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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                                
                                                                          
                                         )                                
                                                                          
                                         )                                
                                                                          
     In the Matter of                    )   File No.: EB-06-TC-421       
                                                                          
     Response Card Marketing, Inc.       )   NAL/Acct. No.: 200832170045  
                                                                          
     Apparent Liability for Forfeiture   )   FRN: 0017629833              
                                                                          
                                         )                                
                                                                          
                                         )                                
                                                                          
                                         )                                


                                FORFEITURE ORDER

   Adopted: April 10, 2012 Released: April 10, 2012

   By the Chief, Enforcement Bureau:

   I. introduction

    1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
       of $9,000 against Response Card Marketing, Inc. ("Response Card
       Marketing") 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 two unsolicited advertisements
       to the telephone facsimile machine of one consumer.

   II. BACKGROUND

    2. The facts and circumstances surrounding this case are set forth in the
       Commission's Notice of Apparent Liability for Forfeiture ("NAL"), and
       need not be reiterated at length.

    3. The Telephone Consumer Protection Act of 1991 ("TCPA") was enacted by
       Congress to address problems of abusive telemarketing, in particular
       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 generally 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" unless the sender has
       an established business relationship with the recipient.

    4. On September 12, 2006, in response to a consumer complaint alleging
       that Response Card Marketing had faxed unsolicited advertisements, the
       Enforcement Bureau ("Bureau") issued a citation to Response Card
       Marketing, pursuant to section 503(b)(5) of the Act, for using a
       telephone facsimile machine, computer, or other device, to send
       unsolicited advertisements for insurance products to a telephone
       facsimile machine, in violation of section 227 of the Act and the
       Commission's related rules and orders. The citation informed Response
       Card Marketing 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. The Bureau did not
       receive a response to the citation.

    5. Following the issuance of the citation, the Commission received
       additional complaints from an individual, C. Stinnett, on the behalf
       of her employer, Seminole County Farm Bureau, alleging receipt of
       unsolicited facsimile advertisements from Response Card Marketing.
       These apparent violations, which occurred after the Bureau's citation,
       resulted in the issuance of the NAL against Response Card Marketing in
       the amount of $9,000. The NAL ordered Response Card Marketing either
       to pay the proposed forfeiture amount within thirty (30) days or
       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 May 2 and October 24, 2008, Response Card Marketing
       responded to the NAL.  In Response Card Marketing's May 2, 2008 NAL
       Response, it asserts that it only faxes information to individuals and
       businesses with whom it has an established business relationship. In
       support of its established business relationship, Response Card
       Marketing's October 24, 2008 Supplemental NAL Response included
       billing information, showing an order for a mailing list placed by J.
       Semtner, an agent at Seminole County Farm Bureau, the same
       organization at which complainant C. Stinnett worked.

   III. DISCUSSION

    6. Under the Commission's rules, the "established business relationship"
       exception permits a party to deliver a message to a consumer if: (1)
       the sender has an established business relationship with the
       recipient; (2) the sender obtained the number of the facsimile machine
       through the voluntary communication by the recipient, directly to the
       sender, within the context of the established business relationship,
       or through a directory, advertisement, or a site on the Internet to
       which the recipient voluntarily agreed to make available its facsimile
       number for public distribution; and (3) the advertisement contains a
       notice about how to "opt-out" of receiving future unsolicited
       advertisements from that company and does so in conformity with
       specific requirements set forth in the Commission's rules. Upon review
       of the record, we conclude that Response Card Marketing has
       demonstrated that it had an established business relationship with
       Seminole County Farm Bureau, and that it received that bureau's fax
       number through a voluntary communication in the context of that
       established business relationship, as evidenced by the order for a
       mailing list placed by J. Semtner, an agent at Seminole County Farm
       Bureau. However, the opt-out notice that Response Card Marketing
       provided in connection with the faxes in question does not satisfy all
       of the statutory and regulatory requirements.

