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                    )   File No. EB-07-TC-2798     
                                                                        
     Guardian Steel Buildings, Inc.      )   NAL/Acct No. 200832170079  
                                                                        
     Apparent Liability for Forfeiture   )   FRN: 0018140244            
                                                                        
                                         )                              
                                                                        
                                         )                              
                                                                        
                                         )                              


                  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 Guardian Steel Buildings, Inc. ("Guardian Steel") 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 Guardian Steel 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 23, 2007, in response to one or more consumer complaints
       alleging that Guardian Steel had faxed unsolicited advertisements, the
       Enforcement Bureau ("Bureau") issued a citation to Guardian Steel,
       pursuant to section 503(b)(5) of the Act. The Bureau cited Guardian
       Steel for using a telephone facsimile machine, computer, or other
       device, to send unsolicited advertisements for factory unclaimed
       buildings to a telephone facsimile machine, in violation of section
       227 of the Act and the Commission's related rules and orders. The
       citation warned Guardian Steel 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 Guardian Steel 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. Guardian Steel 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 Guardian Steel 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 Guardian Steel 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 Guardian Steel 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 Guardian Steel after the
       Commission's citation. The facsimile transmission advertised factory
       unclaimed buildings. Further, according to the complaint, the consumer
       neither had an established business relationship with Guardian Steel
       nor gave Guardian Steel 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 Guardian Steel apparently
       violated section 227 of the Act and the Commission's related rules and
       orders by sending one unsolicited advertisement to a consumer's
       facsimile machine.

    B. Proposed Forfeiture

    7. We find that Guardian Steel 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. Guardian Steel 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 Guardian Steel Buildings, 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 consumer
       identified in the Appendix. We have further determined that Guardian
       Steel Buildings, 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 Guardian Steel
       Buildings, 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, Guardian Steel
       Buildings, 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). Guardian
   Steel Buildings, 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 Guardian Steel Buildings, Inc., Attention: Travis
   Cromwell, President, Tyler Cromwell, Vice President, 7040 Seminole Pratt
   Whitney Road, Suite 25, Loxahatchee, FL 33470; 7040 Seminole Pratt Whitney
   Road, #25175, West Palm Beach, FL 33407; 6758 Military Trail, Ste 209,
   West Palm Beach, FL 33407-1224; and c/o Spiegel & Utrera, P.A., 1840 Coral
   Way, Miami, FL 33145-2748.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

                                    APPENDIX

                         Complainant and Violation Date


     Complainant received facsimile solicitation   Violation Date  

     Rebecca Edler                                 10/11/07        



   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).

   Guardian Steel has offices at 7040 Seminole Pratt Whitney Road, Suite 25,
   Loxahatchee, FL 33470; 7040 Seminole Pratt Whitney Road, #25175, West Palm
   Beach, FL 33407 and 6758 Military Trail, Ste 209, West Palm Beach, FL
   33407-1224. Travis Cromwell is listed as the President of Guardian Steel.
   Tyler J. Cromwell is listed as the Vice President of Guardian Steel.
   Accordingly, all references in this NAL to "Guardian Steel" also encompass
   the foregoing individuals and all other principals and officers of this
   entity, as well as the corporate entity itself. Spiegel & Utrera, P.A.,
   1840 Coral Way, Miami, FL 33145-2748 is listed as the Registered Agent for
   Guardian Steel.

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

   Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
   Consumers Division, Enforcement Bureau, File No.EB-07-TC-2798, issued to
   Guardian Steel on April 23, 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 address: Guardian Steel
   Buildings, Inc., Attn: Travis Cromwell, President, 7040 Seminole Pratt
   Whitney Road, Suite 25, Loxahatchee, FL 33470-5714. See n.2, supra.

   See Appendix for a listing of the consumer complaint against Guardian
   Steel requesting Commission action.

   We note that evidence of additional instances of unlawful conduct by
   Guardian Steel 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 11, 2007, from Rebecca Edler (stating
   that she 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 her). 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 08-2144

   1

   2

   Federal Communications Commission DA 08-2144