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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
) File No. EB- 06-TC-1371
In the Matter of
) NAL/Acct. No. 200732170066
ESpeed Mortgage Dot Com, LLC
) FRN: 0016739708
)
)
)
FORFEITURE ORDER
Adopted: April 18, 2008 Released: April 22, 2008
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of $13,500 against ESpeed Mortgage Dot Com, LLC ("ESpeed") for
willful or repeated violations of section 227 of the Communications Act of
1934, as amended, ("Act") and the Commission's related rules and orders,
by delivering at least three unsolicited advertisements to the telephone
facsimile machines of at least three consumers.
II. BACKGROUND
2. The facts and circumstances surrounding this case are set forth in the
Commission's Notice of Apparent Liability for Forfeiture and need not be
reiterated at length.
3. 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.
4. On November 15, 2006, in response to one or more consumer complaints
alleging that ESpeed had faxed unsolicited advertisements, the Enforcement
Bureau ("Bureau") issued a citation to ESpeed, pursuant to section
503(b)(5) of the Act. The Bureau cited ESpeed for using a telephone
facsimile machine, computer, or other device, to send unsolicited
advertisements, 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 ESpeed 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 ESpeed 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. ESpeed did not request an interview or
otherwise respond to the citation.
5. Following the issuance of the citation, the Commission received at
least three complaints from consumers alleging that ESpeed faxed at least
three unsolicited advertisements to them. These violations, which occurred
after the Bureau's citation, resulted in the issuance of a Notice of
Apparent Liability for Forfeiture against ESpeed on July 23, 2007 in the
amount of $13, 500. The NAL ordered ESpeed to either pay the proposed
forfeiture amount within thirty (30) days or submit evidence or arguments
in response to the NAL to show that no forfeiture should be imposed or
that some lesser amount should be assessed. ESpeed did not respond to the
NAL or pay the proposed forfeiture amount.
III. DISCUSSION
6. 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."
7. 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 three apparent violations.
8. ESpeed did not respond to the NAL or pay the proposed forfeiture
amount. ESpeed has failed to identify facts or circumstances to persuade
us that there is a basis for modifying the proposed forfeiture, and we are
not aware of any further mitigating circumstances sufficient to warrant a
reduction of the forfeiture penalty. For these reasons, and based on the
information before us, we hereby impose a total forfeiture of $13,500 for
ESpeed's willful or repeated violation of section 227 of the Act and the
Commission's related rules and orders, as set forth in the NAL.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S: 503(b), and section
1.80(f)(4) of the Commission's rules, 47 C.F.R. S: 1.80(f)(4),and under
authority delegated by sections 0.111, 0.311 of the Commission's rules, 47
C.F.R. S:S: 0.111, 0.311, that ESpeed Mortgage Dot Com, LLC IS LIABLE FOR
A MONETARY FORFEITURE to the United States Government the sum of $13,500
for willfully and repeatedly violating section 227(b)(1)(c) of the
Communications Act, 47 U.S.C. S: 227(b)(1)(c), section 64.1200(a)(3) of
the Commission's rules, 47 C.F.R. S:64.1200(a)(3), and the related orders
as described in the paragraphs above.
10. 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 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.
11. IT IS FURTHER ORDERED that a copy of the Forfeiture Order shall be
sent by first class mail and certified mail return receipt requested to
ESpeed Mortgage Dot Com, LLC Attention: Mark J. Korcok, at 1600 South
Federal Highway, Suite 900, Pompano Beach, Florida 33062.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
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).
ESpeed Mortgage Dot Com, LLC, Notice of Apparent Liability for Forfeiture,
22 FCC Rcd 13543 (Enf. Bur. 2007).
47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3).
See 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-06-TC-1371, issued to
ESpeed Mortgage Dot Com, LLC on November 15, 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 ESpeed Mortgage Dot Com, LLC
Attention: Mark J. Korcok, at 1600 South Federal Highway, Suite 900,
Pompano Beach, Florida 33062.
See n.2 supra; see also 47 U.S.C. S: 503(b)(1).
Section 503(b)(2)(C) provides for forfeitures of 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 most recent amendment of section
1.80(b) maintained the forfeiture maximum for this type of violator at
$11,000).
See 47 U.S.C. S: 503(b)(2)(D); see also 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 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).
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Federal Communications Commission DA 08-908
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Federal Communications Commission DA 08-908