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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
MEXICO MARKETING, LLC
)
d/b/a TravelComm, Inc.
)
d/b/a TravelComm Industries, Inc.
) File No. EB-06-TC-130
d/b/a Canadian Travel
) NAL/Acct. No.
d/b/a Patriot Travel 200732170070
)
d/b/a CancunAllInclusive.net FRN: 0016560401
)
d/b/a Cheapticketscancun
)
d/b/a International Resort Reservations
)
d/b/a Cancun Adventures, Inc.
)
Apparent Liability for Forfeiture
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 26, 2007 Released: December 28, 2007
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Mexico Marketing, LLC ("Mexico Marketing") 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 sixty-one unsolicited advertisements to the
telephone facsimile machines of at least twenty-five consumers. Based
on the facts and circumstances surrounding these apparent violations,
we find that Mexico Marketing is apparently liable for a forfeiture in
the amount of $335,000.
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 30, 2006, in response to one or more consumer complaints
alleging that Mexico Marketing had faxed unsolicited advertisements,
the Commission staff issued a citation to Mexico Marketing pursuant to
section 503(b)(5) of the Act. The staff cited Mexico Marketing 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 Mexico Marketing, 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 Mexico Marketing 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.
Mexico Marketing did not request an interview or otherwise respond to
the citation.
4. Despite the June 30, 2006 citation's warning that subsequent
violations could result in the imposition of monetary forfeitures, we
have received additional consumer complaints indicating that Mexico
Marketing continued to engage in such conduct after receiving the
citation. We base our action here specifically on complaints filed by
twenty-five consumers establishing that Mexico Marketing continued
to send sixty-one 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 Mexico Marketing 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
sixty-one unsolicited advertisements to the twenty-five consumers
identified in the Appendix. This NAL is based on evidence that these
consumers received unsolicited fax advertisements from Mexico
Marketing after the Commission's citation. Each of those facsimile
transmissions advertises a vacation package. Further, according to
their complaints, the consumers neither had an established business
relationship with Mexico Marketing nor gave Mexico Marketing
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 Mexico Marketing apparently violated
section 227 of the Act and the Commission's related rules and orders
by sending sixty-one unsolicited advertisements to twenty-five
consumers' facsimile machines.
B. Proposed Forfeiture
7. We find that Mexico Marketing is apparently liable for a forfeiture in
the amount of $335,000. 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 fifty of the apparent
violations. In addition, where the consumer requests that the company
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, five consumers specifically requested that Mexico
Marketing cease sending facsimiles. Notwithstanding these requests, an
additional eleven facsimiles were sent to these consumers. Thus, we
apply the $10,000 amount to each of eleven of the apparent violations.
Thus, a total forfeiture of $335,000 is proposed. Mexico Marketing
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 Mexico Marketing, LLC 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 fifty-two unsolicited advertisements to the twenty-two
consumers identified in the Appendix. We have further determined that
Mexico Marketing Industries, Inc. is apparently liable for a
forfeiture in the amount of $335,000.
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 Mexico Marketing, LLC is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of $335,000 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, Mexico Marketing,
LLC 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.200732170070.
