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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File No. EB-08-TC-2507
Presidential Who's Who
) NAL/Acct. No. 201032170005
dba Presidential Who's Who, Inc.
) FRN: 0020197919
Apparent Liability for Forfeiture
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 13, 2010 Released: September 13, 2010
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Presidential Who's Who dba Presidential Who's Who, Inc.
("Presidential Who's Who") 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 seventy-three unsolicited advertisements to the telephone
facsimile machines of at least sixty-nine consumers. Based on the
facts and circumstances surrounding these apparent violations, we find
that Presidential Who's Who is apparently liable for a forfeiture in
the amount of $345,000. Presidential Who's Who 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)(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." Under an exception to the general
prohibition in the Commission's rules, a party may deliver unsolicited
advertisements to persons with whom it has an "established business
relationship" if certain conditions are met (i.e., the sender obtained
the number of the facsimile machine either (i) through a voluntary
communication by the recipient, directly to the sender, within the
context of the established business relationship, or (ii) through a
directory, advertisement, or site on the Internet to which the
recipient voluntarily agreed to make available its facsimile number
for public distribution.)
3. On June 18, 2008, in response to one or more consumer complaints
alleging that Presidential Who's Who had faxed unsolicited
advertisements, the Enforcement Bureau ("Bureau") issued a citation to
Presidential Who's Who, pursuant to section 503(b)(5) of the Act. The
Bureau cited Presidential Who's Who for using a telephone facsimile
machine, computer, or other device, to send unsolicited advertisements
for entry in and sale of the publication "Presidential Who's Who" to a
telephone facsimile machine, in violation of section 227 of the Act
and the Commission's related rules and orders. The citation warned
Presidential Who's Who 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 Presidential Who's Who 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. Frank Ciaccio, on behalf of Presidential
Who's Who, requested an interview and claimed that the fax on which
the citation was based was not an advertisement.
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 Presidential Who's Who continued
to engage in such conduct after issuance of the citation. We base our
action here specifically on complaints filed by sixty-nine consumers
establishing that Presidential Who's Who continued to send
seventy-three unsolicited advertisements to telephone facsimile
machines 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 for a
violation occurring on or after September 2, 2008. In exercising such
authority, the statute 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."
III. DISCUSSION
A. Violations of the Commission's Rules Restricting Unsolicited Facsimile
Advertisements
6. We find that Presidential Who's Who 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 at
least seventy-three unsolicited advertisements to the sixty-nine
consumers identified in the Appendix. This NAL is based on evidence
that sixty-nine consumers received unsolicited fax advertisements from
Presidential Who's Who after the Bureau's citation. The facsimile
transmissions advertise entry in "Presidential Who's Who" publication
and an opportunity to purchase the compilation publication.
7. We disagree with the contention of Frank Ciaccio, on behalf of
Presidential Who's Who, that the fax on which the citation was based
was not an advertisement, but a request for information from people to
include their information in its publication free of charge. Instead,
we find that the faxes in question serve as a pretext to advertise a
commercial product or service - the "Presidential Who's Who"
publication and associated products. First, these faxes invite
individuals to share information and give their permission to have it
included in its publication. Although there is no cost for inclusion
in the publication, the products associated with the publication, such
as professional directories or plaques, are later commercially
available. For example, a complainant indicated that the offer to be
included in the publication was free of charge, but when she later
called the company, "they try to sell you the publication at a
ridicu[lous] price." Moreover, other complainants indicate that the
faxes also offered the opportunity to purchase the publication. The
Commission has found that when promotions for "free" services serve as
pretext for later solicitations, the original promotional fax
constitutes an advertisement. Specifically, we stated that "free"
publications are "often part of an overall marketing campaign to sell
property, goods, or services," and thus, absent an established
business relationship, were prohibited as "unsolicited
advertisements." In this instance, we find that the faxes serve as
part of an overall campaign to sell the "Presidential Who's Who"
publication and associated products, and as such they are
advertisements within the meaning of the section 227. Further,
according to the complaints, the consumers did not give Presidential
Who's Who permission to send the facsimile transmissions.
