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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File Nos.: EB-08-TC-998
In the Matter of
) EB-07-TC-5233
The Street Map Company
) NAL/Acct. No.: 201132170002
Apparent Liability for Forfeiture
) FRN: 0020318242
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 27, 2011 Released: June 1, 2011
By the Commission: Commissioner Baker not participating.
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that The Street Map Company ("Street Map") 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 51 unsolicited
advertisements, or "junk faxes," to the telephone facsimile machines
of 48 consumers. Based on the facts and circumstances surrounding
these apparent violations, we find that Street Map is apparently
liable for a forfeiture in the amount of $315,500.
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 February 5, 2008, in response to consumer complaints alleging that
Street Map had faxed unsolicited advertisements, the Bureau issued a
citation to Street Map, pursuant to section 503(b)(5) of the Act. The
Bureau cited Street Map for using a telephone facsimile machine,
computer, or other device, to send unsolicited advertisements to a
telephone facsimile machine, in violation of section 227(b)(1)(C) of
the Act and section 64.1200(a)(3) of the Commission's rules. The
citation informed Street Map 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. Street Map
did not respond to this citation.
4. 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 Street Map
continued to send junk faxes after issuance of the citation. Eleven of
these complaints resulted in the Commission issuing an NAL against
Street Map on November 10, 2010, and proposing a forfeiture in the
amount of $55,000. The November 2010 NAL ordered Street Map either to
pay the proposed forfeiture within thirty days or to submit evidence
or arguments to show that no forfeiture should be imposed or that some
lesser amount should be assessed. To date, Street Map has neither paid
the forfeiture proposed nor responded to the November 2010 NAL.
5. In addition to the complaints forming the basis of the November 2010
NAL, the Commission has received still more complaints. Specifically,
the Commission has received additional complaints filed by 48
consumers, alleging that Street Map sent at least 51 additional
unsolicited advertisements not accounted for in the November 2010 NAL
to telephone facsimile machines between June 5, 2010 and November 30,
2010.
III. DISCUSSION
A. Apparent Violations of Section 227(b)(1)(C) of the Act and the
Commission's Rules Restricting Unsolicited Facsimile
Advertisements
6. In this NAL, we find that Street Map has again apparently violated
section 227(b)(1)(C) of the Act and section 64.1200(a)(3) of our rules
by using a facsimile machine, computer, or other device to send
unsolicited advertisements to consumers. Each of the consumers listed
in the Appendix has provided evidence that Street Map apparently used
a telephone facsimile machine, computer, or other device to send the
consumer one or more unsolicited advertisements for maps. Further,
according to the complaints, the consumers did not have an established
business relationship with Street Map, and did not give Street Map
permission to send the facsimile transmissions. Based on the entire
record, including the consumer complaints, we therefore conclude that
Street Map has apparently violated section 227(b)(1)(C) of the Act and
section 64.1200(a)(3) of the Commission's rules by sending 51
unsolicited advertisements to 48 consumers' facsimile machines.
A. Proposed Forfeiture
7. 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," an "[i]ntentional violation," or where the
subject of an enforcement action has "[p]rior violations of any FCC
requirements." Currently, the maximum penalty that the Commission may
impose against an entity such as Street Map is $16,000 per violation.
8. The Commission has generally considered a penalty of $4,500 per
unsolicited fax advertisement as an appropriate base forfeiture for
violating the prohibition against sending them. In addition, where the
consumer has requested that the company stop sending facsimile
messages, and the company has continued to send them, the Commission
has previously considered $10,000 per unsolicited fax advertisement
the appropriate forfeiture for such egregious violations. Consistent
with this past approach, we will apply the $4,500 base forfeiture to
49 of the apparent violations at issue in this NAL, and a $10,000
forfeiture to two of the apparent violations in this NAL where the
consumer received a facsimile from Street Map after specifically
requesting that the company cease sending them. Based on the
application of these standards, the total forfeiture proposed in this
case would be $240,500.
9. In the past, the Commission generally has not adjusted upward the base
forfeiture for multiple, repeated violations of our junk fax rules.
The base forfeiture of $4,500 alone was generally considered
sufficient to protect consumers and deter companies from engaging in
further unlawful conduct. It has become increasingly apparent,
however, that the amount of our proposed forfeitures for apparent
violations of the junk fax prohibitions has failed to deter the more
persistent wrongdoers, as is evident in this case.
10. As a result, we believe that different and harsher penalties than
those we have imposed in the past are appropriate for entities who
engage in a significant number violations, such as Street Map. With
today's NAL, we have now taken four enforcement actions, involving a
total of sixty-two apparent violations, against Street Map for
noncompliance with section 227 that Congress enacted and that we have
implemented and are charged with enforcing. All of these apparent
violations, except those that formed the basis for the original
citations, occurred after the Enforcement Bureau first warned Street
Map, via citation, that its conduct violated the law, and some
apparent violations relate to conduct that occurred after the November
2010 NAL. The penalty that we apply must take into account, in the
language of section 503(b)(2)(E), this "degree of culpability" and
"history of prior offenses," and in the language of our forfeiture
guidelines, such an "intentional violation[s]" and the "prior
violations of ... FCC requirements."
