Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
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. 200932170008
Apparent Liability for Forfeiture ) FRN: 0017433186
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 9, 2008 Released: December 11, 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 219
unsolicited advertisements to the telephone facsimile machines of at
least 188 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 $1,040,500.
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 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 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 [sic]
were transmitted in error."
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 America's Toner continued to
engage in such conduct after issuance of the citation. We base our
action here specifically on complaints filed by 188 consumers
establishing that America's Toner continued to send 219 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 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 219
unsolicited advertisements to the 188 consumers identified in the
Appendix. This NAL is based on evidence that 188 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 219 unsolicited advertisements to 188 consumers'
facsimile machines.
B. Proposed Forfeiture
7. We find that America's Toner is apparently liable for a forfeiture in
the amount of $1,040,500. 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 209 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, eight consumers specifically requested that
America's Toner cease sending facsimiles. Notwithstanding these
requests, an additional ten facsimiles were sent to these consumers.
Thus, we apply the $10,000 amount to each of ten of these apparent
violations. Thus, a total forfeiture of $1,040,500 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 219 unsolicited advertisements to the 188 consumers identified
in the Appendix. We have further determined that America's Toner is
apparently liable for a forfeiture in the amount of $1,040,500.
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 America's Toner is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of $1,040,500 for willful or repeated
violations of section 227(b)(1)(C) of the Communications Act, 47
U.S.C. S: 227(b)(1)(C), 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, 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 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). America's Toner 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 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.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant received facsimile Violation Date(s)
solicitations
Charlene Gregoroff, Biotouch 12/13/2007
Lionel Roy 12/18/2007, 02/06/2008
Doug Kresge, Kitsap Bank 12/19/2007
Amy Link, Half Price Books 12/19/2007
Stephanie LaBry, Bank of Erath 12/13/2007
John Ley, UT Southwestern Medical Center, 12/17/2007, 02/27/2008
Dallas
Mark Kimura, JMO of America, Inc. 01/10/2008
Jan Driessnack, The Hyacinth 12/13/2007
Ed Lohmann 01/14/2008
Chris O'Brien 01/14/2008, 02/26/2008
Brent Swenson, Rhombus, Inc. 01/14/2008
Jane Labanz 01/14/2008
Elliott Delaye 01/14/2008
Zachary Gassoumis, Univ. of Southern 01/14/2008
California
James Andrews, Andy's Music Inc. 01/16/2008
Carl Hahn 01/16/2008
Jere Bice 01/15/2008
Rick Russell, Clovis Janitorial Supply, 01/16/2008
Inc.
Richard Dziubaniuk, R & R Instrument 01/16/2008, 02/28/2008,
Company 04/01/2008
Joe Shields, Lockheed Martin 01/16/2008 (two faxes),
02/26/2008
Mary Watt, CALL Primrose 01/16/2008
Dawn Colwell, Tom Ward Homes, Inc. 01/22/2008
Rocco Pisto 01/22/2008
Todd Thurston, Thurston, Casale & Ryan, LLC 01/15/2008
John Warrick, US Army DPW Real Property 01/23/2008, 02/29/2008
Office
Janice Lemak, Leelanau Urgent Care 01/12/2008
Mark Kirschke 01/29/2008
Lance Zee 01/29/2008
Steven Kabbash, Veritech 01/29/2008
David Bergeron, St. Lawrence Place 01/30/2008
Episcopal Church of the Epiphany 01/09/2008
Harry Robinson, Robinson Racing 01/29/2008
Enterprises, Inc.
Francis Nash 01/30/2008
Brent Griswold 01/30/2008, 03/07/2008
Crawford Rhodes 01/30/2008
Betty Bishop 01/30/2008, 03/07/2008
Geddy Krul 01/31/2008, 03/07/2008,
03/17/2008
Daniel and Angela Goelzer 01/16/2008
Marlene Phillips 02/04/2008
Raymond Butner 02/04/2008, 03/28/2008
Ken Barasch 02/04/2008, 03/28/2008
Richard LaPrairie, LMI Engineering LLC 02/05/2008
Keith Pollitt 02/05/2008, 03/25/2008
Allen Metner, North Fork Bank 02/05/08
Marguerite Payne, CUNA Mutual Group 01/23/2008
Brian Petro 01/28/2008
Marvin Young 01/29/2008
Stan Blake 02/04/2008
Jayne Culberson, The Lakeside Clinic 01/28/2008
Margo Buchin, Stanford Photonics, Inc. 02/12/2008
Dan Batcheller, Budget U-Stor Mini Storage 02/13/2008
Ben Ringham, The UPS Store 02/13/2008
Ellen Maloney, University of San Francisco 01/31/2008
Thomas McWethy, T & T Tooling 02/13/2008, 03/27/2008
Ralph Baker, The Oxford, Inc. 02/15/2008
James Blond 02/15/2008
Linda Morris, My Music Store 02/19/2008
Jeffrey Simon 02/19/2008
Gerlinde Nattler, Continental Teves, Inc. 02/19/2008
Barry Tregob 02/20/2008
Shirley Barrett, Professional Scoping 02/20/2008
Services, Inc.
