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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                               
                                                                         
                                         )                               
                                                                         
                                         )                               
                                                                         
     In the Matter of                    )   File No. EB- 06-TC-131      
                                                                         
     America's Toner                     )   NAL/Acct. No. 200832170066  
                                                                         
     Apparent Liability for Forfeiture   )   FRN: 0017433186             
                                                                         
                                         )                               
                                                                         
                                         )                               
                                                                         
                                         )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: August 26, 2008 Released: August 28, 2008

   By the Commission:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that America's Toner 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
       fourteen unsolicited advertisements to the telephone facsimile
       machines of at least twelve consumers. Based on the facts and
       circumstances surrounding these apparent violations, we find that
       America's Toner is apparently liable for a forfeiture in the amount of
       $63,000.

   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 July 21, 2006, in response to one or more consumer complaints
       alleging that America's Toner had faxed unsolicited advertisements,
       the Bureau issued a citation to America's Toner, pursuant to section
       503(b)(5) of the Act. The Bureau cited America's Toner for using a
       telephone facsimile machine, computer, or other device, to send
       unsolicited advertisements for toner and ink cartridges to a telephone
       facsimile machine, in violation of section 227 of the Act and the
       Commission's related rules and orders. The citation warned America's
       Toner 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 America's Toner 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. America's Toner responded to the citation. Although not
       requesting an interview, America's Toner stated that "[a]ny faxes that
       were received by consumers other than Americas Toner customer were
       transmitted in error [sic]" and that the company was promoting to its
       own customers "via telephone and not by facsimile methods."

    4. Despite the citation's warning that subsequent violations could result
       in the imposition of monetary forfeitures, we have received twelve
       additional consumer complaints indicating that America's Toner
       continued to engage in such conduct after the citation was issued. We
       base our action here specifically on twelve complaints filed by
       consumers establishing that America's Toner continued to send fourteen
       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 America's Toner 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 fourteen
       unsolicited advertisements to the twelve consumers identified in the
       Appendix. This NAL is based on evidence that twelve consumers received
       unsolicited fax advertisements from America's Toner after the Bureau's
       citation. The facsimile transmissions advertise toner cartridges.
       Further, according to the complaints, the consumers neither had an
       established business relationship with America's Toner nor gave
       America's Toner 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 America's Toner apparently
       violated section 227 of the Act and the Commission's related rules and
       orders by sending fourteen unsolicited advertisements to twelve
       consumers' facsimile machines.

    B. Proposed Forfeiture

    7. We find that America's Toner is apparently liable for a forfeiture in
       the amount of $63,000. 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 the fourteen apparent
       violations. Thus, a total forfeiture of $63,000 is proposed. America's
       Toner 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 America's Toner 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 fourteen unsolicited advertisements to the twelve consumers
       identified in the Appendix. We have further determined that America's
       Toner is apparently liable for a forfeiture in the amount of $63,000.

    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 America's Toner is hereby NOTIFIED of this APPARENT LIABILITY FOR
       A FORFEITURE in the amount of $63,000 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, America's Toner
       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 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. America's
       Toner will also send electronic notification on the date said payment
       is made to johnny.drake@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 and regular mail to America's Toner, aka American Toner, aka
       Fiducia, Inc., Attention: John David, 96 Westmoreland Ave., Suite 13,
       Addison, IL 60601; 87 Eisenhower Ln S, Lombard IL 60148-5409; 603
       Country Club Drive, Bensenville, IL 60106; and 9919 E. 47th Place,
       Tulsa, OK 74146-4731.

   FEDERAL COMMUNICATIONS COMMISSION

   Marlene H. Dortch

   Secretary

                                    APPENDIX

                        Complainants and Violation Dates


     Complainant received facsimile advertisements    Violation Date(s)      

     Rick Grossman. Learning Express                  9/05/2007              

     James Maxim, Williams/Transco                    9/05/2007              

     Joseph Sgroi                                     9/05/2007              

     Michael Banas, Banas & Fickert Insurance         9/11/2007 (two faxes)  
     Agency                                                                  

     John Woodward, Columbus Coffee Company           9/11/2007, 9/27/2007   

     John Ley, Southwestern Medical Center at         9/13/2007              
     Dallas                                                                  

     I. Avery, Kamiak Vineyards, Inc.                 9/26/2007              

     Lionel Roy                                       10/02/2007             

     Brenda Roberts, At Your Service                  10/16/2007             

     Leeor Dicker, ESP Int'l Corp.                    10/18/2007             

     Sean Fleming, Lebanon Public Library             10/25/2007             

     Jeremy Chavez, JDC Insurance Services            10/02/2007             


   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 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, America's Toner is also doing
   business as American Toner and Fiducia, Inc. Therefore, all references in
   this NAL to "America's Toner" encompass America's Toner as well as
   American Toner and Fiducia, Inc. America's Toner has offices at 96
   Westmoreland Ave., Suite 13, Addison, IL 60101; 87 Eisenhower Ln S,
   Lombard, IL 60148-5409; 603 Country Club Drive, Bensenville, IL 60106; and
   9919 E. 47th Place, Tulsa, OK 74146-4731. John David is listed as the
   contact person for America's Toner. Accordingly, all references in this
   NAL to "America's Toner" 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 (a)(3)(i), (ii).

   Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
   Consumers Division, Enforcement Bureau, File No.EB-06-TC-131, issued to
   America's Toner on July 21, 2006.

   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).

   Commission staff mailed the citation to these addresses: America's Toner
   aka American Toner aka Fiducia, Inc., Attn: John David, 96 Westmoreland
   Ave., Suite 13, Addison, IL 60601; America's Toner aka American Toner aka
   Fiducia, Inc., Attn: John David, 87 Eisenhower Ln S, Lombard IL
   60148-5409; and America's Toner aka American Toner aka Fiducia, Inc.,
   Attn: John David, 603 Country Club Drive, Bensenville, IL 60106. See n.2,
   supra.

   Letter from John David, America's Toner, to Kurt A. Schroeder, Deputy
   Chief, Telecommunications Consumers Division, Enforcement Bureau, dated
   Aug. 18, 2006.

   See Appendix for a listing of the consumer complaints against America's
   Toner requesting Commission action.

   Following the issuance of this citation, the Commission continued to
   receive complaints from multiple consumers alleging that America's Toner
   faxed unsolicited advertisements to them. These complaints, received after
   the Commission's citation, resulted in the issuance of two Notices of
   Apparent Liability for Forfeiture against America's Toner: America's
   Toner, Notice of Apparent Liability for Forfeiture, FCC 08-90, released
   March 21, 2008 (proposed forfeiture in the amount of $63,000) and
   America's Toner, Notice of Apparent Liability for Forfeiture, DA 08-1373,
   released June 10, 2008 (proposed forfeiture in the amount of $18,000).
   America's Toner filed replies to each of these NALs. See Letter from John
   David, America's Toner, to Office of Secretary, dated Apr. 12, 2008 and
   Letter from John David, America's Toner, to Kris Anne Monteith, Chief,
   Enforcement Bureau, dated June 20, 2008. We note that evidence of
   additional instances of unlawful conduct by America's Toner 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 September 5, 2007, from Rick Grossman (stating
   that he has never done any business with the fax advertiser, never made an
   inquiry or application to the fax advertiser, and never gave permission
   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.

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission FCC 08-199

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   Federal Communications Commission FCC 08-199