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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
) File No.: EB-05-TC-031
) NAL/Acct. No.: 200732170058
In the Matter of
) FRN: 0016560401
Travelcomm Industries, Inc.
) File No.: EB-06-TC-130
d/b/a TravelComm, Inc.
) NAL/Acct. No.: 200732170070
d/b/a Cheap Tickets Cancun
) FRN: 0016560401
d/b/a Cancun Adventures
) File No. EB-05-TC-037
) FRN: 0016560401
)
)
)
FORFEITURE ORDER
Adopted: March 21, 2011 Released: April 12, 2011
By the Commission:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we impose a monetary forfeiture in
the amount of $72,000 against Travelcomm Industries, Inc. ("Travelcomm")
for willful and repeated violations of section 227 of the Communications
Act of 1934, as amended ("Act"), and the Commission's related rules and
orders, by delivering 15 unsolicited advertisements ("junk faxes") to the
telephone facsimile machines of nine consumers, and by delivering one
unsolicited, prerecorded advertising message to one consumer.
II. BACKGROUND
2. This Forfeiture Order arises from four distinct Notices of Apparent
Liability for Forfeiture ("NALs") that were issued against Travelcomm.
A. Unsolicited Facsimile Advertisement Violations
3. The Telephone Consumer Protection Act of 1991 ("TCPA") was enacted by
Congress to address problems of abusive telemarketing, in particular junk
faxes. As Congress recognized, 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" except in certain limited situations.
4. On May 19, 2005, in response to one or more consumer complaints
alleging that Travelcomm had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Travelcomm, pursuant to
section 503(b)(5) of the Act. The Bureau cited Travelcomm for using a
telephone facsimile machine, computer, or other device, to send
unsolicited advertisements for vacation packages, in violation of section
227 of the Act and the Commission's related rules and orders. The Junk Fax
Citation informed Travelcomm that subsequent violations could result in
the imposition of monetary forfeitures of up to $11,000 each, and included
a copy of the consumer complaints that formed the basis of the citation.
The Junk Fax Citation informed Travelcomm 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. On June
2 and August 17, 2005, Travelcomm responded to the Junk Fax Citation..
5. Following the issuance of the Junk Fax Citation, the Commission
received complaints from nine consumers alleging that Travelcomm faxed 15
unsolicited advertisements to them. These violations, which occurred after
the Junk Fax Citation, resulted in the issuance of three NALs against
Mexico Marketing dba Travelcomm Industries, Inc. on July 31, 2007, on
December 28, 2007, and on June 30, 2008. Travelcomm has since asserted
that it is a separate entity from Mexico Marketing, however, and we
address here only those violations committed by Travelcomm specifically.
Travelcomm filed two responses to the Junk Fax NALs.
B. Prerecorded Message Violation
6. Section 227(b)(1)(B) prohibits any person from initiating "any
telephone call to any residential telephone line using any 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 including or
introducing an unsolicited advertisement or constituting 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."
7. On April 15, 2005, in response to one or more consumer complaints
alleging that Travelcomm had delivered an unsolicited, prerecorded
advertising message, the Bureau issued a citation to Travelcomm, pursuant
to section 503(b)(5) of the Act. The Bureau cited Travelcomm for
delivering one or more unsolicited, prerecorded advertising messages
regarding vacation travel tickets to a residential telephone line, in
violation of section 227 of the Act and the Commission's related rules and
orders. The Prerecorded Message Citation informed Travelcomm that
subsequent violations could result in the imposition of monetary
forfeitures of up to $11,000 each, and included a copy of the consumer
complaints that formed the basis of the citation. The Prerecorded Message
Citation informed Travelcomm that within thirty 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. On May 12, 2005,
Travelcomm filed a response to the Prerecorded Message Citation, stating
that it did not have any record of making the call, but offering no other
evidence to support its claim.
8. Following the issuance of the Prerecorded Message Citation, the
Commission received another complaint from a consumer alleging that
Travelcomm delivered an unsolicited, prerecorded message. This violation,
which occurred after the Bureau's Prerecorded Message Citation, resulted
in the issuance of a NAL against Travelcomm on July 23, 2007, in the
amount of $4,500. The Prerecorded Message NAL ordered Travelcomm to
either 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. On August
23, 2007, Travelcomm responded to the Prerecorded Message NAL.
