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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No. EB-07-TC-13289
Rentex ) NAL/Acct No. 200932170014
Apparent Liability for Forfeiture ) FRN: 0018289884
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 18, 2008 Released: December 19, 2008
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Rentex 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 Rentex 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 November 9, 2007, in response to one or more consumer complaints
alleging that Rentex had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Rentex, pursuant to
section 503(b)(5) of the Act. The Bureau cited Rentex for using a
telephone facsimile machine, computer, or other device, to send
unsolicited advertisements for computer and audio visual rentals, in
violation of section 227 of the Act and the Commission's related rules
and orders. The citation warned Rentex 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 Rentex
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. Rentex 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 Rentex 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 Rentex sent an 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 Rentex 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 Rentex after the Commission's citation. The
facsimile transmission advertised computer and audio visual equipment.
Further, according to the complaint, the consumer neither had an
established business relationship with Rentex nor gave Rentex
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 Rentex 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 Rentex 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. Rentex 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 Rentex 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 Rentex 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 Rentex 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, Rentex 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). Rentex
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 Rentex, Attention: Richard G. Flaherty III,
President, 337 Summer Street, Suite 345, Boston, MA 02210.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant and Violation Date
Complainant received facsimile solicitation Violation Date
Seena Easter 4/28/08
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).
Rentex has offices at 337 Summer Street, Suite 345, Boston, MA 02210.
Richard G. Flaherty, III is listed as the President of Rentex.
Accordingly, all references in this NAL to "Rentex" 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(a)(3)(i), (ii).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No.EB-07-TC-13289, issued to
Rentex on November 9, 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: Rentex, Attn:
Richard G. Flaherty III, President, 337 Summer Street, Suite 345, Boston,
MA 02210. See n.2, supra.
See Appendix for a listing of the consumer complaint against Rentex
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Rentex 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 April 29, 2008, from Seena Easter (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.
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Federal Communications Commission DA 08-2732
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Federal Communications Commission DA 08-2732