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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No. EB-04-TC-165
In the Matter of
) NAL/Acct. No. 2000832170041
Copier Search International, Inc.
) FRN: 0017584905
)
)
FORFEITURE ORDER
Adopted: June 15, 2009 Released: June 16, 2009
By the Chief, Enforcement Bureau:
I. introduction
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of $9,000 against Copier Search International, Inc.
("Copier Search") 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 two
unsolicited advertisements to the telephone facsimile machines of at
least two 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 January 14, 2005, in response to one or more consumer complaints
alleging that Copier Search had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Copier Search,
pursuant to section 503(b)(5) of the Act. The Bureau cited Copier
Search for using a telephone facsimile machine, computer, or other
device, to send unsolicited advertisements for copier equipment, in
violation of section 227 of the Act and the Commission's related rules
and orders. The citation warned Copier Search 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 Copier Search 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.
Copier Search did not request an interview or otherwise respond to the
citation.
5. Following the issuance of the citation, the Commission received at
least two complaints from consumers alleging that Copier Search faxed
at least two 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 Copier Search
on March 25, 2008 in the amount of $9,000. The NAL ordered Copier
Search 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. Copier Search 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 two of the apparent violations.
8. Copier Search did not respond to the NAL or pay the proposed
forfeiture amount. Copier Search 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 $9,000 for Copier Search'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),
and under authority delegated by sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that Copier Search
International, Inc. IS LIABLE FOR A MONETARY FORFEITURE to the United
States Government in the sum of $9,000 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 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). Copier Search International,
Inc. 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 Copier Search International, Inc., Attention Jim Hummel, 1600
Patterson Road, Florissant, Missouri 63031; 748 N. Lindbergh
Boulevard, St. Louis, Missouri 63031; and 990 Orchard Lake Dr., St.
Louis, MO 63031.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith Chief, Enforcement Bureau
47 U.S.C. S: 227.
See also 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).
Copier Search International, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 4928 (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." 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:S: 64.1200(a)(3)(i), (ii).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-04-TC-165 issued to
Copier Search on March 25, 2008.
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: Investment
Recovery d.b.a. Copier Search International, Inc., Attention Jim Hummel,
1600 Patterson Road, Florissant, Missouri 63031 and 748 N. Lindbergh
Boulevard, St. Louis, Missouri 63031.
See n.3, 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).
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Federal Communications Commission DA 09-1327
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Federal Communications Commission DA 09-1327