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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB- 04-TC-165
Copier Search International, Inc. ) NAL/Acct. No. 200832170041
Apparent Liability for Forfeiture ) FRN: 0017584905
)
)
)
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 Copier Search International, Inc. ("Copier Search") 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 machines of at least two consumers. Based on the
facts and circumstances surrounding these apparent violations, we find
that Copier Search is apparently liable for a forfeiture in the amount
of $9,000.00.
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 January 14, 2005, in response to one or more consumer complaints
alleging that Copier Search had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Copier Search,
pursuant to section 503(b)(5) of the Act. The Bureau cited Copier
Search 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 Copier Search 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 Copier Search 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.
Copier Search 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 two
additional consumer complaints indicating that Copier Search continued
to engage in such conduct after receiving the citation. We base our
action here specifically on complaints filed by two consumers
establishing that Copier Search continued to send two unsolicited
advertisements to telephone facsimile machines 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, and 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 Copier Search 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 two consumers identified in the
Appendix. This NAL is based on evidence that two consumers received
unsolicited fax advertisements from Copier Search after the Bureau's
citation. The facsimile transmissions advertise copier equipment.
Further, according to the complaints, the consumers neither had an
established business relationship with Copier Search nor gave Copier
Search 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
complaints, we conclude that Copier Search apparently violated section
227 of the Act and the Commission's related rules and orders by
sending two unsolicited advertisements to two consumers' facsimile
machines.
B. Proposed Forfeiture
7. We find that Copier Search is apparently liable for a forfeiture in
the amount of $9,000.00. 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 each of the two apparent
violations. Thus, a total forfeiture of $9,000.00 is proposed. Copier
Search 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 Copier Search International, 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 two unsolicited advertisements to the two
consumers identified in the Appendix. We have further determined that
Copier Search International, Inc. is apparently liable for a
forfeiture in the amount of $9,000.00.
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 Copier Search
International, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of $9,000.00 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, Copier Search
International, 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. 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 Copier Search International, Inc, Attention: Jim Hummel,
1600 Patterson Road, Florissant, Missouri 63031; 748 N. Lindbergh
Boulevard, St. Louis, Missouri 63031; and 990 Orchard Lake Dr., St.
Louis, MO 63031.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant sent facsimile solicitations Violation Date(s)
Fernando Guerrero, Riverside Business Forms 5/26/2007
Robyn Hepker, Benson & Hepker Design 6/13/ 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 is not a common carrier 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, Copier Search is also doing
business as Investment Recovery. Therefore, all references in this NAL to
"Copier Search " encompass Copier Search as well as Investment Recovery.
Copier Search has offices at 1600 Patterson Road, Florissant, Missouri
63031; 748 N. Lindbergh Boulevard, St. Louis, Missouri 63031; and 990
Orchard Lake Dr., St. Louis, MO 63031. Jim Hummel is listed as the contact
person for Copier Search. Accordingly, all references in this NAL to
"Copier Search" also encompass the foregoing individual and all other
principals and officers of this entity or entities, as well as the
corporate entity or entities.
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 C.F.R. S: 64 (a)(3)(i), (ii).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-04-TC-165 issued to
Investment Recovery d.b.a Copier Search International, Inc. on January 14,
2005.
See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
to non-common carriers for violations of the Act or of the Commission's
rules and orders).
Commission staff mailed the citation to Investment Recovery d.b.a Copier
Search International, Inc., Attention: Jim Hummel, 1600 Patterson Road,
Florissant, Missouri 63031 and Investment Recovery d.b.a Copier Search
International, Inc., Attention: Jim Hummel, 748 N. Lindbergh Boulevard,
St. Louis, Missouri 63031. See n.2, supra.
See Appendix for a listing of the consumer complaints against Copier
Search requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Copier Search 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 May 26, 2007, from Fernando Guerrero (stating
that he has never done any business with the fax advertiser, never made an
inquiry or application to the fax advertiser, and never gave permission
for the company to send the fax). The complainants involved in this action
are 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.
47 C.F.R. S: 1.1914.
Federal Communications Commission DA 08-670
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Federal Communications Commission DA 08-670