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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                              
                                                                        
                                         )                              
                                                                        
     In the Matter of                    )   File No. EB-07-TC-13323    
                                                                        
     Five Star Advertising, Inc.         )   NAL/Acct. No. 20093217006  
                                                                        
     Apparent Liability for Forfeiture   )   FRN: 0018271494            
                                                                        
                                         )                              
                                                                        
                                         )                              


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: November 24, 2008 Released: November 26, 2008

   By the Commission :

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Five Star Advertising, Inc. ("Five Star") 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 13 unsolicited advertisements to the telephone
       facsimile machines of at least 12 consumers. Based on the facts and
       circumstances surrounding these apparent violations, we find that Five
       Star is apparently liable for a forfeiture in the amount of $64,000.

   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 October 30, 2007, in response to one or more consumer complaints
       alleging that Five Star had faxed unsolicited advertisements, the
       Enforcement Bureau ("Bureau") issued a citation to Five Star, pursuant
       to section 503(b)(5) of the Act. The Bureau cited Five Star for using
       a telephone facsimile machine, computer, or other device, to send
       unsolicited advertisements for apparel and sales of businesses to a
       telephone facsimile machine, in violation of section 227 of the Act
       and the Commission's related rules and orders. The citation warned
       Five Star 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 Five Star 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. Five
       Star 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 13
       additional consumer complaints indicating that Five Star continued to
       engage in such conduct after issuance of the citation. We base our
       action here specifically on 13 complaints filed by 12 consumers
       establishing that Five Star continued to send 13 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 Five Star 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 13
       unsolicited advertisements to the 12 consumers identified in the
       Appendix. This NAL is based on evidence that 12 consumers received
       unsolicited fax advertisements from Five Star after the Bureau's
       citation. The facsimile transmissions advertise apparel. Further,
       according to the complaints, the consumers neither had an established
       business relationship with Five Star nor gave Five Star 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 complaint[s], we conclude
       that Five Star apparently violated section 227 of the Act and the
       Commission's related rules and orders by sending 13 unsolicited
       advertisements to 12 consumers' facsimile machines.

    B. Proposed Forfeiture

    7. We find that Five Star is apparently liable for a forfeiture in the
       amount of $64,000. 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 12 of the 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, one consumer specifically requested that Five Star
       cease sending facsimiles. Notwithstanding these requests, one
       additional facsimile was sent to this consumer. Thus, we apply the
       $10,000 amount to one of these apparent violations. Thus, a total
       forfeiture of $64,000 is proposed. Five Star 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 Five Star 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 13 unsolicited advertisements to the 12
       consumers identified in the Appendix. We have further determined that
       Five Star Advertising, Inc. is apparently liable for a forfeiture in
       the amount of $64,000.

    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 Five Star Advertising, Inc. is hereby NOTIFIED of this APPARENT
       LIABILITY FOR A FORFEITURE in the amount of $64,000 for willful or
       repeated violations of section 227(b)(1)(C) of the Communications Act,
       47 U.S.C. S: 227(b)(1)(C), section 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, Five Star
       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). Five Star 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 Five Star Advertising, Inc.,
       Attention: Attn: Jane Eunsook Lee, 6247 El Diente Peak Place, Castle
       Rock, CO 80108-9470.

   FEDERAL COMMUNICATIONS COMMISSION

   Marlene H. Dortch

   Secretary

                                    APPENDIX

                        Complainants and Violation Dates


     Complainant received facsimile solicitations    Violation Date(s)       

     Charlene Gregoroff, Bio-Touch                   12/03/2007              

     Britt Cooper, Remax Advantage                   12/06/2007              

     Joseph Zelik, Joseph Real Estate                01/21/2008              

     Sam Standley, Laclede Cab Company               01/23/2008              

     Frank Nicholas, West Marine                     02/06/2008, 02/18/2008  

     Fritz Lecker, PJL Trucking, Inc.                02/18/2008              

     Connie Stinnett, Seminole County Farm Bureau    02/26/2008              

     David Staniunas, Presbyterian Historical        02/26/2008              
     Society                                                                 

     Shevawn Maida, Michigan Rehabilitation          03/06/2008              
     Specialists                                                             

     Cory Newby, Tarrant County Fire Alarm           03/11/2008              

     Gerri Andreas, Appraisals Limited               03/26/2008              



     Complainant received facsimile solicitations after   Violation Date(s)  
     requesting no more be sent                                              

     Kay LaVergue, McKinley High School                   02/05/2008         


   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, Five Star has offices at 6247
   El Diente Peak Place, Castle Rock, CO 80108-9470. Jane Eunsook Lee, is
   listed as the contact person for Five Star. Accordingly, all references in
   this NAL to "Five Star" 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 also 47 U.S.C. S: 227(a)(2).

   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-13323 issued to
   Five Star on October 30, 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: Five Star
   Advertising, Inc., Attn: Jane Eunsook Lee, 6247 El Diente Peak Place,
   Castle Rock, CO 80108-9470. See n.2, supra.

   See Appendix for a listing of the consumer complaints against Five Star
   requesting Commission action.

   We note that evidence of additional instances of unlawful conduct by Five
   Star 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, 23 FCC Rcd
   9845 (2008) (amendment of section 1.80(b) to reflect inflation increased
   the forfeiture maximum for this type of violator 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 February 5, 2008 from Kay LaVergue, McKinley
   High School (stating that she has never done any business with the fax
   advertiser, never made an inquiry or application to the fax advertiser,
   never gave permission for the company to send the fax, and requested the
   company not to fax an advertisement). 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 16837, 16842 (2000); 21st Century Fax(es) Ltd., AKA
   20th Century Fax(es), 15 FCC Rcd 24406, 24411 (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 08-266

                                       1

   Federal Communications Commission FCC 08-266