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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
File No. EB- 07-TC-640
In the matter of )
File No. EB- 07-TC-3638
So Clean Inc. )
NAL/Acct. No. 200832170050
Apparent Liability for Forfeiture )
FRN: 0017839390
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 6, 2008 Released: June 6, 2008
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that So Clean Inc. ("So Clean") 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 four unsolicited, prerecorded advertising messages to at
least four consumers. Based on the facts and circumstances surrounding
these apparent violations, we find that So Clean is apparently liable
for a forfeiture in the amount of $18,000.
II. BACKGROUND
2. Section 227(b)(1)(B) 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 to
the prohibition for calls: 1) made for emergency purposes; 2) not made
for a commercial purpose; 3) made for a commercial purpose but "not
including or introducing an unsolicited advertisement or constituting
a telephone solicitation"; 4) to any person "with whom the caller has
an established business relationship at the time the call is made"; or
5) "made by or on behalf of a tax-exempt nonprofit organization."
3. On March 6, 2007, in response to one consumer complaint alleging that
So Clean had delivered an unsolicited, prerecorded advertising
message, the Commission staff issued a citation to So Clean, pursuant
to section 503(b)(5) of the Act. The staff cited So Clean for
delivering one or more unsolicited, prerecorded advertising messages
to a residential telephone line for carpet cleaning, 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 So Clean 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 So Clean 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. So Clean replied to the citation by letter, stating that
the complainant's phone number "must have been entered into our system
by mistake" and that it "has been completely removed and will not be
called again."
4. Further, on July 2, 2007, in response to one additional consumer
complaint alleging that So Clean had delivered an unsolicited,
prerecorded advertising message, the Commission staff issued a further
citation to So Clean, pursuant to section 503(b)(5) of the Act. The
staff cited So Clean for delivering one or more unsolicited,
prerecorded advertising messages to a residential telephone line for
an unstated business, 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 So Clean
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 So Clean 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. So
Clean replied to the citation by letter, stating that "it seems the
same error has occurred for" the second complainant and that "we can
assure you that he will not be called again."
5. Despite the two citations' warnings that subsequent violations could
result in the imposition of monetary forfeitures, we have received
four additional consumer complaints indicating that So Clean continued
to engage in such conduct after receiving the first citation. We base
our action here specifically on four complaints filed by four
consumers establishing that So Clean continued to deliver four
unsolicited, prerecorded advertising messages to four consumers after
the date of the first citation.
6. 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. disscussion
A. Violations of the Commission's Rules Restricting Unsolicited
Prerecorded Messages
7. We find that So Clean apparently violated section 227 of the Act and
the Commission's related rules and orders by delivering at least four
unsolicited, prerecorded advertising messages to the four consumers
identified in the Appendix. This NAL is based on evidence that four
consumers received unsolicited prerecorded messages from So Clean
after the Commission staff's citation. The prerecorded messages
advertise cleaning services. Further, we find that the unsolicited,
prerecorded messages at issue here were not made for any emergency or
non-commercial purposes, and were not on behalf of a tax-exempt,
nonprofit organization, but were commercial in nature and included
unsolicited advertisements or constituted telephone solicitations. In
addition, according to the complaints, the consumers neither had an
established business relationship with So Clean nor gave So Clean
permission to deliver the unsolicited, prerecorded messages. The
prerecorded messages at issue here therefore fall within the
definition of an "unsolicited advertisement." Based on the entire
record, including the consumer complaints, we conclude that So Clean
apparently violated section 227 of the Act and the Commission's
related rules and orders by delivering four unsolicited, prerecorded
advertising messages to four consumers.
A. Proposed Forfeiture
8. We find that So Clean is apparently liable for a forfeiture in the
amount of $18,000. 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, the Commission's Enforcement
Bureau has found these violations to be similar in nature to 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 four apparent
unsolicited, prerecorded advertising message violations. Thus, a total
forfeiture of $18,000 is proposed. So Clean 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
9. We have determined that So Clean Inc. apparently violated section 227
of the Act and the Commission's related rules and orders by delivering
at least four unsolicited, prerecorded advertising messages to the
four consumers identified in the Appendix. We have further determined
that So Clean Inc. is apparently liable for a forfeiture in the amount
of $18,000.
