Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
) File No.: EB-10-TC-487
Teresa Goldberg
) NAL/Acct. No.:
a/k/a Tammy Pocknett 201232170004
)
d/b/a Software Training Company, Software FRN: 0021522776
Business Management and Software )
Managing Systems
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 23, 2012 Released: February 23, 2012
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Teresa Goldberg d/b/a Software Training Company apparently
willfully and repeatedly violated Section 227(b)(1)(C) of the
Communications Act of 1934, as amended (the Act), and Section
64.1200(a)(3) of the Commission's rules, by sending 27 unsolicited
advertisements, or "junk faxes," to the telephone facsimile machines
of 27 consumers. Based on the facts and circumstances surrounding
these apparent violations, we find that Teresa Goldberg d/b/a Software
Training Company is apparently liable for a forfeiture in the amount
of $432,000.
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 thus 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 December 20, 2010, in response to a consumer complaint alleging
that Software Training Company had faxed an unsolicited advertisement,
the Enforcement Bureau (Bureau) issued a citation to Software Training
Company, pursuant to Section 503(b)(5) of the Act. According to
public records, "Software Training Company" is a fictitious business
name owned by an individual, Teresa Goldberg, using the address 17127
Clemons Drive, Encino, California. The fax that led to the citation
offered two separate courses for "hands-on consulting and training" in
using "QuickBooks," presented by "expert pro advisors." The Bureau's
citation found that Software Training Company violated Section
227(b)(1)(C) of the Act and Section 64.1200(a)(3) of the Commission's
rules, and offered Software Training Company the opportunity to
request an interview with Commission staff, or provide a written
statement responding to the citation, within 30 days of the date of
the citation. On December 30, 2010, Software Training Company
responded to the citation, claiming that the company was "no longer
active or in business" and that it had "no plan or resources to start
the company again."
4. Less than two months later, the Commission began to receive complaints
indicating that "Software Business Management" and "Software Managing
Systems" had faxed unsolicited advertisements to consumers. These
subsequent faxes were in some respects identical to the fax that
formed the basis of the citation to "Software Training Company," in
that the faxes from "Software Business Management" and "Software
Managing Systems" offered "two separate courses" for "hands-on
consulting and training" in using "QuickBooks," presented by "expert
pro advisors." To register for the offered services, the faxes
directed recipients to call (800) 608-1905 or to visit
www.software-business-management.com or
www.software-managing-system.com.
5. Based on our review of public records, "Software Business Management"
and "Software Managing Systems" do not appear to exist as independent
legal entities, nor do they appear to be registered fictitious
business or other trade names for any individual or entity.
Information provided at the "About Us" link at
www.software-business-management.com, however, refers to "Software
Business Management" as "Software Training Company":
Software Training Company - About Us
Founded in Miami, Florida, Software Training Company was established in
1997.... Software Training Company is now a global company offering
comprehensive hands-on training to the United States and Canada....
Software Training Company strongly promotes hands-on training to insure
students learn to utilize software to its fullest potential...."
In addition, the carrier that administers the telephone number provided at
the "Contact Us" link (800-608-1905)-which is the same number that the
post-citation faxes direct recipients to call to register for the services
offered-has identified the end user as "Software Training Company" at
17127 Clemons Drive, in Encino, CA, with Richard Goldberg listed as the
contact person. The carrier that administers one of the opt-out numbers in
the post-citation faxes (800-578-0654) has identified the end user as
having the same address as "Software Training Company," with Teresa
Goldberg listed as the contact person.
III. DISCUSSION
A. Apparent Violations of Section 227(b)(1)(C) of the Act and the
Commission's Rules Restricting Unsolicited Facsimile
Advertisements
6. We find that Teresa Goldberg d/b/a Software Training Company
apparently violated Section 227(b)(1)(C) of the Act and Section
64.1200(a)(3) of the Commission's rules by sending 27 unsolicited
advertisements to the telephone facsimile machines of 27 consumers,
identified in Appendix A. Each of these consumers has provided
evidence that he or she received a junk fax from "Software Business
Management" or "Software Managing Systems," without having provided
authorization to send such faxes, and absent an established business
relationship with Teresa Goldberg. As we have determined during the
course of our investigation, "Software Business Management" and
"Software Managing Systems" are nothing more than names through which
Teresa Goldberg d/b/a Software Training Company operates.
