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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No. EB- 07-TC-621
In the Matter of
) File No. EB-07-TC-909
Timeshare Register
) NAL/Acct. No. 200832170075
Apparent Liability for Forfeiture
) FRN: 0017849787
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 24, 2008 Released: September 26, 2008
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Timeshare Register apparently willfully or repeatedly violated
section 64.1200(c)(2) of the Commission's rules, by making a telephone
call for the purpose of delivering a telephone solicitation to a
residential telephone consumer who had registered his telephone number
on the National Do-Not-Call Registry. Based on the facts and
circumstances surrounding this apparent violation, we find that
Timeshare Register is apparently liable for a forfeiture in the amount
of $10,000.
II. BACKGROUND
2. Section 64.1200(c)(2) of the Commission's rules generally prohibits the
delivery of telephone solicitations to residential telephone numbers that
are contained in the National Do-Not-Call Registry, except in certain
limited situations. Under the Communications Act of 1934, as amended
("Act"), and the Commission's rules, a "telephone solicitation" means "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." Not every promotional call, however,
constitutes a prohibited telephone solicitation under this rule. Calls
made by or on behalf of a tax-exempt nonprofit organization are not
considered to be telephone solicitations. Similarly, calls that are made
to a person who either has provided prior express invitation or permission
to call or has an established business relationship with the caller are
not considered to be telephone solicitations. In addition to these
statutory exemptions, section 64.1200(c)(2)(iii) also permits telephone
solicitations to National Do-Not-Call registrants in the limited situation
in which the caller has a personal relationship with the called party.
3. Entities making telephone solicitations must honor do-not-call
registrations no later than 31 days after a number is placed on the
National Do-Not-Call Registry. To accomplish this, section
64.1200(c)(2)(i)(D) requires entities making telephone solicitations
to use a version of the National Do-Not-Call Registry obtained no more
than 31 days before any telephone solicitation is made, and to
document this process. An entity that does not claim one of the
exemptions set forth above is not liable for calling a telephone
number on the National Do-Not-Call Registry only if it is able to
demonstrate both that it has fully complied with the Commission's
standards governing use of the National Do-Not-Call Registry as set
out in section 64.1200(c)(2)(i)(A)-(E) of the rules, and that the
particular telephone solicitation call was the result of specific
error.
4. In order to comply with the Commission's standards, a person or entity
initiating a telephone solicitation must first demonstrate that, as
part of its routine business practice it has: (1) established and
implemented written procedures to comply with the do-not-call rules;
(2) trained its personnel, and any entity assisting in its compliance,
in the procedures established pursuant to the do-not-call rules; (3)
maintained and recorded a list of telephone numbers the seller may not
contact; (4) used a process to prevent telemarketing to any telephone
number on any list established pursuant to the do-not-call rules
employing a version of the National Do-Not-Call Registry obtained from
the administrator of the Registry within a designated time frame, and
has maintained records documenting this process; and (5) used a
process to ensure that it does not sell, rent, lease, purchase, or use
the Registry for any purpose except national do-not-call compliance,
and that it has purchased access to the Registry from the Registry
administrator without participating in any cost sharing arrangement
with any other entity. We reiterate, however, that the "safe harbor"
from liability only applies if such person or entity is able to show
that the particular violative calls made in spite of adherence to the
enumerated do-not-call procedures were the result of specific error.
5. On March 5, 2007, in response to one or more consumer complaints
alleging that Timeshare Register had made telephone calls for the
purpose of delivering telephone solicitations to residential telephone
consumers who had registered their telephone numbers on the National
Do-Not-Call Registry, the Commission staff issued a citation to
Timeshare Register, pursuant to section 503(b)(5) of the Act. The
staff cited Timeshare Register for delivering one or more telephone
solicitations to residential telephone consumers who had registered
their telephone numbers on the National Do-Not-Call Registry, in
violation of section 64.1200(c)(2) of the Commission's rules. The
citation warned Timeshare Register 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 Timeshare Register
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. Timeshare Register did not
request an interview or otherwise respond to the citation.
