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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
Patrick Keane ) File No.: EB-12-TCD-00000305
a/k/a The Street Map Co., Accurate ) NAL/Acct. No.: 201332170001
Map Co., Data World, Map World, Map
Co. ) FRN: 0020318242
Apparent Liability for Forfeiture )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: October 22, 2012 Released: October 23, 2012
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Patrick Keane, operating under various business names, apparently
willfully and repeatedly violated Section 227(b)(1)(C) of the
Communications Act of 1934, as amended (Communications Act or Act),
and Section 64.1200(a)(4) of the Commission's rules, by delivering 38
unsolicited advertisements, or "junk faxes," to the telephone
facsimile machines of 31 consumers. As discussed below, in the last
two years, the Commission has issued NALs against Mr. Keane for 62
additional junk fax violations. Based in part on the fact that the
Commission, with today's NAL, has now taken enforcement action against
Mr. Keane for 100 junk fax violations, we find that Mr. Keane is
apparently liable for the maximum penalty permitted by law for the
apparent violations at issue in this NAL, and propose a forfeiture of
$16,000 for each such violation, for a total forfeiture in the amount
of $608,000.
II. BACKGROUND
2. The Telephone Consumer Protection Act of 1991 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
The Street Map Co. (Street Map) had faxed unsolicited advertisements,
the Bureau sent a citation to Mr. Keane and Street Map pursuant to
Section 503(b)(5) of the Act. Despite the citation's warning that
subsequent violations could result in the imposition of monetary
forfeitures, the Commission continued to receive numerous additional
consumer complaints indicating that Mr. Keane, operating as Street
Map, continued to send junk faxes after the citation. Based on
complaints concerning junk faxes received between November 2009 and
November 2010, the Commission issued two Notices of Apparent Liability
for Forfeiture against Mr. Keane operating as Street Map and other
names. The first NAL involved 11 faxes and proposed a forfeiture of
$55,000, while the second involved 51 faxes and proposed an additional
forfeiture of $315,500. The NALs named both Mr. Keane and Street Map,
as well as other business and trade names under which Mr. Keane has
apparently operated. Mr. Keane did not respond to either NAL.
4. Notwithstanding the citation and the two NALs, Mr. Keane has
apparently continued to send junk faxes, albeit using different names,
or variations on the same name, such as "Accurate Map Co.," "Data
World," "Map World.," and "Map Co." None of these names-or the name
"Street Map"- appears to be registered as a fictitious or other trade
name, and all appear to be traceable to Mr. Keane. All of the faxes
advertise laminated maps and share similar designs and layouts,
including use of a distinctive cartoon manikin touting the benefits of
the maps. Moreover, all but one of the faxes at issue in this NAL use
the same street address and telephone numbers. This address (717 N.
Union St., Wilmington, DE 19805) and the three telephone numbers
(888-801-4409, 855-888-8842, and 855-321-7755) are all assigned to Mr.
Keane and billed either to Street Map (888-801-4409) or to another of
his business names, First State Map Company (855-888-8842 and
855-321-7755). In addition, the address and one of the telephone
numbers, 855-888-8842, are listed as contact information for Mr. Keane
and another of his map enterprises, Learnamap.com.
5. The one fax mentioned above that uses a different address and phone
number is the subject of a complaint filed with the Commission on
September 5, 2012 by the New York City Police Department. This fax is
similar to the other faxes in that it advertises the same type of
laminated maps and uses a similar design, including the same cartoon
manikin. The only material difference between this recent fax and the
other faxes discussed above is it appears that Mr. Keane is now using
a new business name (Map Co.), a new Wilmington, DE address (4023
Kennett Pike, STE 132), and a new telephone number for responses
(855-744-5544). As with the other business names, Map Co. does not
appear to be an actual company or registered trade name. Further,
according to telephone company records, the new telephone number
(855-744-5544) is assigned to Mr. Keane's business, First State Map
Company.
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 Mr. Keane has again apparently violated
Section 227(b)(1)(C) of the Act and Section 64.1200(a)(4) of the
Commission's rules by using a facsimile machine, computer, or other
device to send unsolicited advertisements to consumers. Under the
Commission's rules, the sender of a junk fax is "the person or entity
on whose behalf a facsimile unsolicited advertisement is sent or whose
goods or services are advertised or promoted in the unsolicited
advertisement." Each of the consumers listed in Appendix A has
provided evidence that he or she received a junk fax or faxes from Mr.
