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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
File No. EB-07-TC-502
In the Matter of )
NAL/Acct. No. 200832170065
Sunstar Travel and Tours, Inc. )
FRN: 0017724774
)
)
forfeiture order
Adopted: September 16, 2010 Released: September 28, 2010
By the Commission:
I. introduction
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture
against Sunstar Travel and Tours, Inc. ("Sunstar") for willful and
repeated violations of section 227 of the Communications Act of 1934,
as amended ("Act") and the Commission's related rules and orders, by
delivering at least 63 unsolicited advertisements to the telephone
facsimile machines of at least 56 consumers. Because Sunstar has
demonstrated an inability to pay the full forfeiture amount that we
originally proposed, we have reduced the forfeiture being assessed
herein to $50,000.
II. background
2. The facts and circumstances surrounding this case are set forth in the
Commission's two Notices of Apparent Liability for Forfeiture and need
not be reiterated at length.
3. 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." On May 17, 2008,
the Enforcement Bureau ("Bureau") issued a citation to Sunstar,
pursuant to section 503(b)(5) of the Act. The citation informed
Sunstar 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. Sunstar did not request
an interview or otherwise respond to the citation.
4. Following the issuance of the citation, the Commission received at
least 56 complaints from consumers alleging that Sunstar faxed at
least 63 unsolicited advertisements to them. These violations, which
occurred after the date of the Bureau's citation, resulted in the
issuance of two NALs against Sunstar: one on May 28, 2008, in the
amount of $169,500 ("NAL 1"), and another on August 26, 2008, in the
amount of $136,000 ("NAL 2"), for a total of $305,500. The NALs
ordered Sunstar, within thirty days, either to pay the proposed
forfeiture amounts or submit evidence or arguments in response to the
NALs to show that no forfeiture should be imposed or that some lesser
amount should be assessed. Sunstar did not respond to NAL 1 or pay the
proposed forfeiture amount. Sunstar responded to NAL 2 by letter dated
September 3, 2008, saying that it had not seen the complaints
associated with the NALs. In addition, Sunstar claimed that it faxes
to Canada and the United Kingdom, not the United States, and that a
former agent had "been maliciously sending out faxes to try and damage
and attack our company." Sunstar also said that the company was unable
to pay the proposed forfeiture.
5. In response, the Bureau sent Sunstar copies of the consumer complaints
that were the subject of the Commission's NALs and allowed additional
time for Sunstar to address those complaints. Sunstar responded in two
further letters. Sunstar asserted generally that, while some
complaints included copies of faxes, including faxes "that had our
number on them and represented our company . . . these were only
copies of a document that advertises our product and company. These
are not the original documents." Sunstar also claimed that "[t]here
are a couple of websites that have our name on the site and there are
people out there who want to place the blame of every document on
someone." In discussing individual complaints, Sunstar again claimed
it did not send unsolicited faxes within the U.S., and suggested that
complainants may not be "aware of every document that they have ever
filled out and know who exactly our associates are that we obtain our
information from."
III. discussion
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 $11,000 for a
violation occurring before September 2, 2008, and $16,000 for a
violation occurring on or after September 2, 2008. 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. The record in this case, as discussed in the NALs, includes numerous
complaints based on faxes that list Sunstar telephone numbers and were
sent during the period of June 2007 through October 2007. Complainants
claim that they received unwanted and unsolicited faxes from Sunstar
advertising vacations. Many of the complainants also attached copies
of the unwanted faxes. These faxes are almost uniformly advertisements
for vacation packages in Florida, the Bahamas, and Mexico. As the
complaints allege, these faxes identify the sender as S-Star or SS
Travel and Tours, and ask that the recipient respond by calling
telephone numbers that our research reveals are assigned to Sunstar.
Many of these faxes include headers that list the date and time the
fax was sent and the recipients' phone numbers. These headers confirm
that the faxes were sent to the telephone numbers listed in the
complaints, and those telephones are within the United States. In
addition, Sunstar acknowledges that it sends faxes advertising Florida
vacation packages (including faxes similar to those attached to many
of the complaints), and that it uses the telephone numbers and trade
names identified in the complaints and listed on the example faxes. We
have carefully reviewed the complaints and Sunstar's responses. It is
not clear that Sunstar sent seven faxes associated with three
complaints, because they advertise products other than vacations or do
not include a Sunstar business name or telephone number. Otherwise,
however, the remaining complaints present a prima facie case that
Sunstar did violate the Act and our rules on numerous occasions.
Sunstar nonetheless denies that it violated the Act and our orders,
and raises several defenses.
