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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
) File No. EB-07-TC-1211
Construction Expo, Inc.
) NAL/Acct. No. 200732170074
d/b/a National Building
) FRN: 0016773574
Apparent Liability for Forfeiture
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 28, 2007 Released: September 10, 2007
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Construction Expo, Inc. ("Construction Expo") 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 28 unsolicited advertisements to the
telephone facsimile machines of at least four consumers. Based on the
facts and circumstances surrounding these apparent violations, we find
that Construction Expo is apparently liable for a forfeiture in the
amount of $126,000.
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 October 24, 2006, in response to one or more consumer complaints
alleging that Construction Expo had faxed unsolicited advertisements,
the Commission staff issued a citation to Construction Expo, pursuant
to section 503(b)(5) of the Act. The staff cited Construction Expo
for using a telephone facsimile machine, computer, or other device, to
send unsolicited advertisements for construction industry trade shows
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
Construction Expo 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 Construction Expo 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. Construction Expo 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 Construction Expo
continued to engage in such conduct after receiving the citation. We
base our action here specifically on the complaints filed by four
consumers establishing that Construction Expo continued to send 28
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 Construction Expo 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 28
unsolicited advertisements to the four consumers identified in the
Appendix. This NAL is based on evidence that the consumers received
unsolicited fax advertisements from Construction Expo after the
Bureau's citation. The facsimile transmissions advertise construction
industry trade shows. Further, according to the complaints, the
consumers neither had an established business relationship with
Construction Expo nor gave Construction Expo 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
Construction Expo apparently violated section 227 of the Act and the
Commission's related rules and orders by sending 28 unsolicited
advertisements to four consumers' facsimile machines.
B. Proposed Forfeiture
7. We find that Construction Expo is apparently liable for a forfeiture
in the amount of $126,000. 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. We apply that base amount to each of the 28 of the apparent
violations. Thus, a total forfeiture of $126,000 is proposed.
Construction Expo 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 Construction Expo, 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 28 unsolicited advertisements to the four consumers
identified in the Appendix. We have further determined that
Construction Expo, Inc. is apparently liable for a forfeiture in the
amount of $126,000.
9. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act, and
section 1.80 of the Rules, 47 C.F.R. S: 1.80, 47 U.S.C. S: 503(b),
that Construction Expo, Inc. is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of $126,000 (one hundred and
twenty-six thousand dollars) 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, Construction Expo,
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.
200732170074.
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 Construction Expo, Inc., Attention: Juanita Hill, Paul
Bryant and Robin McBride, 13740 Research Boulevard, Building 1, Suites
1-4, Austin, Texas 78750, 13740 N. Highway 183 Building 1, Austin,
Texas 78750-1884, 13740 N. Highway 183, Building 2, Austin, Texas
78750, and to National Building, 10323 Lake Creek Parkway, Austin,
Texas 78750, and 13201 Pond Springs Road, Austin, Texas 78729.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainant Violation Date(s)
Alan Metner 12/12/06; 12/19/06; 1/2/07; 1/17/07; 2/20/07; 2/27/07;
3/6/07; 3/22/07; 3/15/07; 3/16/07; 3/22/07
Van Wood 10/10/06; 10/31/06; 11/7/06; 11/14/06; 11/21/06;
11/28/06; 12/12/06; 1/30/07; 2/6/07; 3/6/07; 3/8/07
Brian Petro 3/22/07; 3/27/07; 4/3/07; 4/19/07; 5/11/07
Mark Rigby 3/22/07
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, Construction Expo has offices
at 13740 Research Boulevard, Building 1, Suites 1-4, Austin, Texas 78750;
13740 N. Highway 183 Building 1, Austin, Texas 78750-1884; and 13740 N.
Highway 183 Building 2, Austin, Texas 78750. Two alternative addresses,
under the name "National Building," are 10323 Lake Creek Parkway, Austin,
Texas 78750 and 13201 Pond Springs Road, Austin, Texas 78729. Information
about National Building lists the same addresses provided for Construction
Expo, above. Therefore, all references in this NAL to "Construction Expo"
encompass Construction Expo, Inc., as well as National Building. Juanita
Hill, Paul Bryant and Robin McBride are listed as the contact people for
Construction Expo. Accordingly, all references in this NAL to
"Construction Expo" also encompass the foregoing individuals and all other
principals and officers of these entities, as well as the corporate
entities themselves.
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-1114, issued to
Construction Expo on October 24, 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 all of the known addresses for
Construction Expo. See n.2, supra.
See Appendix for a listing of the consumer complaints against Construction
Expo requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Construction Expo 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 March 22, 2007 from Brian Petro (stating that
the fax was an advertisement for construction industry trade shows, that
the fax was unsolicited, and that the complainant has no business
relationship with the fax sender). The complainants involved in this
action are listed in the Appendix below.
The term "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 in writing or otherwise." 47 U.S.C. S: 227(a)(5);
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 FCC 07-154
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Federal Communications Commission FCC 07-154