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Federal Communications Commission
Washington, D.C. 20554
File No.: EB-07-TC-1947
In the Matter of )
NAL/Acct. Nos.: 200832170076 and
American Medical Services )
f/k/a American Health Services )
Adopted: October 27, 2011 Released: October 27, 2011
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of $9,000 against American Medical Services ("AMS") for
willful and repeated violations 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 two unsolicited
advertisements, or "junk faxes," to the telephone facsimile machines
of two consumers.
2. The Telephone Consumer Protection Act of 1991 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." The prohibition, however, does not apply if certain
conditions are satisfied, such as when the sender has an "established
business relationship" with the recipient.
3. Pursuant to section 503(b)(5) of the Act, the Enforcement Bureau
("Bureau") issued a junk fax citation to AMS on June 26, 2007, in
response to two consumer complaints alleging that AMS had faxed
unsolicited advertisements. AMS responded by stating that "American
Health Services" was no longer in business and was "very sorry for any
troubles this has caused both parties."
4. Thereafter, the Commission received additional complaints from
consumers alleging that AMS had faxed unsolicited advertisements.
These violations, which occurred after the date of the citation,
resulted in the Bureau issuing two Notices of Apparent Liability for
Forfeiture ("NALs") against AMS.
5. The Bureau issued the first NAL in September 2008, and proposed a
forfeiture of $4,500. Thereafter, the Bureau sent both the complaint
referenced in the NAL, as well as a second complaint, to AMS.
6. In response to these complaints, AMS claimed that it had
"correspondence from persons at the companies who have complained but
more than likely not from the person who filed the complaint." AMS
went on to explain that it "would develop sales leads from our
website, print advertising or from various Internet companies for
people who were shopping for [a] healthcare or discount plan." With
respect to the complaint referenced in the first NAL in particular,
from S. Hardy at All American Quality Foods, AMS claimed its contact
was an owner of that company, and provided contact information for
that person. Concerning the second complaint, from D. Morris, AMS
claimed that the complainant's husband, T. Morris, was its contact,
and again provided information for T. Morris.
7. The Bureau issued the second NAL in 2009, based on D. Morris's
complaint, and stated that AMS's knowledge of T. Morris's contact
information "does not demonstrate that T. Morris actually engaged in
any inquiry, application, purchase or transaction with AMS." The
Bureau thus concluded that AMS had not met its burden of demonstrating
the existence of an established business relationship and found AMS
apparently liable for a second forfeiture in the amount of $4,500.
8. AMS responded to the second NAL and requested cancellation of the
proposed forfeiture. In support, AMS provided: (1) an affidavit
claiming a prior relationship with the Morris family and the business
"Realkids.com;" (2) Texas corporate records with information about the
Morris company; (3) "lead information" relating to T. Morris; and (4)
contact information for T. Morris and another person allegedly
associated with the Morris family or the business Real Kids.
9. We now assess the $9,000 penalties proposed in the two NALs. In doing
so, we find that AMS has not adequately shown that it did, in fact,
have an "established business relationship" with the complainants, or
that it obtained their fax numbers permissibly under the Commission's
10. Under the Commission's rules, a person may not fax an unsolicited ad
unless the sender and the recipient have an "established business
relationship" ("EBR") and certain other conditions are satisfied. An
EBR is defined as:
a prior or existing relationship formed by a voluntary two-way
communication between a person or entity and a business or residential
subscriber 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
A fax may be sent to a person with whom the sender has an EBR only if the
sender obtained the recipient's fax number through "voluntary
communication of such number by the recipient directly to the sender,
within the context of such established business relationship" or through a
"directory, advertisement, or site on the Internet to which the recipient
agreed to make available its facsimile number for public distribution."
The Commission has made clear that the entity sending an unsolicited fax
ad is responsible for demonstrating the existence of the established
business relationship, for example, through relevant business records such
as purchase agreements and application records. Thus, AMS bears the burden
of demonstrating a voluntary two-way communication on the basis of an
inquiry, application, purchase, or transaction.
11. AMS has not satisfied its burden of proof. As we pointed out in the
second NAL, the fact that AMS has contact information for someone at a
company to which it sent a fax advertisement is insufficient to show
that it formed a relationship with the company through a voluntary
two-way communication, on the basis of an inquiry or transaction.
