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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.
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Federal Communications Commission FCC 08-199
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Federal Communications Commission FCC 08-199