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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No.: EB-08-TC-6825
Security First of Alabama, LLC ) NAL/Acct. No.: 201132170017
Apparent Liability for Forfeiture ) FRN: 0020780128
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 12, 2011 Released: April 14, 2011
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Security First of Alabama, LLC ("Security First") apparently
willfully and repeatedly violated section 227 of the Communications
Act of 1934, as amended ("Act"), and section 64.1200(a)(2) of the
Commission's rules, by delivering 43 unsolicited, prerecorded
advertising messages, or "robocalls," to 33 consumers. Based on the
facts and circumstances surrounding these apparent violations, we find
that Security First is apparently liable for a forfeiture in the
amount of $342,000.
II. BACKGROUND
2. 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 not only for emergency calls, but also for calls: 1)
not made for a commercial purpose; 2) made for a commercial purpose
but "not includ[ing] or introduc[ing] an unsolicited advertisement or
constitut[ing] a telephone solicitation," 3) made to any person "with
whom the caller has an established business relationship at the time
the call is made," or 4) "made by or on behalf of a tax-exempt
nonprofit organization."
3. On November 26, 2008, in response to a consumer complaint alleging
that Security First had delivered unsolicited, prerecorded advertising
messages, the Enforcement Bureau ("Bureau") issued a citation to
Security First, pursuant to section 503(b)(5) of the Act. The Bureau
cited Security First for delivering one or more unsolicited,
prerecorded advertising messages for security alarm systems to
residential telephone lines in violation of section 227 of the Act and
section 64.1200(a)(2) of the Commission's rules. The citation warned
Security First that subsequent violations could result in the
imposition of monetary forfeitures of up to $16,000 per violation, and
included a copy of the consumer complaint that formed the basis of the
citation. The citation informed Security First 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. Security First did not respond to the citation.
4. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, we have received numerous
additional consumer complaints indicating that Security First
continued to deliver prerecorded advertising messages after issuance
of the citation. In particular, we have received complaints by 33
consumers stating that Security First sent them 43 unsolicited,
prerecorded advertising messages after the date of the citation.
III. DISCUSSION
A. Violations of the Commission's Rules Restricting Unsolicited
Prerecorded Messages
5. We find that Security First apparently violated section 227 of the Act
and section 64.1200(a)(2) of the Commission's rules by delivering 43
unsolicited, prerecorded advertising messages to the 33 consumers
identified in the Appendix. According to the complaints, the
prerecorded messages at issue here advertised Security First's
security alarm systems, and the complainants had not given Security
First permission to deliver the messages to them. Therefore, the
prerecorded messages at issue here fall within the definition of an
"unsolicited advertisement." Because the complaints indicate that
Security First's prerecorded messages were not made for any emergency
or non-commercial purpose, on behalf of any tax-exempt nonprofit
organization, or in the context of an established business
relationship between the complainant and Security First, the messages
fall outside the scope of any relevant exemption. Based on the entire
record, we therefore conclude that Security First apparently violated
section 227 of the Act and section 64.1200(a)(2) of the Commission's
rules by delivering 43 unsolicited, prerecorded advertising messages
to 33 consumers.
B. 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 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)
by an entity such as Security First is $16,000.
7. We find that Security First is apparently liable for a forfeiture in
the amount of $342,000. The Commission has previously considered
$4,500 per violation to be an appropriate base amount for sending
unsolicited, prerecorded advertising messages. We apply that amount to
16 of the violations at issue here, which yields a total of $72,000
for these particular violations.
8. The other 27 complaints present a troubling range of aggravating
factors, and we therefore propose a higher base forfeiture for each of
these violations. Although we have only listed calls with specific
dates in the Appendix, some of the complainants claim that Security
First called them many times. Complainants also charge Security First
with a range of other abusive practices: calling phone numbers
registered on the National Do Not Call Registry; providing an opt-out
telephone number in the recorded message that was always busy or
disconnected; failing to honor do-not-call requests that were made;
and deliberately causing inaccurate telephone numbers to appear on
consumer caller ID displays ("spoofing"), leading consumers to direct
their opt-out requests and complaints to another, innocent company.
With respect to this latter abusive tactic in particular, we note that
we have received a letter from Senator John McCain on behalf of Audio
Visual Projection Services, which claims that Security First placed
telemarketing calls that "spoofed" the company's number on consumers'
caller ID displays with the result that that the company's office "has
been bombarded with hundreds of phone calls everyday for the past week
from irate people, demanding that we remove them from our call list."
These kinds of allegations indicate that Security First has been a
particularly egregious distributor of prohibited prerecorded messages,
and appear to warrant a more substantial penalty. The Commission has
found that egregious violations, such as of national do-not-call and
company specific do-not-call rules, justify a $10,000 forfeiture per
violation. We therefore apply that base amount to each of 27 apparent
unsolicited, prerecorded advertising message violations associated
with one or more aggravating factors, for a total of $270,000 for
these particular violations.
9. Combining the proposed forfeitures of $72,000 for sixteen of the
violations, and $270,000 for the other twenty-seven violations, we
propose a total forfeiture of $342,000. Security First 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
10. We have determined that Security First of Alabama, LLC apparently
violated section 227 of the Act and section 64.1200(a)(2) of the
Commission's rules by delivering 43 unsolicited, prerecorded
advertising messages to the 33 consumers identified in the Appendix.
We have further determined that Security First of Alabama, LLC is
apparently liable for a forfeiture in the amount of $342,000.
