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Federal Communications Commission
Washington, D.C. 20554
File No.: EB-07-TC-13323
In the Matter of )
NAL/Acct. No.: 20093217006
Five Star Advertising, Inc. )
Adopted: January 4, 2012 Released: January 5, 2012
By the Commission:
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of $64,000 against Five Star Advertising, Inc. ("Five
Star") for willful and repeated violations of section 227(b)(1)(C) of
the Communications Act of 1934, as amended ("Act"), and section
64.1200(a)(3) of the Commission's rules, by delivering 13 unsolicited
advertisements, or "junk faxes," to the telephone facsimile machines
of 12 consumers.
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 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."
4. Pursuant to section 503(b)(5) of the Act, the Enforcement Bureau
("Bureau") issued a junk fax citation to Five Star on October 30, 2007
in response to one or more consumer complaints alleging that Five Star
had faxed unsolicited advertisements. Five Star did not respond to
5. Subsequently, the Commission received 12 additional complaints from
consumers alleging that Five Star had faxed 13 unsolicited
advertisements to them. These violations, which occurred after the
Bureau's citation, between December 3, 2007 and March 26, 2008,
resulted in the issuance of an NAL against Five Star on November 26,
2008 in the amount of $64,000. The NAL ordered Five Star either to pay
the proposed forfeiture amount within thirty (30) days or to submit
evidence or arguments in response to the NAL to show that no
forfeiture should be imposed or that some lesser amount should be
6. On December 16, 2008, Five Star responded to the NAL by letter,
requesting an opportunity to demonstrate that it did not violate
section 227(b)(1)(C) of the Act, and arguing that the "few isolated
and unsubstantiated complaints over a multiple year time period do not
justify the [NAL] or any payment." Five Star also requested copies of
the complaints. On November 5, 2009, Bureau staff sent copies of the
Commission's citation, the NAL, and the complaints associated with
each of these actions. The Bureau directed that Five Star submit any
further response, including any supporting information and documents,
no later than December 10, 2009. Five Star did not respond to this
letter or pay the proposed forfeiture amount.
7. After we first issue a citation to an entity, as we have in this case,
section 503(b) of the Act authorizes the Commission to assess a
forfeiture for each subsequent violation of the Act or of any rule,
regulation, or order issued by the Commission under the Act. In
exercising such authority, we are to 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
8. We find Five Star has presented no basis for reducing or eliminating
the $64,000 forfeiture proposed in the NAL. Although the Bureau
provided Five Star with copies of the complaints against it and
allowed additional time to respond to the specific allegations
contained in those complaints, Five Star failed to take advantage of
the opportunity it requested to demonstrate that it did not violate
the Commission's junk fax rules. Further, Five Star's argument that it
should not be penalized because its violations were few, isolated, and
unsubstantiated is unpersuasive. Five Star effectively concedes that
it sent the complained-of faxes, and the complaints indicate that Five
Star continued to send multiple junk faxes over a period of about four
months even after it was expressly warned by the citation of the
penalties for such unlawful acts. Accordingly, we affirm our proposed
findings in the NAL that Five Star violated the Act and our rules on
13 separate occasions.
9. Further, Five Star presents no legal or factual reason for reducing or
eliminating the standard base forfeiture amounts proposed in the NAL.
For example, it makes no showing of any relevant factors such as
inability to pay. We therefore impose a total forfeiture of $64,000
for Five Star's willful and repeated violation of section 227(b)(1)(C)
of the Act and section 64.1200(a)(3) of the Commission's rules, as set
forth in the NAL.
III. ordering clauses
10. 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),
that Five Star Advertising Inc. IS LIABLE FOR A MONETARY FORFEITURE to
the United States Government in the sum of $64,000 for willfully and
repeatedly violating section 227(b)(1)(c) of the Communications Act,
47 U.S.C. S: 227(b)(1)(c), and section 64.1200(a)(3) of the
Commission's rules, 47 C.F.R. S: 64.1200(a)(3).
11. 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. 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). Five Star will 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, 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.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Five Star
Advertising, Inc., Attention: Jane Eunsook Lee, 6247 El Diente Peak
Place, Castle Rock, CO 80108-9470.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch Secretary
47 U.S.C. S: 227(b)(1)(C).
47 C.F.R. S: 64.1200(a)(3).
Five Star Advertising, Inc., Notice of Apparent Liability for Forfeiture,
23 FCC Rcd 17699 (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.
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 where
the recipient voluntarily and publicly provided its facsimile number. In
addition, the unsolicited ad must notify the recipient how to opt out of
receiving future such ads, and do so in compliance with certain
requirements. The Commission has adopted implementing requirements. 47
C.F.R. S: 64.1200(a)(3).
47 U.S.C. S: 503(b)(5) (requiring the Commission, before assessing a
forfeiture against any person who does not hold, or is not an applicant
for, a license, permit, certificate, or other authorization issued by the
Commission, to issue a citation to such person for any violation of the
Act or of the Commission's rules).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-13323, issued to
Five Star on October 30, 2007.
See supra note 3. The NAL was sent to Five Star's address of record.
Letter from William B. Hayes, Esq., counsel for Five Star Advertising,
Inc., to Office of the Secretary, dated December 16, 2008.
Letter from Daniel Grosh, Telecommunications Consumers Division, to
William B. Hayes, Esq., counsel for Five Star Advertising, Inc., November
47 U.S.C. S: 503(b).
See 47 U.S.C. S: 503(b)(2)(E); see also The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087, 17100-01 para.
27 (1997) (Forfeiture Policy Statement), recon. denied, 15 FCC Rcd 303
47 U.S.C. S: 504(a).
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Federal Communications Commission FCC 12-2
Federal Communications Commission FCC 12-2