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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
File No. EB- 07-TC-051
In the Matter of )
NAL/Acct. No. 200832170042
DD&S Companies, Inc. )
FRN: 0017584947
)
)
)
FORFEITURE ORDER
Adopted: July 15, 2009 Released: July 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 DD&S Companies, Inc. ("DD&S") 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 18, 2007, in response to one or more consumer complaints
alleging that DD&S had faxed unsolicited advertisements, the Enforcement
Bureau ("Bureau") issued a citation to DD&S, pursuant to section 503(b)(5)
of the Act. The Bureau cited DD&S 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 DD&S 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 complaint that formed the basis of the
citation. The citation informed DD&S 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. In
response to the citation, DD&S's Chief Financial Officer and Secretary
stated by letter that the fax referenced in the citation was sent by
someone who was "no longer with our company, and I cannot find any
documentation that this fax was authorized." The letter also stated that
"[w]e believe that our existing corporate policy will prevent this error
from reoccurring."
5. Following the issuance of the citation, the Commission received at
least two complaints from consumers alleging that DD&S 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 DD&S on March 25, 2008 in the amount of
$9,000. The NAL ordered DD&S 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. DD&S responded by requesting copies of the
complaints and requesting additional time to file a response. The Bureau
provided copies of the complaints by fax and granted the request for
additional time. DD&S did not, however, file a response.
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 apparent violations.
8. DD&S did not respond substantively to the NAL or pay the proposed
forfeiture amount. DD&S 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 DD&S'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 DD&S
Companies, Inc. IS LIABLE FOR A MONETARY FORFEITURE to the United States
Government 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, 47 U.S.C. S: 504(a).
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). DD&S
Companies, 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
DD&S Companies, Inc., Attention: Thomas B. Rumfelt, President, 244 E. Park
Ave., Lake Wales, FL 33853 and Post Office Box 960, Lake Wales, FL 33859.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
47 U.S.C. S: 227.
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).
DD&S Companies, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC
Rcd 4934 (Enf. Bur. 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: 64.1200(a)(3)(i), (ii).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-051 issued to
DD&S 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: DD&S
Companies, Inc., Attention: Thomas B. Rumfelt, President, 244 E. Park
Ave., Lake Wales, FL 33853 and Post Office Box 960, Lake Wales, FL 33859.
Letter from Helene Bradley, CPA, Chief Financial Officer/DD&S Secretary to
Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division,
Enforcement Bureau, dated February 12, 2007.
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).
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Federal Communications Commission DA 09-1530
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Federal Communications Commission DA 09-1530