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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No.: EB-06-TC-2630
Laser Technologies )
NAL/Acct. No. 201132170028
dba Laser Tech )
FRN: 0011158425
Apparent Liability for Forfeiture )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 18, 2011 Released: July 18, 2011
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Laser Technologies dba Laser Tech apparently willfully and
repeatedly violated section 227(b)(1)(C) of the Communications Act of
1934, as amended (the "Communications Act" or "Act"), and section
64.1200(a)(3) of the Commission's rules, by delivering 40 unsolicited
advertisements, or "junk faxes," to the telephone facsimile machines
of 28 consumers. Based on the facts and circumstances surrounding
these apparent violations, we find that Laser Technologies is
apparently liable for a forfeiture in the amount of $252,000.
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 thus 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. On December 28, 2006, in response to a consumer complaint alleging
that Laser Technologies had faxed an unsolicited advertisement, the
Enforcement Bureau ("Bureau") issued a citation to Laser Technologies,
pursuant to section 503(b)(5) of the Act. The Bureau cited Laser
Technologies for using a telephone facsimile machine, computer, or
other device, to send an unsolicited advertisement for ink and toner
supplies to a telephone facsimile machine, in violation of section
227(b)(1)(C) of the Act and section 63.1200(a)(3) of the Commission's
rules. The citation informed Laser Technologies that within 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. Laser Technologies did not respond.
4. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, we have received additional
consumer complaints indicating that Laser Technologies continued to
send unsolicited facsimiles after the date of the citation.
Specifically this NAL is based on complaints filed by 28 consumers
establishing that Laser Technologies continued to send 40 unsolicited
advertisements to telephone facsimile machines between July 20, 2010
and January 26, 2011.
III. DISCUSSION
A. Apparent Violations of Section 227(b)(1)(C) of the Act and the
Commission's Rules Restricting Unsolicited Facsimile
Advertisements
5. Each of the consumers listed in the Appendix has provided evidence
that Laser Technologies used a telephone facsimile machine, computer,
or other device to send the consumer at least one unsolicited
advertisement. The facsimile transmissions at issue advertise ink and
toner supplies. The faxes therefore fall within the definition of an
"unsolicited advertisement." Further, according to the complaints,
the consumers did not have an established business relationship with
Laser Technologies, and the complainants did not give Laser
Technologies permission to send the facsimile transmissions. We
conclude that Laser Technologies apparently violated section
227(b)(1)(C) of the Act and section 64.1200(a)(3) of the Commission's
rules by sending 40 unsolicited advertisements to 28 consumers'
facsimile machines.
A. Proposed Forfeiture
6. After we have first issued a citation to an entity, as we have in this
case, section 503(b) of the Act authorizes the Commission to propose a
forfeiture for each subsequent violation of the Act, or of any rule,
regulation, or order issued by the Commission under the Act. Section
503(b)(2)(E) mandates that, "[i]n determining the amount of such a
forfeiture penalty, the Commission or its designee shall 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." Our forfeiture guidelines set
forth the base amount for penalties for certain kinds of violations,
and identify criteria, consistent with the section 503(b)(2)(E)
factors, that may influence whether we adjust the base amount downward
or upward. For example, we may adjust a penalty upward for
"[e]gregious misconduct," or where the subject of an enforcement
action has engaged in a "[r]epeated or continuous violation."
Currently, the maximum penalty that the Commission may impose against
an entity such as Laser Technologies is $16,000 per violation.
7. The Commission has generally considered $4,500 per unsolicited fax
advertisement to be an appropriate base amount for violating the
prohibition against sending them. 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 the appropriate
forfeiture for such egregious violations. Consistent with this
approach, we apply the $4,500 base forfeiture to 36 of the apparent
violations at issue in this NAL, and a $10,000 forfeiture for four of
the apparent violations in this NAL where the consumer received a
facsimile from Laser Technologies after specifically requesting that
Laser Technologies cease sending them. Based on the application of
these standards, the total forfeiture proposed in this case would be
$202,000.