Indeed, contact information is little more than that necessary for AMS
to fax an unsolicited ad in the first place. Simple "lead information"
pertaining to an individual likewise does not demonstrate an EBR
between AMS and that individual, as AMS could have acquired this
information through means other than an EBR, such as from another
company that provides sales leads. An affidavit attesting to a
relationship of some unspecified type between AMS and a company or
individual similarly fails to establish that AMS had an EBR with that
company or individual. Again, it is AMS's burden to show that it
formed a relationship with the complainants through a voluntary
communication on the basis of an inquiry or transaction, and that it
obtained and used the fax numbers at issue in the context of that
relationship or through another permissible means. Business records
evidencing such a relationship - again, for example, applications or
purchase agreements - might meet the burden - but AMS did not provide
any such records.
12. Thus, AMS has failed to identify any facts or circumstances to
persuade us that there is a basis for modifying the forfeitures
proposed in the NALs, and we are not aware of any further mitigating
circumstances sufficient to warrant a reduction of the forfeiture
penalty. For these reasons, and based on the information before us, we
hereby impose a total forfeiture of $9,000 for AMS's willful and
repeated violation of section 227(b)(1)(C) of the Act, and section
64.1200(a)(3) of the Commission's rules, as set forth in the NALs and
IV. ordering clauses
13. 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 the 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 American Medical
Services IS LIABLE FOR A MONETARY FORFEITURE to the United States
Government in the sum of $9,000 for willfully and repeatedly 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: 64.1200(a)(3).
14. 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. 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). American Medical Services 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.
15. 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
American Medical Services, Attention: Mr. Nick Braia, Owner, 2471 McMullen
Booth Road, Suite 301, Clearwater, FL 33759-1351.
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, codified as amended at 47 U.S.C. S: 227 (2009). 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).
Id. For a definition of "established business relationship" and a
discussion of the exception, see infra para. 10.
47 U.S.C. S: 503(b)(5) (requiring the Commission to issue a citation for a
violation to a person who does not hold a license, permit, certificate or
other authorization issued by the Commission, who is not an applicant for
any such instrumentality, and who is not engaged in any activities for
which such instrumentality is necessary, before imposing a forfeiture for
a violation against such a person).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-1947, to AMS
(June 26, 2007).
Letter from Nick Braia, AMS, File No. EB-07-TC-1947, to Kurt Schroeder,
Deputy Chief, Telecommunications Consumers Division, Enforcement Bureau at
1 (dated July 17, 2007). American Health Services is the name previously
used by AMS.
American Medical Services, Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 13853 (2008) ("NAL 1"); American Medical Services, Notice of
Apparent Liability for Forfeiture, 24 FCC Rcd 1276 (2009) ("NAL 2")
NAL 1, 23 FCC Rcd 13853.
Letter from Nick Braia, AMS, File No. EB-07-TC-1947, to Office of the
Secretary at 1 (dated October 20, 2008).
Id., Exhibit A.
Id., Exhibit B.
NAL 2, 24 FCC Rcd at 1279 para. 6.
Letter from Nick Braia, AMS, File No. EB-07-TC-1947, to Office of the
Secretary (dated March 19, 2009).
Id. at 3-8. The lead information was contact information, plus certain
additional personal information.
47 C.F.R. S: 64.1200(f)(5). See also 47 U.S.C. S: 227(a)(2).
47 C.F.R. S: 64.1200(a)(3). In addition, for a person to fax an
unsolicited ad under the Commission's rules, the ad must notify the
recipient how to opt out of receiving future such ads, and do so in
compliance with certain requirements.
Rules and Regulations Implementing the Telephone Consumer Protection act
of 1991, Junk Fax Prevention Act, Report and Order and Third Order on
Reconsideration, CG Docket Nos. 02-278, 05-338, 21 FCC Rcd 3787, 3793-94
para. 12 (2006) (Junk Fax Prevention Act R&O).
See Junk Fax Prevention Act R&O, 21 FCC Rcd at 3796 para. 15 ( "senders of
facsimile advertisements must have an EBR with the recipient in order to
send the advertisements to the recipient's facsimile number. The fact that
the facsimile number was made available in a directory, advertisement or
website does not alone entitle a person to send a facsimile advertisement
to that number.").
It is unclear how the other documents and information that AMS provided -
i.e., public records about one of the companies associated with a
complaint, and the fact that one of the complainants frequently uses the
Internet - are in any way relevant to whether AMS had an EBR with either
of the companies involved in the complaints.
47 U.S.C. S: 504(a).
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Federal Communications Commission DA 11-1777
Federal Communications Commission DA 11-1777