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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                              
                                                                        
                                         )                              
                                                                        
                                         )                              
                                                                        
     In the Matter of                    )   File No. EB-07-TC-1263     
                                                                        
     American Locators, Inc.             )   NAL/Acct No. 200832170052  
                                                                        
     Apparent Liability for Forfeiture   )   FRN: 0017851130            
                                                                        
                                         )                              
                                                                        
                                         )                              
                                                                        
                                         )                              


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: June 10, 2008 Released: June 11, 2008

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that American Locators, Inc. ("American Locators") 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 machine of at least one consumer. Based on the
       facts and circumstances surrounding this apparent violation, we find
       that American Locators 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 April 25, 2007, in response to one or more consumer complaints
       alleging that American Locators had faxed unsolicited advertisements,
       the Enforcement Bureau ("Bureau") issued a citation to American
       Locators, pursuant to section 503(b)(5) of the Act. The Bureau cited
       American Locators 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 was served
       by certified mail, return receipt requested, warned American Locators
       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 American Locators 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. American Locators 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 American Locators
       continued to engage in such conduct after the issuance of the
       citation. We base our action here specifically on a complaint filed by
       one consumer establishing that American Locators 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 American Locators 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 consumer identified in the Appendix.
       This NAL is based on evidence that the consumer received an
       unsolicited fax advertisement from American Locators after the
       Commission's citation. The facsimile transmission advertises vending
       machines. Further, according to the complaint, the consumer neither
       had an established business relationship with American Locators nor
       gave American Locators permission to send the facsimile transmission.
       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 American Locators apparently
       violated section 227 of the Act and the Commission's related rules and
       orders by sending one unsolicited advertisement to the consumer's
       facsimile machine.

    B. Proposed Forfeiture

    7. We find that American Locators 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. American Locators 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 American Locators, 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 American
       Locators, Inc. 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 American
       Locators, Inc. 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, American Locators,
       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 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). American
   Locators 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. 

   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. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
   for Forfeiture shall be sent by Certified Mail Return Receipt Requested
   and First Class Mail to American Locators, Inc., Attention: Jim Whittaker,
   1200 Roswell Road, Marietta, GA 30062 and 1531 Roswell Road, Marietta, GA
   30062 and to Barry Staples, Registered Agent, 520 Powder Springs Street,
   Marietta, GA 30064.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

                                    APPENDIX

                         Complainant and Violation Date


     Complainant received facsimile solicitation   Violation Date(s)  

     Patrick Burns                                 6/19/07            



   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).

   American Locators has offices at 1200 Roswell Road, Marietta, GA 30062 and
   1531 Roswell Road, Marietta, GA 30062. Jim Whittaker is listed as the
   Owner of American Locators. Accordingly, all references in this NAL to
   "American Locators" also encompass the foregoing individual and all other
   principals and officers of this entity, as well as the corporate entity
   itself. The registered agent for American Locators is listed as Barry
   Staples, Esq., 520 Powder Springs Street, Marietta, GA 30064.

   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: 64.1200(a)(3)(i), (ii).

   Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
   Consumers Division, Enforcement Bureau, File No.EB-07-TC-1263, issued to
   American Locators on April 25, 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).

   Bureau staff mailed the citation to the following addresses: American
   Locators, Inc., Attn: Jim Whittaker, 1200 Roswell Road, Marietta, GA 30062
   and 1531 Roswell Road, Marietta, GA 30062. See n.2, supra.

   See Appendix for a listing of the consumer complaints against American
   Locators requesting Commission action.

   We note that evidence of additional instances of unlawful conduct by
   American Locators 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 19, 2007, from Patrick Burns (stating that
   he has never done business with the fax advertiser, never made an inquiry
   or application to the fax advertiser and never given permission for the
   fax advertiser to fax an advertisement to him). The complainant involved
   in this action is listed in the Appendix.

   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.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 08-1383

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   Federal Communications Commission DA 08-1383