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Before the
Federal Communications Commission
Washington, D.C. 20554
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)
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File No. EB-07-TC-640
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In the Matter of File No. EB-07-TC-3638
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So Clean, Inc. NAL/Acct. No. 200832170050
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FRN: 0017839390
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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 $18,000 against So Clean, Inc.("So Clean") 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 four unsolicited, prerecorded
advertising messages to at least four consumers.
II. background
1. 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.
2. Section 227(b)(1)(B) prohibits any person from initiating "any
telephone call to any residential telephone line using any artificial
or prerecorded voice to deliver a message without the prior express
consent of the called party, unless the call is initiated for
emergency purposes or is exempted by rule or order by the Commission."
Section 64.1200(a)(2) of the Commission's rules provides exemptions to
the prohibition for calls: 1) made for emergency purposes; 2) not made
for a commercial purpose; 3) made for a commercial purpose but "not
including or introducing an unsolicited advertisement or constituting
a telephone solicitation"; 4) to any person "with whom the caller has
an established business relationship at the time the call is made"; or
5) "made by or on behalf of a tax-exempt nonprofit organization."
2. On March 6, 2007, in response to one consumer complaint alleging that
So Clean had delivered an unsolicited, prerecorded advertising
message, the Commission staff issued a citation to So Clean, pursuant
to section 503(b)(5) of the Act. The staff cited So Clean for
delivering one or more unsolicited, prerecorded advertising messages
to a residential telephone line for carpet cleaning, in violation of
section 227 of the Act and the Commission's related rules and orders.
The citation warned So Clean 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 So Clean 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. So Clean replied to the citation by
letter, stating that the complainant's phone number "must have been
entered into our system by mistake" and that it "has been completely
removed and will not be called again."
3. Further, on July 2, 2007, in response to one additional consumer
complaint alleging that So Clean had delivered an unsolicited,
prerecorded advertising message, the Commission staff issued a further
citation to So Clean, pursuant to section 503(b)(5) of the Act. The
staff cited So Clean for delivering one or more unsolicited,
prerecorded advertising messages to a residential telephone line for
an unstated business, in violation of section 227 of the Act and the
Commission's related rules and orders. The citation warned So Clean
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 So Clean 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. So
Clean replied to the citation by letter, stating that "it seems the
same error has occurred for" the second complainant and that "we can
assure you that he will not be called again."
4. Following the issuance of the citation, the Commission received at
least four complaints from consumers alleging that So Clean continued
to engage in such conduct after receiving the first citation. These
violations, which occurred after the Bureau's first citation, resulted
in the issuance of a Notice of Apparent Liability for Forfeiture
against So Clean on June 6, 2008 in the amount of $18,000. The NAL
ordered So Clean 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. So Clean did not respond to the NAL or pay
the proposed forfeiture amount.
III. discussion
5. 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."
6. Although the Commission's Forfeiture Policy Statement does not
establish a base forfeiture amount for violating the prohibition on
delivering unsolicited, prerecorded advertising messages to a
residential telephone line, the Commission's Enforcement Bureau has
found these violations to be similar in nature to 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 four apparent violations.
7. So Clean did not respond to the NAL or pay the proposed forfeiture
amount. So Clean 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 $18,000 for So Clean'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.
8. 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 So Clean, Inc.
IS LIABLE FOR A MONETARY FORFEITURE to the United States Government in
the sum of $18,000 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.
9. 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). So Clean 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.
10. 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 So Clean, Inc., Attention: Tracy Kupke and Luke Will, 42400 Mound
Road, Sterling Heights, MI 48314-3149 and 43428 Goldberg Drive,
Sterling Heights, MI 48313-1865.
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).
So Clean, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
8782 (Enf. Bur. 2008).
47 U.S.C. S: 227(b)(1)(B); 47 C.F.R. S: 64.1200(a)(2).
An "unsolicited advertisement" is defined 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." 47 U.S.C. S: 227(a)(4);
47 C.F.R. S: 64.1200(f)(13).
A "telephone solicitation" is defined as "the initiation of a telephone
call or message for the purpose of encouraging the purchase or rental of,
or investment in, property, goods, or services, which is transmitted to
any person, but such term does not include a call or message (A) to any
person with that person's prior express invitation or permission, (B) to
any person with whom the caller has an established business relationship,
or (C) by a tax- exempt nonprofit organization. " 47 U.S.C. S: 227(a)(3);
47 C.F.R. S: 64.1200(f)(12). We have previously found that "prerecorded
messages containing free offers and information about goods and services
that are commercially available are prohibited to residential telephone
subscribers, if not otherwise exempt." TCPA Revisions Report and Order, 18
FCC Rcd 14097-98 (2003).
An "established business relationship" is defined as "a prior or existing
relationship formed by a voluntary two-way communication between a person
or entity and a residential subscriber with or without an exchange of
consideration, on the basis of the subscriber's purchase or transaction
with the entity within the eighteen (18) months immediately preceding the
date of the telephone call or on the basis of the subscriber's inquiry or
application regarding products or services offered by the entity within
the three months immediately preceding the date of the call, which
relationship has not been previously terminated by either party." 47
C.F.R. S: 64.1200(f)(4).
47 U.S.C. S: 227(b)(1)(B); 47 C.F.R. S: 64.1200(a)(2).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-640 issued to So
Clean on March 6, 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).
Commission staff mailed the citation to So Clean Inc., 42400 Mound Road,
Sterling Heights, MI 48314-3149 and So Clean, Inc., 43428 Goldberg Drive,
Sterling Heights, MI 48313-1865. See n. 2, supra.
Letter from Tracey, So Clean to Kurt A. Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, dated March 30,
2007.
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-3638, issued to
So Clean on July 2, 2007. The citation also inadvertently included the
complaint in the March 30, 2007 citation to So Clean.
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).
Commission staff mailed the citation to So Clean, Inc., Attn: Tracy Kupke
and Luke Will, 42400 Mound Road, Sterling Heights, MI 48314-3149 and 43428
Goldberg Drive, Sterling Heights, MI 48313-1865. See n. 2, supra.
Letter from Tracey, So Clean to Kurt A. Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, dated August 1,
2007.
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 Warrior Custom Golf, Inc., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd 23648, 23652 (Enf. Bur. 2004) (" Warrior Custom
Golf") (first NAL to address pre-recorded advertising messages); see also
Septic Safety, Inc., Apparent Liability for Forfeiture, 21 FCC Rcd 6868
(Enf. Bur. 2006); 1 Home Lending Corporation, d/b/a Capital Line
Financial, LLC., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd
11852 (Enf. Bur. 2006).
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 09-1531
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Federal Communications Commission DA 09-1531