10. 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 So Clean Inc. is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of $18,000 for willful or repeated violations of section
227(b)(1)(B) of the Communications Act, 47 U.S.C. S: 227(b)(1)(B),
sections 64.1200(a)(2) of the Commission's rules, 47 C.F.R. S:
64.1200(a)(2), and the related orders described in the paragraphs
above.
11. 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, So Clean Inc. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
12. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Account Number and FRN Number referenced
above. Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
Payment by overnight mail may be sent to U.S. Bank - Government
Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101. Payment by wire transfer may be made to ABA Number 021030004,
receiving bank TREAS/NYC, and account number 27000001. For payment by
credit card, an FCC Form 159 (Remittance Advice) must be submitted.
When completing the FCC Form 159, enter the NAL/Account number in
block number 23A (call sign/other ID), and enter the letters "FORF" in
block number 24A (payment type code). SOS Marketing will also send
electronic notification on the date said payment is made to
Johnny.drake@fcc.gov. Requests for full payment under an installment
plan should be sent to: Chief Financial Officer -- Financial
Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C.
20554. Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.
13. 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.
14. 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.
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 So Clean Inc., Attention: Tracy Kupke and Luke Will,
42400 Mound Road, Sterling Heights, MI 48314-3149 and 43428 Goldberg
Drive, Sterling Heights, MI 48313-1865.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainants and Violation Dates
Complainant received unsolicited prerecorded Violation Date(s)
messages
Tom Speight June 14, 2007
Charles Larkin June 27, 2007
Jessica Draper June 28, 2007
Greg Driskell June 23, 2007
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, So Clean has offices at 42400
Mound Road, Sterling Heights, MI 48314-3149 and 43428 Goldberg Drive,
Sterling Heights, MI 48313-1865. Tracy Kupke and Luke Will, are listed as
the contact persons for So Clean. Accordingly, all references in this NAL
to "So Clean" 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)(B); 47 C.F.R. S: 64.1200(a)(2).
47 U.S.C. S: 227(b)(1)(B); 47 C.F.R. S: 64.1200(a)(2).
An "unsolicited advertisement" is defined 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." 47 U.S.C. S: 227(a)(4);
47 C.F.R. S: 64.1200(f)(13).
A "telephone solicitation" is defined as "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, but such term does not include a call or message (A) to any
person with that person's prior express invitation or permission, (B) to
any person with whom the caller has an established business relationship,
or (C) by a tax- exempt nonprofit organization. " 47 U.S.C. S: 227(a)(3);
47 C.F.R. S: 64.1200(f)(12). 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." TCPA Revisions Report and Order, 18
FCC Rcd 14097-98 (2003).
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 U.S.C. S: 227(b)(1)(B); 47 C.F.R. S: 64.1200(a)(2).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-640 issued to So
Clean on March 6, 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 So Clean Inc., 42400 Mound Road,
Sterling Heights, MI 48314-3149 and So Clean, Inc., 43428 Goldberg Drive,
Sterling Heights, MI 48313-1865. See n. 2, supra.
Letter from Tracey, So Clean to Kurt A. Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, dated March 30,
2007.
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-3638, issued to
So Clean on July 2, 2007. The citation also inadvertently included the
complaint in the March 30, 2007 citation to So Clean.
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 So Clean, Inc., Attn: Tracy Kupke
and Luke Will, 42400 Mound Road, Sterling Heights, MI 48314-3149 and 43428
Goldberg Drive, Sterling Heights, MI 48313-1865. See n. 2, supra.
Letter from Tracey, So Clean to Kurt A. Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, dated August 1,
2007.
See Appendix for a listing of the consumer complaints against So Clean
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by So
Clean 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 June 15, 2007, from Tom Speight (stating that
he had never done any business with the company, never made an inquiry or
application to the company, and never gave permission for the company to
make the call). The complainants involved in this action are listed in the
Appendix.
See 47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13).
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 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.
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Federal Communications Commission DA 08-1354
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Federal Communications Commission DA 08-1354