Paul White 02/20/2008
Brad Levine, W. Wilson Fellowship 02/21/2008
Foundation
Patti Maddamma, SME Co., Inc. 02/20/2008
Betsy Grimes, The Grimes Group Agency 02/19/2008
Lisa Talley, Lisa Talley CPS, PA 02/21/2008
Jeffrey Fahey, SunWize Technologies 02/20/2008
Paul Barrett, Mountain Memory Assessment 02/20/2008, 03/27/2008
Deborah Katz 02/22/2008
Shawn O'Leary, Moody's Corporation 02/22/2008
Joseph Fan 02/20/2008
Adrian Halpern, Law Offices of Adrian 02/20/2008
Halpern
Melissa Bishop, Stony Brook University 02/22/2008, 03/28/2008
Julie Glenn, Village of Augusta 02/26/2008
Carl Hahn 02/26/2008
Benjamin Benia 02/26/2008
Jimmy Sutton 02/26/2008
Jan Nordmo 02/26/2008
Diane Byrd, Piazza Trading & Co. , Ltd. 02/26/2008
Karl Westberg 02/28/2008
Doug Sherrod 02/27/2008
Hitoshi Sasaki 02/26/2008
Chris Elley 02/27/2008
John Clark 02/27/2008
Jean Fortune, Hy-Tech Construction, Inc. 02/26/2008
Lawrence Little, L & L Enterprises, 02/26/2008
Associates
Stuart Yusem 02/27/2008
Felice Bogus, Fil-Chem Inc. 02/27/2008
Ricky Gomez 02/27/2008
Judy McComb 02/27/2008
Linda Moresi 02/27/2008
Kelly Bennette 02/27/2008
Eric Kobayashi 02/27/2008
David Loewenstein 02/26/2008
June-Marie Essner 02/27/2008
Thomas Woodend 02/28/2008
Pam Zumwalt 02/27/2008
Jerry Strekal 02/27/2008
Nanci Lamborn, Southern Insurance 02/28/2008
Daniel Hornstein 02/27/2008
Vicki Ward, Financial Lifestyle Management 02/29/2008
Steve Messuri 02/29/2008
Chris Bottalico, Service Lock & Garage Door 02/29/2008
Co.
Jeremy Chavez, JDS Insurance Services 02/13/2008
Mary White, PHRF NW 02/29/2008
Lillian Fraund 02/28/2008
Douglas Bulson 03/03/2008
Kevin Photiades, Pioneer Telephone 03/03/2008
George Ciechanowski, JC Stitch in Time 02/27/2008
Warren Davis, Davis Associates, Inc. 03/04/2008
Judith Haney 03/04/2008
Belinda Wright, Echo Tech Systems, Inc. 02/19/2008
Deborah Jacobs 03/05/2008
Mark Kirschke 03/05/2008
Daniel Malaty, The Malatys Agency 02/13/2008
William Lidman 03/05/2008
David Wisniewski 03/05/2008
Frank Wilson 02/28/2008
Romeo Sanchez, Reliable Real Estate 02/27/2008
Inspection
Mark Loewenstein, Loewy Consulting, Inc. 03/06/2008
Brnhard Hedstrom 02/19/2008
Mark Jones, Office of Judge Frank Jordan 03/04/2008
Deborah Morris 03/07/2008
David Kozinn 03/07/2008
Norman Wattenberger 03/10/2008
Emily Shaughnessy, Pavia & Marsh, PC 03/10/2008
Helen Desmond, Ph.D. 03/10/2008
Tom McMullen, Sheet Metal Works, Inc. 03/11/2008
Susan Merrick 03/11/2008
Addie FryeWeaver, Plunkett Research Ltd. 03/12/2008
Robert Hammer, PRN Medical Case Management 03/12/2008
Paul Schrager, Schrager Associates 03/12/2008
Mark Kimura, JMO of America, Inc. 03/12/2008
Shawn Stevens, Stevens Design 03/12/2008, 03/13/2008
John Scrip 03/13/2008
Gary D. Hartman 03/13/2008
Clint Bradford, ATTENTION to Details 03/14/2008
Kenneth Beckwith, EMF Broadcasting 02/28/2008
Carol Herndon 03/17/2008
Patty Sines, Sines Appraisal Service 03/17/2008
Chay Niks, OMNOVA Solutions 03/12/2008
Douglas Neumetzger 03/17/2008
Dennis Tannenbaum 03/12/2008
Terry Grant 03/17/2008
Verlee Amble, Minnesota Tool Group, Inc. 02/20/2008, 03/27/2008