Keane, operating through different business names; that he or she did
not have an established business relationship with Mr. Keane, or any
of his business names; and that he or she did not give him permission
to send the faxes. The faxes at issue here clearly constitute
advertisements, as they advertise laminated maps, and encourage
consumers to place orders for those maps by calling one of Mr. Keane's
telephone numbers. The faxes therefore fall within the definition of a
prohibited "unsolicited advertisement."
A. Proposed Forfeiture
7. Section 503(b)(1)(B) of the Act authorizes the Commission to impose a
forfeiture against any person who "willfully or repeatedly fail[s] to
comply with any of the provisions of [the] Act or of any rule,
regulation, or order issued by the Commission." As to certain
violators-for example, individuals such as Mr. Keane who are not
themselves holders of or applicants for any form of Commission
authorization and whose violations do not involve conduct for which
such authorization is necessary-the Commission must first issue a
citation, as it did in this case, warning them of the violation
charged before imposing monetary penalties. "In determining the amount
of . . . a forfeiture penalty," Section 503(b)(2)(E) mandates that
"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." The Commission's 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 a person or
business such as Mr. Keane 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 junk faxes. The Commission
has increased the penalties, however, for entities and individuals who
have engaged in numerous and repeated violations. For example, in the
second NAL against Mr. Keane, the Commission proposed a forfeiture of
$315,500, which included an upward adjustment for the more than 60
apparent junk fax violations in which he had engaged at that time. As
we have noted in these recent cases, we intend to apply appropriate
upward adjustments, up to the $16,000 statutory maximum forfeiture, on
a case-by-case basis, taking into account our obligation under section
503(b)(2)(E) of the Act. Indeed, where the Commission has found that a
given violator of junk fax or other TCPA prohibitions appears to have
engaged in deceit by attempting to disguise its identity to confuse
consumers or evade law enforcement, the Commission has proposed the
full statutory maximum of $16,000 per unsolicited fax.
9. Consistent with the factors that must control our determination of the
amount of a forfeiture penalty to assess for a given violator and
violation, we propose the maximum penalty of $16,000 for each of the
38 violations at issue in this NAL, for a total proposed forfeiture of
$608,000. As in other recent cases where the Commission has proposed
the maximum penalty, we do so here because Mr. Keane has apparently
engaged in numerous and repeated violations, and has done so
intentionally and in an egregious manner.
10. With this NAL, we have now taken enforcement actions against Mr. Keane
for 100 apparent violations of the Junk Fax Act and the Commission's
implementing rules. All of these apparent violations occurred after
the Enforcement Bureau first warned Mr. Keane, via citation, that his
conduct violated the law. All of the apparent violations in the
present case also occurred after both our prior NALs. The fact that
Mr. Keane appears to have engaged in such a large number of violations
after having been told, several times, that his conduct violated the
law strongly suggests that he acted with deliberate and intentional
disregard for TCPA requirements and the consumers the law is designed
to protect.
11. Mr. Keane's use of different, multiple names to send unsolicited fax
advertisements further suggests a deliberate intent to violate the
law. As indicated, the faxes at issue in NAL 1 and NAL 2 used the name
"Street Map," while the faxes at issue in the current NAL use the
names "Accurate Map," "Data World," "Map World," and "Map Co." None of
these names appears to be an actual, independent legal entity, or a
registered fictitious business name. Mr. Keane appears to have no
purpose for using these different names other than to disguise that he
is the sender of the junk faxes. This again suggests that Mr. Keane is
intentionally violating the law.