8. As an initial matter, we note that Sunstar has not submitted any
documents or similar evidence in support of these defenses, such as
transmission logs that could show that Sunstar had not in fact sent
faxes to the complainants, or records of contacts from customers that
could demonstrate an established business relationship (EBR). Sunstar
relies solely on the unsupported, uncorroborated, and unsworn
statements in its letters. We have, nonetheless, reviewed those
defenses and discuss them below.
9. Whether Sunstar exclusively faxes to Canada and the U.K. Although
Sunstar claims in some of its letters that it faxes only to Canada and
the U.K., at other times it says that "[w]e normally do not fax to the
USA unless the document has been requested by the client in some way,
shape, or form." It also explains that "[t]he only USA numbers that we
have in any of our systems or any sales that we have had come from
leads that were purchased from a couple different companies that do
Box leads and internet leads. We also had many inquiries from our
website as well." These statements clearly indicate that Sunstar did,
in fact, send faxes within the United States, and lend support to the
numerous U.S. complainants who say they received them. Sunstar does
not demonstrate for any of the complaints how it in fact obtained the
recipient's fax number, let alone that the number was communicated in
the context of an EBR. Nor does Sunstar demonstrate that it took
reasonable steps to verify that the recipient voluntarily agreed to
make the number available for public distribution, as required by the
Act and our rules. Consequently, we are unconvinced of Sunstar's
argument that the company faxes exclusively to Canada and the U.K.,
and we conclude based on the record evidence that Sunstar sent
unsolicited facsimile advertisements to U.S. consumers.
10. Whether some faxes were "sent maliciously by another competitor in an
effort to destroy our company." Sunstar presents no evidence for this
claim, which appears unlikely in view of the fact that the unwanted
faxes promote Sunstar products and solicit calls to Sunstar telephone
numbers. A specific individual that Sunstar seeks to implicate also
seems unlikely to have sent the faxes at issue here. According to
Sunstar, "an independent agent that was working under our license"
left Sunstar on September 5, 2007 and then opened his own office
sending faxes. Sunstar presents no supporting evidence of these
claims. Even assuming Sunstar is correct, however, all of the
complaints cited in the April 2008 NAL involved faxes sent during the
period of June 2007 through August 2007, before the date that Sunstar
says the independent agent left Sunstar. The faxes cited in the August
2008 NAL were received after September 5, 2007, but represent a
continuing flow of faxes similar to the earlier ones. We find no basis
in the record for concluding that these faxes were sent by anyone
other than Sunstar.
11. Whether the complaints are based on "some documents that were on the
internet that anyone can copy and send in." Sunstar does not identify
any of these purported internet sites or any specific documents that
were available on them at the time these complaints were filed. We
therefore cannot conclude that Sunstar's assertion is anything more
than speculation.
12. Whether the person filing the complaint was unaware of requests for
information from sources such as other family members or company
employees. Sunstar appears to be suggesting that an EBR may have
existed for many of the complainants, based on requests for
information that complainants forgot, or requests that were made by
others in their households or businesses. It is highly unlikely that
so many complainants would be in this situation, and in any event, the
Commission has made clear that the entity sending a fax ad is
responsible for demonstrating the existence of the EBR, and must be
prepared to provide clear and convincing evidence of permission to
send faxes. Sunstar presents no evidence whatsoever of EBRs with, or
consent from, any of the complainants, and therefore, we are not
persuaded by this argument.
13. Whether some of the faxes cited in the complaints could not have been
from Sunstar because they differ from those Sunstar sends. Sunstar
claims that complaints that state that there was no date of
transmission or telephone number in the header are not from Sunstar,
because Sunstar includes the date of transmission and its fax number
in the headers of all documents that leave its offices. In other
cases, Sunstar claims that the style and content of some of the faxes
attached to the complaints do not match Sunstar's own faxes. Here
again, Sunstar provides no evidence in support of these claims. In our
review, as discussed above, we have removed those faxes from our
consideration of the violations here. But the remaining complaints
present a compelling case that the complained-of faxes were, in all
other cases, sent by Sunstar. Further, the numerous complaints
supported by numerous actual examples of faxes advertising Sunstar's
vacation package business, and using Sunstar's business names and
phone numbers, clearly outweigh Sunstar's unsupported denials.
