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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-05-TC-078, EB-07-TC-1270
In the Matter of )
NAL/Acct. No. 200732170071
MHJP, Inc. f/k/a BCJR, Inc. )
FRN: 0016773517
)
)
FORFEITURE ORDER
Adopted: December 19, 2008 Released: December 22, 2008
By the Commission:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of $114,500 against MHJP, Inc. f/k/a BCJR, Inc. ("MHJP") for
willful or repeated violations of section 227 of the Communications Act of
1934, as amended, ("Act") and the Commission's related rules and orders,
by delivering at least twenty-three unsolicited advertisements to the
telephone facsimile machines of at least nineteen consumers.
II. BACKGROUND
2. The facts and circumstances surrounding this case are set forth in the
Commission's Notice of Apparent Liability for Forfeiture and need not be
reiterated at length.
3. 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.
4. On December 22, 2005, in response to one or more consumer complaints
alleging that BCJR, MHJP's predecessor had faxed unsolicited
advertisements, the Enforcement Bureau ("Bureau") issued a citation to
BCJR, pursuant to section 503(b)(5) of the Act. The Bureau cited the
company for using a telephone facsimile machine, computer, or other
device, to send unsolicited advertisements, in violation of section 227 of
the Act and the Commission's related rules and orders. The citation warned
the company 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 the company that within 30 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. The company did
not request an interview or otherwise respond to the citation.
5. Following the issuance of the citation, the Commission received at
least thirteen complaints from consumers alleging that MHJP faxed at least
seventeen unsolicited advertisements to them. These violations, which
occurred after the Bureau's citation, resulted in the issuance of a Notice
of Apparent Liability for Forfeiture ("NAL") against MHJP on August 1,
2007 in the amount of $87,500. Following the issuance of this NAL, the
Commission continued to receive complaints from multiple consumers
alleging that MHJP faxed unsolicited advertisements to them. These
complaints, received after the Commission's citation, resulted in the
issuance of another Notice of Apparent Liability for Forfeiture against
MHJP on June 20, 2008 in the amount of $27,000. The NALs ordered MHJP to
either pay the proposed forfeiture amount within thirty (30) days or
submit evidence or arguments in response to the NAL to show that no
forfeiture should be imposed or that some lesser amount should be
assessed. MHJP did not respond to the NAL or pay the proposed forfeiture
amount.
III. DISCUSSION
6. 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."
7. 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 twenty-one 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, two consumers specifically requested that MHJP
cease sending facsimiles. Notwithstanding these requests, an additional
two facsimiles were sent to these consumers. Thus, we apply the $10,000
amount to each of two of the apparent violations. We apply that base
amount to each of two of the apparent violations.
8. MHJP did not respond to the NAL or pay the proposed forfeiture amount.
MHJP has failed to identify facts or circumstances to persuade us that
there is a basis for modifying the proposed forfeiture, and we are not
aware of any further mitigating circumstances sufficient to warrant a
reduction of the forfeiture penalty. For these reasons, and based on the
information before us, we hereby impose a total forfeiture of $114,500 for
MHJP's willful or repeated violation of section 227 of the Act and the
Commission's related rules and orders, as set forth in the NAL.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 1934, as amended, 47 U.S.C. S: 503(b), and section
1.80(f)(4) of the Commission's rules, 47 C.F.R.
S: 1.80(f)(4), that MHJP, Inc. f/k/a BCJR, Inc. IS LIABLE FOR A MONETARY
FORFEITURE to the United States Government the sum of $114,500 for
willfully and repeatedly violating 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
as described in the paragraphs above.
10. Payment of the forfeiture shall be made in the manner provided for in
section 1.80 of the Commission's rules within thirty (30) days of the
release of this Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
collection pursuant to section 504(a) of the Act. 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). MHJP 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.
11. IT IS FURTHER ORDERED that a copy of the Forfeiture Order shall be
sent by First Class mail and certified mail return receipt requested to
MHJP, Inc. f/k/a BCJR, Inc., Attention: Matt Hubbard, MHJP, Inc. f/k/a
BCJR, Inc., 3059 Autumn Court, Winter Park, FL 32792-1738, 180 N.
