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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No. EB- 07-TC-809
In the matter of
) File No. EB- 07-TC-981
One Stop Motors, Inc.
) NAL/Acct. No. 200932170961
Apparent Liability for Forfeiture
) FRN: 0018740506
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 30, 2009 Released: May 1, 2009
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that One Stop Motors, Inc. ("One Stop Motors") 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, prerecorded advertising message
to at least one consumer. Based on the facts and circumstances
surrounding the apparent violation, we find that One Stop Motors is
apparently liable for a forfeiture in the amount of $4,500.
II. BACKGROUND
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."
3. On March 9, 2007, in response to one or more consumer complaints
alleging that One Stop Motors had delivered unsolicited, prerecorded
advertising messages, the Commission staff issued a citation to One
Stop Motors, pursuant to section 503(b)(5) of the Act. The staff cited
One Stop Motors for delivering one or more unsolicited, prerecorded
advertising messages to a residential telephone line for car sales
services, in violation of section 227 of the Act and the Commission's
related rules and orders. The citation warned One Stop Motors that
subsequent violations could result in the imposition of monetary
forfeitures of up to $11,000 per violation, and included copies of the
consumer complaints that formed the basis of the citation. The
citation informed One Stop Motors 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. One Stop Motors did not request an interview or otherwise
respond to the citation.
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 One Stop Motors
continued to engage in such conduct after receiving the citation. We
base our action here specifically on a complaint filed by a consumer
establishing that One Stop Motors continued to deliver one
unsolicited, prerecorded advertising message to a consumer 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
Prerecorded Messages
6. We find that One Stop Motors apparently violated section 227 of the
Act and the Commission's related rules and orders by delivering at
least one unsolicited, prerecorded advertising messages to the
consumer identified in the Appendix. This NAL is based on evidence
that a consumer received an unsolicited prerecorded message from One
Stop Motors after the Commission staff's citation. The prerecorded
message advertises a car sales service. Further, we find that the
unsolicited, prerecorded message at issue here was not made for any
emergency or non-commercial purposes, and was not on behalf of a
tax-exempt, nonprofit organization, but was commercial in nature and
included an unsolicited advertisement or constituted a telephone
solicitation. In addition, according to the complaint, the consumer
neither had an established business relationship with One Stop Motors
nor gave One Stop Motors permission to deliver the unsolicited,
prerecorded message. The prerecorded message at issue here therefore
falls within the definition of an "unsolicited advertisement." Based
on the entire record, including the consumer complaint, we conclude
that One Stop Motors apparently violated section 227 of the Act and
the Commission's related rules and orders by delivering one
unsolicited, prerecorded advertising message to one consumer.
B. Proposed Forfeiture
7. We find that One Stop Motors 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 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 one apparent unsolicited,
prerecorded advertising message violation. Thus, a total forfeiture of
$4,500 is proposed. One Stop Motors 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 One Stop Motors, Inc. apparently violated
section 227 of the Act and the Commission's related rules and orders
by delivering at least one unsolicited, prerecorded advertising
message to the consumer identified in the Appendix. We have further
determined that One Stop Motors, Inc. 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 One Stop Motors,
Inc. 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)(B) of the Communications Act, 47 U.S.C. S: 227(b)(1)(B),
sections 64.1200(a)(2) of the Commission's rules, 47 C.F.R. S:
64.1200(a)(2), 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, One Stop Motors,
Inc. 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). One Stop Motor 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 One Stop Motors, Inc., Attention:
Rob Wilder, 2950 South Rancho Drive, Ste 200, Las Vegas, NV 89102.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant received unsolicited prerecorded Violation Date(s)
messages
Leroy Goodknecht 5/18/08
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, One Stop Motors has offices
at 2950 South Rancho Ste 200, Las Vegas, NV 89102. Rob Wilder is listed as
the contact person for One Stop Motors. Accordingly, all references in
this NAL to One Stop Motors 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)(B); 47 C.F.R. S: 64.1200(a)(2).
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-809, issued to
One Stop Motors on March 9, 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 One Stop Motors, 2950 South Rancho
Dr., Suite 200, Las Vegas, Nevada 89102-0740. See n.2, supra.
Following the issuance of the citation, the Commission continued to
receive complaints alleging that One Stop Motors placed unsolicited,
prerecorded calls to residential consumers. These complaints resulted in
the issuance of an additional citation against One Stop Motors, Citation
from Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers
Division, Enforcement Bureau, File No. EB-07-TC-981, issued to One Stop
Motors on June 1, 2007.
See Appendix for a listing of the consumer complaint against One Stop
Motors requesting Commission action.
We note that evidence of additional instances of unlawful conduct by One
Stop Motors 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 at $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 May 18, 2008, from Leroy Goodknecht (stating that he
had never done any business with the company, never made an inquiry or
application to the company, and never gave permission for the company to
make the call). The complainant involved in this action is listed in the
Appendix below.
See 47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13).
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., Notice of Apparent Liability for Forfeiture, 20 FCC
Rcd. 2179 (Enf. Bur. 2005); Septic Safety, Inc., Forfeiture Order, 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); 1 Home Lending Corporation, d/b/a Capital Line
Financial, LLC., Forfeiture Order, DA 09-539, released March 10, 2009.
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 09-991
1
Federal Communications Commission DA 09-991