    7. Section 64.1200(a)(3)(iii)(A)-(D) of the Commission's rules set forth
       the specific requirements that an opt-out must contain. Section
       64.1200(a)(3)(iii)(A) first requires that the opt-out language not
       only be clear and conspicuous, but also be located on the first page
       of the advertisement. Here, the notice that Response Card Marketing
       provided was on the second page of the advertisement rather than the
       first page. The importance of the requirement that the notice appear
       on the first page and not elsewhere is underscored by the fact that
       Congress specifically legislated that the Commission's implementing
       rules include this requirement.

    8. Section 64.1200(a)(3)(iii)(B) next requires the notice to state that
       the recipient may make a request to the sender of the advertisement
       not to send any future advertisements to a telephone facsimile machine
       or machines and that failure to comply, within 30 days, with such a
       request meeting specified requirements is unlawful. Rather than
       including such information for the fax recipient, the actual opt-out
       notice in the fax at issue here states, "Fax removals are easy! 24
       hour automated service, call 1-888-662-2677 and enter your reference
       ID ... and you will be removed immediately." Thus, the opt-out notice
       simply states that a recipient call a toll-free number to be removed
       from the company's fax list, but does not specify that failure to
       comply within 30 days is unlawful, as is required by the Commission's
       rules. Again, the importance of the timing requirement in the
       Commission's rules is evidenced by the fact that Congress legislated
       that the rules include such a requirement.

    9. Section 64.1200(a)(3)(iii)(C) requires that the notice include
       requirements, set out in subsection (a)(3)(v), for the recipient to
       follow in making an opt-out request. These requirements include that
       the request identify the particular telephone number of the facsimile
       machine to which the request relates; that the request is made to the
       telephone number, facsimile machine, website, or email address
       identified in the sender's fax; and that the recipient has not,
       subsequent to his or her request, authorized the sender to send a fax
       to him or her at the number indicated in the request. As indicated
       above, the notice in question here simply instructs the recipient to
       call a certain number and enter a "reference ID," which clearly does
       not satisfy the Commission's regulatory requirements. Again, these
       requirements were legislated by Congress.

   10. Finally, section 64.1200(a)(3)(iii)(D) of the rules requires that the
       opt-out notice include a domestic contact telephone number, facsimile
       machine number, and cost-free mechanism for opt-out requests, as
       required by Congress. While Response Card Marketing did provide a
       domestic contact telephone number as part of its opt-out notice, it
       did not provide the facsimile machine number for the recipient to
       transmit such a request to the sender.

   11. Accordingly, Response Card Marketing did not meet all of the other
       requirements of the opt-out notice provision under the established
       business relationship exception.  Because essential opt-out
       information was not provided, Response Card Marketing cannot take
       advantage of the established business relationship exception.

   12. Response Card Marketing failed to identify facts or circumstances to
       persuade us that there is a basis for canceling the proposed
       forfeiture. We are therefore not aware of any mitigating circumstances
       to warrant a cancellation or reduction of the forfeiture penalty.
       While Response Card Marketing submitted billing information, showing
       an order for a mailing list placed by J. Semtner, an agent at Seminole
       County Farm Bureau, in support of its established business
       relationship with the insurance company and that it obtained the
       recipient's fax number as required by Commission's rules, it failed to
       meet the opt-out notice requirement of the established business
       relationship exception. Based on the information before us, we hereby
       impose a total forfeiture of $9,000 for Response Card Marketing's
       willful or repeated violation of section 227 of the Act and the
       Commission's related rules and orders, for the reasons set forth in
       the NAL.

   III. 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(f)(4) of the Commission's rules, 47 C.F.R. S: 1.80(f)(4),
       and under authority delegated by sections 0.111 and 0.311 of the
       Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that Response Card
       Marketing, Inc. IS LIABLE FOR A MONETARY FORFEITURE to the United
       States Government in the sum of $9,000 for willfully or repeatedly
       violating section 227(b)(1)(c) of the Communications Act, 47 U.S.C. S:
       227(b)(1)(c), section 64.1200(a)(3) of the Commission's rules, 47
       C.F.R. S: 64.1200(a)(3), and the related orders as described in the
       paragraphs above.

