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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB- 07-TC-578
AZ Prime One Mortgage Corporation ) NAL/Acct. No. 200832170010
Apparent Liability for Forfeiture ) FRN: 0017433095
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 15, 2008 Released: February 15, 2008
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that AZ Prime One Mortgage ("AZ Prime One") 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 telephone
solicitations to a residential telephone consumer who had registered
her telephone number on the National Do-Not-Call Registry. Based on
the facts and circumstances surrounding these apparent violations, we
find that AZ Prime One is apparently liable for a forfeiture in the
amount of $10,000.00.
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, and for a period of no less than five
years. 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 February 28, 2007, in response to a consumer complaint alleging
that AZ Prime One had made a telephone call for the purpose of delivering
telephone solicitations to a residential telephone consumer who had
registered a telephone number on the National Do-Not-Call Registry, the
Bureau issued a citation to AZ Prime One, pursuant to section 503(b)(5) of
the Act. The Bureau cited AZ Prime One 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, which was served by certified mail, return receipt requested,
warned AZ Prime One 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 complaint that formed the basis of the
citation. The citation informed AZ Prime One 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. AZ
Prime One 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 AZ Prime One 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
AZ Prime One continued to deliver a telephone solicitation after the date
of the citation to a consumer who had registered her telephone number on
the National Do-Not-Call Registry.
7. 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
8. We find that AZ Prime One apparently violated section 64.1200(c)(2) of
the Commission's rules and orders by making at least one telephone
solicitation to the consumer identified in the Appendix who had registered
her telephone number on the National Do-Not-Call registry. This NAL is
based on evidence that a consumer who had registered her telephone number
on the National Do-Not-Call registry received a telephone solicitation
from AZ Prime One after the Bureau's citation. The call at issue
advertised mortgage refinancing. Hence, the call at issue falls within the
definition of a "telephone solicitation." Further, we find that the call
at issue 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 AZ Prime One nor gave AZ Prime One
prior express invitation or permission to deliver the telephone
solicitation. Finally, AZ Prime One made the call at issue more than
thirty-one (31) days after the consumer placed her residential telephone
number on the National Do-Not-Call Registry. Based on the entire record,
including evidence provided in the consumer complaint, we conclude that AZ
Prime One apparently violated section 64.1200(c)(2) the Commission's rules
by delivering a telephone solicitation to a consumer who had registered
her telephone number on the National Do-Not-Call registry.
.
B. Proposed Forfeiture
9. We find that AZ Prime One 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 this
apparent telephone solicitation violation, and thus, we propose a total
forfeiture of $10,000. AZ Prime One 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 AZ Prime One Mortgage Corporation 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 her telephone number on the National
Do-Not-Call registry. We have further determined that AZ Prime One
Mortgage Corporation is apparently liable for a forfeiture in the amount
of $10,000.00.
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 AZ Prime One
Mortgage Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of $10,000.00 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, AZ Prime One Mortgage
Corporation 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 credit card through the
Commission's Revenue and Receivables Operations Group at (202) 418-1995,
or by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the 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[s] by wire transfer may be made to ABA Number 021030004,
receiving bank Federal Reserve Bank of New York, and account number
27000001. 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. Questions, please
contact the Financial Operations Group Help Desk at 1-877-480-3201 or
Email: ARINQUIRIES@fcc.gov.
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. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street, SW,
Washington, DC 20554.
17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail Return Receipt Requested to
AZ Prime One Mortgage Corporation aka HomePlaceLoans.com, Attention:
Kimberly Callan, President; Brian Ramsey, Secretary; and Donald W.
Hudspeth, Registered Agent, 7145 E. 1st St., Scottsdale, AZ 85251-5307 and
20601 N. 19th Ave. #100, Phoenix, AZ 85027-3587.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant received telephone solicitations
after registering on the National Do-Not-Call Violation Date(s)
Registry
Tamara Monson 5/15/2007
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, AZ Prime One is also doing
business as Prime One Mortgage Corporation and HomePlaceLoans.com.
Therefore, all references in this NAL to "AZ Prime One" encompass AZ Prime
One Mortgage as well as Prime One Mortgage Corporation and
HomePlaceLoans.com. AZ Prime One has offices at 7145 E. 1st St.,
Scottsdale, AZ 85251-5307, 20601 N. 19th Ave. #100, Phoenix, AZ
85027-3587, and 10625 N. 25th Ave., Phoenix, AZ 85029-4773. Kimberly
Callan, President, Brian Ramsey, Secretary, and Donald W. Hudspeth,
Registered Agent, are listed as contact persons for AZ Prime One Mortgage.
Accordingly, all references in this NAL to "AZ Prime One" also encompass
the foregoing individuals and all other principals and officers of this
entity, as well as the corporate entity itself.
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). The 3-month provision applied to telephone
solicitations made before January 1, 2005.
47 C.F.R. S:64.1200(c0(2)(1)(A)-(E).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-578, issued to
AZ Prime One Mortgage Company on February 28, 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 AZ Prime One Mortgage Company ,
Attn: Brian Ramsey, President, 7145 East 1st Street, Scottsdale, Arizona
85251-5307. See n.2, supra.
See Appendix for a listing of the consumer complaint against AZ Prime One
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by AZ
Prime One 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 47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(12).
See complaint dated May 15, 2007, from Tamara Monson (stating that she 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 call). The complainant involved in this action is listed in the
Appendix below.
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.
47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 08-397
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Federal Communications Commission DA 08-397