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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                               
                                                                         
                                         )                               
                                                                         
                                         )                               
                                                                         
     In the Matter of                    )   File No. EB- 07-TC-2540     
                                                                         
     Tropical Travel Marketing           )   NAL/Acct. No. 200832170068  
                                                                         
     Apparent Liability for Forfeiture   )   FRN: 0017919812             
                                                                         
                                         )                               
                                                                         
                                         )                               
                                                                         
                                         )                               


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: October 2, 2008 Released: October 7, 2008

   By the Commission:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Tropical Travel Marketing ("Tropical Travel") 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 21 unsolicited advertisements to the
       telephone facsimile machines of at least 17 consumers. Based on the
       facts and circumstances surrounding these apparent violations, we find
       that Tropical Travel is apparently liable for a forfeiture in the
       amount of $94,500.

   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 June 29, 2007, in response to one or more consumer complaints
       alleging that Tropical Travel had faxed unsolicited advertisements,
       the Enforcement Bureau ("Bureau") issued a citation to Tropical
       Travel, pursuant to section 503(b)(5) of the Act. The Bureau cited
       Tropical Travel for using a telephone facsimile machine, computer, or
       other device, to send unsolicited advertisements for vacation travel
       packages to a telephone facsimile machine, in violation of section 227
       of the Act and the Commission's related rules and orders. The citation
       warned Tropical Travel 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 Tropical Travel 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. Tropical Travel 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 17
       additional consumer complaints indicating that Tropical Travel
       continued to engage in such conduct after the citation was issued. We
       base our action here specifically on 17 complaints filed by 17
       consumers establishing that Tropical Travel continued to send 21
       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. 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 Tropical Travel 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 21
       unsolicited advertisements to the 17 consumers identified in the
       Appendix. This NAL is based on evidence that 17 consumers received
       unsolicited fax advertisements from Tropical Travel after the Bureau's
       citation. The facsimile transmissions advertise vacation travel
       packages. Further, according to the complaints, the consumers neither
       had an established business relationship with Tropical Travel nor gave
       Tropical Travel 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 Tropical Travel apparently
       violated section 227 of the Act and the Commission's related rules and
       orders by sending 21 unsolicited advertisements to 17 consumers'
       facsimile machines.

    B. Proposed Forfeiture

    7. We find that Tropical Travel is apparently liable for a forfeiture in
       the amount of $94,500. 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 21 apparent violations.
       Thus, a total forfeiture of $94,500 is proposed. Tropical Travel 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 Tropical Travel Marketing 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 21 unsolicited advertisements to the 17 consumers
       identified in the Appendix. We have further determined that Tropical
       Travel Marketing is apparently liable for a forfeiture in the amount
       of $94,500.

    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 Tropical Travel Marketing is hereby NOTIFIED of this APPARENT
       LIABILITY FOR A FORFEITURE in the amount of $94,500 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, Tropical Travel
       Marketing 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). Tropical Travel Marketing 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 regular mail to Tropical Travel Marketing, Attention: Louis Quiles,
   CEO, 1450 Eden Drive, Deltona, FL 32725-3766.

   FEDERAL COMMUNICATIONS COMMISSION

   Marlene H. Dortch

   Secretary

                                    APPENDIX

                        Complainants and Violation Dates


     Complainant received facsimile                Violation Date(s)         
     solicitations                                                           

     Paul Wharton, Homestar Direct                 10/15/2007                

     Hannah Graves                                 10/15/2007                

     Suzanne Steele                                10/17/2007                

     Misty Elkins, Niche Jewelry                   10/17/2007                

     Michael Carpenter                             10/17/2007                

     Karl Kohl, Gold'n Country Gifts LLC           10/16/2007                

     Edward Paladino                               10/18/2007                

     Mark Lebovitz, L2 Consulting Services, Inc.   10/15/2007, 10/17/2007    

     Christy McGinty                               10/17/2007                

     Rae Weese, Durango Button Company, Inc.       10/24/2007                

     Walter Alexander                              10/24/2007                

     Jewel Clay, Troutman Sanders LLP              10/17/2007, 10/30/2007    

     Thomas Walsh, International Protein           10/30/2007                
     Colloids, Inc.                                                          

     Charles Somerville, Eastman Kodak Company     10/30/2007                

     Joe Shields, Lockheed Martin                  10/30/2007 (three faxes)  

     Mel Manuel                                    10/30/2007                

     Patrick Ross, Palmer Disposable Products      10/30/2007                


   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, Tropical Travel has offices
   at 1450 Eden Drive, Deltona, FL 32725-3766. Louis Quiles, CEO, is listed
   as the contact person for Tropical Travel. Accordingly, all references in
   this NAL to "Tropical Travel" 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-2540 issued to
   Tropical Travel on June 29, 2007.

   See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
   to non-common carriers for violations of the Act or of the Commission's
   rules and orders).

   Commission staff mailed the citation to: Tropical Travel Marketing, Attn:
   Louis Quiles, CEO, 1450 Eden Drive, Deltona, FL 32725-3766. See n.2,
   supra.

   See Appendix for a listing of the consumer complaints against Tropical
   Travel requesting Commission action.

   Following the issuance of this citation, the Commission continued to
   receive complaints from multiple consumers alleging that Tropical Travel
   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 Tropical Travel in the amount of
   $49,500. Tropical Travel, Notice of Apparent Liability for Forfeiture, FCC
   08-162, released July 3, 2008.  We note that evidence of additional
   instances of unlawful conduct by Tropical Travel 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 15, 2007, from Paul Wharton, Homestar
   Direct (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...)

   Federal Communications Commission FCC 08-234

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   Federal Communications Commission FCC 08-234