7. We base our determination that "Software Business Management" and
"Software Managing Systems" are synonymous with Teresa Goldberg d/b/a
Software Training Company on several factors. As explained above,
Teresa Goldberg registered the fictitious business name "Software
Training Company." Teresa Goldberg, Software Training Company,
Software Business Management, and Software Managing Systems operate
from the same address: 17127 Clemons Drive, Encino, California. While
"Software Business Management" and "Software Managing Systems" do not
appear to be registered fictitious or other trade names, they also do
not appear to be incorporated or to have any other legal form of
independent existence. Indeed, as explained above, the website
www.software-business-management.com identifies itself as "Software
Training Company"; the contact telephone numbers set forth in the
faxes at issue in this NAL trace back to "Software Training Company";
and the opt-out telephone number set forth in one of the faxes at
issue in this NAL trace back to the 17127 Clemons Drive, Encino,
California, with Teresa Goldberg listed as a contact person. We
therefore find that "Software Business Management" and "Software
Managing Systems" are simply alternate names used by Teresa Goldberg
d/b/a Software Training Company to conduct the same business and
perpetrate the same kinds of violations.
A. Proposed Forfeiture
8. 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 against that entity when it determines that such entity
has, by subsequently engaging in conduct of the type described in such
citation, willfully or repeatedly failed to comply with the Act, or
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 there
is a "[r]epeated or continuous violation." Currently, the maximum
penalty that the Commission may impose against an entity such as
Software Training Company is $16,000 per violation.
9. Applying these factors in the Act and the forfeiture guidelines, we
propose the maximum penalty of $16,000 for each of 27 violations at
issue in this NAL for a total proposed forfeiture of $432,000. We
propose the maximum penalty in this case because Teresa Goldberg d/b/a
Software Training Company appears not only to have repeatedly violated
the prohibition against faxing unsolicited ads, but also to have done
so intentionally and in an egregious manner. This is evidenced by the
company's apparent attempt to deceive the Commission about the
operating status of Teresa Goldberg d/b/a Software Training Company.
As explained above, Richard Goldberg - a contact person for Teresa
Goldberg d/b/a Software Training Company who also shares the same
17127 Clemons Drive, Encino, California address- responded to the
citation, claiming that the company was "no longer active or in
business" and that it had "no plan or resources to start the company
again." Teresa Goldberg d/b/a Software Training Company continued to
send unsolicited faxes, however, after making this claim, albeit under
the guise of "Software Business Management" and "Software Managing
System." The fact that the Commission began to receive complaints
about such faxes less than two months after the Bureau issued its
citation suggests that the claim that the company was "no longer
active or in business" was either false or misleading, demonstrating a
complete disregard for the Commission's authority and an intent to
continue to violate the law.
10. The response submitted by Teresa Goldberg d/b/a Software Training
Company to the citation appears to have contained additional false
information as well. The fax that formed the basis of the citation
directed consumers to call 800-453-4220 to register for the advertised
services, and Teresa Goldberg d/b/a Software Training Company
contended in the December 30, 2010 citation response that this number
"does not belong to us anymore." However, as recently as October 7,
2011-nearly a year after Richard Goldberg, on behalf of Teresa
Goldberg d/b/a Software Training Company, disavowed controlling the
number-the carrier administering this number identified the end user
as Software Training Company, located at 17127 Clemons Drive, Encino,
CA, with Richard Goldberg as the contact person.
11. As further support for imposing the maximum penalty against Teresa
Goldberg d/b/a Software Training Company, we also observe that the
Commission has previously directed a citation for junk fax violations
to Teresa Goldberg. According to certain publicly available
information, Teresa Goldberg is another name used by Tammy Pocknett,
who owns the property located at the address used by "Software
Training Company." In 2007, the Commission directed a citation to Ms.
