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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-06-TC-062
CyberData, Inc. ) NAL/Acct. No.: 20073217 0062
Apparent Liability for Forfeiture ) FRN: 0016722712
)
)
ORDER
Adopted: December 7, 2010 Released: December 8, 2010
By the Chief, Enforcement Bureau:
I. introduction
1. In this Order, which follows upon a Notice of Apparent Liability for
Forfeiture, we determine that no forfeiture penalties should be
imposed on CyberData, Inc. ("CyberData"). In the NAL, issued July 18,
2007, the Enforcement Bureau ("Bureau") found CyberData apparently
liable for a forfeiture of $13,500 for violations of Section 227 of
the Communications Act of 1934, as amended ("Act"), and the
Commission's related rules and orders because it appeared that
CyberData had delivered three unsolicited advertisements to the
telephone facsimile machines of three consumers. Consistent with
Section 503(b)(4) of the Act, the Bureau gave CyberData an opportunity
to show, in writing, why the proposed forfeiture should not be
imposed, and CyberData filed a response to the NAL on July 24, 2007
("July 2007 Response"). Based on our review of CyberData's July 2007
Response and the record, and as explained below, we find that
CyberData did not violate Section 227 of the Act, or any relevant
Commission rule or order. Consequently, we conclude that no forfeiture
should be imposed.
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."
3. These rules apply only in certain circumstances to a "facsimile
broadcaster," defined as "a person or entity that transmits messages
to telephone facsimile machines on behalf of another person or entity
for a fee." Under the rule, "a facsimile broadcaster will be liable
for violations of [the junk fax rules], including the inclusion of
opt-out notices on unsolicited advertisements, if it demonstrates a
high degree of involvement in, or actual notice of, the unlawful
activity and fails to take steps to prevent such facsimile
transmissions."
4. On February 15, 2006, in response to at least one consumer complaint
alleging that CyberData had faxed unsolicited advertisements, the
Bureau issued a citation to CyberData, pursuant to Section 503(b)(5)
of the Act. The Bureau cited CyberData for 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 citation warned
CyberData 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 CyberData that within 30 days of the date of the
citation, it could either request an interview with Commission staff,
or provide a written statement responding to the citation. On February
27, 2006, CyberData submitted a letter in response to the citation
("February 2006 Response") stating that CyberData, "among other
services it provides, is a fax service bureau that sends and receives
faxes on behalf of its clients." Further, CyberData stated that the
company "never has a `high degree of involvement' with our clients'
fax distributions." For example, CyberData said that it does not
"provide broadcast lists, nor do we prepare documents on behalf of
clients." Furthermore, CyberData claimed that it "strongly advise[s]
all ... clients to provide an `opt-out' facility on every document
they send" and makes "a reasonable effort to inform ... clients that
legislation regulating fax broadcasting does exist," although it does
not "provide legal advice or analysis of their materials."
5. On July 18, 2007, in response to two additional consumer complaints
concerning unsolicited facsimile advertisements from a mortgage
company and a publisher, the Bureau issued the NAL to CyberData in the
amount of $13,500. On July 24, 2007, CyberData responded to the NAL,
claiming again that "CyberData, Inc. is a messaging service bureau
that does offer automated fax delivery as one of its services," but
that "CyberData did not have a high degree of involvement with any
customers who sent faxes that may have been in violation with the
Commission's rules and orders," and that "CyberData was not the
`sender' of said faxes." In addition, CyberData stated that it
"maintain[s] a Blocking Database for anyone who contacts us directly
and wishes us to block any dialing from our systems to their telephone
number(s)" and that it "terminated all business with all of the
entities that the FCC informed us were using our systems in violation
of the rules and/or orders."
III. discussion
6. Upon review of the record, including CyberData's February 2006 and
July 2007 Responses, we conclude that CyberData presents a reasonable
case that it complied with the requirements for facsimile broadcasters
under the Commission's rules with respect to the advertisements at
issue. Those advertisements offered services that CyberData does not
appear to provide, and were apparently transmitted on behalf of other
business entities, thus supporting CyberData's assertion that it was a
"facsimile broadcaster," and not the "sender" of these advertisements.