8. Recently, we have begun to impose upward adjustments for multiple,
repeated violations of our junk fax rules. For example, in another NAL
we issued recently against a company that had engaged in a total of
104 apparent violations, we proposed an upward adjustment of $150,000;
in a second NAL we issued against another company that had engaged in
a total of sixty-two apparent violations, we proposed an upward
adjustment of $75,000. We proposed these upward adjustments because we
concluded that application of our base forfeitures "has failed to
deter the more persistent wrongdoers," and thus that "different and
harsher penalties than we have imposed in the past are appropriate for
entities who engage in a significant number of violations."
9. Based on the number of Laser Tech's apparent violations - 40 - we
propose an upward adjustment of $50,000, for a total proposed
forfeiture of $252,000. ($202,000 + $50,000 = $252,000). The primary
basis for the upward adjustment is Laser Tech's repeated violations;
as indicated above, the forfeiture guidelines explicitly identify
"repeated or continuous violation" among the criteria for adjusting a
forfeiture upward. The magnitude of the adjustment is proportionate to
the number of Laser Tech's violations, and to the adjustments we
applied in recent enforcement actions relative to the number of
violations involved in those actions.
IV. CONCLUSION
10. We have determined that Laser Technologies apparently violated section
227(b)(1)(C) of the Act and section 64.1200(a)(3) of the Commission's
rules, by using a telephone facsimile machine, computer, or other
device to send 40 unsolicited advertisements to the 28 consumers
identified in the Appendix. We have further determined that Laser
Technologies is apparently liable for a forfeiture in the amount of
$252,000.
V. ORDERING CLAUSES
11. 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 of the Commission's rules, 47 C.F.R. S: 1.80, that Laser
Technologies is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of $252,000 for willful and repeated
violations of 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).
12. 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, Laser Technologies
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
13. 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). Laser Technologies 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, SW, 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.
14. 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 A. 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.
15. 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.
16. 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 Laser Technologies dba Laser Tech,
11693 San Vincente Boulevard, Suite 388, Los Angeles, CA 90049,
Attention: Pablo Ciolfi.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Apparent Violation Dates
Complainant received facsimile Violation Date(s)
solicitations
Ashley-Wurtmann, B. 10/11/10
Berg, D. 8/12/10
Botti, D. 10/5/10
Carman, P. 9/5/10
Ervin, A. 7/21/10
Holmes, J. 8/11/10, 12/15/10, 1/17/11, 1/26/11
Lasdon, A. 7/20/10
Latta, R. 8/18/10
Maone, J. 10/5/10
Marquis, T. 7/28/10
Messir, L. 12/2/10
McDaniel, D. 8/11/10, 8/19/10, 9/2/10, 10/6/10,
10/11/10, 10/20/10, 12/15/10
Pavia-Zawacki, A. 10/21/10
Person, A. 12/10/10
Piechota, J. 11/4/10
Shorten, T. 1/26/11
Sparks, S. 10/11/10
Spurrier, A. 8/23/10
Stinnett, C. 8/19/10, 10/21/10
Taddei, R. 1/27/11
Taylor, T. 9/16/10
Walton, E. 7/20/10, 8/11/10
Zelik, J. 7/28/10
Zeigler, D. 9/23/10, 11/18/10
Complainant received facsimile solicitations after Violation Date(s)
requesting no more be sent
McDonald, S. 9/29/10
Phillips, P. 10/13/10
Roberts, B. 10/14/10
Skoniecke, J. 7/22/10
According to publicly available information, Laser Technologies is also
doing business as Laser Tech. Therefore, all references in this NAL to
"Laser Technologies" also encompass "Laser Tech." Laser Technologies has
offices at 11693 San Vincente Boulevard, Suite 388, Los Angeles, CA 90049.
