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-05-TC-052
National Business Information ) NAL/Acct. No. 200632170008
Corporation ) FRN: 0015522121
)
)
)
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 $153,000 against National Business Information Corporation
("NBIC" or "Company") 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 thirty-four unsolicited
advertisements to the telephone facsimile machines of at least eight
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 August 31, 2005, in response to one or more consumer complaints
alleging that NBIC had faxed unsolicited advertisements, the Enforcement
Bureau ("Bureau") issued a citation to NBIC, pursuant to section 503(b)(5)
of the Act. The Bureau cited NBIC 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 NBIC 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 NBIC 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. NBIC did not request an interview or otherwise respond to the
citation.
5. Following the issuance of the citation, the Commission received at
least eight complaints from consumers alleging that NBIC faxed at least
thirty-four 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 against NBIC on September 20, 2006,
in the amount of $153,000. The NAL ordered NBIC 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. NBIC 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 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. 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 the thirty-four apparent violations.
8. NBIC did not respond to the NAL or pay the proposed forfeiture amount.
NBIC 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 $153,000 for
NBIC'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 The National Business Information Corporation IS
LIABLE FOR A MONETARY FORFEITURE to the United States Government the sum
of $153,000 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 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). National Business
Information Corporation 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
National Business Information Corporation, Attn: Richard J. McHenry, Sr.,
1346 W. Arrowhead Rd., #302, Duluth, MN 55811; and National Business
Information Corporation, Attn: Don Murray, 6924 Aloma Ave., Winter Park,
FL 32792.
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).
National Business Information Corporation, Notice of Apparent Liability
for Forfeiture, 21 FCC Rcd 10891 (FCC 2006) ("NAL").
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." 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-052, issued to
NBIC on September 20, 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).
Bureau staff mailed the citation to the following addresses: National
Business Information Corporation, Attn: CEO Richard J. McHenry, Sr., 1346
W. Arrowhead Rd., #302 Duluth, MN 55811; and Attn: Don Murray, 6924 Aloma
Ave., Winter Park, FL 32792.
See n.2 supra; see also 47 U.S.C. S: 503(b)(1).
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).
47 U.S.C. S: 504(a).
(...continued from previous page)
(continued....)
Federal Communications Commission FCC 08-273
1
Federal Communications Commission FCC 08-273