6. 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 Timeshare Register
continued to engage in such conduct after receiving the citation. We
base our action here specifically on a complaint filed by a consumer
establishing that Timeshare Register continued to deliver at least one
telephone solicitation after the date of the citation to a consumer
who had registered his telephone number on the National Do-Not-Call
Registry.
7. Section 503(b) of the Act authorizes the Commission to assess a
forfeiture 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. The maximum penalty for such a violation is $11,000 for a
violation occurring before September 2, 2008, and $16,000 for a
violation occurring on or after September 2, 2008. 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
8. We find that Timeshare Register apparently violated section
64.1200(c)(2) of the Commission's rules and orders by delivering at least
one telephone solicitations to the consumer identified in the Appendix who
had registered his telephone number on the National Do-Not-Call registry.
This NAL is based on evidence that a consumer who had registered his
telephone number on the National Do-Not-Call registry received one
telephone solicitation from Timeshare Register after the Commission
staff's citation. The calls at issue advertised timeshares. Hence, the
call at issue here therefore falls within the definition of a "telephone
solicitation." Further, we find that the call at issue here was not made
on behalf of a tax exempt, nonprofit organization. In addition, according
to the complaint, the consumer neither had an established business
relationship with Timeshare Register nor gave Timeshare Register prior
express invitation or permission to deliver the telephone solicitations.
Finally, Timeshare Register made the call at issue more than thirty-one
(31) days after the consumer placed his residential telephone number on
the National Do-Not-Call Registry. Based on the entire record, including
the consumer complaint, we conclude that Timeshare Register apparently
violated section 64.1200(c)(2) the Commission's rules by delivering a
telephone solicitations to a consumer who had registered his telephone
number on the National Do-Not-Call registry
.
B. Proposed Forfeiture
9. We find that Timeshare Register is apparently liable for a forfeiture
in the amount of $10,000. The Commission's Forfeiture Policy Statement
does not establish a base forfeiture amount for violating the prohibition
on making telephone solicitations to customers who have registered on the
National Do-Not-Call Registry. The Commission has found that a national
do-not-call violation implicates the same concern as a violation of the
company specific do-not-call rules and, accordingly, justifies the
application of the $10,000 base amount that the Commission previously
proposed for company specific do-not call violations. We apply that base
amount to one apparent telephone solicitation violation. Thus, we propose
a total forfeiture of $10,000. Timeshare Register 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
10. We have determined that Timeshare Register apparently violated section
64.1200(c)(a) of the Commission's rules by delivering at least one
telephone solicitation to the consumer identified in the Appendix who had
registered his telephone number on the National Do-Not-Call registry. We
have further determined that Timeshare Register is apparently liable for a
forfeiture in the amount of $10,000.
11. 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 Timeshare Register
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of $10,000 for willful or repeated violations of section
64.1200(c)(2) of the Commission's rules, 47 C.F.R. S: 64.1200(c)(2), and
the related orders described in the paragraphs above.
12. 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, Timeshare Register SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed forfeiture.
13. 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).
Timeshare Register 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.
14. 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.
15. 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.
16. 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 regular mail to Timeshare Register, Attention: Christopher Mazzone,
Owner, 2672 Bayshore Boulevard, Dunedin, FL 34698 and 2314 Bent Tree Rd.,
Palm Harbor, FL 34684.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant and Violation Date
Complainant received telephone solicitation after Violation Date
registering on the National Do-Not-Call Registry
Rick Rasnic 10/10/2007
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, Timeshare Register is also
doing business as Timeshare Register Group, LLC and Timeshare Registry
International. Therefore, all references in this NAL to "Timeshare
Register" encompass Timeshare Register as well as Timeshare Register
Group, LLC and Timeshare Registry International. Timeshare Register has
offices at 2672 Bayshore Boulevard, Dunedin, FL 34698 and 2314 Bent Tree
Rd., Palm Harbor, FL 34684. Christopher Mazzone, Owner, is listed as the
contact person for Timeshare Register. Accordingly, all references in this
NAL to "Timeshare Register" also encompass the foregoing individual and
all other principals and officers of this entity or entities, as well as
the corporate entity or entities.
