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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554

                              )   File No.: EB-07-TC-12684     
     In the Matter of                                          
                              )   NAL/Acct. No.: 200932170005  
     Western Aviation, Inc.                                    
                              )   FRN: 0018235283              

                                forfeiture order

   Adopted: September 20, 2011 Released: September 21, 2011

   By the Chief, Enforcement Bureau:

   I. introduction

    1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
       the amount of $4,500 against Western Aviation, Inc. ("Western
       Aviation") for willful violation of section 227(b)(1)(C) of the
       Communications Act of 1934, as amended ("Act") and section
       64.1200(a)(3) of the Commission's rules, by delivering an unsolicited
       advertisement, or "junk fax," to the telephone facsimile machine of a

   II. background

    2. The Telephone Consumer Protection Act of 1991 ("TCPA") was enacted by
       Congress to address problems of abusive telemarketing, including junk
       faxes. 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 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."

    3. Pursuant to section 503(b)(5) of the Act, the Enforcement Bureau
       ("Bureau") issued a junk fax citation to Western Aviation on July 6,
       2007, in response to a consumer complaint alleging that Western
       Aviation had faxed an unsolicited advertisement. Western Aviation
       responded by letter that the company only sends faxes to its customers
       and that the fax in the complaint "had to be sent in error."

    4. Thereafter, the Commission received an additional complaint alleging
       that Western Aviation continued to engage in the same conduct, and
       thus continued to violate section 227(b)(1)(C) of the Act and section
       64.1200(a)(3) of the rules. This violation, which occurred after the
       citation, resulted in the Bureau, pursuant to section 503(b)(4) of the
       Act, issuing a Notice of Apparent Liability for Forfeiture ("NAL")  to
       Western Aviation on November 3, 2008 in the amount of $4,500. The NAL
       ordered Western Aviation either to pay the proposed forfeiture amount
       within thirty days or to submit evidence or arguments in response to
       the NAL  to show that no forfeiture should be imposed or that some
       lesser amount should be assessed.

    5. Western Aviation replied that "the advertisements received by anyone
       was [sic] not sent out by our organization" and that there is "no
       proof that we send out such faxes . . . ." On November 19, 2009,
       Bureau staff responded by sending Western Aviation a copy of the
       complaint associated with the NAL  and allowed Western Aviation
       additional time to submit any further response, including any
       supporting information and documents. In a November 30, 2009 letter,
       Western Aviation again asserted that it "does not send out faxes to
       customers other than [with] those which we have a business
       relationship that specifically request a fax from us" and requested
       that "this matter be dropped because there can be no proof that we are
       sending out unsolicited faxes."

   III. discussion

    6. In this Order, we now assess the $4,500 forfeiture penalty proposed in
       the NAL. While Western Aviation suggests that it did not send the fax
       upon which the penalty is based, the fax itself identifies Western
       Aviation as the sender, and indicates that it came from a telephone
       number assigned to Western Aviation. Moreover, while Western Aviation
       also suggests that it sends faxes only to persons who request them and
       with whom it has a business relationship, the complaint cited in the
       NAL states that the recipient never did business with Western
       Aviation, did not make an inquiry or application to Western Aviation,
       and did not give permission to fax an advertisement. Western Aviation
       did not provide any documentation to negate these claims, e.g., it did
       not provide any billing records to show that it had an established
       business relationship with the complainant. Western Aviation thus
       fails to provide any basis for concluding either that it did not send
       the fax or that it had an established business relationship with the

    7. Western Aviation has failed to identify facts or circumstances to
       persuade us that there is a basis for modifying the proposed
       forfeiture. For these reasons, and based on the information before us,
       we hereby impose a total forfeiture of $4,500 for Western Aviation's
       willful or repeated violation of section 227(b)(1)(C) of the Act and
       section 64.1200(a)(3) of the Commission's rules for the reasons set
       forth in the NAL  and herein.