C. Travelcomm's Responses to the NAL
9. Both Travelcomm's August 23 and August 30, 2007 responses to the First
Junk Fax NAL and the Prerecorded Message NAL provided a general
description of its business, stating that it sells vacation packages
wholesale to various companies. While Travelcomm admits to entering into
contracts with several of these companies to market and sell hotel
accommodations, it claims that it did not send facsimiles or phone the
complainants. Consequently, Travelcomm requests that the forfeitures
proposed in the First and Second Junk Fax NALs and the Prerecorded Message
NAL be canceled.
III. DISCUSSION
10. With regard to the apparent unsolicited fax advertisement violations,
Travelcomm argues that the proposed forfeiture should be canceled because:
(1) the company did not receive a copy of the citation; and (2) it did not
send the facsimiles as alleged. With regard to the prerecorded message
violations, Travelcomm argues that the proposed forfeiture should be
cancelled because: (1) the prerecorded message call subject to the
proposed forfeiture may have been made inadvertently; and (2) the
prerecorded message sent to the complainant was not delivered on its
behalf. We have considered Travelcomm's responses to the Junk Fax NALs and
conclude that Travelcomm has failed to present evidence to warrant
rescinding or reducing the proposed forfeitures.
A. Unsolicited Facsimile Advertisement Violations
11. Travelcomm has failed to submit any evidence to controvert the
Bureau's finding that Travelcomm delivered the unsolicited fax
advertisements at issue. Travelcomm's August 30, 2007 NAL Response
explained that it "did not respond to the citation because one was not
sent to it." Our records, however, indicate that Travelcomm indeed
received notice of the Junk Fax Citation. Its attorneys' correspondence
dated June 2 and August 17, 2005, clearly acknowledge notice of the Junk
Fax Citation. Travelcomm asserts that it did not send the faxes at issue,
but our records indicate that Travelcomm is listed as the subscriber for
telephone numbers used to send the junk faxes. Travelcomm offers no
explanation of how the junk faxes could have originated from the company's
phone line without having been sent by the company.
12. Travelcomm argues that the Commission's Junk Fax NALs did "not provide
enough information for Travelcomm to properly respond in a thorough
manner." The First Junk Fax NAL, however, described in detail the evidence
upon which the proposed forfeiture was based, and contained all the
information required by section 503(b)(4) of the Act. Additionally, on
October 31, 2007, the Bureau forwarded to Travelcomm's attorney, at his
request, copies of the complaints that were the basis of the First Junk
Fax NAL. On January 17, 2008, the Bureau also forwarded copies of
complaints that were the basis of the Second Junk Fax NAL, again at the
request of Travelcomm's attorney. On April 24, 2008, Travelcomm submitted
a supplemental response that purported to contain a detailed response to
the complaints that were the basis of the First and Second Junk Fax NALs.
This response, however, fails to provide any specific information to
counter the Commission's findings that Travelcomm sent the faxes at issue,
or that the faxes constitute prohibited advertisements as defined in
section 227 of the Act and the Commission's rules and orders. The response
only states that Travelcomm Industries, Inc. did not send the facsimiles
as alleged and, as noted above, provides no evidence to support this
claim. Travelcomm's response is insufficient to counter the weight of the
evidence we have from the complaining consumers. We therefore conclude
that Travelcomm failed to submit sufficient evidence to show that it did
not send the faxes in question, or that those faxes were not sent on its
behalf.
13. Both Travelcomm's August 23 and 30 NAL Responses request the
opportunity to present evidence on this matter in a full evidentiary
hearing before an administrative law judge to "better serve the ends of
justice." By the explicit terms of the statute, evidentiary hearings in
forfeiture matters are granted at the Commission's discretion, and we see
no need to commence an evidentiary hearing. Travelcomm is entitled only to
the administrative enforcement proceeding we are conducting here.
B. Prerecorded Message Violation
14. Travelcomm does not present any evidence to establish an exemption
under any of these provisions of section 64.1200(a)(2). As previously
mentioned, 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 including or introducing an unsolicited advertisement or constituting
a telephone solicitation"; 4) 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."
Travelcomm does not deny making the prerecorded call in question. Instead,
Travelcomm states it is "possible that Travelcomm had a preexisting
relationship with a consumer located in the same area code as the
complainant, Mr. Rayburn, and that Mr. Rayburn was contacted
inadvertently." Travelcomm speculates that if the prerecorded message at
issue was delivered, it is "possible a marketer did contact [the
complainant,] but not on Travelcomm's behalf."