Pocknett on behalf of "Collection Elements" for junk fax violations.
Teresa Goldberg a/k/a Tammy Pocknett is therefore aware of the
restrictions relating to junk faxes, and the fact that Teresa Goldberg
d/b/a Software Training Company has continued to send them under the
names "Software Business Management" and "Software Managing Systems"
strongly suggests an intentional disregard for section 227 and the
Commission's rules prohibiting such conduct.
12. The penalty we propose must take into account the repeated,
intentional, and egregious nature of the violations apparently
committed by Teresa Goldberg d/b/a Software Training Company. We
therefore propose the maximum penalty of $16,000 per violation for
each of 27 violations at issue in this NAL.
IV. CONCLUSION
13. We conclude that Teresa Goldberg d/b/a Software Training Company
apparently violated Section 227(b)(1)(C) of the Act and Section
64.1200(a)(3) of the Commission's rules, by using a telephone
facsimile machine, computer, or other device to send 27 unsolicited
advertisements to the 27 consumers identified in Appendix A. We
further find that Teresa Goldberg d/b/a Software Training Company is
apparently liable for a forfeiture in the amount of $432,000 for
apparent violations of Section 227(b)(1)(C) of the Act and Section
64.1200(a)(3) of the Commission's rules.
V. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's rules, that Teresa Goldberg d/b/a Software Training
Company is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of $432,000 for willful and repeated violations of
Section 227(b)(1)(C) of the Communications Act, and Section
64.1200(a)(3) of the Commission's rules.
15. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture, Teresa
Goldberg d/b/a Software Training Company SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
16. 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). Teresa Goldberg d/b/a Software
Training Company shall also send electronic notification to
Johnny.Drake@fcc.gov on the date said payment is made. 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.
17. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. Any response 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, SW, 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.
18. 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.
19. 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 Teresa Goldberg d/b/a Software
Training Company, 17127 Clemons Drive, Encino, CA 91436.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX A
Complainants and Apparent Violation Dates
Name of Complainant Date of Fax Receipt
A'Hearn, M. 2/24/11
Bell, D. 9/20/11
Benefield, R., Action Marine and Dive, Inc. 5/5/11
Bergey, R. 3/17/11
Blumenthal, M. 8/9/11
Brown, K. 8/16/11
Brown, P. 6/14/11
Burger, M. 3/7/11
Carroll, L. 2/24/11
Cummiskey, S. 6/14/11
Cutler, E. 4/28/11
Davis, E. 3/30/11
Giveans, J. 7/5/11
Guerra, C. 5/5/11
Jacobson, B. 4/28/11
Johnson, W. 4/28/11
Kauffman, B. 9/14/11
McCarty, M. 3/7/11
Porter, J. 9/20/11
Rimedio, N. 8/9/11
Rockrise, S. 5/5/11
Sparks, H. 7/26/11
Szydlo, P. 2/24/11
Terlizzi, J. 5/5/11
Tilden, R. 3/17/11
Watson, T. 3/24/11
Williams, G. 7/26/11
APPENDIX B
Pre-Citation Fax
APPENDIX C
Post-Citation Faxes
As explained below, "Software Training Company" is a fictitious business
name registered to the individual "Teresa Goldberg," and uses the address
17127 Clemons Drive, Encino, California. Software Training Company,
Fictitious Business Name Record, ID No. 20090624 7563, filed July 3, 2009,
Westlaw RPCA-CA database available at http:// www.westlaw.com (last
visited Jan. 26, 2012). "Teresa Goldberg" appears to be another named used
by Tammy Pocknett, who owns the property located at the address used by
Software Training Company. Los Angeles, California Real Property Tax
Assessor Record, Parcel Number: 2292-020-007, Westlaw Public Records -
Real Property Records Combined database available at http://www.
westlaw.com (last visited Jan. 26, 2012). As discussed infra, Ms.