12. As a further reason to impose the maximum penalty authorized, we note
that the faxes at issue in this NAL violate not only the prohibition
on sending junk faxes but certain other rules as well. Section
68.318(d) of our rules requires that every fax must show, in the
margin, the date and time it was sent and an identification of the
business, entity, or individual sending the message, as well as the
telephone number of the sending machine. Section 64.1200(a)(4)(iii) of
the Commission's rules requires that all unsolicited advertisements
contain an opt-out notice that informs the recipient of the ability
and means to avoid future unsolicited advertisements, including a
domestic telephone number that the recipient can call to transmit such
requests to the sender. None of the faxes submitted with the
complaints comply with any of these requirements. In fact, as a
complainant points out, the ostensible opt-out number on many of the
faxes is actually the number provided by the Federal Trade Commission
for consumers to call and list their telephone numbers on the National
Do Not Call Registry, a number and registry that has no relevance to
faxes. These acts appear to be additional violations of our rules and
the Junk Fax Act that could carry separate penalties of up to $16,000
each. While we do not propose independent penalties for these
violations at this time, we do consider such violations to be
aggravating factors that justify upward adjustments to the base
forfeiture amounts.
13. Accordingly, weighing the facts before us, we propose the maximum
penalty allowed under the Act and our rules-$16,000, for each junk fax
apparently sent to these consumers-for a total penalty of $608,000.
This penalty takes into account, in the language of section
503(b)(2)(E), the "extent" of the violations, and Mr. Keane's "degree
of culpability" and "history of prior offenses," and in the language
of our forfeiture guidelines, Mr. Keane's apparent "egregious,"
"intentional," and "repeated" violations." We believe this upward
adjustment and overall penalty against Mr. Keane, and all his various
businesses and trade names, are appropriate in view of the number,
scope, and repeated nature of the apparent violations, the fact that
he apparently engaged in much of this misconduct deliberately and in
complete disregard of the Commission's previous warnings, and the fact
that he has used different names to confuse consumers and disguise his
true identity as the sender of these faxes. All of these factors
strongly indicate knowing, willful, and deliberate efforts to violate
the junk fax rules and then to conceal and evade responsibility for
such violations.
IV. CONCLUSION
14. We have determined that Mr. Keane apparently violated Section
227(b)(1)(C) of the Act and Section 64.1200(a)(4) of the Commission's
rules by using a telephone facsimile machine, computer, or other
device to send 38 unsolicited advertisements to the 31 consumers
identified in Appendix A. We have further determined that Mr. Keane is
apparently liable for a forfeiture in the amount of $608,000. Mr.
Keane will have the opportunity to submit evidence and arguments in
response to this NAL to show that no forfeiture should be imposed or
that some lesser amount should be assessed.
V. ORDERING CLAUSES
15. 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
Patrick Thomas Keane, operating as Accurate Map. Co., Data World, Map
World, Map Co., and other names, is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of $608,000 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)(4) of the
Commission's rules, 47 C.F.R. S: 64.1200(a)(4).
16. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within thirty (30) calendar days of the release date of
this Notice of Apparent Liability for Forfeiture, Mr. Keane 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,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Patrick Keane shall send electronic
notification of payment to Johnny Drake at Johnny.Drake@fcc.gov on the
date said payment is made. Regardless of the form of payment, a
completed FCC Form 159 (Remittance Advice) must be submitted. When
completing the FCC Form 159, enter the Account Number in block number
23A (call sign/other ID) and enter the letters "FORF" in block number
24A (payment type code). Below are additional instructions you
should follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
18. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
19. 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.
20. 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.
21. 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 Mr. Patrick Keane, 24-A Trolley
Square, Wilmington, DE 19806; Mr. Patrick Keane, 1800 Lovering Ave.,
Wilmington, DE 19806-2122; and Mr. Patrick Keane, 717 N. Union St.,
Wilmington, DE 19805; Mr. Patrick Keane, 4023 Kennett Pike, Suite 132,
Wilmington, DE 19807.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX A
Complainants and Apparent Violation Dates
Complainant received facsimile Apparent Violation Date(s)
solicitations
10/27/2011; 10/29/2011;
A. Pendergast, Flowers By Nino 11/05/2011; 11/07/2011;
11/09/2011
I. Whitehead, U.S. Govt. Printing 10/31/2011
Office
A. May 10/31/2011
J. Newman 11/06/2011
A. Richardson, Paul S. McDonald & 11/07/2011
Assoc., Inc.
J. Newman, Newman Brothers 11/08/2011
J. Hinterbichler, Arrow 11/20/2011
Enterprises LLC
C. Kern 11/20/2011
G. Zamudio, Mind's Eye Technology, 11/20/2011
Inc.