11. Accordingly, weighing the facts before us, including the fact that
Street Map has engaged in a significant number of violations after
warnings by the Commission, we impose an upward adjustment of $75,000
for the unsolicited fax advertisements at issue here, for a total
proposed forfeiture of $315,500. ($240,500 + $75,000 = $315,500) As a
practical matter, this adjustment amounts to a penalty of around
$6,000 for each of the apparent violations at issue in this NAL. The
penalty we propose here is well within our discretion, because as
indicated above, the Act permits us to impose a forfeiture of as much
as $16,000 per violation, or a total of $832,000 for the fifty-two
violations at issue in this NAL. Moreover, while in the past we
generally have not adjusted upward the base forfeiture for junk faxes
as a result of the number of violations at issue, doing so now is
clearly within our discretion under the factors set forth in section
503(b)(2)(E) of the Act, and in fact consistent with our past approach
of applying a harsher penalty to junk fax violations for a significant
number of apparent violations. We believe the adjustment amount and
overall penalty we impose here against Street Map is appropriate due
to the number of apparent violations, and the fact that Street Map
apparently engaged in much of the misconduct deliberately, given its
disregard for the Commission's previous warnings. Those who violate
our junk fax rules are on notice that we intend to use the full range
of our enforcement power to deter future noncompliance and protect
consumers from the annoyance and harms caused by such conduct,
including assessing the statutory maximum forfeiture amount of $16,000
per violation.
IV. CONCLUSION
12. We have determined that The Street Map Company 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 51 unsolicited advertisements to the 48
consumers identified in the Appendix. We have further determined that
The Street Map Company is apparently liable for a forfeiture in the
amount of $315,500.
V. ORDERING CLAUSES
13. 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 The
Street Map Company is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of $315,500 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).
14. IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's
rules, that within thirty (30) days of the release date of this Notice
of Apparent Liability for Forfeiture, The Street Map Company SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
15. 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). The Street Map Company 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.
16. The response, if any, must be mailed both to: Marlene H. Dortch,
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, D.C. 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, D.C.
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, D.C. 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.
17. 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.
18. 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 The Street Map Company, Attention:
Patrick Keane, 24-A Trolley Square, Wilmington, DE 19806, 1800
Lovering Ave., Wilmington, DE 19806-2122, and 717 N. Union St.,
Wilmington, DE.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Apparent Violation Dates
Complainant received facsimile Apparent Violation Date(s)
solicitations
A. Glass, Georgia Inst. of Tech. - 6/5/2010
College of Computing
S. Goba, Illinois Document Preparation 6/21/2010
Co.
S. Arteman, Arteman's Cycle Repair 6/30/2010
B. Krasny 7/7/2010
S. Weigel 7/13/2010
L. Tanner 7/16/2010
C. Rowe 8/1/2010
G. Roland, Roland, Inc. 8/3/2010
A. Gallo, The George Washington 8/9/2010 (2 faxes)
University
C. Sweigler 8/12/2010
J. Wright 8/12/2010
A. Deperty 8/12/2010
M. Markin 8/15/2010
G. Howard 8/17/2010
M. Perry 8/19/2010
A. Thornock 8/23/2010
M. Gerebenics 8/12/2010; 8/13/2010
W. Scull 9/4/2010
K. Hall 9/6/2010
R. Pike, Flight Express 9/8/2010; 10/4/2010
M. Coleman 9/10/2010
R. Blaustein 9/14/2010
K. Laufer 8/30/2010
D. Peterson, Brooks & Peterson CPS's, LLC 9/17/2010
W. Smith 9/21/2010
M. Freeman 9/11/2010
P. Leitman 8/30/2010
S. Wascher 9/6/2010
R. Antonin, Law Offices of R. Fluerantin 9/28/2010
& Associates, P.A.
H. Lavado 9/14/2010
D. Kappel 10/4/2010
H. Bischoff 10/11/2010
L. Dudley, Dudley's Trophies 10/13/2010
A. Vance 10/15/2010
D. Taylor, Diamond Dust 10/12/2010
J. Sheaffer 10/20/2010
E. Walton, Monroe County Scoio-Legal 10/19/2010
Center
C. Schembri 10/28/2010
G. Cast, PDA Myrtle Beach/Florence 11/6/2010
J. James 11/14/2010
J. Andelin 11/14/2010
J. Hawley 11/16/2010
M. Crenshaw, Luck Stone Corporation 11/16/2010
M. Kleiman 11/26/2010
J. Ochse, WareOnEarth 11/2/2010
D. Wood, USPTO 11/30/2010
Complainant received facsimile solicitations after Violation Date(s)
requesting no more be sent
S. Scaramuzzo 6/24/2010
D. Neumetzger 10/30/2010
According to publicly available information, Street Map is also doing
business as Rockford Map Gallery, LLC, First State Map & Globe Co., Globe
World, Rockford Map and Globe, and Trump Map. Co. Therefore, all
references in this NAL to "Street Map" encompass all of these companies.
