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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
) File No. EB-07-TC-1321
J. Daniel Chavez
) NAL/Acct. No. 200832170008
d/b/a SOS Marketing
) FRN: 0017275389
Apparent Liability for Forfeiture
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 30, 2008 Released: May 30, 2008
By the Commission:
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that SOS 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 at least
fifty-three unsolicited advertisements to the telephone facsimile
machines of at least forty-one consumers. Based on the facts and
circumstances surrounding the apparent violation, we find that SOS
Marketing is apparently liable for a forfeiture in the amount of
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
3. On April 9, 2007, in response to one or more consumer complaints
alleging that SOS Marketing had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to SOS Marketing,
pursuant to section 503(b)(5) of the Act. The Bureau cited SOS
Marketing 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 SOS 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 SOS Marketing 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. SOS
Marketing did not request an interview or otherwise respond to the
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 SOS Marketing continued to engage
in such conduct following the issuance of the citation. We base our
action here specifically on the complaints filed by forty-one
consumers establishing that SOS Marketing continued to send
fifty-three 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."
A. Violations of the Commission's Rules Restricting Unsolicited Facsimile
6. We find that SOS 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 fifty-three
unsolicited advertisements to the forty-one consumers identified in the
Appendix. This NAL is based on evidence that the consumers received
unsolicited fax advertisements from SOS Marketing after the Commission's
citation. The facsimile transmissions advertise affordable health plans.
Further, according to the complaints, the consumers neither had an
established business relationship with SOS Marketing nor gave SOS
Marketing 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 SOS Marketing apparently violated section 227
of the Act and the Commission's related rules and orders by sending
fifty-three unsolicited advertisements to forty-one consumers' facsimile
B. Proposed Forfeiture
7. We find that SOS Marketing is apparently liable for a forfeiture in the
amount of $244,000. 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 each of fifty-two 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, one consumer
specifically requested that SOS Marketing cease sending facsimiles.
Notwithstanding these requests, SOS Marketing sent one additional
facsimile to this consumer. We therefore apply the $10,000 amount to that
one apparent violation. Thus, a total forfeiture of $244,000 is proposed.
SOS 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 SOS 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
fifty-three unsolicited advertisements to the forty-one consumers
identified in the Appendix. We have further determined that SOS Marketing
is apparently liable for a forfeiture in the amount of $244,000.
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, that
SOS Marketing is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of $244,000 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, SOS Marketing 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 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). SOS
Marketing will also send electronic notification on the date said payment
is made to Johnny.email@example.com. 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
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
and regular mail to SOS Marketing, Attention: Jessie Gonzalez, 10303
Northwest Freeway, Suite 350, Houston, TX 77092-8234.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Complainants and Violation Dates
Complainant received facsimile Violation Date(s)
Rick Austin 7/26/07
L. Avery 7/24/07
Leslie Bacastow 6/8/07
Alan Bargmeyer 8/2/07
Kim Becker 7/26/07
Joseph Blumenthal 7/23/07
Douglas Bulson 8/2/07
Don Chivas 7/23/07
Chris Collicott 6/8/07
Warren Davis 7/23/07
Jan Deswik 7/2/07
Renee Fontenot 7/19/07
Amy Griffith 8/10/07
Terry Havel 8/9/07
Nadell Hill 7/23/07
Bruce Hoard 6/1/07
Gina Hopkins 7/19/07
Joan Kappel 6/19/07, 6/21/07, 7/31/07
John Kelly 8/3/07
Mark Kirschke 8/10/07
Eugene Knight 7/26/07
Mike Kosten 8/6/07
Kim McChesney 7/26/07
Dennis McCormick 6/8/07, 7/20/07
Kenneth McCurry 7/27/07
Matt Nielsen 8/2/07
Dan O'Day 6/21/07, 7/6/07, 7/18/07,
Cheryl O'Keefe 7/27/07
Bruce Oliver 8/7/07
Andrew Palumbo 8/1/07
David Pressman 8/7/07
Paul Schwartz 8/9/07
Jolie Sheppick 8/2/07
Cheryl Shipman 7/27/07
Linda Strickland 6/4/07, 6/17/07
Donald Suberroc 7/20/07
Aline Taylor 6/29/07, 7/10/07, 7/16/07,
Ariah Van Os 7/19/07, 8/9/07
John Warrick 6/5/07
Marvin Young 6/9/07
Complainant received facsimile solicitations after Violation Date(s)
requesting no more be sent
Denise Inabinet 8/1/07
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 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).
J. Daniel Chavez is doing business as SOS Marketing. Therefore, all
references in this NAL to "SOS Marketing" encompass SOS Marketing as well
as J. Daniel Chavez. SOS Marketing has offices at 10303 Northwest Freeway,
Suite 350, Houston, TX 77092-8234. Jessie Gonzalez is listed as the
primary contact for SOS Marketing. Accordingly, all references in this NAL
to "SOS Marketing" also encompass the foregoing individuals and all other
principals and officers of this entity, as well as the corporate entity
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
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-1321, issued to
SOS Marketing on April 9, 2007.
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 the following address: SOS Marketing,
10303 Northwest Freeway, Houston, TX 77092-8234 . See n.2, supra.
Following the issuance of the citation, the Commission continued to
receive complaints from multiple consumers alleging that SOS Marketing
faxed unsolicited advertisements to them. These complaints, received after
the Commission's citation, resulted in the issuance of a Notice of
Apparent Liability for Forfeiture against SOS Marketing on January 11,
2008, in the amount of $13,500. J. Daniel Chavez d/b/a SOS Marketing,
Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 180 (2008).
See Appendix for a listing of the consumer complaints against SOS
Marketing requesting Commission action.
We note that evidence of additional instances of unlawful conduct by SOS
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 June 8, 2007, from Leslie Bacastow (stating
that she has never done any business with the fax advertiser, never made
an inquiry or application to the fax advertiser and never given permission
for the company to send the fax); complaint dated July 26, 2007, from Kim
Becker (stating that he has never done any business with the fax
advertiser, never made an inquiry or application to the fax advertiser and
never given permission for the company to send the fax). The complainants
involved in this action are listed in the attached 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 08-143
Federal Communications Commission FCC 08-143