Click here for Adobe Acrobat version
Click here for Microsoft Word version

******************************************************** 
                      NOTICE
********************************************************

This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.

*****************************************************************



                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                             )                               
                                                                             
     In the Matter of                        )                               
                                                                             
     Modena Advertising, Inc.                )                               
                                                                             
     d/b/a Extravacations.com                )   File No. EB-06-TC-140       
                                                                             
     d/b/a Modena Mortgage Solutions         )   NAL/Acct. No. 200832170055  
                                                                             
     d/b/a Modena International              )   FRN: 0017853235             
     Advertising                                                             
                                             )                               
     Apparent Liability for Forfeiture                                       
                                             )                               
                                                                             
                                             )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: June 11, 2008 Released: June 12, 2008 

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Modena Advertising, Inc. ("Modena") 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 advertisements to the telephone
       facsimile machines of four consumers. Based on the facts and
       circumstances surrounding the apparent violation, we find that Modena
       is apparently liable for a forfeiture in the amount of $18,000.

   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 August 31, 2006, in response to one or more consumer complaints
       alleging that Modena had faxed unsolicited advertisements, the
       Enforcement Bureau ("Bureau") issued a citation to Modena, pursuant to
       section 503(b)(5) of the Act. The Bureau cited Modena for using a
       telephone facsimile machine, computer, or other device, to send
       unsolicited advertisements for vacation packages 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 Modena 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 Modena 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.
       Modena 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 Modena continued to engage in such
       conduct after issuance of the citation. We base our action here
       specifically on four complaints filed by consumers establishing that
       Modena continued to send 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 Modena 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 four unsolicited
       advertisements to the consumers identified in the Appendix. This NAL
       is based on evidence that consumers received unsolicited fax
       advertisements from Modena after the Bureau's citation. The facsimile
       transmissions advertise a vacation package. Further, according to the
       complaints, the consumer neither had an established business
       relationship with Modena nor gave Modena permission to send the
       facsimile transmission. The facsimiles at issue here therefore fall
       within the definition of an "unsolicited advertisement."  Based on the
       entire record, including the consumer complaints, we conclude that
       Modena apparently violated section 227 of the Act and the Commission's
       related rules and orders by sending the unsolicited advertisements to
       the consumers' facsimile machines.

    B. Proposed Forfeiture

    7. We find that Modena 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 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 apparent violation. Thus, a
       total forfeiture of $18,000 proposed. Modena 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 Modena Advertising, 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 four unsolicited advertisements to the consumers
       identified in the Appendix. We have further determined that Modena
       Advertising, Inc. is apparently liable for a forfeiture in the amount
       of $18,000.

    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 Modena
       Advertising, 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)(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, Modena Advertising,
       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). Modena Advertising, Inc. 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 Modena Advertising, Inc., 41120 Elm
       Street, Murrieta, CA 92562; 26945 Cabot Rd., Laguna Hills, CA 92653;
       and 23905 Clinton Keith Road, Suite 114, Wildomar, CA 92595,
       Attention: Debo Oke.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

                                    APPENDIX

                        Complainants and Violation Dates


     Complainant received facsimile solicitations   Violation Date(s)   

     McCoy, Jason                                   June 21, 2007       

     Griffith, Amy                                  August 27, 2007     

     Majors, Donnie                                 September 5, 2007   

     Landry, Stephen                                September 19, 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, Modena Advertising, Inc. is
   also doing business as Modena Mortgage Solutions, Extravacations.com, and
   Modena International Advertising. Therefore, all references in this NAL to
   "Modena" encompass Modena Advertising, Inc., Modena Mortgage Solutions,
   Extravacations.com, as well as Modena International Advertising. Modena
   has offices at 41120 Elm Street, Murrieta, CA 92562, 26945 Cabot Rd.,
   Laguna Hills, CA 92653-7009, and 23905 Clinton Keith Road, Suite 114,
   Wildomar, CA 92595. Debo Oke, is listed as the contact person for Modena.
   Accordingly, all references in this NAL to Modena 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: 64.1200 (a)(3)(i), (ii).

   Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
   Consumers Division, Enforcement Bureau, File No. EB-06-TC-140, issued to
   Modena Mortgage Solutions dba Extravacations and Modena Advertising, Inc.
   on August 31, 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 the following addresses: Modena
   Mortgage Solutions dba Extravacations.com, 41120 Elm Street, Murrieta, CA
   92562, and Modena Advertising, Inc., 26945 Cabot Rd., Laguna Hills, CA
   92653-7009, Attention: Debo Oke. See n.2, supra.

   See Appendix, listing the consumer complaint against Modena requesting
   Commission action.

   We note that evidence of additional instances of unlawful conduct by
   Modena 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 21, 2007, from Jason McCoy (stating that
   he has never purchased anything from the company being advertised in the
   fax or made an inquiry or application to the company or given consent for
   the company to send the fax.). 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) (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 08-1389

   2

   5

   Federal Communications Commission DA 08-1389