14. Inability to pay. Sunstar says it cannot afford to pay the total
forfeiture of $305,500 proposed in the two NALs and provides its tax
returns for 2005, 2006, and 2007. The Commission generally considers a
companies' gross revenues as reasonable and appropriate yardsticks to
determine their ability to pay assessed forfeitures. After considering
the financial information submitted by Sunstar, we conclude that its
gross revenues are sufficient to enable it to pay a $50,000
forfeiture, and we hereby impose a total forfeiture of $50,000 for
Sunstar's willful and repeated violations of section 227 of the Act
and the Commission's related rules and orders, as set forth in the
NALs.
IV. ORDERING CLAUSES
15. 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),
that Sunstar IS LIABLE FOR A MONETARY FORFEITURE to the United States
Government in the sum of $50,000 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. 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, 47 U.S.C. S: 504(a).
16. 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). Sunstar 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.
17. 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 Sunstar Travel and Tours, Inc., Attention: Joseph Hanna, President,
1123 E. Altamonte Dr., Altamonte Springs, FL 32701.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
As in the NAL, see supra note 4, giving rise to this Forfeiture Order,
references herein to "Sunstar" refer not only to Sunstar Travel and Tours,
Inc., but also to other names through which it does business, including SS
Travel and Tours, S-Star Travel and Tour, Vacation Clearinghouse, Vacation
Clearance Center, and Travel Clearance Center, as well as Joseph Hanna and
all other principals and officers of any entity doing business by any of
the listed names.
47 U.S.C. S: 227.
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).
Sunstar Travel and Tours, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 8976 (2008) (proposed forfeiture of $169,500) (NAL
1); Sunstar Travel and Tours, Inc., Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd 13193 (2008) (proposed forfeiture of $136,000)
(NAL 2) (collectively "NALs").
47 U.S.C. S: 227(b)(1)(C); see also 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-502, issued to
Sunstar on May 17, 2007.
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 applicants for any of
those listed instrumentalities, for violations of the Act or of the
Commission's rules and orders).
See supra note 4.
Letter from Joseph Hanna, President, Sunstar, to Office of Secretary, FCC,
File No. EB-07-TC-502, dated Sept. 3, 2008 (Sept. 2008 Response).
Letter from Joseph Hanna, President, Sunstar to Office of Secretary, FCC,
File No. EB-07-TC-502, dated October 24, 2008 (Oct. 2008 Response); Letter
from Joseph Hanna, President, Sunstar, to Office of Secretary, FCC, File
No. EB-07-TC-502, dated April 13, 2009 (Apr. 2009 Response).
Oct. 2008 Response at 1; also Apr. 2009 Response at 1-2.
Oct. 2008 Response at 1; also Apr. 2009 Response at 1.
See, e.g., Oct. 2008 Response at 3 and passim; Apr. 2009 Response at 3 and
passim.
Section 503(b)(2)(C) provides for forfeitures of 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); 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).
Sunstar also does business through these names. See supra note 1.
In NAL 1, the fax attached to the complaint from Complainant Bergin does
not appear to have been sent by Sunstar and the complaint from Complainant
Taylor does not clearly identify Sunstar as the sender. See NAL 1
Appendix. In NAL 2, none of the four faxes listed in the complaint by
Complainant Groves are clearly linked to Sunstar, for example by the
sender's name or telephone number. See NAL 2 Appendix.
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, e.g., October Response at 3 and passim.
September 2008 Response at 2.
47 U.S.C. S: 227(b)(1)(C)(i), (ii); see also Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Junk Fax
Prevention Act of 2005, Report and Order and Third Order on
Reconsideration, 21 FCC Rcd 3787, 3795-96 P: 15 (2006) (Junk Fax
Prevention Act R&O); modified on other grounds, 23 FCC Rcd 15059 (2008).
Junk Fax Prevention Act R&O, 21 FCC Rcd 3787, 3793-95 P: 12 (2006).
See, e.g., Alpha Ambulance, Inc,. 19 FCC Rcd 2547, 2548-49 P: 5 (2004);
Long Distance Direct, Inc. 15 FCC Rcd 3297, 3305 (2000); PJB
Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 P: 8 (1992); see
also Forfeiture Policy Statement, 12 FCC Rcd at 17106-07 P: 43.
See PJB Communications, 7 FCC Rcd at 2089 (forfeiture not deemed excessive
where it represented approximately 2.02 percent of the violator's gross
revenues); Local Long Distance, Inc., 16 FCC Rcd at 10025 (forfeiture not
deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd
8640, 8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
In this case, the forfeiture represents a smaller percentage than in the
Local Long Distance, Inc., and Hoosier Broadcasting Corp., cases, but a
higher percentage than the forfeiture issued in PJB Communications of
Virginia, Inc..
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Federal Communications Commission FCC 10-166
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Federal Communications Commission FCC 10-166