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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
Adopted: September 20, 2011 Released: September 21, 2011
By the Chief, Enforcement Bureau:
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
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
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."
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
Johnny.Drake@fcc.gov. 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.
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.
FEDERAL COMMUNICATIONS COMMISSION
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