Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of File Nos. EB-07-TC-1568,
)
EZPMG, Inc. and EB-07-TC-12725
)
Kenneth Elias NAL/Acct. No. 200832170067
)
Apparent Liability for Forfeiture FRN: 0017996802
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 15, 2008 Released: August 21, 2008
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that EZPMG, Inc. and Kenneth Elias ("EZPMG") 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 ninety unsolicited advertisements to the telephone
facsimile machines of at least seventy-eight consumers. Based on the
facts and circumstances surrounding these apparent violations, we find
that EZPMG is apparently liable for a forfeiture in the amount of
$443,500.
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 April 17, 2007, in response to one or more consumer complaints
alleging that EZPMG had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to EZPMG, pursuant to
section 503(b)(5) of the Act. The citation warned EZPMG 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. Soon
thereafter, the Commission staff issued a citation to Mr. Kenneth
Elias, owner of EZPMG. The Bureau cited both Kenneth Elias and EZPMG
for using a telephone facsimile machine, computer, or other device, to
send unsolicited advertisements for mortgage services to a telephone
facsimile machine, in violation of section 227 of the Act and the
Commission's related rules and orders. The citations informed both
Kenneth Elias and EZPMG that within 30 days of the date of the
citation, they could either request an interview with Commission
staff, or could provide a written statement responding to the
citation. On April 24, 2007 and August 1, 2007, EZPMG responded to the
citations.
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 EZPMG continued to engage in such
conduct after issuance of the citation. We base our action here
specifically on complaints filed by seventy-eight consumers
establishing that EZPMG continued to send ninety 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 EZPMG 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 ninety unsolicited
advertisements to the seventy-eight consumers identified in the
Appendix. This NAL is based on evidence that seventy-eight consumers
received unsolicited fax advertisements from EZPMG after the Bureau's
citation. The facsimile transmissions advertise mortgage services.
Further, according to the complaints, the consumers neither had an
established business relationship with EZPMG nor gave EZPMG 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 EZPMG apparently violated section 227 of the Act and the
Commission's related rules and orders by sending ninety unsolicited
advertisements to seventy-eight consumers' facsimile machines.
B. Proposed Forfeiture
7. We find that EZPMG is apparently liable for a forfeiture in the amount
of $443,500. 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 eighty-three 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, five consumers specifically requested that EZPMG
cease sending facsimiles. Notwithstanding these requests, EZPMG sent
seven additional facsimiles to these consumers. We therefore apply the
$10,000 amount to each of these seven apparent violations. Thus, a
total forfeiture of $443,500 is proposed. EZPMG 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 EZPMG, 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 ninety unsolicited advertisements to the seventy-eight consumers
identified in the Appendix. We have further determined that EZPMG,
Inc. is apparently liable for a forfeiture in the amount of $443,500.
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 EZPMG, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of $443,500 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, EZPMG, 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). EZPMG,
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 EZPMG, Inc., Attention: Kenneth Elias, 28 Harrison
Avenue, Suite 213, Englishtown, NJ 07726.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant received facsimile Violation Date(s)
solicitations
Wallace, Stephen 8/27/07
Russell, Martha 8/28/07
Volodin, Dmitriy 8/28/07
Edgar, William 8/28/07
Leonard, Robert 8/29/07
Yurow, Lois 8/30/07
Asper, John 9/4/07
Drew, Rick 9/4/07
Lunt, Richard 9/4/07
Kanowitz, Joseph 9/5/07
LaVesser, Cindy 9/7/07
Baasch, Dennis 9/10/07
Bruno, Kenneth 9/10/07
Rizzuto, Hugo 9/11/07
Simon, Jeffrey 9/11/07
Teudt, Jr., Gerald 9/11/07
Wharton, Paul 9/10/07
Davies, Lawrence 9/12/07
Fan, Joseph 9/12/07
Host, Douglas 9/12/07
Huddleston, James 9/12/07
Porterfield, Charlotte 9/12/07
LeFountain, Kitty 9/12/07
Chapman, Michael 9/12/07
McCord, Jennifer 9/12/07
Luke, A. 9/12/07
Lidman, William 9/17/07
Cantor, Alicia 9/17/07
Barret, Paul 9/18/07
Moore, Paul 9/18/07, 10/9/07, 10/17/07
Yusem, Stuart 9/18/07
Clay, Jewel 9/19/07
Koennecke, John 9/19/07, 10/30/07
Shiver, Sandy 9/19/07
Brown, Christopher 9/19/07
McNair, Bruce 9/24/07
McWethy, Thomas 9/24/07
Hogg, Susan 9/26/07
Yurow, Louis 9/27/07
Borum, Darrell 10/1/07
Tilden, R. Bryan 10/1/07, 10/3/07
Hagar, Derek 10/1/07
Hickey, Betty 10/2/07
Hochhalter, Lanny 10/2/07, 10/12/07
Blue, Carter 10/2/07
Lopez, Giselle 10/2/07
Avery, L 10/3/07
Tepper, Samuel 10/5/07, 10/31/07
Berry, Carl 10/8/07
Mack, Larry 10/8/07
Freeman, Martin Lee 10/9/07
Gross, Lisa 10/9/07, 10/10/07, 10/17/07
Dye, Vicki 10/15/07
Adams, Cody 10/16/07
Brabham, Martin 10/31/07
Brooks, Pauletta 10/22/07
Bryant, Lynae 10/30/07
Busa, Anthony 10/24/07
Gierak, Richard 10/11/07
Goldstein, Paul 10/23/07
Haberberger, Susan 10/15/07
Little, Kathy 9/12/07
Manuel, Mel 10/30/07
Morris, Dan 10/30/07
Morton, Ann 10/11/07
Munoz-Vourakis, Marisa 10/10/07
Padsensky, Dj 10/22/07
Peacock, Scott 10/11/07
Pinera, Hector Y. 10/10/07
Ripley, Matthew 10/16/07
Rugh, Clayton 10/15/07
Sherman, Joe 9/20/07
Thometz, Tim 10/16/07
Veal, LaKeidra 10/16/07
Williams, Kevin 10/30/07
Complainant received facsimile solicitations after Violation Date(s)
requesting no more be sent
Adams, Cody 10/24/07
Farquharson, Bill 10/11/07
Gibbons, Cathy 10/10/07
Haberberger, Susan 10/25/07
Wharton, Paul 9/11/07, 9/17/07,
10/16/07
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).