V. ORDERING CLAUSES
11. 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 Security First of Alabama, LLC is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of $342,000 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 rules, 47 C.F.R. S: 64.1200(a)(2).
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, Security First of
Alabama, LLC 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). Security First shall also send
electronic notification to Johnny.Drake@fcc.gov on the date said
payment is made. 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.
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 Security First of Alabama, LLC,
Attention: Raul L. Baguer II, 4608 Crossings Lane, Birmingham, AL
35242, 2308 Colony Park Dr., Birmingham, AL 35243, and 622 Cahaba
River Parc, Birmingham, AL 35243.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants Who Received Unsolicited Prerecorded Violation Date(s)
Messages
J. Stephens 7/14/2010
B. Ruffer 5/18/2010
K. Brotherton 5/17/2010
T. Covington 5/16/2010
J. Crownover 5/16/2010
K. Reed 5/16/2010
C. Stephens 5/15/2010
T. Reid 5/16/2010
C. Stagg 5/15/2010
C. Parker 5/15/2010
C. Adams 5/15/2010
S. Reid 5/14/2010
J. Rusk 5/11/2010
T. Trammell 5/10/2010
H. Laney 5/9/2010
L. Keeton 5/6/2010
Complainants Who Received Unsolicited
Prerecorded Messages and Also Received
Incorrect Caller ID or Other Inadequate Opt-Out Violation Date(s)
Information, And/Or Made Opt-Out Requests That
Were Not Honored
J. Felock 9/29/2010
M. Conaway 9/27/2010
B. Griffin 11/20/2010
E. Bishop 6/7/2010
D. Baker 9/30/2010
L. Henson 7/23/2010; 7/25/2010
S. Cameron 7/3/2010
B. Ball 7/1/2010
S. Smith 6/27/2010
E. Bishop 6/7/2010
D. Hunt 6/15/2010 (2 calls)
J. Anderson 5/25/2010 (2 calls)
C. Bazela 5/25/2010
L. Allen 5/22/2010
R. Marks 5/21/2010 (3 calls)
5/2/2010; 5/6/2010;
M. Ham 5/7/2010; 5/9/2010;
5/12/2010; 5/17/2010
G. Griner 5/16/2010
Security First has offices at 4068 Crossings Lane, Birmingham, AL 35242,
2308 Colony Park Dr., Birmingham, AL 35243, and 622 Cahaba River Parc,
Birmingham, AL 35243. Raul L. Baguer II is listed as contact person for
Security First. Accordingly, all references in this NAL to "Security
First" 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).
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)(4);
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" 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-08-TC-6825, issued to
Security First on November 26, 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 an applicant for
any of those listed instrumentalities, for violations of the Act or of the
Commission's rules and orders).
Commission staff mailed the citation to the following address: Security
First of Alabama, Attn: Raul L. Baguer, 4068 Crossings Lane, Birmingham,
AL 35242. See n.1, supra.
See Appendix for a listing of the consumer complaints against Security
First. In addition to complaints sent to this Commission, we have also
included complaints submitted to the Federal Trade Commission and compiled
on its Consumer Sentinel Network.
See, e.g., complaint dated July 14, 2010 from J. Stephens (stating that
complainant 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 47 U.S.C. S: 227(a)(5); 47 C.F.R. S: 64.1200(f)(13).
47 U.S.C. S: 503(b)(2)(D); 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).
See Warrior Custom Golf, Inc., Notice of Apparent Liability for
Forfeiture, 19 FCC Rcd. 23648, 23652 (2004) (first NAL to address
pre-recorded advertising messages); see also Septic Safety, Inc., Notice
of Apparent Liability for Forfeiture, 20 FCC Rcd. 2179 (2005); Septic
Safety, Inc., Forfeiture Order, 21 FCC Rcd. 6868 (2006); 1 Home Lending
Corporation, d/b/a Capital Line Financial, LLC., Notice of Apparent
Liability for Forfeiture, 21 FCC Rcd. 11852 (2006); 1 Home Lending
Corporation, d/b/a Capital Line Financial, LLC., Forfeiture Order, 24 FCC
Rcd 2888 (2009); Media Synergy Group, LLC, Notice of Apparent Liability
for Forfeiture, 25 FCC Rcd 10468, 10471 (2010).
See, e.g., complaint dated June 7, 2010 from E. Bishop ("This company has
repeatedly called our home for MONTHS now.")
See, e.g., complaint dated October 4, 2010 from J. Felock. The
Commission's rules prohibit the delivery of telephone solicitations to
residential telephone numbers that are contained in the national
Do-Not-Call Registry, except in limited situations. 47 C.F.R. S:
64.1200(c)(2).
See, e.g., complaint dated July 3, 2010 J. Neidergeses ("The phone number
given in their recording for one to call for their service, seems to
always be busy."), and complaint dated June 27, 2010 from S. Smith ("I
tried to call back but received an odd tone and was disconnected;
therefore I am unable to ask that they stop calling.").
See, e.g., complaint dated April 11, 2010 from M. Strain ("I left multiple
messages to take me off their calling list . . . but the calls
continue.").
The Commission's rules require that telemarketers transmit accurate caller
ID information. 47 C.F.R. S: 64.1601(e).
Letter from Audio Visual Projection Services, dated September 28, 2010,
forwarded by letter from Senator John McCain to Kevin Washington, Acting
Director of FCC Office of Legislative Affairs, dated October 8, 2010.
Dynasty Mortgage, LLC, Order of Forfeiture, 22 FCC Rcd 9453, 9469 (2007).
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 11-61
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Federal Communications Commission FCC 11-61