B. Delaney, Parke-West Fine Art 11/28/2011; 12/1/2011
Appraisal Service
B. Fried, Galaxy Promotions 11/29/2011
J. Greco, E&M Mayock and 12/1/2011
Associates
M. Benioff 12/6/2011
C. Drechsler, Garmin AT 12/12/2011
V. Carver 12/12/2011
S. Delauter 12/15/2011
J. Watson, Nick Watson Agency 12/16/2011
R. Miller, Advantage Northwest 12/20/2011
D. Breen, David H. Breen P.A. 12/29/2011
H. Townsend 12/31/2011
C. Ledet 1/07/2012
L. Wistow 1/16/2012, 1/22/2012, 1/26/2012
A. Curtiss 1/22/2012
L. Lapham 2/05/2012
D. Neumetzger 3/4/2012
T. Chernok 3/4/2012
K. Fleming, Fleming Construction 3/16/2012
Services, LLC
S. Mielach 3/16/2012
A. Koganov 3/19/2012
E. Mata, Zaphyr Technologies 3/20/2012
P. Malarkey, New York City Police 9/5/12
Department
APPENDIX B
Examples of Faxes in NAL 1 and NAL 2
APPENDIX C
Examples of Faxes in This NAL
As set forth below, Mr. Keane appears to have used several different
business names throughout the course of the Commission's investigation of
his activities. Neither this NAL nor the Commission's prior enforcement
actions against Mr. Keane attempt to identify each and every such name he
has used, but the liability proposed in these actions applies to Mr.
Keane, regardless of the names he uses or has used.
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(4). See also
Rules and Regulations Implementing the Telephone Consumer Protection Act
of 1991, Junk Fax Prevention Act of 2005, Report and Order and Third Order
on Reconsideration, 21 FCC Rcd 3787 (2006) (Junk Fax Prevention Act R&O),
modified, 23 FCC Rcd 15059 (2008).
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) (Junk Fax Act).
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 through
which the recipient voluntarily agreed to make its facsimile number
available for public distribution. In addition, the unsolicited ad must
notify the recipient how to opt out of receiving future facsimile
advertisements, subject to certain requirements. The Commission has
adopted implementing rules. 47 C.F.R. S: 64.1200(a)(4).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, FCC Enforcement Bureau, to The Street Map Company
(Feb. 5, 2008) (on file in EB-08-TC-998). The citation was addressed to
"The Street Map Company" and directed to the attention of Mr. Keane, and
expressly warned that future violations of the Act and the Commission's
rules governing telephone solicitations and unsolicited advertisements
might subject Mr. Keane or the entities perpetrating such behavior to
monetary forfeitures.
Street Map Co., Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
16371 (2010) (NAL 1); Street Map Co., Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 8318 (NAL 2).
NAL 1, 25 FCC Rcd at 16373; NAL 2, 26 FCC Rcd at 1822.
Both NAL 1 and NAL 2 indicated that, according to publicly available
information, "Street Map" also did business as First State Map & Globe
Co., Globe World, Rockford Map Gallery LLC, and Rockford Map & Globe. See
NAL 1, 25 FCC Rcd at 16371 n.1; NAL 2, 26 FCC Rcd at 8318 n.1. Appendix B
gives examples of faxes that were addressed in these NALs.
See Appendix A for a listing of the consumer complaints against Accurate
Map Co., Data World, and Map World requesting Commission action.
Appendix C includes examples of faxes that were the subject of complaints
listed in Appendix A.
First State Map Company was registered in Delaware as a trade name in 1986
and uses the address 1800 Lovering Ave., Wilmington, DE. See Delaware
State Courts; Trade, Business & Fictitious Names; File No. 8008,
http://www.courts.delaware.gov/tradenames/JICKioskDetails.aspx?TradeNameID=67831
(last visited Sept. 6, 2012) (showing trade name registration) and
American Yellow Pages, http://www.ypstate.com/info/de/369006.html (last
visited Sept. 6, 2012) (identifying address as 1800 Lovering Avenue,
Wilmington, DE). This address is the same as that used by other business
names, such as Rockford Map & Globe, that we have connected to Mr. Keane.
