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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