Consequently, the faxes at issue here fall within the definition of an
"unsolicited advertisement." Complaints also indicate that the
recipients did not have established business relationships with
Presidential Who's Who. Based on the entire record, including the
consumer complaints, we therefore conclude that Presidential Who's Who
apparently violated section 227 of the Act and the Commission's
related rules and orders by sending seventy-three unsolicited
advertisements to sixty-nine consumers' facsimile machines.
B. Proposed Forfeiture
8. We find that Presidential Who's Who is apparently liable for a
forfeiture in the amount of $345,000. 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. We apply that base amount to each of
seventy of the apparent violations. In addition, where the consumer
requests the company to stop sending facsimile messages, and the
company continues to send them, the Commission has previously
considered $10,000 per unsolicited fax advertisement the appropriate
forfeiture for such egregious violations. Here, three consumers
specifically requested that Presidential Who's Who cease sending
facsimiles. Notwithstanding these requests, an additional three
facsimiles were sent to these consumers. Thus, we apply the $10,000
amount to each of three of these apparent violations. Thus, a total
forfeiture of $345,000 is proposed. Presidential Who's Who 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
9. We have determined that Presidential Who's Who 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 at least seventy-three unsolicited advertisements to the
sixty-nine consumers identified in the Appendix. We have further
determined that Presidential Who's Who is apparently liable for a
forfeiture in the amount of $345,000.
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 Presidential Who's Who is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of $345,000 for willful or
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, Presidential Who's
Who 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).
Presidential Who's Who 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, 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 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.
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 Presidential Who's Who, Attention: Mark Anthony
McFallen, 2927 Queens Plaza, Long Island City, NY 11101 and 140 Rockaway
Parkway, Valley Stream, NY 11580.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant received facsimile solicitations Violation Date(s)
Asensio, V. 11/17/09
Axilbund, C. 11/17/09
Baldwin, G. 12/15/09
Benefield, R. 3/30/10
Bishop, C. 3/23/10
Blumenthal, M. 9/14/09
Borgic, D. 1/20/10
Brown, K. 9/14/09
Brunjes, D. 1/05/10, 3/23/10
Ciulik, J. 9/30/09
Cox, C. 11/17/09
Chapura, J. 2/01/10
Davis, R. 11/17/09
Davis, W. 1/05/10
Decker, B. 10/07/09
Drattell, E. 9/14/09
Edwards, K. 11/17/09
Falcon, J. 11/2/09
Fuller, J. 11/2/09
Geary, T. 9/14/09
Gomes, R. 10/14/09
Gade, F. 10/20/09, 12/07/09
Grant, H. 9/29/09
Hackman, D. 11/17/09
Hanson, G. 12/09/09
Hudkins, J. 11/17/09
Jansky, M. 9/29/09
Jimenez, O. 10/06/09
Johnson, M. 3/23/10
Jones, J. 2/01/10
Kane, J. 1/20/10
Kalm, T. 9/14/09
Kang, C. 10/14/09
King, S. 10/06/09
Lagrutta, R. 3/30/10
Leigh, D. 1/12/10
Lester, R. 2/16/10
Lewis, R. 10/20/09
Lilly, T. 3/23/10
Mac, G. 2/01/10
Malarkey, P. 1/20/10
Malear, R. 12/15/09
Marzane, R. D. 2/01/10
McLees, R. 10/27/09
Maskey, M. 11/2/09
Muenchow, J. 2/23/10
Newberg, B. 1/20/10
Norman, D. 11/2/09
O'Connell, M. 1/20/10
Pitrik, Mike 2/16/10
Poss, V. 1/12/10
Richardson, K. 10/08/09
Rodman, R. 11/17/09
Schultz, C. 9/14/09
Shamblin, J. 12/09/09
Schlosshauer, P. 9/14/09
Schlesinger, S. 12/12/09, 4/22/10
Soesbe, K. 11/08/09, 11/23/09
Spittler, R. 11/17/09
Stacharawski, G. 1/12/10
Swartz, M. 3/30/10
Tilden, R. B. 11/02/09
Wilson, T. 2/23/10
Witherspoon, C. 11/2/09
Wood, V. 9/30/09
VanDeWater, M. 9/14/09
Complainant received facsimile solicitations after Violation Date(s)
requesting no more be sent
Asuri, R. 10/27/09
Broder, S. 11/2/09
Wax, B. 9/30/09
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, Presidential Who's Who is
also doing business as Presidential Who's Who, Inc. Therefore, all
references in this NAL to "Presidential Who's Who" encompass Presidential
Who's Who as well as Presidential Who's Who, Inc. Presidential Who's Who
has offices at 2927 Queens Plaza, Long Island City, NY 11101 and 140
Rockaway Parkway, Valley Stream, NY 11580. Mark Anthony McFallen is listed
as the contact person for Presidential Who's Who. Accordingly, all
references in this NAL to Presidential Who's Who 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) ("2006 TCPA Order").
