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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File No.: EB-08-TC-2507
Presidential Who's Who )
NAL/Acct. No.: 201132170023
dba Presidential Who's Who, Inc. )
FRN: 0020197919
Apparent Liability for Forfeiture )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: June 13, 2011 Released: June 13, 2011
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Presidential Who's Who dba Presidential Who's Who, Inc.
("Presidential Who's Who") 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 31 unsolicited
advertisements, or "junk faxes," to the telephone facsimile machines
of 30 consumers. Based on the facts and circumstances surrounding
these apparent violations, we find that Presidential Who's Who is
apparently liable for a forfeiture in the amount of $295,000.
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 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 June 18, 2008, in response to a consumer complaint alleging that
Presidential Who's Who had faxed an unsolicited advertisement, the
Enforcement Bureau ("Bureau") issued a citation to Presidential Who's
Who, pursuant to section 503(b)(5) of the Act. The Bureau cited
Presidential Who's Who for using a telephone facsimile machine,
computer, or other device, to send an unsolicited advertisement for
entry in and sale of the publication "Presidential Who's Who" 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 Presidential Who's Who 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. Frank Ciaccio, on behalf of Presidential Who's Who,
requested an interview and claimed that the fax on which the citation
was based was not an advertisement. However, staff determined that the
fax in question was, in fact, an advertisement.
4. Subsequently, the Commission received numerous complaints from
consumers alleging that Presidential Who's Who had faxed additional
unsolicited advertisements to them. The complaints filed by 69
consumers (alleging 73 violations of our junk fax rules) resulted in
the issuance of an NAL against Presidential Who's Who on September 13,
2010 in the amount of $345,000. The September 2010 NAL ordered
Presidential Who's Who either to pay the proposed forfeiture amount
within 30 days or to submit evidence or arguments to show that no
forfeiture should be imposed or that some lesser amount should be
assessed. Presidential Who's Who responded to this first NAL on
January 26, 2011, claiming the fax numbers to which the alleged
unsolicited facsimile advertisements were sent were obtained legally.
It did not, however, provide any basis for this argument.
5. In addition to the complaints forming the basis of the September 2010
NAL, the Commission has received still more complaints. Specifically,
the Commission has received additional complaints filed by 30
consumers, alleging that Presidential Who's Who sent 31 additional
unsolicited advertisements not accounted for in the September 2010 NAL
to telephone facsimile machines between June 14, 2010 and October 20,
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 Presidential Who's Who 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 Presidential Who's
Who apparently used a telephone facsimile machine, computer, or other
device to send the consumer at least one unsolicited advertisement.
7. For purposes of our "junk fax" rules, an "unsolicited advertisement"
is "any material advertising the commercial availability of 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." The Commission has explained that faxes
promoting publications at no cost can qualify:
"Free" publications are often part of an overall marketing campaign to
sell property, goods, or services. For instance, while the publication
itself may be offered at no cost to the recipient, the products promoted
within the publication are often commercially available. Based on this, it
is reasonable to presume that such messages describe the "quality of any
property, goods, or services." Therefore, facsimile communications
regarding such free goods and services, if not purely "transactional,"
would require the sender to obtain the recipient's permission beforehand,
in the absence of an EBR.
8. The faxes of Presidential Who's Who appear to qualify as unsolicited
fax advertisements. The facsimile transmissions at issue advertise
entry in and sale of the publication "Presidential Who's Who." While
the faxes do not charge individuals for listings in the "Presidential
Who's Who" publication, they do either offer for sale the publication
itself, or serve as a prelude to such an offer. For example, as we
explained in the September 2010 NAL, evidence demonstrates that
Presidential Who's Who attempts to sell the publication in follow-up
calls between the complainant and the company. As such, the faxes
appear to be part of an "overall marketing campaign" to sell the
publication. Under these circumstances, and given that the recipients
have not authorized Presidential Who's Who to send them the faxes, the
faxes underlying the complaints at issue in the current NAL qualify as
unsolicited advertisements. Because the consumers, according to their
complaints, did not have an established business relationship with
Presidential Who's Who, we conclude in the current NAL that
Presidential Who's Who has apparently violated section 227(b)(1)(C) of
the Act and section 64.1200(a)(3) of the Commission's rules by sending
31 unsolicited advertisements to 30 consumers' facsimile machines.
A. Proposed Forfeiture
9. 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." The maximum penalty that the Commission may impose
against an entity such as Presidential Who's Who is currently $16,000
per violation.