15. Travelcomm's claim that this particular call was "inadvertent" is not
a valid defense under our prerecorded message rules. Travelcomm does not
even indicate specific oversights that may have caused the prerecorded
call to be made or demonstrated the implementation of basic compliance
procedures to guard against such calls being made in the first place. Our
records indicate that the relevant telephone company has identified
Travelcomm as the subscriber for the telephone number used in association
with the prerecorded call here. Additionally, the complainant indicates
that the prerecorded call advertised discount travel packages, and
Travelcomm admits to selling vacation packages. Travelcomm has not
provided any persuasive information showing that we should discount this
compelling connection between it and the call, and as noted above,
Travelcomm does not actually deny having made the call. We therefore
conclude that the Bureau correctly found that Travelcomm was responsible
for the prerecorded call at issue.
16. Additionally, Travelcomm's August 23 NAL Response claimed that the
Prerecorded Message NAL failed to include information regarding the
complaint and violation, which precluded Travelcomm from properly
responding. Contrary to Travelcomm's contention, the Prerecorded Message
NAL described in detail the evidence upon which the proposed forfeiture
was based. Indeed, the Prerecorded Message NAL contained all the
information required by section 503(b)(4) of the Act.
C. Forfeiture Amount
17. We affirm our findings that Travelcomm violated the Act and our rules
on sixteen separate occasions. Although the Commission's Forfeiture Policy
Statement does not establish a base forfeiture amount for violating the
prohibition against using a telephone facsimile machine, computer, or
other device, to send unsolicited advertisements, the Commission has
previously considered $4,500 per unsolicited prerecorded message and
unsolicited fax advertisement to be an appropriate base amount. We apply
that base amount to each of the fifteen unsolicited fax advertisement
violations and the one unsolicited prerecorded message violation. We are
unpersuaded that the proposed forfeiture should be reduced or cancelled.
We hereby impose a total of $72,000 for Travelcomm's willful or repeated
violation of section 227 of the Act and the Commission's related rules and
orders, as set forth in the NALs. Thus, a total forfeiture of $72,000 is
imposed.
IV. ORDERING CLAUSES
18. 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), that Travelcomm Industries, Inc. IS LIABLE FOR A MONETARY
FORFEITURE to the United States Government in the sum of $72,000 for
willfully and repeatedly violating sections 227(b)(1)(B) and 227(b)(1)(C)
of the Communications Act, 47 U.S.C. S:S: 227(b)(1)(B), 227(b)(1)(C), and
sections 64.1200(a)(2), 64.1200(a)(3) of the Commission's rules, 47 C.F.R.
S:S: 64.1200(a)(2), 64.1200(a)(3), and the related orders as described in
the paragraphs above.
19. 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
collection 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 Number 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). Travelcomm
Industries, Inc. will 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.
20. 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
Travelcomm Industries, Inc., Attention: Mr. Rigoberto Sotolongo, 5850
Lakehurst Drive, # 280, Orlando, Florida 32819; Travelcomm Industries,
Inc., c/o Dorough, Calzada & Hamner, P.L., 419 North Magnolia Avenue,
Orlando, Florida 32801; and Luisa Valeros, Registered Agent, 11726 Ottawa
Avenue, Orlando, FL 32837.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant received facsimile Violation Date(s)
solicitations
Baranaskas, C. 5/9/2007
Davis, W. 7/9/2007
Duranty, M. 5/1/07; 5/2/07; 5/4/07;
5/9/07
Hallikainen, H. 5/4/2007
Kober, S. 5/1/2007
Mahoney, S. 4/30/2007
Ragsdale, W. 4/30/2007
Shepard, A. 5/2/2007
Tilden, B. 4/4/07; 4/16/07; 4/18/07;
4/19/07
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 ...."; see also 47 U.S.C. S: 503(b)(5) (stating that the
Commission has the authority under this section of the Act to assess 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).
See 47 U.S.C. S: 227.
47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3).
See 47 U.S.C. S: 227(b)(1)(B); 47 C.F.R. S: 64.1200(a)(2)
See Travelcomm Industries, Inc., Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 13555 (Enf. Bur. 2007) ("Prerecorded Message NAL");
Mexico Marketing LLC dba Travelcomm Industries, Inc., Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd 14196 (2007)("First Junk Fax NAL");
Mexico Marketing LLC dba Travelcomm Industries, Inc., Notice of Apparent
Liability for Forfeiture, 22 FCC Rcd 22218 (2007)("Second Junk Fax NAL")
Mexico Marketing LLC dba Travelcomm Industries, Inc., Notice of Apparent
Liability for Forfeiture, 23 FCC Rcd 10742 (2008)("Third Junk Fax
NAL")(collectively "Junk Fax NALs").
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).
