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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No.: EB-09-TC-452
Worldwide Industrial Enterprises, )
Inc. NAL/Acct. No.: 201132170018
)
Apparent Liability for Forfeiture FRN: 0020765145
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 7, 2011 Released: April 7, 2011
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Worldwide Industrial Enterprises, Inc. ("Worldwide") apparently
willfully and repeatedly violated section 227 of the Communications
Act of 1934, as amended ("Act"), and section 64.1200(a)(3) of the
Commission's rules ("Rules") and the Commission's related orders, by
delivering 17 unsolicited advertisements, or "junk faxes," to the
telephone facsimile machines of 17 consumers. Based on the facts and
circumstances surrounding these apparent violations, we find that
Worldwide is apparently liable for a forfeiture in the amount of
$87,500.
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 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 November 9, 2009, in response to a consumer complaint alleging that
Worldwide had faxed unsolicited advertisements, the Enforcement Bureau
("Bureau") issued a junk fax citation to Worldwide, pursuant to
section 503(b)(5) of the Act. The Bureau cited Worldwide for using a
telephone facsimile machine, computer, or other device, to send
unsolicited advertisements to a telephone facsimile machine, in
violation of section 227 of the Act and the Commission's related rules
and orders. Worldwide did not respond to the citation. Despite the
citation's warning that subsequent violations could result in the
imposition of monetary forfeitures, we have continued to receive
additional consumer complaints indicating that Worldwide continued to
send junk faxes after issuance of the citation. We base our action
here specifically on complaints filed by 17 consumers establishing
that Worldwide sent 17 unsolicited advertisements to telephone
facsimile machines between February 10, 2010 and April 27, 2010.
III. DISCUSSION
A. Violations of the Commission's Rules Restricting Unsolicited
Facsimile Advertisements
4. Each of the consumers listed in the Appendix has provided evidence
that Worldwide apparently used a telephone facsimile machine,
computer, or other device to send the consumer one unsolicited
advertisement. Further, according to the complaints, the consumers did
not have an established business relationship with Worldwide, and did
not give Worldwide permission to send the facsimile transmissions.
Based on the entire record, including the consumer complaints, we
conclude that Worldwide apparently violated section 227 of the Act and
section 64.1200 of the Rules and the Commission's related orders by
sending 17 unsolicited advertisements to 17 consumers' facsimile
machines.
A. Proposed Forfeiture
5. Section 503(b) of the Act authorizes the Commission to assess a
forfeiture for each violation of the Act, or of any rule, regulation,
or order issued by the Commission under the Act, by a non-common
carrier or other entity not specifically designated in section 503 of
the Act, after we have first issued a citation to the entity, as we
have in this case. 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."
6. We find that Worldwide is apparently liable for a forfeiture in the
amount of $87,500. The Commission has previously considered $4,500 per
unsolicited fax advertisement to be an appropriate base amount for
violating the prohibition against sending unsolicited fax
advertisements. We apply that base amount to each of the 15 apparent
violations. 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. Here, two consumers each received one facsimile from
Worldwide after specifically requesting that Worldwide cease sending
them. Accordingly, we apply the $10,000 amount to each of these two
violations. Thus, a total forfeiture of $87,500 is proposed. Worldwide
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 Worldwide Industrial Enterprises, Inc.
apparently violated section 227 of the Act and the Commission's
related rules and orders by using a telephone facsimile machine,
computer, or other device to send 17 unsolicited advertisements to the
17 consumers identified in the Appendix. We have further determined
that Worldwide Industrial Enterprises, Inc. is apparently liable for a
forfeiture in the amount of $87,500.
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,
that Worldwide Industrial Enterprises, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of $87,500 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).
9. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Rules, that
within thirty (30) days of the release date of this Notice of Apparent
Liability for Forfeiture, Worldwide Industrial Enterprises, Inc. 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). Worldwide 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.
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 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.
