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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB-07-TC-1259
Atlas Advertising, Inc. ) NAL/Acct No. 200832170070
Apparent Liability for Forfeiture ) FRN: 0017835091
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 15, 2008 Released: September 17, 2008
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Atlas Advertising, Inc. ("Atlas") 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 nine consumers. Based on the facts and
circumstances surrounding these apparent violations, we find that
Atlas is apparently liable for a forfeiture in the amount of $40,500.
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 9, 2007, in response to one or more consumer complaints
alleging that Atlas had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Atlas, pursuant to
section 503(b)(5) of the Act. The Bureau cited Atlas for using a
telephone facsimile machine, computer, or other device, to send
unsolicited advertisements for steel buildings to a telephone
facsimile machine, in violation of section 227 of the Act and the
Commission's related rules and orders. The citation warned Atlas 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 Atlas 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. Atlas 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 Atlas continued to engage in such
conduct following the issuance of the citation. We base our action
here specifically on complaints filed by nine consumers establishing
that Atlas 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 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. The maximum penalty for such a violation is $11,000 for a
violation occurring before September 2, 2008, and $16,000 for a
violation occurring on or after September 2, 2008. 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 Atlas 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 consumers identified in the Appendix. This NAL
is based on evidence that the consumers received unsolicited fax
advertisements from Atlas after the Commission's citation. The
facsimile transmissions advertise steel buildings. Further, according
to the complaints, the consumers neither had an established business
relationship with Atlas nor gave Atlas 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 Atlas
apparently violated section 227 of the Act and the Commission's
related rules and orders by sending nine unsolicited advertisement to
nine consumers' facsimile machines.
B. Proposed Forfeiture
7. We find that Atlas is apparently liable for a forfeiture in the amount
of $40,500. 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 the nine apparent violations. Thus, a total
forfeiture of $40,500 is proposed. Atlas 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 Atlas Advertising, 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 nine consumers
identified in the Appendix. We have further determined that Atlas
Advertising, Inc. is apparently liable for a forfeiture in the amount
of $40,500.
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 Atlas Advertising, Inc. is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of $40,500 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, Atlas Advertising,
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). Atlas
Advertising 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 Atlas Advertising, Inc., Attention: George
Poelcher, 310 Bridge Street, Beaver, PA 15009; 310 Bridge Street, W.
Bridgewater, PA 15009; and 109 Pleasant Drive, Aliquippa, PA 15001.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant received facsimile solicitations Violation Date(s)
Autumn Barnes 11/29/07
James Dallas 10/2/07
Mike Flint 11/14/07
Francine Flood 11/27/07
Janet Hallatt 10/1/07
Anne Immesberger 10/1/07
Raymond Schuerger 10/2/07
Renee I. Segura 10/15/07
Nancy Thornburg 11/7/07
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).
Atlas has offices at 310 Bridge Street, Beaver, PA 15009; 310 Bridge
Street, W. Bridgewater, PA 15009 and 109 Pleasant Drive, Aliquippa, PA
15001. George Poelcher is the contact for Atlas. Accordingly, all
references in this NAL to "Atlas" 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-1259, issued to
Atlas on April 9, 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 mailed the citation to the following address: Atlas,
Advertising, Inc., Attn: George Poelcher, 310 Bridge Street, Beaver, PA
15009. See n.2, supra.
Following the issuance of the citation, the Commission received a
complaint from a consumer alleging that Atlas faxed an unsolicited
advertisement to them. This violation, occurring after the Commission's
citation, resulted in the issuance of a Notice of Apparent Liability for
Forfeiture against Atlas on June 6, 2008, in the amount of $4,500. Atlas
Advertising, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
8774 (2008).
See Appendix for a listing of the consumer complaints against Atlas
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by Atlas
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)
first to $11,000 and more recently to $16,000. 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)
(forfeiture maximum for this type of violator set at $11,000); 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(amendment of section 1.80(b) to reflect inflation left
the forfeiture maximum for this type of violator at $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 October 2, 2007, from James Dallas (stating
that he has never done business with the fax advertiser, never made an
inquiry or application to the fax advertiser and never given permission
for the fax advertiser to fax an advertisement 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 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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