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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No. EB-09-TC-395
American West Advertising ) NAL/Acct. No. 201132170015
Apparent Liability for Forfeiture ) FRN: 0020675757
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 22, 2011 Released: March 22, 2011
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that American West Advertising ("American West") apparently willfully
and repeatedly violated section 227(b)(1)(B) of the Communications Act
of 1934, as amended ("Act"), and section 64.1200(a)(2) of the
Commission's rules, by delivering four unsolicited, prerecorded
advertising messages to four consumers. Based on the facts and
circumstances surrounding these apparent violations, we find that
American West is apparently liable for a forfeiture in the amount of
$18,000.
II. BACKGROUND
2. The Telephone Consumer Protection Act of 1991 was enacted by Congress
to address problems of abusive telemarketing, including unsolicited
prerecorded calls. Section 227(b)(1)(B) prohibits any person from
initiating "any telephone call to any residential telephone line using
an artificial or prerecorded voice to deliver a message without the
prior express consent of the called party, unless the call is
initiated for emergency purposes or is exempted by rule or order by
the Commission." Section 64.1200(a)(2) of the Commission's rules
provides exemptions to the prohibition for calls: 1) made for
emergency purposes; 2) not made for a commercial purpose; 3) made for
a commercial purpose but "not includ[ing] or introduc[ing] an
unsolicited advertisement or constitut[ing] a telephone solicitation";
4) made to any person "with whom the caller has an established
business relationship at the time the call is made" ; or 5) "made by
or on behalf of a tax-exempt nonprofit organization."
3. On July 13, 2009, in response to a consumer complaint concerning
unsolicited prerecorded calls, the Enforcement Bureau ("Bureau")
issued a citation to American West, pursuant to section 503(b)(5) of
the Act. American West did not respond to the citation. Despite the
citation's warning that subsequent violations could result in the
imposition of monetary forfeitures, we have received four additional
consumer complaints indicating that American West continued to deliver
unsolicited prerecorded calls after the date of the citation.
III. DISCUSSION
A. Violations of the Commission's Rules Restricting Unsolicited
Facsimile Advertisements
4. We find that American West apparently violated section 227(b)(1)(B) of
the Act and section 64.1200(a)(2) of the Commission's rules by
delivering four unsolicited, prerecorded advertising messages to the
four consumers identified in the Appendix. According to the
complaints, the unsolicited, prerecorded messages at issue informed
the consumers that they had won awards of vacation packages, but did
not offer a specific product for purchase. As the Commission stated in
the TCPA Revisions Report and Order, however, the TCPA's definition of
unsolicited advertisement "does not require a sale to be made during
the call in order for the message to be considered an advertisement."
To the contrary, "offers for free goods or services that are part of
an overall marketing campaign to sell property, goods, or services"
also qualify as unsolicited advertisements and are "prohibited to
residential telephone subscribers, if not otherwise exempted." Thus,
American West's messages offering free vacations to consumers were
commercial in nature and constituted prohibited telephone
solicitations. Moreover, the complaints indicate that the calls were
not made for any emergency or noncommercial purposes, and were not on
behalf of a tax-exempt, nonprofit organization, nor did the consumers
have an established business relationship with American West or give
American West permission to deliver the messages. As a result,
American West's unsolicited, prerecorded messages fall outside the
scope of any relevant exemption to the rules. Based on the entire
record, including the consumer complaints, we therefore conclude that
American West apparently violated section 227(b)(1)(B) of the Act and
section 64.1200(a)(2) of the Commission's rules by delivering four
unsolicited, prerecorded advertising messages on four separate
occasions.
B. Proposed Forfeiture
5. After we have issued a citation to an entity, as we have in this case,
section 503(b) of the Act authorizes the Commission to assess a
forfeiture for each subsequent violation of the Act, or of any rule,
regulation, or order issued by the Commission under the Act. 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." The maximum penalty for a violation of section 227(b)(1)(B)
is $16,000 for each violation occurring on or after September 2, 2008;
here the instant violations occurred in March of 2010.
6. We find that American West is apparently liable for a forfeiture in
the amount of $18,000. The Commission has previously considered $4,500
per message to be an appropriate base amount for delivering an
unsolicited, prerecorded advertising message to a residential
telephone line. We apply that base amount to each of these four
apparent violations. Thus, a total forfeiture of $18,000 is proposed.
American West will have the opportunity to submit evidence and
arguments in response to this NAL to show that no forfeiture should be
imposed or that some lesser amount should be assessed.
IV. CONCLUSION
7. We have determined that American West apparently violated section
227(b)(1)(B) of the Act and section 64.1200(a)(2) of the Commission's
rules by delivering four unsolicited, prerecorded advertising messages
to the four consumers identified in the Appendix. We have further
determined that American West Advertising is apparently liable for a
forfeiture in the amount of $18,000.
V. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act, 47
U.S.C. S: 503(b), and section 1.80 of the Rules, 47 C.F.R. S: 1.80,
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 West is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of $18,000 for willful and repeated violations of section
227(b)(1)(B) of the Communications Act, 47 U.S.C. S: 227(b)(1)(B), and
section 64.1200(a)(2) of the Commission's rules, 47 C.F.R. S:
64.1200(a)(2).
9. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the
Commission's rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture, American West SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
10. 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 West 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.