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 Worldwide Industrial Enterprises,
Inc., Attention: Frank Tantalo, CEO, 720 Shore Road, Lindenhurst, NY
11757, Worldwide Industrial Enterprises, Inc., Attention: Frank
Tantalo, CEO, 656 Wellwood Avenue, Lindenhurst, NY 11757, and
Worldwide Industrial Enterprises, Inc. c/o Speigel and Utera, P.A.,
P.C., Attn: Daniel Finnegan, Managing Attorney, 45 John Street, Room
711, New York, NY 10038.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant received facsimile solicitations Violation Date(s)
G. Livesay, Smith Moore Leatherwood LLP 4/13/2010
M. Marshall, Marshall Law Group, P.C. 4/13/2010
S. Stuart 4/14/2010
J. Hoeppner, Big Rapids Insurance Agency, Inc. 4/15/2010
D. Thomas, Waco Distributing Company 4/21/2010
R. Adams 4/22/2010
R. Newberry, AccountAbility for Business 4/27/2010
M. Whiting 4/22/2010
S. Hess 4//22/2010
M. Rhoades, Bob Moore Realty Company 4/27/2010
B. Newbert, Grove Madsen Industries 4/22/2010
W. Muhammad 4/29/2010
D. Bird, Museum of Indian Arts 4/22/2010
V. Carillo, State Farm Insurance 4/13/2010
L. Windsor 4/13/2010
Complainant received facsimile solicitations after Violation Date(s)
requesting no more be sent
T. Elder 4/28/2010
M. Flint 4/13/2010
According to publicly available information, Worldwide has offices at 720
Shore Road, Lindenhurst, NY 11767 and 656 Wellwood Avenue, Lindenhurst, NY
11757. Frank Tantalo, CEO, is listed as the contact person for Worldwide.
Accordingly, all references in this NAL to "Worldwide " 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 and publicly provided its
facsimile number. In addition, the unsolicited ad must notify the
recipient how to opt-out of receiving future such ads, subject to certain
requirements. The Commission has adopted implementing rules. 47 C.F.R. S:
64.1200(a)(3).
Citation from Joshua P. Zeldis, Assistant Division Chief,
Telecommunications Consumers Division, Enforcement Bureau, File No.
EB-09-TC-452, issued to Worldwide on November 9, 2009.
See 47 U.S.C. S: 503(b)(5) (requiring the Commission, before assessing a
forfeiture against any person who does not hold, or is not an applicant
for, a license, permit, certificate, or other authorization issued by the
Commission, to first issue a citation for any violation of the Act or of
the Commission's rules or orders).
See Appendix for a listing of the consumer complaints against Worldwide
requesting Commission action for sending junk faxes post-citation.
We note that evidence of additional instances of unlawful conduct by
Worldwide will result in further enforcement action.
The facsimile transmissions advertise concrete, metal, and wood coatings.
The faxes at issue here therefore fall within the definition of an
"unsolicited advertisement." See 47 U.S.C. S: 227(a)(5); 47 C.F.R. S:
64.1200(f)(13) (definition previously at S: 64.1200(f)(10)).
See, e.g., complaint dated March 23, 2010, from D. Fitzsimmons (stating
that he never did any business with the fax advertiser, never made an
inquiry or application to the fax advertiser, and never gave permission
for the company to send the fax). The complainants involved in this action
are listed in the Appendix.
47 U.S.C. S: 503(b)(2)(E); 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 P: 27 (1997)
(Forfeiture Policy Statement), recon. denied, 15 FCC Rcd 303 (1999).
See Get-Aways, Inc., Notice of Apparent Liability For Forfeiture, 15 FCC
Rcd 1805, 1812 (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, 17003 (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, 11300 (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 16837, 16842 (2000); 21st Century Fax(es) Ltd., AKA
20th Century Fax(es), 15 FCC Rcd 24406, 24411 (2000).
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 FCC 11-58
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Federal Communications Commission FCC 11-58