See, e.g., S. Rep. No. 1462, 102d Cong., 1st Sess. 2 (1991); H. Rep. No.
102-317, 102d Congress, 1st Sess. 10 (1991).
47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, FCC, File No. EB-05-TC-137, issued
to Travelcomm Industries, Inc. on May 19, 2005 ("Junk Fax Citation").
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 an applicant for any of those
listed instrumentalities for violations of the Act or of the Commission's
rules and orders).
Bureau staff mailed the citation to the following addresses: 5895 Carrier
Drive, Orlando, FL 32819; P.O. Box 300245, Casselberry, FL 32730; and 322
W. Newell St., Winter Garden, FL 34787.
Letter from Thomas Kinsella, Cove & Associates, P.A., to Kurt A.
Schroeder, Deputy Chief, Telecommunications Consumers Division, Federal
Communications Commission, dated June 2, 2005; Letter from Jordan Cohen,
Cove & Associates, P.A., to Kurt A. Schroeder, Deputy Chief,
Telecommunications Consumers Division, Federal Communications Commission
("FCC"), dated August 17, 2005. (Thomas Kinsella and Jordan Cohen, Cove &
Associates, P.A., counsel for Travelcomm, indicates an employee
erroneously failed to sign for the citation letter which was sent by
certified mail. However, both counsel acknowledge that the company
received notice of the Junk Fax Citation by accessing it on the FCC's
website. As standard practice, FCC staff forwards complaints enclosed with
the citation upon request from the cited party. However, after doing so,
the Commission does not have any record of any further response from same
counsel to the Junk Fax Citation.)
See note 5 supra; see also 47 U.S.C. S: 503(b)(1).
While the Junk Fax NALs include violations committed by Mexico Marketing,
only the violations committed by Travelcomm are included in the attached
Appendix and used as the basis for this forfeiture. We take no position at
this time as to any liability Mexico Marketing might have for Travelcomm's
violations, or Travelcomm may have for Mexico Marketing's violations.
Violations committed by Mexico Marketing are addressed in a separate
forfeiture order. Mexico Marketing, LLC., FCC 11-48 (2011).
On August 30, 2007, Travelcomm responded to the First Junk Fax NAL and,
in response to a request for additional information from the Bureau,
Travelcomm submitted a supplemental response on April 24, 2008, via
electronic mail. See Letter from Ricardo Calzada, II, Esq., Dorough,
Calzada & Hamner, P.L., to Kurt Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, FCC, dated
August 30, 2007 ("Travelcomm's August 30 NAL Response"); see also Letter
via electronic mail from Ricardo Calzada, II, Esq., Dorough, Calzada &
Hamner, P.L., to Rosemary Cabral, Attorney, Telecommunications Consumers
Division, Enforcement Bureau, FCC, dated April 24, 2008.
47 U.S.C. S: 227(b)(1)(B); 47 C.F.R. S: 64.1200(a)(2).
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)(4);
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);
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." TCPA Revisions Report and Order, 18
FCC Rcd 14097-98 (2003).
An "established business relationship" in the context of a pre-recorded
message violation 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." See 47 U.S.C. S:
227(a)(2); see also 47 C.F.R. S: 64.1200(f)(4).
47 U.S.C. S: 227(b)(1)(B); 47 C.F.R. S: 64.1200(a)(2).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, FCC, File No. EB-05-TC-031, issued
to Travelcomm on April 15, 2005 ("Prerecorded Message Citation").
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 an applicant for any of those
listed instrumentalities for violations of the Act or of the Commission's
rules and orders).
Bureau staff mailed the citation to the following addresses: Travelcomm
Industries, Inc., a.k.a. Travel Comm, Inc., Canadian Travel, Patriot
Travel, Attention: Mr. Rigoberto Sotolongo, President, Peter Sotolongo,
Dan Marshall, 5850 Lakehurst Drive, Suite 150-30, Orlando, Florida 32819;
and Travelcomm Industries, Inc., a.k.a. Travel Comm, Inc., Canadian
Travel, Patriot Travel, Attention: Mr. Rigoberto Sotolongo, President ,
Peter Sotolongo, Dan Marshall, 5895 Carrier Drive, Orlando, Florida
32801..
Letter from Thomas R. Kinsella, Esq., Cove & Associates, P.A., to Kurt
Schroeder, Deputy Chief, Telecommunications Consumers Division,
Enforcement Bureau, FCC, dated May 12, 2005 ("Travelcomm's Prerecorded
Citation Response").
See n.5 supra; see also 47 U.S.C. S: 503(b)(1).