   14. 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, 47 U.S.C. S: 504(a).
       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). Response Card Marketing, 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.

   15. 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 Response Card Marketing, Inc., 16 Pierson Drive, Andover, NJ 07821,
       Attention: Dennis Gordon.

   FEDERAL COMMUNICATIONS COMMISSION

   P. Michele Ellison

   Chief, Enforcement Bureau

   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).

   47 U.S.C. S: 227.

   Response Card Marketing, Inc., Notice of Apparent Liability for
   Forfeiture, 23 FCC Rcd. 5693 (Enf. Bur. 2008). According to Response Card
   Marketing's May 2, 2008 letter, the company had discontinued all
   operations as of the date of its response. Letter from Dennis Gordon,
   Response Card Marketing, Inc., to Telecommunications Consumers Division,
   Enforcement Bureau, File No. EB-06-TC-421, at 2, dated May 2, 2008
   ("Response Card Marketing's May 2, 2008 NAL Response").

   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); 47 C.F.R. S: 64.1200(a)(3).

   Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
   Consumers Division, Enforcement Bureau, File No. EB-07-TC-421, issued to
   Response Card Marketing  on September 12, 2006. Due to an administrative
   error, this citation was mailed out referring to File No. EB-07-TC-421.
   The correct file number is EB-06-TC-421.

   See 47 U.S.C. S: 503(b)(5) (authorizing the Commission to issue citations
   to non-common carriers for violations of the Act or of the Commission's
   rules and orders).

   Response Card Marketing refers to a citation response dated September 29,
   2006 in its May 2, 2008 NAL Response. However, the Bureau does not have
   any record of this response.

   See supra note 3; see also 47 U.S.C. S:503(b)(1).

   See Response Card Marketing's May 2, 2008 NAL Response, supra note 3;
   Letter from Dennis Gordon, Response Card Marketing, Inc., to
   Telecommunications Consumers Division, Enforcement Bureau, File No.
   EB-06-TC-421, dated October 24, 2008 ("Response Card Marketing's October
   24, 2008 Supplemental NAL Response").

   Response Card Marketing's May 2, 2008 NAL Response at 1.

   Response Card Marketing's October 24, 2008 Supplemental NAL Response,
   Exhibit A.

   An "established business relationship" is defined as a prior or existing
   relationship formed by a voluntary two-way communication "with or without
   an exchange of consideration, on the basis of an inquiry, application,
   purchase or transaction by the business or residential subscriber
   regarding products or services offered by such person or entity, which
   relationship has not been previously terminated by either party." 47
   C.F.R. S: 64.1200(f)(5).

   See 47 U.S.C. S: 227(b)(1)(C); see also 47 C.F.R. S: 64.1200(a)(3)(i),
   (ii), (iii). Section S: 64.1200(a)(3)(iii) reads as follows:

   The advertisement contains a notice that informs the recipient of the
   ability and means to avoid future unsolicited advertisements. A notice
   contained in an advertisement complies with the requirements under this
   paragraphs only if -- (A) The notice is clear and conspicuous and on the
   first page of the advertisement; (B) The notice states that the recipient
   may make a request to the sender of the advertisement not to send any
   future advertisements to a telephone facsimile machine or machines and
   that failure to comply, within 30 days, with such a request meeting the
   requirements under paragraph (a)(3)(v) of this section is unlawful; (C)
   The notice sets forth the requirements for an opt-out request under
   paragraph (a)(3)(v) of this section; (D) The notice includes - (1) A
   domestic contact telephone number and facsimile machine number for the
   recipient to transmit such a request to the sender; and (2) If neither the
   required telephone number nor facsimile machine number is a toll-free
   number, a separate cost-free mechanism including a Web site address or
   e-mail address for a recipient to transmit a request pursuant to such
   notice to the sender of the advertisement. A local telephone number also
   shall constitute a cost-free mechanism so long as recipients are local and
   will not incur any long distance or other separate charges for calls made
   to such number; and (E) The telephone and facsimile numbers and cost-free
   mechanism identified in the notice must permit an individual or business
   to make an opt-out request 24 hours a day, 7 days a week.