11. The response, if any, must be mailed both to: Marlene H. Dortch,
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
Consumers Division; and to Richard Hindman, Chief, Telecommunications
Consumers Division, Enforcement Bureau, Federal Communications
Commission, 445 12th Street, SW, Washington, DC 20554, and must
include the NAL/Acct. No. referenced in the caption. Documents sent by
overnight mail (other than United States Postal Service Express Mail)
must be addressed to: Marlene H. Dortch, Secretary, Federal
Communications Commission, Office of the Secretary, 9300 East Hampton
Drive, Capitol Heights, MD 20743. Hand or messenger-delivered mail
should be directed, without envelopes, to Marlene H. Dortch,
Secretary, Federal Communications Commission, Office of the Secretary,
445 12th Street, SW, Washington, DC 20554 (deliveries accepted Monday
through Friday 8:00 a.m. to 7:00 p.m. only). See
www.fcc.gov/osec/guidelines.html for further instructions on FCC
filing addresses.
12. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail Return Receipt
Requested and First Class mail to American West Advertising,
Attention: Patricia Huff, 2108 SW 152nd Street, Burien, WA 98166.
FEDERAL COMMUNICATIONS COMMISSION
P. Michele Ellison
Chief, Enforcement Bureau
APPENDIX
Complainants and Violation Dates
Complainants who received unsolicited prerecorded Violation Date(s)
messages
M. Wong 3/23/2010
S. Scahill 3/24/2010
K. Kozelka 3/25/2010
L. Johnson 3/26/2010
According to publicly available information, American West is also doing
business as American West Tour and Travel. Therefore, all references in
this NAL to "American West" encompass American West Advertising as well as
American West Tour and Travel. American West has offices at 2108 SW 152nd
Street, Burien, WA 98166. Patricia Huth is listed as the contact person
for American West. Accordingly, all references in this NAL to "American
West" also encompass the foregoing individual and all other principals and
officers of this entity, as well as the corporate entity itself.
47 U.S.C. S: 227(b)(1)(B); 47 C.F.R. S: 64.1200(a)(2).
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat.
2394, codified at 47 U.S.C. S: 227.
47 U.S.C. S: 227(b)(1)(B).
An "unsolicited advertisement" is defined 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." 47 U.S.C. S:227(a)(5);
47 C.F.R. S: 64.1200(f)(13). A "telephone solicitation" is defined as "the
initiation of a telephone call or message for the purpose of encouraging
the purchase or rental of, or investment in, property, goods, or services,
which is transmitted to any person, but such term does not include a call
or message (A) to any person with that person's prior express invitation
or permission, (B) to any person with whom the caller has an established
business relationship, or (C) by a tax exempt nonprofit organization. " 47
U.S.C. S:227(a)(3). See also 47 C.F.R. S: 64.1200(f)(12). We have
previously found that "prerecorded messages containing free offers and
information about goods and services that are commercially available are
prohibited to residential telephone subscribers, if not otherwise exempt[
]." Rules & Regulations Implementing the Telephone Consumer Protection Act
of 1991, 18 FCC Rcd 14014, 14097-98 (2003) (TCPA Revisions Report and
Order).
An "established business relationship" is defined as "a prior or existing
relationship formed by a voluntary two-way communication between a person
or entity and a residential subscriber with or without an exchange of
consideration, on the basis of the subscriber's purchase or transaction
with the entity within the eighteen (18) months immediately preceding the
date of the telephone call or on the basis of the subscriber's inquiry or
application regarding products or services offered by the entity within
the three months immediately preceding the date of the call, which
relationship has not been previously terminated by either party." 47
C.F.R. S: 64.1200(f)(4).
47 C.F.R. S: 64.1200(a)(2).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-09-TC-395, issued to
American West on July 13, 2009.
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 not an applicant for
any of those listed instrumentalities, for violations of the Act or of the
Commission's rules and orders).
See Appendix for a listing of the consumer complaints against American
West requesting Commission action.
See TCPA Revisions Report and Order, 18 FCC Rcd at 14097-98 P: 140 &
n.477. See also note 6 supra.
Id.
See, e.g., complaint dated March 24, 2010, from S. Scahill (stating that
the consumer had never done any business with the company, never made an
inquiry or application to the company, and never gave permission for the
company to make the call). The complainants involved in this action are
listed in the Appendix below.
See supra P: 2.
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 ...."; Id. The Commission has the authority under section
503(b)(5) of the Act to assess such 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.
47 U.S.C. S: 503(b)(5).
See 47 U.S.C. S: 503(b)(2)(E); 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).
Section 503(b)(2)(C) provides for forfeitures of up to $10,000, which the
Commission may adjust for inflation. 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). The Commission has made such inflation adjustments and the
current maximum statutory forfeiture in this case is $16,000. See 47
C.F.R. S:1.80(b)(3)..
See Warrior Custom Golf, Inc., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd. 23648, 23652 (Enf. Bur. 2004) (first NAL to
address pre-recorded advertising messages); see also Septic Safety, Inc.,
Notice of Apparent Liability for Forfeiture, 20 FCC Rcd. 2179 (Enf. Bur.
2005); Septic Safety, Inc., Forfeiture Order, 21 FCC Rcd.6868 (Enf. Bur.
2006); 1 Home Lending Corporation, d/b/a Capital Line Financial, LLC.,
Notice of Apparent Liability for Forfeiture, 21 FCC Rcd. 11852 (Enf. Bur.
2006); 1 Home Lending Corporation, d/b/a Capital Line Financial, LLC.,
Forfeiture Order, 24 FCC Rcd 2888 (2009).
See 47 U.S.C. S: 503(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).
47 C.F.R. S: 1.80.
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Federal Communications Commission DA 11-475
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Federal Communications Commission DA 11-475