Letter from Ricardo Calzada, II, Esq., Dorough, Calzada & Hamner, P.L., to
Kurt Schroeder, Deputy Chief, Telecommunications Consumers Division,
Enforcement Bureau, FCC, dated August 23, 2007 ("Travelcomm's August 23
NAL Response"). (This NAL Response referred to a citation response dated
May 12, 2005 that the Commission had not received, a copy of which
Attorney Calzada forwarded via electronic mail on March 10, 2008.)
Travelcomm's August 23 NAL Response, at 1; Travelcomm's August 30 NAL
Response, at 1.
Travelcomm's August 23 NAL Response at 3-6.
Travelcomm's August 23 NAL Response at 4.
See note 15 supra. Although Travelcomm did not respond to the Third Junk
Fax NAL, we extend their challenge of the forfeiture amounts proposed in
the First and Second Junk Fax NALs to the Third NAL as well. We conclude
that Travelcomm has failed to present evidence to warrant rescinding or
reducing the proposed forfeiture in the Third Junk Fax NAL as well.
Travelcomm's August 30 NAL Response at 2.
See n.12, supra.
Travelcomm's August 30 NAL Response at 2.
47 U.S.C. S: 503(b)(4). This subsection requires, inter alia, that the
Commission issue a written notice of apparent liability or a notice of
opportunity for hearing prior to assessing a forfeiture. Such a notice
must identify the legal provision that has apparently been violated, set
out the nature of the act or omission and the underlying facts, and must
state the date on which the apparently unlawful conduct occurred. In the
instant proceeding, the FCC complied with these requirements.
Letter and attachments, from Kimberly Wild, Attorney, Telecommunications
Consumers Division, Enforcement Bureau, to Ricardo Calzada, II, Esq.,
Dorough, Calzada & Hamner, P.L., dated October 31, 2007.
Letter and attachments, from Kimberly Wild, Attorney, Telecommunications
Consumers Division, Enforcement Bureau, to Ricardo Calzada, II, Esq.,
Dorough, Calzada & Hamner, P.L., dated June 17, 2008.
See n.15 supra.
Travelcomm's August 23 NAL Response, at 1 and 6; Travelcomm's August 30
NAL Response, at 1 and 6.
See 47 U.S.C. S: 503(b)(1); see also 47 U.S.C. S: 503(b)(4). This
subsection requires, inter alia, that the Commission issue a written
notice of apparent liability or a notice of opportunity for hearing prior
to assessing a forfeiture. Such a notice must identify the legal provision
that has apparently been violated, set out the nature of the act or
omission and the underlying facts, and must state the date on which the
apparently unlawful conduct occurred. 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 ... ." See also 47 U.S.C. S: 503(b)(5) (stating
that the Commission has the authority under this section of the Act to
assess 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: 227(b)(1)(B); 47 C.F.R. S: 64.1200(a)(2).
See n.18 supra.
See n.18 supra.
See n.19 supra.
See n.18 supra.
Travelcomm's August 23 NAL Response at 2.
Travelcomm's August 23 NAL Response at 2.
See consumer complaint of James Rayburn, filed August 12, 2006. See also
Travelcomm's August 23 NAL Response at 2
See n.14, supra. We take no position at this time as to any liability
Mexico Marketing might have for Travelcomm's violations, or Travelcomm may
have for Mexico Marketing's violations.
Travelcomm's August 30 NAL Response at 2. Nevertheless, a copy of the
consumer complaint and affidavit was forwarded to Travelcomm's counsel.
Letter and attachments, from Rosemary Cabral, Attorney, Telecommunications
Consumers Division, Enforcement Bureau, to Ricardo Calzada, II, Esq.,
Dorough, Calzada & Hamner, P.L., dated January 16, 2008.
47 U.S.C. S: 503(b)(4). This subsection requires, inter alia, that the
Commission issue a written notice of apparent liability or a notice of
opportunity for hearing prior to assessing a forfeiture. Such a notice
must identify the legal provision that has apparently been violated, set
out the nature of the act or omission and the underlying facts, and must
state the date on which the apparently unlawful conduct occurred. In the
instant proceeding, we complied with these requirements.
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 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).
Travelcomm's August 23 and 30 NAL Responses, at 5, claim that Peter
Sotolongo should not be personally held liable for the proposed
forfeiture, attaching an affidavit from Mr. Sotolongo in support of its
NAL responses. We take no position at this time as to any liability Mr.
Sotolongo might have for the violations at issue here.
47 U.S.C. S: 504(a).
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