Pablo Ciolfi, owner and CEO, is listed as the contact person for Laser
Technologies. Accordingly, all references in this NAL to Laser
Technologies also encompass the foregoing individual and all other
principals and officers of this entity, as well as the corporate entity
itself.
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3). See also
Rules and Regulations Implementing the Telephone Consumer Protection Act
of 1991, Report and Order and Third Order on Reconsideration, 21 FCC Rcd
3787 (2006).
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat.
2394, codified 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 site on the
Internet to which the recipient voluntarily agreed to make available its
facsimile number for public distribution. In addition, the unsolicited ad
must notify the recipient of how to opt out of receiving future such ads,
subject to certain requirements. The Commission has adopted implementing
rules. See 47 C.F.R. S: 64.1200(a)(3). See also Junk Fax Prevention Act,
Report and Order,, 21 FCC Rcd 3787, 3793-96 (2006), modified on other
grounds, 23 FCC Rcd 15059 (2008).
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 applicants for any
of those listed instrumentalities for violations of the Act or of the
Commission's rules and orders).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-06-TC-2630, issued to
Laser Technologies on December 28, 2006.
See Appendix for a listing of the consumer complaints against Laser
Technologies requesting Commission action.
We note that evidence of additional instances of unlawful conduct by Laser
Technologies may form the basis of subsequent enforcement action.
See 47 U.S.C. S: 227(a)(5); 47 C.F.R. S: 64.1200(f)(13). The term
"unsolicited advertisement" means "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." Id.
47 U.S.C. S: 503(b)(5).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80(b)(4) note. The absence of a particular type of
violation from the forfeiture guidelines must "not be taken to mean that
the violation is unimportant or nonexistent," and "the Commission retains
discretion to impose forfeitures for other violations." Commission's
Forfeiture Policy Statement, Report & Order, 12 FCC Rcd 17,087, 17,110
(1997).
47 C.F.R. S: 1.80(b)(4) note.
47 U.S.C. S: 503(b)(2)(C). Section 503(b)(2)(C) provides for forfeitures
of up to $10,000 for each violation in cases, as in the instant case,
where the violation does not involve a Commission licensee, common
carriers, among others. See 47 U.S.C. S: 503(b)(2)(C). 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). See also 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 an
increase in the maximum forfeiture for this type of violator to $16,000).
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 FCC 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 Rcd 16,837, 16,842 (2000); 21st Century Fax(es) Ltd.,
AKA 20th Century Fax(es), 15 FCC Rcd 24,406, 24,411 (2000).
See Presidential Who's Who, Notice of Apparent Liability for Forfeiture,
FCC 11-95 (June 13, 2011)("Presidential Who's Who NAL").
See The Street Map Company, Notice of Apparent Liability for Forfeiture,
FCC 11-85 (June 1, 2011)(" Street Map NAL").
Id. at 4-5.
The upward adjustment of $50,000 amounts to approximately $1,400 for each
of 36 of the violations at issue in this NAL that are not already subject
to upward adjustment (i.e., all of the violations except the four for
which we assess a $10,000 penalty). The combination of the base forfeiture
and the upward adjustment for each of the 36 violations is therefore
approximately $5,900. This is in the range of the approximate $6,000
per-violation forfeiture we proposed in the Street Map NAL, which involved
a number of apparent junk fax violations subject to upward adjustment (49)
that is similar to the number involved here. The upward adjustment in both
the instant NAL and the Street Map NAL is, appropriately, less than that
we proposed in the recent Presidential Who's Who NAL, which, as indicated
in the text, involved a considerably higher number of violations. Our
approach in these cases indicates that we will tailor the adjustment to
the facts of each case, taking into account our obligations under section
503(b)(2)(E) of the Act. In this respect, we may apply a higher forfeiture
amount, such as the $16,000 statutory maximum per-violation forfeiture, if
the facts of a particular case warrant.
47 C.F.R. S: 1.80.
(...continued from previous page)
(continued....)
Federal Communications Commission FCC 11-112
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Federal Communications Commission FCC 11-112