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).
An "established business relationship" is defined as a prior or existing
relationship formed by a voluntary two-way communication "with or without
an exchange of consideration, on the basis of an inquiry, application,
purchase or transaction by the business or residential subscriber
regarding products or services offered by such person or entity, which
relationship has not been previously terminated by either party." 47
C.F.R. S: 64.1200(f)(5); see also 47 U.S.C. S: 227(a)(2).
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3)(i), (ii).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-08-TC-2507, issued to
Presidential Who's Who on June 18, 2008.
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 who are not applicants for any
of those listed instrumentalities for violations of the Act or of the
Commission's rules and orders).
Bureau staff mailed the citation to the following address: Presidential
Who's Who, 2927 Queens Plaza, Long Island City, NY 11101. See note 2,
supra. As indicated below, see infra note 14, for violations occurring
after September 2, 2008, the forfeiture maximum has since been increased
to $16,000 per violation.
Telephone interview conducted on July 11, 2008 between Frank Ciaccio,
representing Presidential Who's Who, and Kurt Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, and Mary
Romano, Special Advisor, Telecommunications Consumers Division,
Enforcement Bureau. The staff determined that the fax in question was, in
fact, an advertisement. See infra para. 3.
See Appendix for a listing of the consumer complaints against Presidential
Who's Who requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Presidential Who's Who 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 to $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 supra note 11.
See, e.g., complaint dated November 17, 2009, from C. Cox.
See, e.g., complaints dated September 14, 2009, from M. DeWater, and from
J. Shamblin, dated December 9, 2009.
2006 TCPA Order, 21 FCC Rcd 3787, para. 52 (footnotes omitted).
Id. (More broadly, the Commission stated: "We conclude that facsimile
messages that promote goods or services even at no cost, such as free
magazines subscriptions, catalogs, or free consultations or seminars, are
unsolicited advertisements under the TPA's definition. In many instances,
`free' seminars serve as a pretext to advertise commercial products and
services. Similarly, `free' publications are often part of an overall
marketing campaign to sell property, goods, or services. For instance,
while the publication itself may be offered at no cost to the facsimile
recipient, the products promoted within the publication are often
commercially available. Based on this, it is reasonable to presume that
such messages describe the `quality of any property, goods, or services.'
Therefore, facsimile communications regarding such free goods and
services, if not purely `transactional,' would require the sender to
obtain the recipient's permission beforehand, in the absence of an EBR.")
See, e.g., complaint dated November 17, 2009, from V. Asenio (stating that
he has never done any business with the fax advertiser, never made an
inquiry or application to the fax advertiser and never given 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)).
See, e.g., supra note 21.
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 Carolina Liquidators, Inc., Notice of Apparent Liability for
Forfeiture, 15 FCC 16,837, 16,842 (2000); 21st Century Fax(es) Ltd., AKA
20th Century Fax(es), 15 FCC Rcd 24,406, 24,411 (2000).
See Appendix.
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 10-160