10. The Commission has previously considered $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 30 of the
apparent violations at issue in this NAL, and a $10,000 forfeiture to
one of the apparent violations involved in this NAL where the consumer
received a facsimile from Presidential Who's Who after specifically
requesting that the company cease sending them. Based on application
of these standards, the total forfeiture proposed in this case would
be $145,000.
11. 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 the instant case.
12. As a result, we believe that different and harsher penalties than
those we have imposed in the past are now appropriate for entities who
engage in a significant number of violations, such as Presidential
Who's Who. With today's NAL, we have now taken three enforcement
actions, involving a total of more than one hundred violations,
against Presidential Who's Who for noncompliance with section 227 of
the Act 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 citation, occurred after the
Bureau first warned Presidential Who's Who, via citation, that its
conduct violated the law, and some apparent violations relate to
conduct that occurred after the September 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 the forfeiture guidelines, such
"intentional misconduct" and "prior violations of ... FCC
requirements."
13. Accordingly, weighing the facts before us, including the fact that
Presidential Who's Who has engaged in a significant number of
violations after warnings by the Commission, we impose an upward
adjustment of $150,000 for the unsolicited fax advertisements at issue
here, for a total proposed forfeiture of $295,000. ($145,000 +
$150,000 = $295,000) As a practical matter, this adjustment amounts to
a penalty of approximately $9,500 for each of the apparent violations
at issue in this NAL. The penalty we propose here is well within our
statutory 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 $496,000 for the 31 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 upward adjustment and overall proposed penalty that we impose here
against Presidential Who's Who is appropriate due to the number of
apparent violations, and the fact that Presidential Who's Who
apparently engaged in much of its 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 annoyance and harms caused by such conduct, including
assessing the statutory maximum forfeiture amount of $16,000 per
violation.
IV. CONCLUSION
14. We have determined that Presidential Who's Who 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 31 unsolicited advertisements to the 30
consumers identified in the Appendix. We have further determined that
Presidential Who's Who is apparently liable for a forfeiture in the
amount of $295,000.
V. ORDERING CLAUSES
15. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the
Communications Act of 193, as amended, 47 U.S.C. S: 503(b), and
section 1.80 of the rules, 47 C.F.R. S: 1.80, that Presidential Who's
Who dba Presidential Who's Who, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of $295,000 for
willful and repeated violations of section 227(b)(1)(C) of the
Communications Act of 1934, as amended, 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).
16. 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, Presidential Who's
Who dba Presidential Who's Who, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
17. 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). Presidential Who's Who dba
Presidential Who's Who, Inc. 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.
18. 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, S.W., 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.
19. 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.
20. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for a Forfeiture shall be sent by Certified Mail Return Receipt
Requested and First Class mail to Presidential Who's Who dba
Presidential Who's Who, Inc., Attention: Frank Ciaccio, President, and
Mark Anthony McGuinness, 134 Rockaway Avenue, Valley Stream, NY 11580.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainants and Violation Dates
Complainant received facsimile solicitations Violation Date(s)
Adams, R. 6/22/10
Bernard, T. 7/23/10
Byron, F. 9/10/10
Buchicchio, K. 9/21/10
Cochran, R. 9/21/10
Dawdy, C. 9/29/10
Elkowitz, A. 9/29/10
Gallo, A. 6/14/10
Glick, L. 9/13/10
Gonzales, J. 8/6/10
Goodman, L. 9/13/10
Jacobs, M. 6/29/10
Kay, K. 10/6/10
Lester, R. 6/16/10
Leyman, L. 9/7/10
Marzane, D. 6/29/10
McKeown, C. 8/11/10
Meyers, J. 9/13/10
Neil, Sr., L. 9/7/10
Pitric, M. 6/22/10
Rothstein, M. 10/20/10
Schroeder, J. 7/19/10, 9/21/10
Shaw, L. 6/14/10
Smith, M. 10/5/10
Sparks, H. 9/13/10
Spivey, S. 9/7/10
Stern, L. 8/6/10
Wells, G. 9/13/10
Yi, M. 9/29/10
Complainant received facsimile solicitations after Violation Date(s)
requesting no more be sent
McDonald, A. 8/3/10
According to publicly available information, Presidential Who's Who is
also doing business as Presidential Who's Who, Inc. Therefore, all
references in this NAL to "Presidential Who's Who" encompass Presidential
Who's Who as well as Presidential Who's Who, Inc. Presidential Who's Who
has offices at 134 Rockaway Ave., Valley Stream, NY 11580. Frank Ciaccio,
President, and Mark Anthony McGuiness, Chief Operating Officer, are the
contact persons for Presidential Who's Who. Accordingly, all references in
this NAL to Presidential Who's Who also encompass the foregoing
individuals 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-2507, issued to
Presidential Who's Who on June 18, 2008.