Roy Lewallen 03/18/2008
Scott Bradner 03/12/2008
Daryl Fincher, ACE USA 03/12/2008
Don Simpson 02/27/2008
Wendy Walton, Art Form Architecture, Inc. 03/19/2008
William Faircloth 03/19/2008
Joseph Valente, Sammarval Company LTD. 03/19/2008
William Agosto 03/18/2008
Hermann Durst, W Bar E, Inc. 03/19/2008
Jennifer Gordon 03/14/2008
Anne Wilson, Rape Victim Advocacy Program 03/24/2008
Colin Hageney 02/26/2008
Rona Miller, Pacific Vineyard Company 02/05/2008 (eight faxes)
Connie Hines, Wells Fargo Bank, NA 03/24/2008
Kevin Hall, Stargate Satellite 03/27/2008
Reilly Dillon 03/27/2008
Donald Veit 03/28/2008
Dennis DeDonatis 03/28/2008
Richard LaPrairie, IMI Engineering L.L.C. 03/28/2008
Robert Wallen, M.D. 03/19/2008
Walter Bartus 03/14/2008
Scott Beseda, State Farm Insurance 03/26/2008
Steven Donnell 03/28/2008
Fabian Kausche 03/27/2008
Robert Gates 03/26/2008
Stephen Sartorelli 03/28/2008
Daryl Gerke 03/31/2008
Marisa Munoz-Vourakis 03/27/2008
James McCusker 03/03/2008
Stuart Glenwich 01/30/2008
Jason Merchant 04/02/2008
Vickie Combs, Grove Madsen Industries 02/27/2008
Jim Thorne 02/27/2008
Russell Owen, Univ. of Wash. Astronomy 02/26/2008
Dept.
Rosalind Kovacs, Robert T. Plumb, II 02/28/2008
Chester Martin 04/02/2008
Jeff Feyne 04/02/2008
Complainant received facsimile solicitations Violation Date(s)
after requesting no more be sent
Trevor Marvin 12/20/2007, 02/06/2008
Edward Lohmann 02/25/2008, 03/31/2008
Sandi Brenner 02/27/2008
Rick Russell, Clovis Janitorial Supply, Inc. 02/28/2008
Harry Robinson, Robinson Racing Enterprises, 03/06/2008
Inc.
Jason Blond 03/25/2008
Linda Collier, Carolina Custom Video LLC 03/27/2008
Donna Flaten, Emergency Management Office 03/20/2008
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, 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 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-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 three Notices of
Apparent Liability for Forfeiture against America's Toner: America's
Toner, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 5415 (2008)
(proposed forfeiture in the amount of $63,000); America's Toner, Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 9151 (EB 2008) (proposed
forfeiture in the amount of $18,000); and America's Toner, Notice of
Apparent Liability for Forfeiture, FCC 08-199, released August 28, 2008
(proposed forfeiture in the amount of $63,000). 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; Letter from John
David, America's Toner, to Kris Anne Monteith, Chief, Enforcement Bureau,
dated June 20, 2008; and Letter from John David, America's Toner, to
Office of Secretary, dated Sept. 25, 2008. See also Letter from John
David, America's Toner, to Enforcement Bureau, Telecommunications Consumer
Division, dated July 2, 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)
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 December 20, 2007, from Trevor Marvin (stating
that he 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 08-269
1
Federal Communications Commission FCC 08-269