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- 06-TC-2228
Amerilist, Inc. ) NAL/Acct No. 200832170040
Apparent Liability for Forfeiture ) FRN: 0017577867
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 24, 2008 Released: March 25, 2008
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Amerilist, Inc. ("Amerilist") 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 Amerilist 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 30, 2006, in response to one or more consumer complaints
alleging that Amerilist had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Amerilist, pursuant
to section 503(b)(5) of the Act. The Bureau cited Amerilist for using
a telephone facsimile machine, computer, or other device, to send
unsolicited advertisements 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 Amerilist 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 Amerilist 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. Amerilist 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 Amerilist continued to
engage in such conduct after receiving the citation. We base our
action here specifically on a complaint filed by one consumer
establishing that Amerilist 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 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 Amerilist 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 Amerilist after the Commission's
citation. The facsimile transmission advertised customer lists.
Further, according to the complaint, the consumer neither had an
established business relationship with Amerilist nor gave Amerilist
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 Amerilist apparently violated section 227
of the Act and the Commission's related rules and orders by sending
one unsolicited advertisement to the consumer's facsimile machine.
B. Proposed Forfeiture
7. We find that Amerilist 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. Amerilist 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 Amerilist, 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 Amerilist, 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 Amerilist, 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, Amerilist, 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[s] 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). 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 to
Amerilist, Inc., Attention: Ravi Buckredan, 978 Route 45, Pomona, NY 10970
and 62 Richard Court, Pomona, NY 10970.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant received facsimile solicitations Violation Date(s)
Mandy Flateland 5/17/07
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).
According to publicly available information, Amerilist has offices at 978
Route 45, Pomona, NY 10970 and 62 Richard Court, Pomona, NY 10970. Ravi
Buckredan is listed as the President of Amerilist. Accordingly, all
references in this NAL to "Amerilist" 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-2228, issued to
Amerilist on November 30, 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 Amerilist, Inc., 978 Route 45, Pomona,
NY 10970 and 749 North Broad Street, Suite 101, Elizabeth, NJ 07208. See
n.2, supra.
See Appendix for a listing of the consumer complaints against Amerilist
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Amerilist 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, e.g., complaint dated June 4, 2007, from Mandy Flateland (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 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 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 08-669
1
2
Federal Communications Commission DA 08-669