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Federal Communications Commission
Washington, D.C. 20554
File No. EB-06-TC-265
In the Matter of File No. EB-07-TC-777
Venali, Inc. NAL/Acct. No. 200732170077
Adopted: August 4, 2009 Released: August 6, 2009
By the Chief, Enforcement Bureau:
1. In this Order, we cancel a proposed forfeiture issued by the
Enforcement Bureau ("Bureau") to Venali, Inc. ("Venali") for apparent
willful and repeated violation of Section 227 of the Communications
Act of 1934, as amended ("Act"), and the Commission's related rules
and orders. The proposed forfeiture was contained in a Notice of
Apparent Liability for Forfeiture ("NAL") issued on September 28, 2007
in the amount of $18,000 to Venali for apparently delivering at least
four unsolicited advertisements to the telephone facsimile machines of
at least three customers. Venali filed a response to the NAL on
October 26, 2007. Based on our review of the record, we find that
Venali did not willfully and repeatedly violate a Commission order or
rule. Consequently, we conclude that no forfeiture should be imposed.
2. 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."
3. On September 9, 2006 and March 9, 2007, in response to one or more
consumer complaints alleging that Venali had apparently faxed
unsolicited advertisements, the Bureau issued two citations to Venali,
pursuant to section 503(b)(5) of the Act. The Bureau cited Venali for
apparently using a telephone facsimile machine, computer, or other
device, to send unsolicited advertisements for mortgage financing and
refinancing, as well as debt consolidation, to a telephone facsimile
machine, in violation of section 227 of the Act and the Commission's
related rules and orders. The citations warned Venali 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 citations
informed Venali 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. Venali did not
request an interview but did respond in writing to the citations. In
its Responses to the citations, Venali indicated that the faxes at
issue were not transmitted by Venali or customers utilizing Venali
services. On September 28, 2007, in response to three additional
consumer complaints concerning unsolicited facsimile advertisements,
the Bureau issued the NAL to Venali in the amount of $18,000. In its
Oct. 2007 Response to the NAL, Venali again claimed that the faxes
that form the basis for the NAL were not delivered by Venali.
4. Upon review of the record, including Venali's Oct. 2006 Response, Apr.
2007 Response, and Oct. 2007 Response, we conclude that Venali has
presented a reasonable showing that neither Venali nor customers using
Venali services in fact transmitted the faxes involved in the
complaints or NAL. We therefore conclude that the NAL issued to Venali
should be cancelled.
III. ordering clauses
5. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f) (4) of the Commission's Rules, that the proposed
forfeiture in the amount of $18,000 issued to Venali, Inc. in the
September 28, 2007 Notice of Apparent Liability for Forfeiture IS
6. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Venali,
Inc., at its address of record, One Alhambra Plaza, Ste 800, Coral
Gables, FL 33134 and to its attorney, Douglas L. O'Keefe, Esq., Carey
Rodriguez Greenberg Paul, 1395 Brickell Avenue, Suite 700, Miami, FL
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Venali, Inc., Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200732170062, 22 FCC Rcd 13131 (Enf. Bur. 2007).
Letter from Douglas L. O'Keefe, counsel to Venali, Inc. to Office of the
Secretary, FCC and Colleen Heitkamp, Chief, Telecommunications Consumers
Division, Enforcement Bureau, File No. EB-06-TC-265, dated October 26,
2007 (Oct. 2007 Response). Venali also requested confidential treatment
for its Oct. 2006 and Apr. 2007 Responses to two Bureau citations and its
Oct. 2007 Response to the NAL (see, n. 7, infra), pursuant to 5 U.S.C. S:
552 and 47 C.F.R. S: 0.459. This Order discusses only the nature of
Venali's defense to the NAL, and does not make public any specific facts
or information in Venali's Responses. We need not rule on Venali's
requests at this time and, until we do, we will honor Venali's requests
for confidential treatment. See 47 C.F.R. S: 0.459(d)(1). See also, In the
Matter of Examination of Current Policy Concerning the Treatment of
Confidential Information Submitted to the Commission, GC Docket No. 96-55,
13 FCC Rcd 24816, 24853 P: 64 (1998).
47 U.S.C. S: 227(b)(1)(C); see also 47 C.F.R. S: 64.1200(a)(3).
47 U.S.C. S:227(a)(4); 47 C.F.R. S: 64.1200 (f)(13).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-06-TC-265, issued to
Venali, Inc. on September 9, 2006; Citation from Kurt A. Schroeder, Deputy
Chief, Telecommunications Consumers Division, Enforcement Bureau, File No.
EB-06-TC-777, issued to Venali, Inc. on March 9, 2007.
See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
to non-common carriers for violations of the Act or of the Commission's
rules and orders).
Response from Mark Toschek, CEO, Venali, Inc. dated October 18, 2006 (Oct.
2006 Response); Response from John Poncy, CEO, Venali, Inc. dated April 6,
2007 (Apr. 2007 Response) .
Oct. 2007 Response.
Oct. 2006 Response at 1-2.
Apr. 2007 Response at 1-2.
Oct. 2007 Response at 1-2 and Exhibits A and B.
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Federal Communications Commission DA 09-1751
Federal Communications Commission DA 09-1751