Telephone interview conducted on July 11, 2008 between Frank Ciaccio,
representing Presidential Who's Who, and Kurt Schroeder, Deputy Chief,
Telecommunications Consumers Division, Enforcement Bureau, and Mary
Romano, Special Advisor, Telecommunications Consumers Division,
Enforcement Bureau.
See infra P: 8. Presidential Who's Who did not provide any information to
indicate that its fax was part of a prior transaction or that it had an
established business relationship with the fax recipient. Additionally,
neither the TCPA nor the Commission's rules contain any exceptions for
unsolicited fax advertisements sent in error.
See Presidential Who's Who dba Presidential Who's Who, Inc., Notice of
Apparent Liability for Forfeiture, 25 FCC Rcd 13759 (2010) ("September
2010 NAL").
See September 2010 NAL, 25 FCC Rcd at 13763.
See Appendix for a listing of the consumer complaints against Presidential
Who's Who requesting Commission action. We note that evidence of
additional instances of unlawful conduct by Presidential Who's Who may
form the basis of subsequent enforcement action.
47 C.F.R. S: 64.1200(f)(13).
Junk Fax Prevention Act of 2005, 21 FCC Rcd at 3814 (footnotes omitted).
The company's website also advertises that the publication is for sale.
See http://www.presidentialwhoswho.org/index-5.html.
Junk Fax Prevention Act of 2005, 21 FCC Rcd at 3814 (footnotes omitted).
See, e.g., complaint dated June 14, 2010 from A. Gallo (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).
See 47 U.S.C. S: 503(b)(1)(C). 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] ...." Id. The Commission has the authority under section
503(b)(5) of the Act to assess such 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: 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 17087, 17110
(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 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.,
a/k/a 20th Century Fax(es), 15 FCC Rcd 24,406, 24,411 (2000).
See Appendix for a listing of the consumer complaints against Presidential
Who's Who requesting Commission action.
See e.g., Get-Away, Inc. 15 FCC Rcd at 1812. But see The Street Map
Company, Notice of Apparent Liability for Forfeiture, FCC 11-85 (June 1,
2011) ("The Street Map NAL")(implementing approach similar to that in the
instant NAL, and imposing an upward adjustment for repeat violations);
Fax.com, Inc., Notice of Apparent Liability for Forfeiture, 17 FCC Rcd
15927 (2002) (applying an upward adjustment to 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 The
Street Map NAL and 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 is necessary 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
The Street Map Company and Fax.com, Inc. where we imposed a harsher
penalty for a significant number of violations. See Street Map NAL, supra
n. 25 and Fax.com, Inc., 17 FCC Rcd at 15493.
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 Presidential Who's Who'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 $150,000 amounts to approximately $5,000 for each
of 30 of the violations at issue in this NAL that are not already subject
to upward adjustment (i.e., all of the violations except the one for which
we assess a $10,000 penalty). The combination of the base forfeiture and
the upward adjustment per violation for each of the 30 violations is
therefore approximately $9,500, which is in the range of the $10,000
penalty we assess when a consumer has specifically requested a company not
to send an unsolicited fax. It is more than the approximate $6,000 per
violation forfeiture we proposed in The Street Map NAL where the overall
number of apparent junk fax violations was significantly less than the
over one hundred violations in this case. The upward adjustment we apply
in the instant NAL and that in The Street Map NAL are proportionate to the
difference in the number of violations at issue in each case. We note,
however, that while the upward adjustment the Commission applies today in
this case amounts to approximately $5,000 per violation, it is not the
Commission's intent in every case to mechanically apply a $5,000 upward
adjustment. We fully intend, as we did in this case and in The Street Map
NAL, to apply an appropriate upward adjustment on a case-by-case bases
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 27.
47 C.F.R. S: 1.80.
(...continued from previous page)
(continued....)
Federal Communications Commission FCC 11-95
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Federal Communications Commission FCC 11-95