
d/b/a Red Rose Internacional Limited
)
d/b/a Red Rose USA, Inc. File No. EB-06-TC-113
)
d/b/a Red Rose Sales and Marketing NAL/Acct. No. 200732170068
Corporation )
FRN: 0016773558
d/b/a Blue Jay, Inc. )
d/b/a Blue Jay Sales Corporation )
d/b/a Nationwide Chemical Corporation )
Apparent Liability for Forfeiture )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 28, 2007 Released: September 28, 2007
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Red Rose International ("Red Rose") 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 machine of at least two consumers. Based on the facts and
circumstances surrounding the apparent violation, we find that Red
Rose is apparently liable for a forfeiture in the amount of $20,000.
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, 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 June 12, 2006, in response to one or more consumer complaints
alleging that Red Rose had faxed unsolicited advertisements, the
Commission staff issued a citation to Red Rose, pursuant to section
503(b)(5) of the Act. The staff cited Red Rose for using a telephone
facsimile machine, computer, or other device, to send unsolicited
advertisements for business funding and chemical products, namely Sub
Zero Liquid Ice Melt, 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 Red Rose 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 Red Rose that within
thirty (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. Red Rose 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 Red Rose continued to engage in
such conduct after receiving the citation. We base our action here
specifically on the complaints filed by two consumers establishing
that Red Rose continued to send two unsolicited advertisements 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 Red Rose 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 the consumers received unsolicited fax
advertisements from Red Rose after the Commission's citation. The
facsimile transmissions advertise business funding and chemical products,
namely Sub Zero Liquid Ice Melt. Further, according to the complaints, the
consumers neither had an established business relationship with Red Rose
nor gave Red Rose permission to send the facsimile transmissions. The
faxes at issue here therefore fall within the definition of an
"unsolicited advertisement." Based on the entire record, including the
consumer complaints, we conclude that Red Rose apparently violated section
227 of the Act and the Commission's related rules and orders by sending
two unsolicited advertisements to two consumers' facsimile machines.
B. Proposed Forfeiture
7. We find that Red Rose is apparently liable for a forfeiture in the
amount of $20,000. 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. In
addition, where the consumer requests the company to stop sending
facsimile messages, and the company continues to send them, the Commission
has previously considered $10,000 per unsolicited fax advertisement the
appropriate forfeiture for such egregious violations. Here, two consumers
specifically requested that Red Rose cease sending facsimiles.
Notwithstanding these requests, Red Rose sent two additional facsimiles to
these consumers. We therefore apply the $10,000 amount to each of the two
apparent violations. Thus, a total forfeiture of $20,000 is proposed. Red
Rose 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 Red Rose International 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 Red Rose International is
apparently liable for a forfeiture in the amount of $20,000.
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 Red Rose
International is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of $20,000 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, Red Rose International 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. 200732170068.
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
Red Rose International, Attention: Neil S. Luxenberg and/or Neil Law at
4550 Ziebart Place #B, Las Vegas, NV 89103, 4620 S. Valley View Blvd., Las
Vegas, NV 89103, 4057 Delos Drive, Las Vegas, NV 89103, and 9850 S.
Maryland Pkwy, Ste. A5-102, Las Vegas, NV 89123.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant received facsimile solicitations Violation Date(s)
after requesting no more be sent
Robert Caruso 4/9/07
Howard Gordon 10/31/06
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 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 does not hold a license, permit,
certificate or other authorization issued by the Commission or an
applicant for any of those listed instrumentalities 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, Red Rose is also doing
business as Red Rose International, Red Rose International LTD, Red Rose
International Limited, Red Rose USA, Inc., Red Rose Sales and Marketing
Corporation, Blue Jay, Inc., Blue Jay Sales Corporation, and Nationwide
Chemical Corporation. Therefore, all references in this NAL to Red Rose
encompass Red Rose International, as well as Red Rose International LTD,
Red Rose Internacional Limited, Red Rose USA, Inc., Red Rose Sales and
Marketing Corporation, Blue Jay, Inc., Blue Jay Sales Corporation, and
Nationwide Chemical Corporation. Red Rose has offices at 4550 Ziebart
Place #B, Las Vegas, NV 89103, 4620 S. Valley View Blvd., Las Vegas, NV
89103, 4057 Delos Drive, Las Vegas, NV 89103, and 9850 S. Maryland Pkwy,
Ste. A5-102, Las Vegas, NV 89123. Neil S. Luxenberg and Neil Law are
listed as contact persons for Red Rose. Accordingly, all references in
this NAL to Red Rose also encompass the foregoing individuals 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 U.S.C. S: 227(b)(1)(C); 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-113 issued to
Red Rose on June 12, 2006.
See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
to persons who do not hold a license, permit, certificate or other
authorization issued by the Commission or an applicant for any of those
listed instrumentalities for violations of the Act or of the Commission's
rules and orders).
Commission staff mailed the citation to 4057 Delos Drive, Las Vegas, NV
89103-2537, 4550 Ziebart Place, Las Vegas, NV 89103, P.O. Box 70477, Las
Vegas, NV 89170-0477, and 9850 S. Maryland Parkway, Suite A5-102, Las
Vegas, NV 89123-7146. See n.2, supra.
Following the issuance of the citation, the Commission continued to
receive complaints from multiple consumers alleging that Red Rose faxed
unsolicited advertisements to them. These complaints, received after the
Commission's citation, resulted in the issuance of a Notice of Apparent
Liability for Forfeiture against Red Rose on August 1, 2007 in the amount
of $130,500. Red Rose International, Notice of Apparent Liability for
Forfeiture, FCC-07-134 (August 1, 2007).
See Appendix for a listing of the consumer complaints against Red Rose
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by Red
Rose 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 April 12, 2007, from Howard J. Gordon (stating
that "None of these faxes is from a company we have any business
relationship with, nor have any been requested. "); complaint dated April
18, 2007 , from Robert Caruso (stating that he has never purchased
anything from the company being advertised in the fax or made an inquiry
or application to the company or given consent for the company to send the
fax). The complainants involved in this action are 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); 21st Century Fax(es) Ltd., AKA
20th 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.
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(continued....)
Federal Communications Commission DA 07-4099
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Federal Communications Commission DA 07-4099