Street Map has offices at 24-A Trolley Square, Wilmington, DE 19806; 1800
Lovering Ave., Wilmington, DE 19806-2122; and 717 N. Union St.,
Wilmington, DE 19805. Patrick Keane is listed as the contact person for
Street Map. Accordingly, all references in this NAL to "Street Map" 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), codified at 47 U.S.C. S:
227.
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 website on 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); See also Junk
Fax Prevention Act R&O, 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) (requiring 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, or engaged in activities for which such
instrumentalities are necessary, 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-08-TC-998, issued to
Street Map on February 5, 2008. Earlier, the Commission had issued a
similar citation to First State Globe & Map Co., and received no response.
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-5233, July 15,
2007. At the time the citation was issued to First State, the Commission
was not aware that First State and Street Map were associated.
The Street Map Company, Notice of Apparent Liability for Forfeiture, 25
FCC Rcd 16371 (2010) ("November 2010 NAL").
See Appendix for a listing of the consumer complaints against Street Map
requesting Commission action. We note that evidence of additional
instances of unlawful conduct by Street Map may result in further
enforcement action.
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). An "unsolicited advertisement" is "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 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 inflation
increased the forfeiture maximum for this type of violator at $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 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 16,837, 16,842 (2000); 21st Century Fax(es) Ltd., AKA
20th Century Fax(es), Notice of Apparent Liability for Forfeiture, 15 FCC
Rcd 24,406, 24,411 (2000).
See e.g., Get-Away, Inc. 15 FCC Rcd at 1812. But see Fax.com, Inc., Notice
of Apparent Liability for Forfeiture, 17 FCC Rcd 15927 (2002) (applying an
upward adjustment of the base forfeiture for each of 489 apparent junk fax
violations, for a total proposed forfeiture of $5,379,000).
For example, we recently issued a forfeiture order against another entity,
assessing a total penalty of over $1.6 million, imposed through three
different NALs, and involving nearly 300 violations of our junk fax rules.
Mexico Marketing, LLC, Forfeiture Order, FCC 11-48 (2011). The repeated
nature of the apparent violations in this case and those at issue in
Mexico Marketing persuade us that an upward adjustment is necessary to
adequately deter entities from violating our junk fax prohibitions. Our
decision to impose an adjustment in today's NAL demonstrates our
recognition of the greater power that Congress has given us, and that
appears to need to be exercised in order to enforce Congress's prohibition
against unsolicited fax ads.
This is consistent with the action taken by the Commission with respect to
Fax.com, Inc. where we imposed a harsher penalty for a significant number
of violations. See Fax.com, Inc., 17 FCC Rcd at 15943.
Section 504(c) of the Act, 47 U.S.C. S: 504(c), prohibits the Commission
from using the issuance of an NAL against a party in one proceeding to the
prejudice of that party in another proceeding, until either the party pays
the forfeiture or a court issues a final order that it do so. However,
this prohibition does not restrict the Commission from considering the
facts that underlie prior NALs. Commission's Forfeiture Policy Statement &
Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, Report & Order, 12 FCC Rcd 17087, 17102-17104 (1997). Thus,
consideration in the current NAL of Street Map's past conduct that led to
our earlier enforcement actions is fully consistent with section 504(c) of
the Act. See Commission's Forfeiture Policy Statement & Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
Memorandum Opinion & Order, 15 FCC Rcd. 303, 303-305 (1999).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80 sec. II (Adjustment Criteria for Section 503
Forfeitures).
The upward adjustment of $75,000 amounts to approximately $1,500 for each
of the 49 apparent violations at issue in this NAL that are not already
subject to upward adjustment (i.e., all of the violations except the two
for which we assess a $10,000 penalty). The combination of the base
forfeiture and the upward adjustment for each of the 49 apparent
violations is therefore approximately $6,000. We note, however, that while
the upward adjustment we apply in this case amounts to approximately
$1,500 per violation, it is not the Commission's intent in every case of
junk faxes to mechanically apply a $1,500 upward adjustment. We fully
intend, as we did in this case, to apply an appropriate upward adjustment
on a case-by-case basis, taking into account our obligation under section
503(b)(2)(E) of the Act. In this respect, we may apply a higher forfeiture
amount, including the $16,000 statutory maximum if the facts of a
particular case warrant.
See supra note 18.
47 C.F.R. S: 1.80.
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Federal Communications Commission FCC 11-85
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Federal Communications Commission FCC 11-85