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Federal Communications Commission
Washington, D.C. 20554
In the Matter of File No. EB-07-TC-1321
J. Daniel Chavez NAL/Acct. No. 200832170008
d/b/a SOS Marketing FRN: 0017275389
Adopted: September 16, 2010 Released: September 28, 2010
By the Commission:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of $257,500 against SOS Marketing ("SOS" or "Company") 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 fifty-six unsolicited advertisements to the
telephone facsimile machines of at least forty-four consumers.
2. This Forfeiture Order arises from two distinct Notices of Apparent
Liability that were issued against SOS. The facts and circumstances
surrounding these cases are set forth in the Commission's 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." 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." There is, however, an exception to the Commission's rule that
permits a party to 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
4. On April 9, 2007, in response to one or more consumer complaints
alleging that SOS had faxed unsolicited advertisements, the Enforcement
Bureau ("Bureau") issued a citation to SOS, pursuant to section 503(b)(5)
of the Act. The Bureau cited SOS for using a telephone facsimile machine,
computer, or other device, to send unsolicited advertisements to a
telephone facsimile machine, in violation of section 227 of the Act and
the Commission's related rules and orders. The citation warned SOS 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 SOS that within thirty (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. SOS did not request an
interview or otherwise respond to the citation.
5. Following the issuance of the citation, the Commission received at
least forty-four complaints from consumers alleging that SOS faxed at
least fifty-six unsolicited advertisements to them. These violations,
which occurred after the Bureau's citation, resulted in the issuance of
two Notices of Apparent Liability for Forfeiture against SOS, one on
January 11, 2008, in the amount of $13,500, and one on May 30, 2008, in
the amount of $244,000. The NALs ordered SOS to either pay the proposed
forfeiture amounts within thirty (30) days or submit evidence or arguments
in response to the NALs to show that no forfeitures should be imposed or
that some lesser amounts should be assessed. SOS did not respond to the
NALs or pay the proposed forfeiture amounts.
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
7. 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. In the NAL, we applied
that base amount to each of fifty-five 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 as the
appropriate forfeiture for such egregious violations. Here, one consumer
specifically requested that SOS cease sending facsimiles. Notwithstanding
this request, an additional facsimile was sent to this consumer. Thus, we
apply the $10,000 amount to that one apparent violation.
8. SOS did not respond to the NALs or pay the proposed forfeiture amounts.
SOS has failed to identify facts or circumstances to persuade us that
there is a basis for modifying the proposed forfeitures, and we are not
aware of any mitigating circumstances that would warrant a reduction of
the forfeiture penalties. For these reasons, and based on the information
before us, we hereby impose a total forfeiture of $257,500 for SOS's
willful and repeated violation of section 227 of the Act and the
Commission's related rules and orders, as set forth in the NALs.
IV. ORDERING CLAUSES
9. 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 SOS Marketing IS LIABLE FOR A MONETARY FORFEITURE to
the United States Government in the sum of $257,500 for willfully and
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
10. 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. 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). SOS Marketing 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.
11. 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
SOS Marketing, Attention: Jessie Gonzalez, 10303 Northwest Freeway, Suite
350, Houston, TX 77092-8234.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
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).
SOS Marketing, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 180
(2008); and SOS Marketing, Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 9004 (2008) (collectively "NALs").
47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3).
See 47 U.S.C. S: 227(a)(4); 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." See 47
U.S.C. S: 227(a)(2); see also 47 C.F.R. S: 64.1200(f)(5).
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-07-TC-1321, issued to
SOS Marketing on April 9, 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 an applicant 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: SOS Marketing,
10303 Northwest Freeway, Houston, TX 77092-8234.
See n.2, supra; see also 47 U.S.C. S: 503(b)(1).
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).
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
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 16837, 16842 (2000); 21st Century Fax(es) Ltd., AKA
20th Century Fax(es), Notice of Apparent Liability for Forfeiture, 15 FCC
Rcd 24406, 24411 (2000).
47 U.S.C. S: 504(a).
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Federal Communications Commission FCC 10-169
Federal Communications Commission FCC 10-169