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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
) File No. EB-05-TC-078, EB-07-TC-1270
MHJP, Inc. f/k/a BCJR, Inc.
) NAL/Acct. No. 200732170071
Apparent Liability for
Forfeiture ) FRN: 0016773517
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 19, 2008 Released: June 20, 2008
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that MHJP, Inc. f/k/a BCJR, Inc. ("MHJP") 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 six unsolicited advertisements to the telephone
facsimile machines of at least six consumers. Based on the facts and
circumstances surrounding these apparent violations, we find that MHJP
is apparently liable for a forfeiture in the amount of $27,000.
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 December 22, 2005, in response to one or more consumer complaints
alleging that BCJR, MHJP's predecessor, had faxed unsolicited
advertisements, the Enforcement Bureau ("Bureau") issued a citation to
BCJR, pursuant to section 503(b)(5) of the Act. The Bureau cited MHJP
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, which was served
by certified mail, return receipt requested, warned MHJP 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 MHJP 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. MHJP
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 additional
consumer complaints indicating that MHJP continued to engage in such
conduct after issuance of the citation. We base our action here
specifically on complaints filed by six consumers establishing that
MHJP continued to send six 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 MHJP 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 six unsolicited
advertisements to the six consumers identified in the Appendix. This
NAL is based on evidence that six consumers received six unsolicited
fax advertisements from MHJP after the Bureau's citation. The
facsimile transmissions advertise vacation packages. Further,
according to the complaints, the consumers neither had an established
business relationship with MHJP nor gave MHJP 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 MHJP
apparently violated section 227 of the Act and the Commission's
related rules and orders by sending six unsolicited advertisements to
six consumers' facsimile machines.
B. Proposed Forfeiture
7. We find that MHJP is apparently liable for a forfeiture in the amount
of $27,000. 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 the six apparent violations. Thus, a total
forfeiture of $27,000 is proposed. MHJP 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 MHJP, Inc. f/k/a BCJR, 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 six unsolicited advertisements to the six
consumers identified in the Appendix. We have further determined that
MHJP, Inc. f/k/a BCJR, Inc. is apparently liable for a forfeiture in
the amount of $27,000.
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 MHJP, Inc. f/k/a BCJR, Inc. is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of $27,000 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, MHJP, Inc. f/k/a
BCJR, 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). MHJP,
Inc. f/k/a BCJR, 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
and First Class mail to MHJP, Inc. f/k/a BCJR, Inc., Attention: Matt
Hubbard, MHJP, Inc. f/k/a BCJR, Inc., 3059 Autumn Court, Winter Park, FL
32792-1738, 180 N. Westmonte Drive, Altamonte Springs, FL 32714-3342 and
P.O. Box 161759, Altamonte Springs, FL 32716; and c/o MHJP, Inc. f/k/a
BCJR, Inc., Traci Reagan, 513 Balsawood Court, Altamonte Springs, FL
32714.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant received facsimile solicitations Violation Date(s)
Nicolais, Robert 6/21/07
Davis, Warren 6/21/07
Sanders, Ronald 6/21/07
Hall, Joe 6/22/07
Long, Carl 6/26/07
Moran, Dan 6/26/07
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).
According to publicly available information, MHJP, Inc. was formerly known
as BCJR, Inc. Therefore, all references in this NAL to MHJP encompass MHJP
as well as BCJR. Matt Hubbard, President, is listed as the contact person
for MHJP. Accordingly, all references in this NAL to MHJP also encompass
the foregoing individual and all other principals and officers of this
entity, as well as the corporate entity itself. In response to a previous
Notice of Apparent Liability against MHJP, see n.2, infra, MHJP provided
us with information indicating that the company has ceased operations. See
Letter from MHJP, Inc. dated August 17, 2007 (stating MHJP, Inc. has
dissolved as of August 17, 2007, including copies of the Notice of
Corporate Dissolution and Articles of Dissolution, submitted to Department
of Corporations for the State of Florida). At the time of the unsolicited
advertisements violations addressed herein, MHJP operated out of the
following offices: P.O. Box 161759, Altamonte Springs, FL 32716; 180 N.
Westmonte Drive, Altamonte Springs, FL 32714-3342 and 3059 Autumn Court,
Winter Park, FL 32792-1738. BCJR had offices at 180 N. Westmonte Drive,
Altamonte Springs, FL 32714-3342. The registered agent for MHJP, who was
also the registered agent for BCJR, is Traci Reagan, 513 Balsawood Court,
Altamonte Springs, FL 32714.
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-05-TC-078 issued to
BCJR, Inc. on December 22, 2005. The Commission staff subsequently issued
a citation to the same entity under the name "MHJP." See Citation from
Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division,
Enforcement Bureau, File No. EB-07-TC-1270 issued to MHJP, Inc. f/k/a
BCJR, Inc. on May 25, 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 issued the December 22, 2005 citation to BCJR, Inc., because
MHJP formerly operated under the corporate name BCJR, Inc. See n.2, supra.
In a letter dated November 13, 2006 responding to a Commission request for
information, TouchTone Communications provided previous billing
information for MHJP indicating that BCJR was the predecessor to MHJP.
Letter from Neil DeRiggi, Customer Service Manager, TouchTone
Communications, to Federal Communications Commission, Enforcement Bureau,
Telecommunications Consumers Division, dated November 13, 2006. The
toll-free number at issue in this NAL, 1-800-215-3132, was listed as a
number "associated" with the toll-free number that Commission staff had
inquired about at that time. The letter indicated that Matt Hubbard was
the contact person for both BCJR and MHJP. As of June 14, 2007, Matt
Hubbard was still listed as the contact person for MJHP in TouchTone's
billing records. Letter from Neil DeRiggi, Customer Service Manager,
TouchTone Communications, to Federal Communications Commission, dated June
14, 2007.
Bureau staff mailed the citation to the following address: BCJR, Inc., 180
N. Westmont Drive, Altamonte Springs, FL 32714. On May 25, 2007, Bureau
staff also mailed the citation to the following addresses: MHJP, Inc.
f/k/a BCJR, Inc., 3059 Autumn Court, Winter Park, FL 32792-1738; and P.O.
Box 161759, Altamonte Springs, FL 32716. See n.2 and n.8, supra.
Following the issuance of the citation, the Commission continued to
receive complaints from multiple consumers alleging that MHJP 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 MHJP on August 1, 2007 in the amount of
$87,500. MHJP, Inc. f/k/a BCJR, Inc., Notice of Apparent Liability for
Forfeiture, FCC-07-135 (August 1, 2007).
See Appendix for a listing of the consumer complaints against MHJP
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by MHJP
Company 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 1, 2007, from Gary Stacharowski (stating
that he has never purchased anything from the company being advertised in
the fax or made an inquiry or application to the company or given consent
for the company to send the fax.). 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 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 08-157
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Federal Communications Commission FCC 08-157