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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB-07-TC-502
Sunstar Travel and Tours, Inc. ) NAL/Acct. No. 200832170046
Apparent Liability for Forfeiture ) FRN: 0017724774
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 20, 2008 Released: May 28, 2008
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Sunstar Travel and Tours, Inc. ("Sunstar") 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 34 unsolicited advertisements to the telephone
facsimile machines of at least 31 consumers. Based on the facts and
circumstances surrounding these apparent violations, we find that
Sunstar is apparently liable for a forfeiture in the amount of
$169,500.
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 May 17, 2007, in response to one or more consumer complaints
alleging that Sunstar had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Sunstar, pursuant
to section 503(b)(5) of the Act. The Bureau cited Sunstar for using a
telephone facsimile machine, computer, or other device, to send
unsolicited advertisements for vacation packages to a telephone
facsimile machine, in violation of section 227 of the Act and the
Commission's related rules and orders. The citation warned Sunstar
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 Sunstar 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.
Sunstar 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 13
additional consumer complaints indicating that Sunstar continued to
engage in such conduct after receiving the citation. We base our
action here specifically on 13 complaints filed by 13 consumers
establishing that Sunstar continued to send 15 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 Sunstar 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 34
unsolicited advertisements to the 31 consumers identified in the
Appendix. This NAL is based on evidence that 31 consumers received
unsolicited fax advertisements from Sunstar after the Bureau's
citation. The facsimile transmissions advertised vacations. Further,
according to the complaints, the consumers neither had an established
business relationship with Sunstar nor gave Sunstar 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
Sunstar apparently violated section 227 of the Act and the
Commission's related rules and orders by sending 34 unsolicited
advertisements to 31 consumers' facsimile machines.
B. Proposed Forfeiture
7. We find that Sunstar is apparently liable for a forfeiture in the
amount of $169,500. 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 each of 31 of the apparent
violations. 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 the appropriate forfeiture for such egregious
violations. Here, three consumers specifically requested that Sunstar
cease sending facsimiles. Notwithstanding these requests, three
additional facsimiles were sent to these consumers. Thus, we apply the
$10,000 amount to three apparent violations. Thus, a total forfeiture
of $169,500 is proposed. Sunstar 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 Sunstar Travel and Tours, 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 34 unsolicited advertisements to the 31
consumers identified in the Appendix. We have further determined that
Sunstar Travel and Tours, Inc. is apparently liable for a forfeiture
in the amount of $169,500.
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,
that Sunstar Travel and Tours, Inc.] is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of $169,500 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, Sunstar Travel and
Tours, 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 credit card through the
Commission's Revenue and Receivables Operations Group at (202)
418-1995, or by check or similar instrument, payable to the order of
the Federal Communications Commission. The payment must include the
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. Payments[s] by wire transfer
may be made to ABA Number 021030004, receiving bank Federal Reserve
Bank of New York, and account number 27000001. 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. Questions, please contact the Financial
Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov.
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 Sunstar Travel and Tours, Inc., Attention: Joseph Hanna,
President, 1123 E. Altamonte Dr., Altamonte Springs, FL 32701.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant sent facsimile solicitations Violation Date(s)
Margaret Bergin 7/19/2007
Michael Branagan 7/10/2007
Karl Banach 7/5/2007
Joe Shields 7/12/2007
Aline Taylor 6/22/2007;7/24/2007
R. Bryan Tilden 7/26/2007
Doreen Franklin 7/25/2007
Max Talbot-Minkin 7/25/2007
Peter Jacob 7/2/2007
Warren Davis 7/20/2007;7/24/2007
Lisa Stephen 7/19/2007
Neil Twenter 7/11/2007
Mark Kirshke 8/8/2007
Jack Lubowsky 8/13/2007
Lynda Doucette 8/13/2007
Nanci Lamborn 8/14/2007
Kathy Collins 8/9/2007; 8/16/2007
William Crowell 8/16/2007
Dennis DeDonatis 8/16/2007
Gregory Stricherz 8/20/2007
Kevin Photiades 8/20/2007
Kimberly Ciesla 8/22/2007
Scott Peacock 8/22/2007
The Westminster 8/22/2007
Adrienne Hermann 8/1/2007
Laurence Zuckerman 8/6/2007
Richard Sanderson 8/1/2007
Barbara Lee 8/2/2007
Complainant sent facsimile solicitations after Violation Date(s)
requesting no more be sent
Monte C. Shalett 7/9/2007
Edward Weinstein 8/15/2007
Steve Heller 8/12/2007
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, Sunstar is also doing
business as SS Travel and Tours, S-Star Travel and Tour, Vacation
Clearinghouse, Vacation Clearance Center, and Travel Clearance Center.
Therefore, all references in this NAL to "Sunstar" encompass Sunstar as
well as SS Travel and Tours, S-Star Travel and Tour, Vacation
Clearinghouse, Vacation Clearance Center, and Travel Clearance Center.
Sunstar has offices at 1123 E. Altamonte Dr., Altamonte Springs, FL 32701.
Joseph Hanna, President, is listed as the contact person for Sunstar.
Accordingly, all references in this NAL to "Sunstar" 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 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-502 issued to
Sunstar on May 17, 2007.
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 1123 E. Altamonte Dr., Altamonte
Springs, FL 32701. See n.2, supra.
See Appendix for a listing of the consumer complaints against Sunstar
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Sunstar 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 July 9, 2007, from Monte C. Shalett (stating
that he has never done any business with the fax advertiser, never made an
inquiry or application to the fax advertiser, never gave permission for
the company to send the fax, and requested the company not to fax an
advertisement). The complainants involved in this action are listed in the
Appendix.
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 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), 15 FCC Rcd 24,406, 24,411 (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 FCC 08-132