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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB-06-TC-421
Response Card Marketing, Inc. ) NAL/Acct. No. 200832170045
Apparent Liability for Forfeiture ) FRN: 0017629833
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 4, 2008 Released: April 4, 2008
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Response Card Marketing, Inc. ("Response Card Marketing")
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 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 Response Card Marketing is apparently liable for a
forfeiture in the amount of $9,000.
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 September 12, 2006, in response to one or more consumer complaints
alleging that Response Card Marketing had faxed unsolicited
advertisements, the Enforcement Bureau ("Bureau") issued a citation to
Response Card Marketing, pursuant to section 503(b)(5) of the Act. The
Bureau cited Response Card Marketing for using a telephone facsimile
machine, computer, or other device, to send unsolicited advertisements
for insurance products 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 Response Card Marketing 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 Response Card Marketing 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. Response Card Marketing 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 additional
consumer complaints indicating that Response Card Marketing continued
to engage in such conduct after receiving the citation. We base our
action here specifically on two complaints filed by a consumer
establishing that Response Card Marketing continued to send
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, 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 Response Card Marketing 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 a consumer received
unsolicited fax advertisements from Response Card Marketing after the
Bureau's citation. The facsimile transmissions advertise insurance
products. Further, according to the complaints, the consumer neither
had an established business relationship with Response Card Marketing
nor gave Response Card Marketing permission to send the facsimile
transmission. 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 Response
Card Marketing apparently violated section 227 of the Act and the
Commission's related rules and orders by sending unsolicited
advertisements to a consumer's facsimile machine.
B. Proposed Forfeiture
7. We find that Response Card Marketing is apparently liable for a
forfeiture in the amount of $9,000. 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 these
apparent violations. Thus, a total forfeiture of $9,000 is proposed.
Response Card Marketing 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 Response Card Marketing, 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 two unsolicited advertisements to the consumer
identified in the Appendix. We have further determined that Response
Card Marketing, Inc. is apparently liable for a forfeiture in the
amount of $9,000.
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 Response Card
Marketing, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of $9,000 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, Response Card
Marketing, 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 Response Card Marketing, Inc., 2 E. Blackwell St., Dover,
NJ 07801 and 16 Pierson Drive, Andover, NJ 07821, Attention: Dennis
Gordon, President.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant sent facsimile solicitations Violation Date(s)
Stinnett, Connie 5/29/07, 8/21/07
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 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, Response Card Marketing Inc.
is also doing business as Response Card Marketing. Therefore, all
references in this NAL to Response Card Marketing encompass Response Card
Marketing Inc. as well as Response Card Marketing. Response Card Marketing
has offices at 2 E. Blackwell St., Dover, NJ 07801 and 16 Pierson Drive,
Andover, NJ 07821. Dennis Gordon, President and owner, is listed as the
contact person for Response Card Marketing. Accordingly, all references in
this NAL to "Response Card Marketing Company" 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: 64.1200(a)(3)(i), (ii).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-421 issued to
Response Card Marketing on September 12, 2006. Due to an administrative
error, this citation was mailed out referring to File No. EB-07-TC-421.
The correct File No. is EB-06-TC-421.
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 2 E. Blackwell St., Dover, NJ
07801. See n.2, supra.
See Appendix for a listing of the consumer complaint against Response Card
Marketing requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Response Card Marketing 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 29, 2007, from Connie Stinnett (stating
that she has never purchased anything from the company being advertised in
the fax or made an inquiry or application to the company or given consent
for the company to send the fax.). 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.
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Federal Communications Commission DA 08-818
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Federal Communications Commission DA 08-818