EZPMG, Inc. has offices at 28 Harrison Avenue, Suite 213, Englishtown, NJ
07726. Kenneth Elias, owner and president of EZPMG, also has offices at 28
Harrison Avenue, Suite 213, Englishtown, NJ 07726, and is listed as the
contact person for EZPMG. Accordingly, all references in this NAL to EZPMG
also encompass the foregoing individual 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-07-TC-1568 issued to
EZPMG, Inc. on April 17, 2007 ("April 2007 citation").
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).
See Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-12725 issued to
Mr. Kenneth Elias on July 23, 2007 ("July 2007 citation").
Bureau staff mailed the April 17, 2007 citation to the following address:
EZPMG, Inc., Attn: Kenneth Elias, 28 Harrison Avenue, Englishtown, NJ
07726. See n.2, supra. Bureau staff mailed the July 23, 2007 citation to
the following address: Mr. Kenneth Elias, 28 Harrison Avenue, Suite 213,
Englishtown, NJ 07726. See n.8, supra.
On April 24, 2007, EZPMG, Inc. responded to the April 2007 citation. Mr.
Kenneth B. Elias, President, EZPMG, Inc., to Kurt A., Schroeder, Deputy
Chief, Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, dated April 24, 2007. On August 1, 2007, EZPMG,
Inc. responded to the July 2007 citation. Mr. Kenneth B. Elias, President,
EZPMG, Inc., to Kurt A., Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications Commission,
dated August 1, 2007. Both of EZPMG's responses stated, among other
things, that the fax numbers used to transmit the advertisements were
publicly listed on the Internet, and yellow page listings. Kenneth Elias,
owner of EZPMG, included internet pages, from which the fax numbers were
obtained. The Act and our rules, however, explicitly require that a fax
sender must first have an established business relationship with the fax
recipient before using a fax number from a voluntarily published source to
send unsolicited fax advertisements. See 47 U.S.C. S:
227(b)(1)(C)(i)-(iii); 47 C.F.R. S: 64.1200(a)(3) (unsolicited fax ads
prohibited unless sender has EBR with recipient and the fax number was
obtained, inter alia, from a directory, advertisement, or Internet site to
which the recipient voluntarily made the number available for
distribution); see also Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, CG Docket Nos. 02-278 and 05-338, Report
and Order and Third Order on Reconsideration, 21 FCC Rcd 3787, 3793-96
(2006)(burden of proof to demonstrate established business relationship is
on the sender; senders of facsimile advertisements must have an EBR with
the recipient in order to send the advertisement to the recipient's
facsimile number; that the facsimile number was made available in a
directory, advertisement or website does not alone entitle a person to
send a facsimile advertisement to that number). Here, the record shows
that EZPMG apparently did not have the requisite EBR with the fax
recipients before using published fax numbers.
See Appendix for a listing of the consumer complaints against EZPMG
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by EZPMG
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) (amendment of section 1.80(b)
to reflect inflation left the forfeiture maximum for this type of violator
at $11,000); Amendment of Section 1.80(b) of the Commission's Rules,
Adjustment of Forfeiture Maxima to Reflect Inflation, FCC 08-154, rel.
June 13, 2008 (when effective, forfeiture maximum for this type of
violator increased to $16,000).
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 August 27, 2007, from Stephen Wallace (stating
that he has never done any business with the fax advertiser, never made an
inquiry or application to the fax advertiser, never given permission for
the company to send the fax, and requested that the fax advertiser not fax
advertisements to him.). 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.
(...continued from previous page)
(continued....)
Federal Communications Commission FCC 08-190
1
2
Federal Communications Commission FCC 08-190