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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB-06-TC-336
Progressive Business ) NAL/Acct. No. 200832170047
Apparent Liability for Forfeiture ) FRN: 0017770504
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 3, 2008 Released: June 3, 2008
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Progressive Business Publications, Inc. ("Progressive Business")
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 nine unsolicited
advertisements to the telephone facsimile machines of at least two
consumers. Based on the facts and circumstances surrounding these
apparent violations, we find that Progressive Business is apparently
liable for a forfeiture in the amount of $84,500.
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 September 11, 2006, in response to one consumer complaint alleging
that Progressive Business had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Progressive
Business, pursuant to section 503(b)(5) of the Act. The Bureau cited
Progressive Business for using a telephone facsimile machine,
computer, or other device, to send unsolicited advertisements for
business posters 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 Progressive Business 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 complaint
that formed the basis of the citation. The citation informed
Progressive Business 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. By letter
dated September 19, 2006, Progressive Business asserted in reply that
it did not send unsolicited faxes and claimed an established business
relationship with the complainant, which Progressive Business
identified as National By Products Co. In fact, however, the
complainant said he was an employee of the City of Wichita, Kansas and
had not purchased anything from the company, made an inquiry to the
company, or given consent to send the fax. Bureau staff spoke with
counsel for Progressive Business by phone in an effort to resolve this
inconsistency. Progressive Business did not, however, submit a further
response or provide any basis for concluding that the complainant was
in fact associated with National By Products Co. or otherwise had an
established business relationship with Progressive Business.
4. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, we have received three
additional consumer complaints indicating that Progressive Business
continued to engage in such conduct after receiving the citation. We
base our action here specifically on three complaints filed by two
consumers establishing that Progressive Business continued to send
nine 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 Progressive Business 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 nine unsolicited advertisements to the two consumers identified
in the Appendix. This NAL is based on evidence that two consumers
received nine unsolicited fax advertisements from Progressive Business
after the Bureau's citation. The facsimile transmissions advertise
minimum wage posters for businesses. Further, according to the
complaints, the consumers neither had an established business
relationship with Progressive Business nor gave Progressive Business
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 Progressive Business apparently violated
section 227 of the Act and the Commission's related rules and orders
by sending nine unsolicited advertisements to two consumers' facsimile
machines.
B. Proposed Forfeiture
7. We find that Progressive Business is apparently liable for a
forfeiture in the amount of $84,500. 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 one 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
Progressive Business cease sending facsimiles. Notwithstanding these
requests, an additional eight facsimiles were sent to this consumer.
Thus, we apply the $10,000 amount to each of eight apparent
violations. Thus, a total forfeiture of $84,500 is proposed.
Progressive Business 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 Progressive Business Publications, 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 nine unsolicited
advertisements to the two consumers identified in the Appendix. We
have further determined that Progressive Business Publications, Inc is
apparently liable for a forfeiture in the amount of $84,500.
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 Progressive Business Publications, Inc is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of $84,500 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, Progressive Business
Publications, 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 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).
Progressive Business Publications, Inc. will also send electronic
notification on the date said payment is made to Johnny.drake@fcc.gov.
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
Progressive Business Publications, Inc, Attention: Ed Satell, CEO, and
Thomas D'Agostino, Esq., 370 Technology Drive, Malvern, PA 19355.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant received facsimile solicitations Violation Date(s)
Brandon Schuster, Meadville Medical Center 7/18/2007
Complainant received facsimile
solicitations after requesting no Violation Date(s)
more be sent
Morgan Muhlhauser; Superior Systems, 6/4/2007; 6/11/2007; 6/18/2007;
Inc. 6/18/2007; 6/18/2007;
6/25/2007; 7/2/2007
Morgan Muhlhauser; Superior Systems, 7/18/2007
Inc.
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, Progressive Business
Publications, Inc. is also doing business as Progressive Business and
Progressive Business Compliance. Therefore, all references in this NAL to
"Progressive Business" encompass Progressive Business Publications, Inc.
as well as Progressive Business and Progressive Business Compliance.
Progressive Business has offices at 370 Technology Drive, Malvern, PA
19355. Ed Satell, CEO, and Thomas D'Agostino, Esq., are listed as the
contact persons for Progressive Business. Accordingly, all references in
this NAL to "Progressive Business" also encompass the foregoing
individuals 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-06-TC-336, issued to
Progressive Business on September 11, 2006.
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 Progressive Business, 370
Technology Drive, Malvern, PA 19355. See n.2, supra.
Letter from Thomas D'Agostino, Esq., Progressive Business Publications to
Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division,
Enforcement Bureau, dated September 19, 2006.
See Appendix for a listing of the consumer complaints against Progressive
Business requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Progressive Business 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 18, 2007, from Morgan Muhlhauser; Superior
Systems, Inc., (stating that he or she 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 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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