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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No. EB-09-TC-048
Media Synergy Group, LLC ) NAL/Acct. No. 201032170004
Apparent Liability for Forfeiture ) FRN: 0020071932
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 27, 2010 Released: July 28, 2010
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Media Synergy Group, LLC ("Media Synergy") apparently willfully
and 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 15 unsolicited, prerecorded advertising messages
to at least six consumers. Based on the facts and circumstances
surrounding these apparent violations, we find that Media Synergy is
apparently liable for a forfeiture in the amount of $67,500. Media
Synergy 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.
II. BACKGROUND
2. Section 227(b)(1)(B) prohibits any person from initiating "any
telephone call to any residential telephone line using an 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 not only for emergency calls, but also for calls: 1)
not made for a commercial purpose; 2) made for a commercial purpose
but "not includ[ing] or introduc[ing] an unsolicited advertisement or
constitut[ing] a telephone solicitation," 3) to any person "with whom
the caller has an established business relationship at the time the
call is made," or 4) "made by or on behalf of a tax-exempt nonprofit
organization."
3. On February 11, 2009, in response to one or more consumer complaints
alleging that Media Synergy had delivered unsolicited, prerecorded
advertising messages, the Enforcement Bureau ("Bureau") issued a
citation to Media Synergy, pursuant to section 503(b)(5) of the Act.
The Bureau cited Media Synergy for delivering one or more unsolicited,
prerecorded advertising messages for hair treatments to a residential
telephone line in violation of section 227 of the Act and the
Commission's related rules and orders. The citation warned Media
Synergy that subsequent violations could result in the imposition of
monetary forfeitures of up to $16,000 per violation, and included a
copy of the consumer complaint that formed the basis of the citation.
The citation informed Media Synergy 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.
Media Synergy 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 additional
consumer complaints indicating that Media Synergy continued to engage
in such conduct after issuance of the citation. We base our action
here specifically on complaints filed by six consumers establishing
that Media Synergy sent at least 15 unsolicited, prerecorded
advertising messages to consumers 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 $16,000. 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 Media Synergy apparently violated section 227 of the Act
and the Commission's related rules and orders by delivering at least
15 unsolicited, prerecorded advertising messages to the six consumers
identified in the Appendix. This NAL is based on evidence that six
consumers received unsolicited prerecorded messages from Media Synergy
advertising travel services after the Commission staff's citation.
Further, according to the complaints, the unsolicited, prerecorded
messages at issue here were not made for any emergency or
non-commercial purposes, and were not on behalf of a tax-exempt,
nonprofit organization, but were commercial in nature and included
unsolicited advertisements or constituted telephone solicitations. In
addition, according to the complaints, the consumers neither had an
established business relationship with Media Synergy nor gave Media
Synergy permission to deliver the unsolicited, prerecorded messages.
Therefore, the prerecorded messages at issue here fall within the
definition of an "unsolicited advertisement." Based on the entire
record, including the consumer complaints, we conclude that Media
Synergy apparently violated section 227 of the Act and the
Commission's related rules and orders by delivering 15 unsolicited,
prerecorded advertising messages to six consumers.
B. Proposed Forfeiture
7. We find that Media Synergy is apparently liable for a forfeiture in
the amount of $67,500. 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 each of 15 apparent unsolicited,
prerecorded advertising message violations. Thus, we propose a total
forfeiture of $67,500. Media Synergy 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 Media Synergy Group, LLC apparently violated
section 227 of the Act and the Commission's related rules and orders
by delivering at least 15 unsolicited, prerecorded advertising
messages to the six consumers identified in the Appendix. We have
further determined that Media Synergy Group, LLC is apparently liable
for a forfeiture in the amount of $67,500.
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,
that Media Synergy Group, LLC is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of $67,500 for willful and
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, Media Synergy Group,
LLC 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). Media Synergy will also send
electronic notification to Johnny.Drake@fcc.gov on the date said
payment is made. 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: Marlene H. Dortch,
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
Consumers Division; and to Kurt Schroeder, Acting 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.
Documents sent by overnight mail (other than United States Postal
Service Express Mail) must be addressed to: Marlene H. Dortch,
Secretary, Federal Communications Commission, Office of the Secretary,
9300 East Hampton Drive, Capitol Heights, MD 20743. Hand or
messenger-delivered mail should be directed, without envelopes, to:
Marlene H. Dortch, Secretary, Federal Communications Commission,
Office of the Secretary, 445 12th Street, SW, Washington, DC 20554
(deliveries accepted Monday through Friday 8:00 a.m. to 7:00 p.m.
only). See www.fcc.gov/osec/guidelines.html for further instructions
on FCC filing addresses.
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 Media Synergy Group, LLC, Attention:
Charles Anton, CEO, Vincent Grebas, Lou Anton, 720 Moorefield Park
Dr., Ste 200, Richmond, VA 23236.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants Who Received Unsolicited Violation Date(s)
Prerecorded Messages
D. Ballard 8/3/2009; 8/4/2009; 8/6/2009;
8/8/2009
D. Stephens 8/11/2009
J. McKay 8/6/2009 (3 calls); 8/8/2009
M. Sigmon 8/4/2009
C. Lowrie 8/12/2009; 8/20/2009;
8/21/2009
D. Jackson 8/3/2009; 8/4/2009
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).
Media Synergy has offices at 720 Moorefield Park Dr., Ste 200, Richmond VA
23236. Charles Anton, CEO, Vincent Grebas, and Lou Anton are listed as
contact persons for Media Synergy. Accordingly, all references in this NAL
to "Media Synergy" also encompass the foregoing individuals 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)(5);
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)(4);
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-09-TC-048, issued to
Media Synergy on February 11, 2009.
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 the following address: Media
Synergy Group, Attn: Charles Anton, CEO, Vincent Grebas, Lou Anton, 720
Moorefield Park Dr., Ste 200, Richmond, VA 23236. See n.2, supra.
See Appendix for a listing of the consumer complaints against Media
Synergy requesting Commission action.
We note that evidence of additional instances of unlawful conduct by Media
Synergy 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, e.g., complaint dated August 21, 2009 from C. Lowrie (stating that
complainant 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 complainants involved in this action are
listed in the Appendix below.
See 47 U.S.C. S: 227(a)(5); 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, 24 FCC Rcd 2888 (Enf. Bur. 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 FCC 10-132
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Federal Communications Commission FCC 10-132