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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No. EB-07-TC-1947
American Medical Services ) NAL/Acct. No. 200932170015
Apparent Liability for Forfeiture ) FRN: 0018140012
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 6, 2009 Released: February 6, 2009
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that American Medical Services ("AMS") apparently willfully or
repeatedly violated section 227 of the Communications Act of 1934, as
amended ("Act"), and the Commission's related rules and orders, by
delivering at least one unsolicited advertisement to the telephone
facsimile machine of at least one consumer. Based on the facts and
circumstances surrounding this apparent violation, we find that AMS is
apparently liable for a forfeiture in the amount of $4,500.
II. BACKGROUND
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." 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.
3. On June 26, 2007, in response to two consumer complaints alleging that
AMS had faxed unsolicited advertisements, the Enforcement Bureau
("Bureau") issued a citation to AMS , pursuant to section 503(b)(5) of
the Act. The Bureau cited AMS for using a telephone facsimile machine,
computer, or other device, to send unsolicited advertisements for
health insurance to a telephone facsimile machine, in violation of
section 227 of the Act and the Commission's related rules and orders.
The citation warned AMS 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 AMS 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. AMS responded by stating that "American Health Services"
was no longer in business and that it was "very sorry for any troubles
this has caused both parties."
4. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, we have received an
additional consumer complaint indicating that AMS continued to engage
in such conduct after issuance of the citation. We base our action
here specifically on a complaint filed by one consumer establishing
that AMS continued to send one unsolicited advertisement to telephone
facsimile machines after the date of the citation.
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."
III. DISCUSSION
A. Violations of the Commission's Rules Restricting Unsolicited Facsimile
Advertisements
6. We find that AMS apparently violated section 227 of the Act and the
Commission's related rules and orders by using a telephone facsimile
machine, computer, or other device to send at least one unsolicited
advertisement to the consumer identified in the Appendix. This NAL is
based on evidence that one consumer received one unsolicited fax
advertisement from AMS after the Bureau's citation. The facsimile
transmission advertised health care. Further, according to the
complaint, the consumer neither had an established business
relationship with AMS nor gave AMS permission to send the facsimile
transmission. The fax at issue here therefore falls within the
definition of an "unsolicited advertisement." We note that Commission
staff provided a copy of this complaint to AMS at the same time that
it provided a copy of the complaint that was the subject of an earlier
Bureau NAL. In its October 20, 2008 Response, AMS says that it did not
in fact go out of business but "settled on a name change and
reorganization" and has only "a handful of customers." AMS further
claims that the Ms. Morris's husband was "[t]he contact from the
complaint." However, AMS only supports this claim with a listing that
it says shows Mr. Morris's first name and contact information. Even if
this listing is accurate, the fact that AMS knows this information
does not demonstrate that Mr. Morris actually engaged in any inquiry,
application, purchase or transaction with AMS. Accordingly, we do not
find that AMS has met its burden of demonstrating the existence of an
established business relationship with Ms. or Mr. Morris. Based on the
entire record, including the consumer complaint and AMS' October 20,
2008 Response, we conclude that AMS apparently violated section 227 of
the Act and the Commission's related rules and orders by sending one
unsolicited advertisement to one consumer's facsimile machine.
B. Proposed Forfeiture
7. We find that AMS is apparently liable for a forfeiture in the amount
of $4,500. 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 apparent violation. Thus, a total
forfeiture of $4,500 is proposed. AMS will have the opportunity to
submit evidence and arguments in response to this NAL to show that no
forfeiture should be imposed or that some lesser amount should be
assessed.
IV. CONCLUSION AND ORDERING CLAUSES
8. We have determined that American Medical Services apparently violated
section 227 of the Act and the Commission's related rules and orders
by using a telephone facsimile machine, computer, or other device to
send at least one unsolicited advertisement to the consumer identified
in the Appendix. We have further determined that American Medical
Services is apparently liable for a forfeiture in the amount of
$4,500.
9. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act, 47
U.S.C. S: 503(b), and section 1.80 of the rules, 47 C.F.R. S: 1.80,
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 American Medical
Services is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of $4,500 for willful or repeated violations
of 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 described in the
paragraphs above.
10. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, American Medical
Services SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
11. 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). American
Medical Services 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.
12. The response, if any, must be mailed both to the Office of the
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
Consumers Division, and to Colleen Heitkamp, Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications Commission,
445 12th Street, SW, Washington, DC 20554, and must include the NAL/Acct.
No. referenced in the caption.
13. 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.
14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail Return Receipt Requested
and First Class mail to American Medical Services, Attn: Nick Braia,
Owner, 2471 McMullen Booth Road, Suite 301, Clearwater, FL 33759-1351
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant and Violation Date
Complainant received facsimile solicitation Violation Date
Deborah Morris 02/21/2008
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).
According to publicly available information, AMS is also doing business as
Taylor Development, Inc. Therefore, all references in this NAL to "AMS"
encompass AMS as well as Taylor Development, Inc. AMS has offices at 2471
McMullen Booth Road, Suite 301, Clearwater, FL 33759-1351. Nick Braia,
Owner, is listed as the contact person for AMS. Accordingly, all
references in this NAL to "AMS" also encompass the foregoing individual
and all other principals and officers of this entity, as well as the
corporate entity itself.
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3); see also
Rules and Regulations Implementing the Telephone Consumer Protection Act
of 1991, Report and Order and Third Order on Reconsideration, 21 FCC Rcd
3787 (2006).
47 U.S.C. S: 227(b)(1)(C); 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).
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 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-1947 issued to
AMS on June 26, 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).
Bureau staff mailed the citation to the following address: American
Medical Services, Attn: Nick Braia, Owner, 2471 McMullen Booth Road, Suite
301, Clearwater, FL 33759-1351. See n.2, supra.
In fact, however, AMS apparently did remain in business and later withdrew
this claim. See P: 6, infra.
Following the issuance of the citation, the Commission received another
complaint alleging that AMS faxed an unsolicited advertisement. That
complaint, received after the Commission citation, resulted in the
issuance of a Notice of Apparent Liability for Forfeiture against AMS in
the amount of $4,500, American Medical Services, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 13853 (2008). AMS filed a response,
dated October 20, 2008. See P: 6, infra.
See Appendix for a listing of the consumer complaint against AMS
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by AMS
may form the basis of subsequent enforcement action.
Section 503(b)(2)(C) provides for forfeitures 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).
47 U.S.C. S: 503(b)(2)(D); 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, complaint dated February 21, 2008, from Deborah Morris, (stating that
she has never done any business with the fax advertiser, never made an
inquiry or application to the fax advertiser, and never gave permission
for the company to send the fax.) The complainant involved in this action
is also listed in the Appendix.
See 47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13) (definition
previously at S: 64.1200(f)(10)).
See n.11, supra
.See 47 C.F.R. S: 64.1200(f)(5); see also Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Report and
Order and Third Order on Reconsideration, 21 FCC Rcd 3787, 3796-97 P: 12
(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).
See 47 U.S.C. S: 503(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).
47 C.F.R. S: 1.80.
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Federal Communications Commission DA 09-184
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Federal Communications Commission DA 09-184