Westmonte Drive, Altamonte Springs, FL 32714-3342 and P.O. Box 161759,
Altamonte Springs, FL 32716; and c/o MHJP, Inc. f/k/a BCJR, Inc., Traci
Reagan, 513 Balsawood Court, Altamonte Springs, FL 32714.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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).
MHJP, Inc. f/k/a BCJR, Inc., Notice of Apparent Liability for Forfeiture,
FCC-07-135 (August 1, 2007); and MHJP, Inc. f/k/a BCJR, Inc., Notice of
Apparent Liability for Forfeiture, FCC-08-157 (June 20, 2008).
47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3).
See 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." See 47
U.S.C. S: 227(a)(2); see also 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-05-TC-078 issued to
BCJR, Inc. on December 22, 2005. The Commission staff subsequently issued
a citation to the same entity under the name "MHJP." See Citation from
Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division,
Enforcement Bureau, File No. EB-07-TC-1270 issued to MHJP, Inc. f/k/a
BCJR, Inc. on May 25, 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 issued the December 22, 2005 citation to BCJR, Inc., because
MHJP formerly operated under the corporate name BCJR, Inc. See n.2, supra.
In a letter dated November 13, 2006 responding to a Commission request for
information, TouchTone Communications provided previous billing
information for MHJP indicating that BCJR was the predecessor to MHJP.
Letter from Neil DeRiggi, Customer Service Manager, TouchTone
Communications, to Federal Communications Commission, Enforcement Bureau,
Telecommunications Consumers Division, dated November 13, 2006. The
toll-free number at issue in this NAL, 1-800-215-3132, was listed as a
number "associated" with the toll-free number that Commission staff had
inquired about at that time. The letter indicated that Matt Hubbard was
the contact person for both BCJR and MHJP. As of June 14, 2007, Matt
Hubbard was still listed as the contact person for MJHP in TouchTone's
billing records. Letter from Neil DeRiggi, Customer Service Manager,
TouchTone Communications, to Federal Communications Commission, dated June
14, 2007.
On December 22, 2005, Bureau staff mailed the citation to the following
address: BCJR, Inc., 180 N. Westmont Drive, Altamonte Springs, FL 32714.
On May 25, 2007, Bureau staff mailed the citation to the following
addresses: MHJP, Inc. f/k/a BCJR, Inc., 3059 Autumn Court, Winter Park, FL
32792-1738; and P.O. Box 161759, Altamonte Springs, FL 32716. See notes 7,
8, supra.
MHJP, Inc. f/k/a BCJR, Inc., Notice of Apparent Liability for Forfeiture,
FCC-07-135 (August 1, 2007).
See n.2 supra; see also 47 U.S.C. S: 503(b)(1).
MHJP, Inc. f/k/a BCJR, Inc., Notice of Apparent Liability for Forfeiture,
FCC-08-157 (June 20, 2008).
In response to the first NAL, MHJP provided us with information indicating
that the company has ceased operations. However, MHJP did not submit a
response with any substantive information relating to the NAL. See Letter
from MHJP, Inc. dated August 17, 2007 (stating MHJP, Inc. has dissolved as
of August 17, 2007, including copies of the Notice of Corporate
Dissolution and Articles of Dissolution, submitted to Department of
Corporations for the State of Florida).
Section 503(b)(2)(C) provides for forfeitures of 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).
See 47 U.S.C. S: 503(b)(2)(D); see also 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 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 16,837, 16,842 (2000); 21st Century Fax(es) Ltd., AKA
20th Century Fax(es), 15 FCC Rcd 24,406, 24,411 (2000).
In response to the first NAL against MHJP, see n.2, infra, MHJP provided
us with information indicating that the company has ceased operations.
However, MHJP did not submit a response with any substantive information
relating to the NAL. See Letter from MHJP, Inc. dated August 17, 2007
(stating MHJP, Inc. has dissolved as of August 17, 2007, including copies
of the Notice of Corporate Dissolution and Articles of Dissolution,
submitted to Department of Corporations for the State of Florida).
According to publicly available information, Matt Hubbard, President, is
listed as the contact person for MHJP. Accordingly, all references in this
NAL to MHJP also encompass the foregoing individual and all other
principals and officers of this entity, as well as the corporate entity
itself.
47 U.S.C. S: 504(a).
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Federal Communications Commission FCC 08-272
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Federal Communications Commission FCC 08-272