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 Mexico Marketing, LLC, Attention: Rigoberto Sotolongo,
President, 5895 Carrier Drive, Orlando, FL 32819; 5850 Lakehurst
Drive, #280, Orlando, FL 32819; P.O. Box 300245, Casselberry, FL
32730; 322 W Newell St., Winter Garden, FL 34787 and c/o Dorough,
Calzada & Hamner, P.L., 419 North Magnolia Avenue, Orlando, FL 32801.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainant received facsimile Violation Date(s)
solicitations
Chris Baranaskas 5/9/07
Janice Bein 3/13/07; 4/3/07; 4/6/07; 4/11/07;
4/16/07
3/28/07; 4/3/07; 4/9/07; 4/12/07;
Warren Davis 4/17/07; 4/20/07; 4/25/07; 4/30/07;
5/30/07
Kip Descombes 5/3/07; 5/4/07
Mark Duranty 5/1/07; 5/2/07; 5/4/07; 5/9/07
Harold Hallikainen 5/4/07
Chris Kahn 3/12/07
Sara Kober 5/1/07
Geddy Krul 4/11/07
Jon Lehner 3/20/07; 3/26/07; 4/16/07
Sean Mahoney 4/30/07
Caitlin Massey 3/20/07; 3/22/07; 4/16/07; 4/18/07;
4/20/07
Christopher Maxwell 4/11/07
Ron O'Connor II 4/17/07
Chanel Paulson 3/9/07
William Ragsdale 4/30/07
Anne Shephard 5/2/07
Doug Sherrod 3/30/07; 4/2/07; 4/26/07
Bryan Tilden 4/4/07; 4/11/07; 4/16/07; 4/18/07;
4/25/07; 4/30/07; 5/7/07
Willie Wadley 4/3/07
Complainant received facsimile
solicitations after requesting no more be Violation Date(s)
sent
Lauren Buijs 4/9/07; 4/10/07; 4/12/07
John R. Burns, Jr. 5/4/07
Michelle Johnson 4/9/07; 4/23/07
Anita Stein 3/26/07; 4/2/07; 4/6/07
Tim Uttomark 3/27/07; 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, Mexico Marketing is also
doing business as TravelComm, Inc., TravelComm Industries, Inc., Canadian
Travel, Patriot Travel, CancunAllInclusive.net, Cheapticketscancun,
International Resort Reservations and Cancun Adventures, Inc. Therefore,
all references in this NAL to "Mexico Marketing" encompass Mexico
Marketing as well as TravelComm, Inc., TravelComm Industries, Inc.,
Canadian Travel, Patriot Travel, CancunAllInclusive.net,
Cheapticketscancun, International Resort Reservations and Cancun
Adventures, Inc. Mexico Marketing has offices at 5895 Carrier Drive,
Orlando, FL 32819; 5850 Lakehurst Drive, #280, Orlando, FL 32819; P.O. Box
300245, Casselberry, FL 32730 and 322 W Newell St., Winter Garden, FL
34787. Jerry Decker, President of Sales and Marketing, is listed as the
contact person for Mexico Marketing. Dan Hatfield and Rigoberto Sotolongo
are listed as Presidents for Mexico Marketing and Peter Sotolongo is the
Manager. Accordingly, all references in this NAL to "Mexico Marketing"
also encompass the foregoing individuals and all other principals and
officers of this entity, as well as the corporate entity itself. The
Registered Agent for Mexico Marketing is listed as Dorough, Calzada &
Hamner, P.L., 419 North Magnolia Avenue, Orlando, FL 32801.
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-130, issued to
Mexico Marketing, LLC on June 30, 2006. The Commission staff previously
issued a citation for unsolicited facsimile advertising to TravelComm
Industries, Inc. on May 19, 2005.
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 Mexico Marketing, LLC's three
Florida addresses: 5895 Carrier Drive, Orlando, FL 32819, P.O. Box 300245,
Casselberry, FL 32730 and 322 W. Newell St., Winter Garden, FL 34787. The
citation was also sent by regular mail to P.O. Box 300245, Casselberry, FL
32730.
Following the issuance of the citation, the Commission continued to
receive complaints from multiple consumers alleging that Mexico Marketing
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 Mexico Marketing on July 31,
2007 in the amount of $1,133,000. Mexico Marketing, LLC, Notice of
Apparent Liability for Forfeiture, FCC 07-133 (July 31, 2007).
See Appendix for a listing of the consumer complaints against Mexico
Marketing requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Mexico Marketing 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 2, 2007 from Warren Davis (stating that
the "unsolicited junk FAX received at 9:33 AM on Wednesday, March 28,
2007, promoting: "company vacations" on the Mexican Caribbean.; I
personally and our company do NOT have an EBR with this caller or
company."). All of the complainants involved in this action are listed in
the Appendix below.
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.
(...continued from previous page)
(continued....)
Federal Communications Commission FCC 07-230
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Federal Communications Commission FCC 07-230