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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                      )                               
                                                                      
                                      )                               
                                                                      
                                      )                               
                                                                      
                                      )   File No. EB- 05-TC-032      
     In the Matter of                                                 
                                      )   NAL/Acct. No. 200732170061  
     New England Industrial Roofing                                   
                                      )   FRN: 0016654089             
                                                                      
                                      )                               
                                                                      
                                      )                               
                                                                      
                                      )                               


                                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 $10,000 against New England Industrial Roofing ("NEIR") 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 one unsolicited advertisement to the telephone
   facsimile machine of at least one consumer.

   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 April 14, 2005, in response to one or more consumer complaints
   alleging that NEIR had faxed unsolicited advertisements, the Enforcement
   Bureau ("Bureau") issued a citation to NEIR, pursuant to section 503(b)(5)
   of the Act. The Bureau cited NEIR 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 NEIR 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 NEIR 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.
   NEIR did not request an interview or otherwise respond to the citation.

   5. Following the issuance of the citation, the Commission received at
   least one complaint from a consumer alleging that NEIR faxed at least one
   unsolicited advertisement. This violation, which occurred after the
   Bureau's citation, resulted in the issuance of a Notice of Apparent
   Liability for Forfeiture against NEIR on June 28, 2007 in the amount of
   $10,000. The NAL ordered NEIR 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. NEIR 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. In addition, where the
   consumer requests the company to stop sending facsimile messages, and the
   company continues to send them, the Commission has previously considered
   $10,000 per unsolicited fax advertisement as the appropriate forfeiture
   for such egregious violations. Here, one consumer specifically requested
   that NEIR cease sending facsimiles. Notwithstanding these requests, one
   additional facsimile was sent to this consumer. Thus, we apply the $10,000
   amount to one apparent violation.

   8. NEIR did not respond to the NAL or pay the proposed forfeiture amount.
   NEIR 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 $10,000 for
   NEIR'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 New England Industrial Roofing IS LIABLE
   FOR A MONETARY FORFEITURE to the United States Government the sum of
   $10,000 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
   New England Industrial Roofing, Attn: Robert J. Stevens, Owner, and Linda
   Mitchell, 1154 Dixwell Avenue - #158A, Hamden, Connecticut 06516.

   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).

   New England Industrial Roofing, Notice of Apparent Liability For
   Forfeiture, 22 FCC Rcd 11590 (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-05-TC-032, issued to
   New England Industrial Roofing on April 14, 2005, 20 FCC Rcd 7915 (E.B.
   2005).

   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 New England Industrial Roofing,
   Attention: Robert J. Stevens, Owner, and Linda Mitchell, 1154 Dixwell
   Avenue - #158A, Hamden, Connecticut 06514.

   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).

   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), Notice of Apparent Liability for Forfeiture, 15 FCC
   Rcd 24,406, 24,411 (2000).

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 08-909

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   Federal Communications Commission DA 08-909