   See n.12 supra.

   See n.13 supra.

   47 C.F.R. S: 64.1200(a)(3)(iii)(A)-(D).

   47 C.F.R. S: 64.1200(a)(3)(iii)(A).

   See Rules and Regulations Implementing the Telephone Consumer Protection
   Act of 1991, CG Docket Nos. 02-278 and 05-338, Report and  Order and Third
   Order on Reconsideration, 21 FCC Rcd 3787, 3801, para. 26 (2006)("2006
   TCPA Report and Order and Third Order on Reconsideration")("Consistent
   with the definition in our truth-in-billing rules, `clear and conspicuous'
   for purposes of the opt-out notice means a notice that would be apparent
   to a reasonable consumer. We also conclude that the notice must be
   separate from the advertising copy or other disclosures and placed at
   either the top or bottom of the fax. Many facsimile advertisements today
   contain text covering the entire sheet of paper, making it difficult to
   see an opt-out notice that is placed amongst the advertising material.
   Thus, the notice must be distinguishable from the advertising material
   through, for example, use of bolding, italics, different font, or the
   like. We clarify that, in accordance with the Junk Fax Prevention Act, if
   there are several pages to the fax, the first page of the advertisement
   must contain the opt-out notice.") See also Truth-in-billing requirements
   at 47 C.F.R. S: 64.2401(e).

   47 U.S.C. S: 227(b)(2)(D)(i).

   See Complaint dated August 21, 2007, from C. Stinnett.

   See also 2006 TCPA Report and Order and Third Order on Reconsideration at 
   21 FCC Rcd 3787, 3803-4, paras. 30-31 ("The Junk Fax Prevention Act
   requires that the opt-out notice on the facsimile advertisement states
   that "failure to comply, within the shortest reasonable time, as
   determined by the Commission, with such a[n opt out] request ... is
   unlawful."..." In accordance with the Junk Fax Prevention Act, we conclude
   that senders must comply with an opt-out request within the shortest
   reasonable time of such request. Taking into consideration both large
   databases of facsimile numbers and the limitations on certain small
   businesses to remove numbers for individuals that opt-out, we conclude
   that a reasonable time to honor such requests must not exceed 30 days from
   the date such a request is made.")

   47 U.S.C. S: 227(b)(2)(D)(ii).

   47 C.F.R. S: 64.1200(a)(3)(iii)(C); 47 C.F.R. S: 64.1200(a)(3)(v).

   47 U.S.C. S:S: 227(b)(2)(D)(iii), 227(b)(2)(E).

   47 C.F.R. S: 64.1200(a)(3)(iii)(D).

   47 U.S.C. S: 227(b)(2)(D)(iv).

   See note 13, supra.

   See Rules and Regulations Implementing the Telephone Consumer Protection
   Act of 1991, CG Docket Nos. 02-278 and 05-338, Report and  Order and Third
   Order on Reconsideration, 21 FCC Rcd 3787, 3808, para. 40 (2006)("Based on
   our enforcement experience, and the fact that highly involved fax
   broadcasters will have firsthand knowledge of the inclusion of the opt-out
   notice, we determine that a fax broadcaster must, at a minimum, ensure
   that faxes it transmits on behalf of each sender contain the necessary
   information to allow a consumer to opt out of a particular sender's faxes
   in the future. Otherwise, the consumer may have no means of stopping
   unwanted faxes transmitted by the fax broadcaster on behalf of various
   advertisers.")

   (...continued from previous page)

                                                              (continued....)

   Federal Communications Commission DA 12-562

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   Federal Communications Commission DA 12-562