Click here for Adobe Acrobat version
Click here for Microsoft Word version
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.
Federal Communications Commission
Washington, D.C. 20554
File No. EB-06-TC-2228
In the Matter of )
NAL/Acct. Nos. 200832170040 and 200832170060
Amerilist, Inc. )
Adopted: July 9, 2009 Released: July 10, 2009
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of $22,500 against Amerilist, Inc. ("Amerilist") 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 five unsolicited advertisements to
the telephone facsimile machines of at least five consumers.
2. This Forfeiture Order arises from two distinct Notices of Apparent
Liability for Forfeiture that were issued against Amerilist. The facts
and circumstances surrounding these cases are set forth in the NALs
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
4. On November 30, 2006, in response to one or more consumer complaints
alleging that Amerilist had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Amerilist, pursuant
to section 503(b)(5) of the Act. The Bureau cited Amerilist for using
a telephone facsimile machine, computer, or other device, to send
unsolicited advertisements for customer lists, in violation of section
227 of the Act and the Commission's related rules and orders. The
citation warned Amerilist 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 Amerilist 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. Amerilist did not request an interview or
otherwise respond to the citation.
5. Following the issuance of the citation, the Commission received
complaints from five consumers alleging that Amerilist faxed at least
five unsolicited advertisements to them. These violations, which
occurred after the Bureau's citation, resulted in the issuance of two
Notices of Apparent Liability for Forfeiture against Amerilist on
March 25, 2008, in the amount of $4,500, and on July 22, 2008, in the
amount of $18,000. The NALs ordered Amerilist to either pay the
proposed forfeiture amounts within thirty (30) days or submit evidence
or arguments in response to the NALs to show that no forfeitures
should be imposed or that some lesser amounts should be assessed.
Amerilist responded to the March 25, 2008 NAL, seeking cancellation
or reduction of the proposed forfeiture, but failed to respond to the
July 22, 2008, NAL. In addition, Amerilist did not pay the proposed
forfeiture amounts. 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 the five apparent violations.
8. Amerilist, in its NAL response, has failed to identify facts or
circumstances to persuade us that there is a basis for modifying the
proposed forfeiture. The company states that upon receipt of the
citation, it changed its policies to ban unsolicited fax advertising.
Changes in personnel, however, resulted in a new employee faxing an
unsolicited advertisement. After receiving the initial NAL, Amerilist
reviewed its policy on unsolicited fax advertising with its office
personnel. While these steps may be intended to prevent future
violations, they do not serve as a defense under Commission rules for
violations already committed. Amerilist also requests that, in light
of the current economic climate, the proposed forfeiture be reduced
from $4,500 to $250. It provides no financial documentation to support
an inability to pay argument as required, however. Moreover, as
explained above, Amerilist did not respond to the July 22, 2008 NAL.
Further, we are not aware of any other mitigating circumstances
sufficient to warrant a reduction of the proposed forfeiture
penalties. For these reasons, and based on the information before us,
we hereby impose a total forfeiture of $22,500 for Amerilist's willful
or repeated violation of section 227 of the Act and the Commission's
related rules and orders, as set forth in the NALs.
III. 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 the 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 Amerilist, Inc.
IS LIABLE FOR A MONETARY FORFEITURE to the United States Government in
the sum of $22,500 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
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). Amerilist, Inc. will also send
electronic notification on the date said payment is made to
Johnny.firstname.lastname@example.org. 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 Amerilist, Inc., Attention: Ravi Buckredan, 978 Route 45, Pomona,
NY 10970 and 749 North Broad Street, Suite 101, Elizabeth, NJ 07208.
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).
Amerilist, Inc, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
4922 (Enf. Bur.2008); Amerilist, Inc, Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 11105 (Enf. Bur. 2008) (collectively "NALs").
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-07-TC-2228, issued to
Amerilist on November 30, 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 address: Amerilist,
Inc., 978 Route 45, Pomona, NY 10970 and 749 North Broad Street, Suite
101, Elizabeth, NJ 07208.
See n.3, supra; see also 47 U.S.C. S: 503(b)(1).
On April 16, 2008, Ravi Buckredan, President of Amerilist, responded by
letter to the March 25, 2008, NAL. Mr. Ravi Buckredan, President,
Amerilist, Inc., to Office of the Secretary, Federal Communications
Commission, dated April 16, 2008 ("NAL Response").
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).
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.
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
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)
Federal Communications Commission DA 09-1514
Federal Communications Commission DA 09-1514