Goldberg/Pocknett now appears to use the names "Software Business
Management" and "Software Training Systems" to carry out the business
formerly conducted by "Software Training Company." Therefore, all
references in this NAL to "Teresa Goldberg d/b/a Software Training
Company" encompass the individual using the names Teresa Goldberg, Tammy
Pocknett, Software Training Company, Software Business Management, and
Software Management Systems, and using the address 17127 Clemons Drive,
Encino, California.
47 U.S.C. S: 227(b)(1)(C).
47 C.F.R. S: 64.1200(a)(3).
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat.
2394 (1991) (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). The prohibition is subject to certain
exceptions. For example, a person may fax an unsolicited advertisement if
that person 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
made available its facsimile number for public distribution. In addition,
the unsolicited ad must notify the recipient of how to opt out of
receiving future such ads, subject to certain requirements. Id. The
Commission has adopted implementing rules. See 47 C.F.R. S: 64.1200(a)(3).
47 U.S.C. S: 503(b)(5) (requiring the Commission to issue citations before
imposing forfeiture liability on 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, for
violations of the Act or of the Commission's rules and orders).
Fictitious Business Name Record, ID No. 20090624 7563, filed July 3, 2009,
Westlaw RPCA-CA database available at http:// www.westlaw.com, last
visited Jan. 26, 2012.)
See Appendix B.
Citation from Joshua P. Zeldis, Assistant Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-10-TC-487, to Software
Training Company, dated December 20, 2010.
Letter from Richard Goldberg, Software Training Company, to Federal
Communications Commission, dated December 30, 2010.
See Appendix C attached hereto.
See Appendix B and C.
http://software-business-management.com/live_online_quickbooks_training_about.html
(emphasis added).
E-mail from David Guerrero, J2Global Communications, Inc. to Linda Simms,
Analyst, Telecommunications Consumers Division, Enforcement Bureau, dated
June 7, 2011 (responding to a Commission inquiry, J2Global Communications,
Inc. confirmed that from May 1, 2010 to date of production, Richard
Goldberg of Software Training Company, 17127 Clemons Drive, Encino, CA
91436, was listed as the billing contact for the toll-free number
800-608-1905 in the carrier's records).
E-mail from Erik Schurke, VoiceNation, to Jermaine Haynes, Analyst,
Telecommunications Consumers Division, Enforcement Bureau, dated October
13, 2011 (responding to a Commission inquiry, VoiceNation confirmed that
from June 1, 2010 to present, Teresa Goldberg, 17127 Clemons Drive,
Encino, CA 90143, was listed as the billing contact for the toll-free
number 800-578-0654 in the carrier's records).
See supra note 7.
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 or common
carrier, 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 an
increase in the maximum forfeiture for this type of violation to $16,000).
See supra note 14.
See supra note 10.
E-mail from David Guerrero, J2Global Communications, Inc. to Jermaine
Haynes, Analyst, Telecommunications Consumers Division, Enforcement
Bureau, dated October 7, 2011 (responding to a Commission inquiry,
J2Global Communications, Inc. confirmed that from February 17, 2010 to
October 7, 2011 (date of production), Richard Goldberg of Software
Training Company, 17127 Clemons Drive, Encino, CA 91436, was listed as the
billing contact for the toll-free number 800-453-4220 in the carrier's
records).
See, e.g., Los Angeles, California Real Property Tax Assessor Record,
Parcel Number: 2292-020-007, Westlaw Public Records - Real Property
Records Combined database available at http://www. westlaw.com (last
visited Jan. 26, 2012).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-2584, to
Collection Elements, ATTN: Tammy Pocknett, dated July 6, 2007.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
47 U.S.C. S: 227(b)(1)(C).
47 C.F.R. S: 64.1200(a)(3).
47 C.F.R. S: 1.80.
47 C.F.R. S:S: 1.80(f)(3), 1.16.
(...continued from previous page)
(continued....)
Federal Communications Commission FCC 12-23
2
Federal Communications Commission FCC 12-23