Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No. EB-07-TC-13259
Clean Credit, Inc. ) NAL/Acct. No. 201032170007
Apparent Liability for Forfeiture ) FRN: 0018140178
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 1, 2010 Released: September 2, 2010
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Clean Credit, Inc. ("Clean Credit") 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 33 unsolicited advertisements to the telephone facsimile
machines of 15 consumers. The Commission has previously issued two
other NALs to Clean Credit for "junk fax" violations, in a total
amount of $139,000. Clean Credit did not respond to those earlier NALs
and apparently continued to send unlawful, unsolicited junk faxes.
Based on the facts and circumstances surrounding these most recent
complaints, we find that Clean Credit is apparently liable for a
forfeiture in the amount of $528,000.
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 thus 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" unless the
sender has an established business relationship with the recipient.
3. The Commission has already taken action against Clean Credit for
sending junk faxes on three separate occasions. On August 29, 2007, in
response to consumer complaints, the Enforcement Bureau ("Bureau")
issued a citation to Clean Credit, pursuant to section 503(b)(5) of
the Act. Clean Credit did not respond to the citation, and the
Commission continued to receive complaints alleging that Clean Credit
had sent junk faxes. Based on those continuing complaints, the
Commission issued two NALs against Clean Credit: one on September 26,
2008 in the amount of $13,500, and one on December 19, 2008 in the
amount of $126,000. As with the citation, Clean Credit did not respond
to the NALs.
4. Despite the multiple enforcement actions described above, we have
continued to receive complaints indicating that Clean Credit continues
to send junk faxes. We base our action here specifically on complaints
filed by 15 consumers establishing that Clean Credit sent 33 more
unsolicited advertisements to telephone facsimile machines between
September 4, 2009 and March 24, 2010.
III. DISCUSSION
A. Violations of the Commission's Rules Restricting Unsolicited Facsimile
Advertisements
5. We find that Clean Credit 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 33 unsolicited
advertisements to the 15 consumers identified in the Appendix.
Further, according to the complaints, the consumers neither had an
established business relationship with Clean Credit nor gave Clean
Credit permission to send the facsimile transmissions. The faxes at
issue here therefore fall within the definition of "unsolicited
advertisements." Based on the entire record, including the consumer
complaints, we conclude that Clean Credit apparently violated section
227 of the Act and the Commission's related rules and orders on 33
separate occasions.
B. Proposed Forfeiture
6. 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 for a
violation occurring on or after September 2, 2008, as is the case
here. 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."
7. We find that Clean Credit is apparently liable for a forfeiture in the
amount of $528,000. The Commission has previously considered $4,500
per unsolicited fax advertisement to be an appropriate base amount. In
this case, however, we have evidence of 33 additional violations by
Clean Credit after the issuance of a citation and two separate NALs to
the company. Clean Credit has exhibited a flagrant disregard for the
TCPA and the Commission's rules and orders, with a lengthy history of
violations, and an ongoing pattern of violations extending to as
recently as a few months ago. The fact that Clean Credit has
apparently continued to send unlawful junk faxes even after the
Commission's earlier enforcement actions shows that the company was
not deterred by the forfeiture amounts proposed in the earlier NALs.
In determining the amount of a forfeiture penalty, section
503(b)(2)(D) of the Act directs us 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." Here, taking into account Clean Credit's history of prior
offenses, the company's ongoing pattern of violations, the important
purposes of the TCPA, and the need to impose a penalty that will
actually deter future violations, we propose the statutory maximum
penalty -- $16,000 per violation. Applying that amount to each of the
33 apparent violations, we propose a total forfeiture of $528,000.
Clean Credit 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.
8. We note here that Clean Credit's continuing pattern of violations of
section 227 of the Act may subject the company to action in other
forums as well. Section 227(b)(3) of the Act creates a private right
of action that permits a recipient of unsolicited facsimile
advertisements to bring an action in state court (if otherwise
permitted by the laws of the state or rules of the court) to seek an
injunction or to recover actual damages, or $500 for each violation,
whichever is greater. Moreover, that amount may be tripled if the
court finds that the defendant "willfully or knowingly violated" the
ban on unsolicited facsimile advertisements. In addition, pursuant to
section 227(f) of the Act, if the attorney general of a state has
reason to believe that any person "has engaged or is engaging in a
pattern or practice of transmissions to residents of that State" in
violation of section 227, the state may bring a civil action on behalf
of its residents to enjoin the behavior, recover damages, or both.