See 47 C.F.R. S: 64.1200(c)(2).
47 C.F.R. S: 64.1200(c)(2).
47 U.S.C. S: 227(a)(3); 47 C.F.R. S: 64.1200(f)(12).
47 U.S.C S: 227(a)(3); 47 C.F.R. S: 64.1200(f)(12).
Section 64.1200(c)(2)(ii) of our rules requires that prior express
invitation or permission "must be evidenced by a signed, written agreement
between the consumer and seller which states that the consumer agrees to
be contacted by this seller and includes the telephone number to which the
calls may be placed." 47 C.F.R. S: 64.1200(c)(2)(ii).
For do-not-call purposes, the term "established business relationship"
means "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). The established business
relationship exception does not apply when a telephone subscriber has made
a company-specific do-not-call request. A company-specific do-not-call
request terminates an established business relationship for telemarketing
purposes even if the requester continues to do business with the company.
47 C.F.R. S: 64.1200(f)(4)(i); see also Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC
Rcd 14014, 14070, para. 96 (2003); Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd
8752, 8766 n.47, 8770 n.63 (1992); see also H.R. Rep. 102-317, 1st Sess.,
102nd Cong. at 15 (1991); Charvat v. Dispatch Consumer Services, Inc., 95
Ohio St. 3d 505, 769 N.E.2d 829 (2002).
The term "personal relationship" means "any family member, friend, or
acquaintance of the telemarketer making the call." 47 C.F.R. S:
64.1200(f)(14).
The 31-day requirement applies to telephone solicitations made on or after
January 1, 2005. Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, Order, 19 FCC Rcd 19215 (2004). Previously, the
Commission's rules provided that do-not-call registrations had to be
honored within 3 months. Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd 14014,
14040, para. 38 (2003). An analogous 3-month provision applied to
telephone solicitations made before January 1, 2005.
47 C.F.R. S: 64.1200(c)(2)(1)(A)-(E).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-621, issued to
Timeshare Register on March 5, 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 Timeshare Register, Attn: Chris
Mazzone, Owner, 2672 Bayshore Boulevard, Dunedin, FL 34698. See n.2,
supra.
Following the issuance of the citation, the Commission continued to
receive complaints from multiple customers alleging that Timeshare
Register placed calls to consumers on the National Do Not Call list. One
of these complaints, received after the Commission's citation, resulted in
the issuance of an additional citation against Timeshare Register on May
29, 2007. Citation from Kurt A. Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, File No.
EB-07-TC-909, issued to Timeshare Register on May 29, 2007. Another
complaint resulted in the issuance of a Notice of Apparent Liability for
Forfeiture in the amount of $20,000 on June 11, 2008. Timeshare Register,
Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 9206 (2008). To
date, Timeshare Register has not filed a response to this NAL.
See Appendix for a listing of the consumer complaint against Timeshare
Register requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Timeshare Register 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)
first to $11,000 and more recently to $16,000. 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)
(forfeiture maximum for this type of violator set at $11,000); Amendment
of Section 1.80(b) of the Commission's Rules and Adjustment of Forfeiture
Maxima to Reflect Inflation, 19 FCC Rcd 10945 (2004) (amendment of section
1.80(b) to reflect inflation left the forfeiture maximum for this type of
violator at $11,000); Amendment of Section 1.80(b) of the Commission's
Rules, Adjustment of Forfeiture Maxima to Reflect Inflation, 23 FCC Rcd
9845 (2008) (amendment of section 1.80(b) to reflect inflation increased
the forfeiture maximum for this type of violator to $16,000).
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 47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(12).
See, complaint dated October 10, 2007, from Rick Rasnic (stating that he
has 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 calls). The complainant involved in this action is listed in the
Appendix.
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 (1997), recon. denied, 15 FCC Rcd 303 (1999) (Forfeiture
Policy Statement).
Dynasty Mortgage, LLC, Order of Forfeiture, 22 FCC Rcd 9453, 9469, para.
43 (2007).
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 08-2141
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Federal Communications Commission DA 08-2141