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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
) File No. EB-06-TC-377
Cost Crunch, Inc. d/b/a
) NAL/Acct. No. 200832170078
Talk Toolbox
) FRN: 0017275355
Apparent Liability for Forfeiture
)
)
)
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 Cost Crunch, Inc. ("Cost Crunch") 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 Cost
Crunch 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 September 11, 2006, in response to one or more consumer complaints
alleging that Cost Crunch had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Cost Crunch,
pursuant to section 503(b)(5) of the Act. The Bureau cited Cost Crunch
for using a telephone facsimile machine, computer, or other device, to
send unsolicited advertisements for radios and low cost megaphones to
a telephone facsimile machine, in violation of section 227 of the Act
and the Commission's related rules and orders. The citation warned
Cost Crunch 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 Cost Crunch 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. Cost Crunch 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 one
additional consumer complaint indicating that Cost Crunch continued to
engage in such conduct after issuance of the citation. We base our
action here specifically on one complaint filed by one consumer
establishing that Cost Crunch 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 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 Restricting Unsolicited Facsimile
Advertisements
6. We find that Cost Crunch 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 Cost Crunch after the Commission's
citation. The facsimile transmission advertised radios and low cost
megaphones. Further, according to the complaint, the consumer neither
had an established business relationship with Cost Crunch nor gave
Cost Crunch 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 Cost Crunch apparently violated section
227 of the Act and the Commission's related rules and orders by
sending one unsolicited advertisement to one consumer's facsimile
machine.
B. Proposed Forfeiture
7. We find that Cost Crunch 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. Cost Crunch 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 Cost Crunch, 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 Cost Crunch, 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 Cost Crunch,
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, Cost Crunch, 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). Cost
Crunch 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 Cost Crunch, Inc. d/b/a Talk Toolbox, Attention:
Steve Markland, 115 Rexford Lane, Alpharetta, GA 30022; 135 Rexford Lane,
Alpharetta, GA 30022; 1066 Union Center Drive, Alpharetta, GA 30004; 1068
Union Center Drive, Alpharetta, GA 30004; 6625 Highway 53, Dawsonville, GA
30534; 1282 Smallwood Dr. W, Suite 3, Waldorf, MD 20603 and 160 Starboard
Way, Alpharetta, GA 30022 .
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant and Violation Date
Complainant(s) received facsimile solicitation Violation Date
Jack Sparks 10/10/07
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).
Cost Crunch is doing business as Talk Toolbox. Therefore, all references
in this NAL to Cost Crunch encompass Cost Crunch, Inc., as well as Talk
Toolbox. Cost Crunch has offices at 115 Rexford Lane, Alpharetta, GA
30022; 135 Rexford Lane, Alpharetta, GA 30022; 1066 Union Center Drive,
Alpharetta, GA 30004; 1068 Union Center Drive, Alpharetta, GA 30004; 6625
Highway 53, Dawsonville, GA 30534; 1282 Smallwood Dr. W, Suite 3, Waldorf,
MD 20603 and 160 Starboard Way, Alpharetta, GA 30022. Steve Markland is
listed as the owner and primary contact for Cost Crunch. Accordingly, all
references in this NAL to "Cost Crunch" 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-377, issued to
Cost Crunch, Inc. d/b/a Talk Toolbox on September 11, 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).
Bureau staff mailed the citation to the following address: Cost Crunch,
Inc. d/b/a Talk Toolbox, 135 Rexford Lane, Alpharetta, GA 30022.
Following the issuance of the citation, the Commission continued to
receive complaints from consumers alleging that Cost Crunch faxed
unsolicited advertisements to them. These violations, occurring after the
Commission's citation, resulted in the issuance of two Notices of Apparent
Liability for Forfeiture against Cost Crunch, Inc. on January 11, 2008 in
the amount of $4,500 and on June 12, 2008 in the amount of $13,500. Cost
Crunch, Inc., Notice of Apparent Liability for Forfeiture, DA 08-56 (Enf.
Bur. January 11, 2008); Cost Crunch, Inc., Notice of Apparent Liability
for Forfeiture, 23 FCC Rcd 9240 (2008). Steve Markland responded to the
January 11, 2008 NAL on February 7, 2008. Letter from Steve Markland to
Office of the Secretary, FCC, received February 19, 2008.
See Appendix for a listing of the consumer complaint against Cost Crunch
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by Cost
Crunch 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 at $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, e.g., complaint dated October 10, 2007, from Jack Sparks (stating
that he has not done business with the fax advertiser, made an inquiry or
application to the fax advertiser, and has not given permission to the fax
advertiser to fax an advertisement). 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.
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Federal Communications Commission DA 08-2143
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Federal Communications Commission DA 08-2143