Further, the record offers no evidence inconsistent with CyberData's
assertion that it does not have a high degree of involvement with
those senders' transmissions. For example, the record contains no
evidence that CyberData determined the content of the faxed messages,
provided a source of fax numbers, made representations about the
legality of faxing to those numbers, advised a client about how to
comply with the fax advertising rules, or had actual notice of
unlawful activity. Finally, CyberData asserts that it has taken steps
to prevent further unsolicited facsimile transmissions by creating a
Blocking Database to avoid sending unsolicited ads to consumers, and
by terminating all business with the entities that the FCC has
determined are apparently violating the junk fax rules. We therefore
conclude that the forfeiture proposed in the NAL should not be
imposed.
IV. ordering clauses
7. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Section 1.80(f)(4)
of the Commission's Rules, 47 C.F.R. S: 1.80(f)(4), 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, the proposed forfeiture in the
amount of $13,500 issued to CyberData, Inc. in the July 18, 2007
Notice of Apparent Liability for Forfeiture for willful and repeated
violations of a Commission order WILL NOT BE IMPOSED.
8. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to CyberData, Inc.
at its address of record, Attention: Ralph Potente, President, 20 Max
Avenue, Hicksville, NY 11801.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
CyberData, Inc., Notice of Apparent Liability for Forfeiture, NAL/Acct.
No. 200732170062, 22 FCC Rcd 13131 (Enf. Bur. 2007) ("NAL").
47 U.S.C. S: 227.
Letter from Ralph Potente, President of CyberData, Inc., to Office of the
Secretary, FCC, and Colleen Heitkamp, Chief, Telecommunications Consumers
Division, Enforcement Bureau, File No. EB-06-TC-062, dated July 24, 2007.
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)(5); 47 C.F.R. S: 64.1200 (f)(13).
47 C.F.R. S: 64.1200(f)(6).
47 C.F.R. S: 64.1200(a)(3)(vii) (emphasis added).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-06-TC-062, issued to
CyberData, Inc. on Feb. 15, 2006.
See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
to non-common carriers and others who do not hold a license, permit,
certificate, or other authorization issued by the Commission, or who are
not applicants for any of those listed instrumentalities, for violations
of the Act or of the Commission's rules and orders).
Letter from Ralph Potente, President of CyberData, Inc., to Kurt A.
Schroeder, Deputy Chief, Telecommunications Consumers Division,
Enforcement Bureau, File No. EB-06-TC-062, received March 7, 2006.
Id.
Id.
Id.
One complaint said the facsimile advertisement was from GMA Mortgage,
Inc., while the second complaint involved a facsimile advertisement from
Premier Publishing Service for a Who's Who registry. In both cases, the
transmissions were received from telephone numbers registered to
CyberData.
In the NAL, the Bureau mistakenly stated that "CyberData did not request
an interview or otherwise respond to the citation." NAL, 22 FCC Rcd at
13132.
July 2007 Response at 1-2.
July 2007 Response at 2-3.
See n. 13, supra.
Compare 47 C.F.R. S: 64.1200(f)(6) ("[t]he term facsimile broadcaster
means a person or entity that transmits messages to telephone facsimile
machines on behalf of another person or entity for a fee") with 47 C.F.R.
S: 64.1200(f)(8) ("[t]he term sender for purposes of paragraph (a)(3) of
this section means the person or entity on whose behalf a facsimile
unsolicited advertisement is sent or whose goods or services are
advertised or promoted in the unsolicited advertisement").
See 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, 18 FCC Rcd 14014, 14129 P: 195 (2003); and Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Report and
Order and Third Order on Reconsideration, 21 FCC Rcd 3787, 3808 P: 40
(2006).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 10-2309
2
Federal Communications Commission DA 10-2309