IV. CONCLUSION
9. We have determined that Clean Credit, Inc. 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 33
unsolicited advertisements to the 15 consumers identified in the
Appendix. We have further determined that Clean Credit, Inc. is
apparently liable for a forfeiture in the amount of $528,000.
V. ORDERING CLAUSES
10. 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 Clean Credit, Inc. is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of $528,000 for willful and 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.
11. 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, Clean Credit, Inc.
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
12. 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). Clean
Credit 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, SW, 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.
13. 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 Josh Zeldis, Assistant Division 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.
14. 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.
15. 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 Clean Credit, Inc., Attn: Christopher Parks, 5332
S. Memorial Drive, #100, Tulsa, OK 74145.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant received facsimile Violation Date(s)
solicitations
O. Jimenez, Southwest Sign 9/20/2009; 10/9/2009; 11/10/2009
Company
K. Richardson, Classic 10/9/2009;11/1/2009; 11/7/2009;
Personalized Offline Services 11/10/2009; 1/8/2010; 1/20/2010;
2/13/2010; 2/19/2010
D. McDaniel, Capital Commercial 10/12/2009
Investments
J. Ciulik, Fullerton University 10/13/2009; 11/09/2009
Village
R. Nunes, Ron Nunes Enterprises 11/09/2009
M. Anzalone, Precisionsigns.com 11/25/2009
S. Patterson 9/28/2009; 12/26/2009; 3/23/2010
J. Sgroi 10/23/2009; 12/16/2010
T. Hollon, Northside Insurance 2/9/2010
Agency
D. Brunjes, Bay Hardware 2/24/2010
R. Bunt, Synerlink Corporation 2/21/2010; 3/1/2010
B. Pinsonneault, Community of 3/19/2010
Christ
L. Oyakawa, Brian Lewis & 3/24/2010
Company
Dr. S. Goldman, Goldman Health 12/17/2010
Center
C. Stein, Surplus City 9/4/2009; 9/14/2009; 10/4/2009;
10/14/2009; 11/23/2009
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).
According to publicly available information, Clean Credit is also doing
business as Kleen Credit, Inc., American Business Lending, and Oklahoma
Lending Tree. Therefore, all references in this NAL to "Clean Credit"
encompass Clean Credit as well as Kleen Credit, Inc., American Business
Lending, and Oklahoma Lending Tree. Clean Credit has offices at 5332 S.
Memorial Drive, #100, Tulsa, OK 74145. Christopher Parks is listed as the
contact person for Clean Credit. Accordingly, all references in this NAL
to "Clean Credit" 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).
Clean Credit, Inc, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
13866 (Enf. Bur.2008) ("NAL 1"); Clean Credit, Inc, Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 18506 (2008) ("NAL 2") (jointly
"NALs").
Clean Credit 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.
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); 47 C.F.R. S: 64.1200(a)(3).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-13259, issued to
Clean Credit on August 29, 2007. For further details, see NAL 2, 23 FCC
Rcd at 18507, P: 3. 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).
NAL 1, NAL 2.
See Appendix for a listing of the consumer complaints against Clean Credit
requesting Commission action.
Additional complaints or any other evidence of additional instances of
unlawful conduct by Clean Credit will result in additional enforcement
action.
The facsimile transmissions advertise commercial loans.
See 47 C.F.R. S: 64.1200(f)(5). See also 47 U.S.C. S: 227(a)(2). See,
e.g., complaint dated November 25, 2009 from M. Anzalone (stating that he
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 complainants involved in this action are
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)).
Section 503(b)(2)(C) provides for forfeitures of up to $10,000, which the
Commission may adjust for inflation. 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). The Commission has made such inflation adjustments and the
current maximum statutory forfeiture in this case is $16,000. See 47
C.F.R. S:1.80(b)(3).
See 47 U.S.C. S: 503(b)(2)(D); see also 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 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).
47 U.S.C. S:503(b)(2)(D).
In this regard, we note that we are not using the issuance of the prior
NALs to Clean Credit's prejudice (see 47 U.S.C. S: 504(c)), but rather are
appropriately considering "the underlying facts of a prior violation that
shows a pattern of non-complaint behavior." See Forfeiture Policy
Statement, 12 FCC Rcd at 17103, para. 34.
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.
(...continued from previous page)
(continued....)
Federal Communications Commission FCC 10-156
1
2
Federal Communications Commission FCC 10-156