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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                               
                                                                         
                                         )                               
                                                                         
                                         )                               
                                                                         
     In the Matter of                    )   File No. EB- 06-TC-1630     
                                                                         
     Business Payment Systems, LLC       )   NAL/Acct. No. 200832170011  
                                                                         
     Apparent Liability for Forfeiture   )   FRN: 0017433145             
                                                                         
                                         )                               
                                                                         
                                         )                               
                                                                         
                                         )                               


                  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 Business Payment Systems, LLC ("Business Payment Systems")
       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 two unsolicited
       advertisements to the telephone facsimile machine of at least one
       consumer. Based on the facts and circumstances surrounding these
       apparent violations, we find that Business Payment Systems is
       apparently liable for a forfeiture in the amount of $24,500.00.

   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 8, 2006, in response to one or more consumer complaints
       alleging that Business Payment Systems had faxed unsolicited
       advertisements, the Bureau issued a citation to Business Payment
       Systems, pursuant to section 503(b)(5) of the Act. The Bureau cited
       Business Payment Systems  for using a telephone facsimile machine,
       computer, or other device, to send unsolicited advertisements for 
       loans  to a telephone facsimile machine, in violation of section 227
       of the Act and the Commission's related rules and orders. The
       citation, which was served by certified mail, return receipt
       requested, warned Business Payment Systems  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 Business
       Payment Systems 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. In
       response to the citation, the company's counsel acknowledged receipt
       of the citation and stated that Business Payment Systems "is not [sic]
       and shall not engage in any fax solicitations which will violate the
       citation or the Telephone Consumer Protection Act." 

    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 Business Payment Systems
       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 Business Payment Systems  continued to send
       three  unsolicited advertisements to telephone facsimile machines
       after the date of the citation. In addition, the record establishes
       that Business Payment Systems sent two of these unsolicited faxes to
       the consumer subsequent to his request that BPS discontinue its faxed
       advertisements.

    5. 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 Restricting Unsolicited Facsimile
   Advertisements

    6. We find that Business Payment Systems 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 two unsolicited advertisements to the consumer identified in the
       Appendix. This NAL is based on evidence that a consumer received
       unsolicited fax advertisements from Business Payment Systems after the
       Bureau's citation. The facsimile transmissions advertise a commercial
       loan. Further, according to the complaint, the consumer neither had an
       established business relationship with Business Payment Systems  nor
       gave Business Payment Systems  permission to send the facsimile
       transmissions.  The faxes at issue here therefore fall within the
       definition of an "unsolicited advertisement."  Based on the entire
       record, including the consumer complaint, we conclude that Business
       Payment Systems apparently violated section 227 of the Act and the
       Commission's related rules and orders by sending three unsolicited
       advertisements to one consumer's facsimile machine.

    B. Proposed Forfeiture

    7. We find that Business Payment Systems is apparently liable for a
       forfeiture in the amount of $24,500.00. 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 one of the
       apparent violations. In addition, where the consumer requests that the
       company stop sending facsimile messages, and the company continues to
       send them, the Commission has previously considered $10,000 per
       unsolicited fax advertisement the appropriate forfeiture for such
       egregious violations. Here, a consumer specifically requested that
       Business Payment Systems cease sending facsimiles. Notwithstanding
       this request, an additional two facsimiles were sent to this consumer.
       Thus, we apply the $10,000 amount to each of the two apparent
       violations. Thus, a total forfeiture of $24,500.00 is proposed.
       Business Payment Systems 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 Business Payment Systems, LLC 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 three unsolicited advertisements to the
       consumer identified in the Appendix. We have further determined that
       Business Payment Systems, LLC is apparently liable for a forfeiture in
       the amount of $24,500.00.

    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 Business Payment
       Systems, LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A
       FORFEITURE in the amount of $24,500.00 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, Business Payment
       Systems, LLC 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 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.

   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. 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.

   15. 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 Business Payment Systems, LLC, Attention: Sam Chanin,
       CEO, 150 Broadway, Third Floor, New York, NY 10038-4374.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

                                    APPENDIX


     Complainant  received facsimile                Violation Date(s)  
     solicitations                                                     

     Fredric Blum                                   April 2007         



     Complainant  received facsimile                                         
     solicitations after requesting no more be     Violation Date(s)         
     sent                                                                    

     Fredric Blum                                  May 25, 2007 (two faxes)  


   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, Business Payment Systems is
   also doing business as Second Source Funding, LLC. Therefore, all
   references in this NAL to Business Payment Systems encompass Second Source
   Funding, LLC as well as Business Payment Systems. Business Payment Systems
   has  offices at 150 Broadway, Third Floor, New York, NY 10038. Sam Chanin,
   CEO, is listed as the contact person for Business Payment Systems.
   Accordingly, all references in this NAL to  Business Payment Systems  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-06-TC-1630, issued to
   Business Payment Systems on Nov. 8, 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).

   Commission staff mailed the citation to Business Payment Systems, LLC,
   Attn: Sam Chanin, CEO, 150 Broadway, Floor 3, New York, New York
   10038-4374. See n.2, supra.

   Letter from Daniel B. Faizakoff, Counsel to Business Payment Systems, LLC,
   to Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division,
   Enforcement Bureau, dated Nov. 22, 2006.

   See Appendix for a listing of the consumer complaint against Business
   Payment Systems requesting Commission action.

   We note that evidence of additional instances of unlawful conduct by
   Business Payment Systems 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, complaint dated May 25, 2007, from Frederic Blum (stating that he has
   never done any business with the fax advertiser, never made an inquiry or
   application to the fax advertiser, never gave permission for the company
   to send the fax, and requested the company not to fax an advertisement).
   The complainant involved in this action is listed in the Appendix below.

   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 Carolina Liquidators, Inc., Notice of Apparent Liability for
   Forfeiture, 15 FCC 16,837, 16,842 (2000); 21st Century Fax(es) Ltd., AKA
   20th Century Fax(es), 15 FCC Rcd 24,406, 24,411 (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.

   47 C.F.R. S: 1.1914.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 08-398

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   Federal Communications Commission DA 08-398