   IV. ordering clauses

    8. 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),
       and under authority delegated by sections 0.111 and 0.311 of the
       Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that Western
       Aviation, Inc. IS LIABLE FOR A MONETARY FORFEITURE to the United
       States Government in the sum of $4,500 for willfully violating section
       227(b)(1)(C) of the Communications Act, 47 U.S.C. S: 227(b)(1)(C), and
       section 64.1200(a)(3) of the Commission's rules, 47 C.F.R. S:

    9. 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
       enforcement pursuant to section 504(a) of the Act, 47 U.S.C. S:
       504(a). 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
       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). Western Aviation shall
       also send electronic notification on the date said payment is made to 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: with any questions
       regarding payment procedures.

   10. 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 Western Aviation, Inc., Attention: David L. Fisher, President, 6701
       Highway Blvd., Suite 105, Katy, TX 77494.


   P. Michele Ellison

   Chief, Enforcement Bureau

   47 U.S.C. S: 227(b)(1)(C).

   47 C.F.R. S: 64.1200(a)(3).

   Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat.
   2394 (1991), codified as amended at 47 U.S.C. S: 227. See also Junk Fax
   Prevention Act of 2005, Pub. L. No. 109-21, 119 Stat. 359 (2005).

   47 U.S.C. S: 227(b)(1)(C). The prohibition is subject to certain
   exceptions, such as if the sender has an "established business
   relationship" (EBR) with the recipient; and the sender obtained the
   facsimile number from the recipient through voluntary communication in the
   context of an EBR, or from a directory, advertisement, or website on which
   the recipient voluntarily and publicly provided its facsimile number. In
   addition, the unsolicited ad must notify the recipient how to opt out of
   receiving future such ads, and do so in compliance with certain
   requirements. The Commission has adopted implementing rules. 47 C.F.R. S:

   47 C.F.R. S: 503(b)(5) (requiring the Commission to issue a citation to,
   before imposing a forfeiture against, a person who does not hold a
   license, permit, certificate or other authorization issued by the
   Commission, who is not applicants for any such instrumentality, and who is
   not engaged in any activities for which such instrumentality is necessary,
   for violations of the Act or the Commission's rules and orders).

   Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
   Consumers Division, Enforcement Bureau, File No. EB-07-TC-12684, to
   Western Aviation (July 6, 2007).

   Letter from David Fisher, President, Western Aviation, File No.
   EB-07-TC-12684, to Kurt A. Schroeder, Deputy Chief, Telecommunications
   Consumers Division, Enforcement Bureau at 1 (dated July 16, 2007).

   Western Aviation, Inc.,  Notice of Apparent Liability for Forfeiture, 23
   FCC Rcd 16422 (2008).

   Letter from David Fisher, President, Western Aviation at 1 (dated Nov.17,

   Letter from Daniel Grosh, Telecommunications Consumers Division,
   Enforcement Bureau, to David Fisher, President, Western Aviation (Nov. 19,

   Letter from David Fisher, President, Western Aviation, to Enforcement
   Bureau at 1 (dated Nov.30, 2009) (Western Aviation Nov. 2009 Letter).

   The Commission has made clear that the sender has the burden of
   demonstrating the existence of an established business relationship, for
   example through relevant business records. Rules and Regulations
   Implementing the Telephone Consumer Protection Act of 1991, Junk Fax
   Recovery Act of 2005, CG Docket Nos. 02-278, 05-338, Report and Order and
   Third Order on Reconsideration, 21 FCC Rcd 3787, 3793-94 para. 12 (2006).

   Western Aviation also comments at one point that it has "heard of
   competitors sending out faxes with other companies names on them
   specifically to people who would contact the FCC, just to stir up trouble
   but I have never been able to verify such accusations." Western Aviation
   Nov. 2009 Letter at 1. Western Aviation provides no evidence or reason for
   believing any such anti-competitive deception occurred in this case.

   (Continued from previous page)


   Federal Communications Commission DA 11-1580


   Federal Communications Commission DA 11-1580