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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB- 07-TC-100
Alliance Capital Corporation ) NAL/Acct No. 200832170001
Apparent Liability for Forfeiture ) FRN: 0017025107
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 16, 2007 Released: October 16, 2007
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Alliance Capital Corporation ("Alliance Capital") 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 machines of at least one consumer. Based on the
facts and circumstances surrounding this apparent violation, we find
that Alliance Capital 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 January 16, 2007, in response to one or more consumer complaints
alleging that Alliance Capital had faxed unsolicited advertisements,
the Commission staff issued a citation to Alliance Capital, pursuant
to section 503(b)(5) of the Act. The staff cited Alliance Capital for
using a telephone facsimile machine, computer, or other device, to
send unsolicited advertisements 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 Alliance Capital 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 Alliance Capital 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. Alliance Capital 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 Alliance Capital
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 Alliance Capital continued to send one
unsolicited advertisement to a telephone facsimile machine 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 Alliance Capital 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 one consumer identified in the
Appendix. This NAL is based on evidence that one consumer received an
unsolicited fax advertisement from Alliance Capital after the
Commission staff's citation. The facsimile transmission advertises
financing for new and used equipment. Further, according to the
complaint, the consumers neither had an established business
relationship with Alliance Capital nor gave Alliance Capital
permission to send the facsimile transmissions. 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 Alliance Capital 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 Alliance Capital 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 the one apparent violation. Thus,
a total forfeiture of $4,500 is proposed. Alliance Capital 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 Alliance Capital, 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 one consumer
identified in the Appendix. We have further determined that Alliance
Capital Corporation 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 Alliance Capital
Corporation 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, Alliance Capital
Corporation 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.
200832170001.
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 Alliance Capital Corporation, Attention: Brendan
Brownrigg, Vice President, 3415 South Sepulveda Blvd., Los Angeles, CA
90034.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant received facsimile Violation Date(s)
solicitations
Brian Petro 4/12/07
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 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, Alliance Capital has offices
at 3415 South Sepulveda Blvd., Los Angeles, CA 90034. Brendan Brownrigg,
Vice President, is listed as the primary contact for Alliance Capital.
Accordingly, all references in this NAL to "Alliance Capital" 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 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-07-TC-100, issued to
Alliance Capital on January 16, 2007.
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 Alliance Capital Corporation 8283
North Hayden Road, Suite 248, Scottsdale, AZ 85258 and Post Office Box
28155, Scottsdale, AZ 85255. Alliance Capital Corporation located in
Scottsdale, Arizona, is a subsidiary of Alliance Capital Corporation, 3415
Sepulveda Blvd., Los Angeles, CA 90034. See n.2, supra.
See Appendix for a listing of the consumer complaints against Alliance
Capital requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Alliance Capital 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 Brian Petro (stating that
"unsolicited junk faxes are being sent... . I have never done business
with this Company."). 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 07-4306
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Federal Communications Commission DA 07-4306