See Better Business Bureau,
http://www.bbb.org/delaware/business-reviews/maps-publishers-and-distributors/rockford-map-and-globe-in-wilmington-de-7004173
(last visited Sept. 6, 2012) (identifying 1800 Lovering Avenue,
Wilmington, DE as address for Rockford Map & Globe); NAL 1, 25 FCC Rcd
16371 n.1 (identifying Rockford Map & Globe as alternate name for Street
Map); NAL 2, 26 FCC Rcd 8318 n.1 (same).
Learnamap.com Contact Page, http://www.learnamap.com/contact/contact.php
(last visited July 19, 2012).
See Appendix C for a copy of this fax.
See supra note 11 (discussing First State Map Company and Mr. Keane).
47 C.F.R. S: 64.1200(f)(10).
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 C.F.R.
S: 64.1200(f)(15).
47 U.S.C. S: 503(b)(1)(B).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80(b)(5) 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 & Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, Report & Order, 12 FCC Rcd 17087,
17110, para. 53 (1997) (Forfeiture Policy Statement).
47 C.F.R. S: 1.80(b)(5) 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 or 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. No. 104-134, Sec. 31001, 110 Stat. 1321,
the Commission implemented an increase of the maximum statutory forfeiture
under section 503(b)(2)(C) to $16,000. See 47 C.F.R. S:1.80(b)(4). 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, 1812, para, 16 (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, 17003, para. 13 (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, 11300,
para.12 (2000) (Tri-Star NAL); Tri-Star Marketing, Inc., Forfeiture Order,
15 FCC Rcd 23198 (2000).
NAL 2, 26 FCC Rcd at 8321-22, paras. 10-11 (2011) (applying a $75,000
upward adjustment in proposing a forfeiture for 51 junk fax violations,
taking into account the violator's prior 11 junk fax violations); see also
National Employee Benefits Group, Notice of Apparent Liability, 27 FCC Rcd
2734, 2737, para. 8 (2012) (applying a $150,000 upward adjustment in
proposing a forfeiture for 97 junk fax violations); Laser Technologies,
Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 10792, 10795,
para. 9 (2011) (applying a $50,000 upward adjustment in proposing a
forfeiture for 40 junk fax violations); Presidential Who's Who, Notice of
Apparent Liability for Forfeiture, 26 FCC Rcd 8989, 8993-95, paras. 11-13
(2011) (applying a $150,000 upward adjustment in proposing a forfeiture
for 31 junk fax violations, taking into account the violator's 73 prior
junk fax violations) (Presidential Who's Who NAL).
See, e.g., NAL 2, 26 FCC Rcd at 8322, para. 11: "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."
Tim Gibbons, Notice of Apparent Liability for Forfeiture, FCC 12-98 (rel.
Sept. 4, 2012); Sabrina Javani d/b/a EZ Business Loans, Notice of Apparent
Liability for Forfeiture, 27 FCC Rcd 7921 (2012); Teresa Goldberg a/k/a
Tammy Pocknett d/b/a Software Training Co. et al., Notice of Apparent
Liability for Forfeiture, 27 FCC Rcd 2723 (2012); Travel Club Marketing
d/b/a Travelink Corp. et al., Notice of Apparent Liability for Forfeiture,
26 FCC Rcd 15381 (2011).
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. Forfeiture Policy Statement, 12 FCC Rcd at
17102-04, paras. 33-36. Thus, consideration in the current NAL of Mr.
Keane'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 and Amendment of Section 1.80 of the Rules to Incorporate
the Forfeiture Guidelines, Memorandum Opinion and Order, 15 FCC Rcd. 303,
304-05, paras. 3-5 (1999).
47 C.F.R. S: 68.318(d).
47 C.F.R. S: 64.1200(a)(4)(iii).
See FCC Form 1088A - Junk Fax Complaint from A. Pendergast (Nov. 9, 2011)
("The removal # is the national do not call registry.") See also example
faxes in Appendix C.
See 47 C.F.R. S:S: 68.318(d), 64.1200(a)(4)(iii).
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80 sec. II (Adjustment Criteria for Section 503
Forfeitures).
See 47 U.S.C. S: 503(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).
47 C.F.R. S: 1.80.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission FCC 12-132