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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No.: EB-07-TC-262
In the Matter of )
NAL/Acct. No.: 200832170056
General Equipment & Supply )
FRN: 0017890450
)
)
forfeiture order
Adopted: December 1, 2010 Released: December 2, 2010
By the Chief, Enforcement Bureau:
I. introduction
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of $4,500 against General Equipment & Supply ("General
Equipment") for willful violation of section 227 of the Communications
Act of 1934, as amended ("Act"), and the Commission's related rules
and orders, by delivering one unsolicited advertisement, or "junk
fax," to the telephone facsimile machine of one consumer.
II. background
2. The Telephone Consumer Protection Act of 1991 (TCPA) was enacted by
Congress to address problems of abusive telemarketing, in particular
junk faxes. As Congress recognized, unsolicited faxes often impose
unwanted burdens on the called party, including costs of paper and
ink, and making fax machines unavailable for legitimate business
messages. Section 227(b)(1)(C) of the Act generally 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."
3. The Enforcement Bureau ("Bureau") issued a citation to General
Equipment on January 29, 2007, in response to a consumer complaint
that General Equipment had faxed an unsolicited advertisement to the
consumer in violation of the TCPA and the Commission's implementing
rules. General Equipment did not respond to this citation.
Subsequently, the Commission received another complaint from a
consumer alleging that General Equipment faxed at least one
unsolicited advertisement to her. This violation, which occurred after
the Bureau's citation, resulted in the Bureau, pursuant to section
503(b) of the Act, issuing a Notice of Apparent Liability for
Forfeiture ("NAL") against General Equipment on June 23, 2008, in the
amount of $4,500. Thereafter, General Equipment responded to the NAL
by letter, stating that it "cannot locate that the Company sent a
facsimile to the complainant . . . on 6/25/07." General Equipment
requested "all documentation, including any letter of complaint . . .
in order to properly assess whether a violation existed." General
Equipment also asked that the forfeiture be waived or reduced, citing
a sales slowdown and "an ongoing risk of bankruptcy." In support of
its claim that "an assessment of $4,500 is a significant sum," General
Equipment submitted financial statements for fiscal years 2005 through
2008 and "Z factor calculations" for the years 2003 through 2007,
which it says "indicate an ongoing risk of bankruptcy." Bureau staff
then sent a copy of the complaint to General Equipment and allowed
additional time for General Equipment to respond. General Equipment
did not file an additional response.
III. DISCUSSION
4. We conclude that the $4,500 forfeiture proposed in the NAL should
stand, and not be canceled or reduced. While General Equipment
initially claimed it could not locate a record of the complained-of
fax, it did not deny sending it, or submit any further response after
the Bureau granted its request and provided General Equipment with a
copy of the complaint. Based on this record, including the complaint
and the response, we find that General Equipment did send the
complained-of fax and has not presented a valid defense for doing so.
5. 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, as
proposed in the NAL. With respect to General Equipment's request for
waiver or reduction of the $4,500 forfeiture based on financial
difficulties, we note that the Commission generally looks to a
company's gross revenues as reasonable and appropriate yardsticks to
determine its ability to pay an assessed forfeiture. The Commission
has held that if gross revenues are substantial, the fact that the
business is operating at a loss will not necessarily preclude
forfeiture liability. In this case, General Equipment's financial
statements demonstrate substantial gross revenues in comparison to the
$4,500 forfeiture. Under these circumstances, General Equipment's Z
factor calculations and claims of a sales slowdown fail 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 $4,500 for General
Equipment'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
6. 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, 0.311 of the
Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that General
Equipment & Supply IS LIABLE FOR A MONETARY FORFEITURE to the United
States Government in the sum of $4,500 for willfully or 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.
7. 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. 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). General Equipment & Supply 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.
8. 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 General Equipment & Supply, Attn: Robert Hall, President, 3423 Fork
Shoals Road, Simpsonville, South Carolina 29680-6815; and General
Equipment & Supply, Attn: Robert Hall, President, P.O. Box 17408,
Greenville, South Carolina 29606.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
47 U.S.C. S: 227.
See, e.g., 47 C.F.R. S: 64.1200.
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat.
2394, codified at 47 U.S.C. S: 227. See also Junk Fax Prevention Act of
2005, Pub. L. No. 109-21, 119 Stat. 359 (2005).
See, e.g., S. Rep. No. 1462, 102d Cong., 1st Sess. 2 (1991); H. Rep. No.
102-317, 102d Congress, 1st Sess. 10 (1991).
47 U.S.C. S: 227(b)(1)(C). The prohibition is subject to certain
exceptions, such as if the sender has an "established business
relationship" ("EBR") with the recipient; or the sender obtained the
facsimile number from the recipient through voluntary communication in the
context of an EBR, or from a directory, advertisement, or site on the
Internet to which the recipient voluntarily agreed to make available its
facsimile number for public distribution. In addition, the unsolicited ad
must notify the recipient how to opt-out of receiving future such ads,
subject to certain requirements. The Commission has adopted implementing
rules. 47 C.F.R. S: 64.1200(a)(3).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-06-TC-262, issued to
General Equipment on January 29, 2007.
General Equipment & Supply, Notice of Apparent Liability for Forfeiture,
23 FCC Rcd 9951 (Enf. Bur. 2008) ("NAL").
Letter from Rocky Mankins, Controller, General Equipment and Supply, to
Office of the Secretary, FCC, dated July 14, 2008.
Letter from Daniel Grosh, Telecommunications Consumers Division,
Enforcement Bureau, to Rocky Mankins, Controller, General Equipment and
Supply, dated March 25, 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, e.g., Alpha Ambulance, Inc., Order, 19 FCC Rcd 2547, 2548-49 para. 5
(2004); Long Distance Direct, Inc., Memorandum Opinion and Order, 15 FCC
Rcd 3297, 3305 (2000); PJB Communications of Virginia, Inc., Memorandum
Opinion and Order, 7 FCC Rcd 2088, 2089 para. 8 (1992); see also
Forfeiture Policy Statement, 12 FCC Rcd at 17106-07 para. 43.
See Forfeiture Policy Statement, 12 FCC Rcd 17087, 17106 para. 43 (1997),
recon. denied, 15 FCC Rcd 303 (1999) (stating that "[i]f gross revenues
are sufficiently great . . . the mere factor that a business is operating
at a loss does not itself mean that it cannot afford to pay a
forfeiture."); see also Independent Communications, Inc., Memorandum
Opinion and Order, 15 FCC Rcd 16060, 16060 para. 2 (2000); Small Town
Radio, Inc., Memorandum Opinion and Order, 19 FCC Rcd 7187, 7188 para. 9
(Enf. Bur. 2004).
(Continued from previous page)
(continued....)
Federal Communications Commission DA 10-2277
4
Federal Communications Commission DA 10-2277