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Before the

Federal Communications Commission

Washington, D.C. 20554

)

In the Matter of )

Tim Gibbons )

United Employee Benefits Group, ) File No.: EB-TCD-12-00000234
United Employee Benefits, United
Benefits, f/k/a Benchmark Mortgage, ) NAL/Acct. No.: 201232170005
National Employee Benefits Group
) FRN: 0021538509
United Employee Benefits, LLC
)
Apparent Liability for Forfeiture
)

)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: September 4, 2012 Released: September 4, 2012

By the Commission:

I. INTRODUCTION

1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Tim Gibbons, operating as United Benefits, United Employee
Benefits (UEB), and United Employee Benefits Group (UEBG), all
formerly known as Benchmark Mortgage or National Employee Benefits
Group (NEBG), independently and together with United Employee
Benefits, LLC, apparently willfully and repeatedly violated Section
227(b)(1)(C) of the Communications Act of 1934, as amended (the
Communications Act or Act), and Section 64.1200(a)(4) of the
Commission's rules, by sending 99 unsolicited advertisements, or "junk
faxes," to the telephone facsimile machines of 87 consumers. Based on
the facts and circumstances surrounding these apparent violations, we
find that Tim Gibbons and United Employee Benefits, LLC, are
apparently jointly and severally liable for a forfeiture in the amount
of $1,584,000.

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 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 October 22, 2010, in response to a consumer complaint alleging that
NEBG had faxed an unsolicited advertisement, the Enforcement Bureau
(Bureau) issued a citation to NEBG and Benchmark Mortgage dba NEBG
pursuant to Section 503(b)(5) of the Act. The Bureau cited NEBG and
Benchmark Mortgage dba NEBG for using a telephone facsimile machine,
computer, or other device, to send an unsolicited advertisement for
financial services to a telephone facsimile machine in violation of
Section 227(b)(1)(C) of the Act and Section 64.1200(a)(4) of the
Commission's rules. The citation was directed to the attention of Tim
Gibbons, president and contact person for NEBG, and expressly warned
him that future violations of the Act and the Commission's rules
governing telephone solicitations and unsolicited advertisements "may
subject you and your company to monetary forfeitures." The citation
informed the recipients that within 30 days of the date of the
citation, they could either request an interview with Commission
staff, or provide a written statement responding to the citation. The
Commission never received any response.

4. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, we received numerous
complaints from consumers alleging that NEBG had faxed additional
unsolicited advertisements to them. On February 29, 2012, the
Commission issued an NAL in the amount of $603,000 against NEBG, and
Mr. Gibbons in his personal capacity, based on complaints filed by 79
consumers alleging 97 violations of our junk fax rules. The February
2012 NAL ordered the respondents either to pay the proposed forfeiture
amount within 30 days or to submit evidence or arguments to show that
no forfeiture should be imposed or that some lesser amount should be
assessed. Although counsel for Mr. Gibbons originally sought and
obtained an extension of time to respond to the February 2012 NAL,
neither Mr. Gibbons nor his counsel nor NEBG ultimately provided any
substantive response.

5. As the Commission neared release of the February 2012 NAL, and the
Bureau continued to develop other investigations, staff identified
complaints against "United Employee Benefits" or "United Employee
Benefits Group" about unsolicited faxes, which were similar in many
respects to the faxes sent by NEBG. For example, faxes appearing to
come from NEBG and UEB/UEBG have the same layout and are styled as
office memoranda directed to "all employees" about financial
"assistance" or "relief" programs, and offer such employees "0%
interest" on "restructured" credit card programs, a reduction of their
card debt payments by 60% or more, and a waiver of certain fees if a
designated claim number or code is used when ordering the service.
Altogether, Bureau staff identified complaints filed by 87 consumers
alleging that UEB/UEBG sent 99 additional unsolicited advertisements
to telephone facsimile machines.

6. In addition to apparently having sent similar faxes that offer similar
services, NEBG and UEB/UEBG also appear to have a commonality of
addresses, personnel, telephone numbers, and websites. While UEBG does
not appear to exist as an independent legal entity or to be a
registered fictitious business name, "United Employee Benefits, LLC"
is a limited liability company registered in Nevada, with Mr. Gibbons
and Jennifer Yoffe identified as officers and managers. The
registration statement of United Employee Benefits, LLC with the
Nevada Secretary of State lists the entity's address as 8871 West
Flamingo Road, Suite 202, Las Vegas, Nevada, which is an address at
which NEBG acknowledged receipt of the February 2012 NAL. The contact
number set forth in the UEB/UEBG faxes (888-872-1112) is assigned to
Tim Gibbons and NEBG. The website "nebg.org" now redirects users to a
website for "United Benefits," which identifies the toll-free number
registered to Tim Gibbons at NEBG. A recent order issued by the State
of California Department of Real Estate against UEB and Mr. Gibbons
connected UEB and NEBG by finding that "National Employee Benefits
Groups ... now operates under the name UEB."

III. DISCUSSION

A. Apparent Violations of Section 227(b)(1)(C) of the Act and the
Commission's Rules Restricting Unsolicited Facsimile
Advertisements

7. We find that Tim Gibbons and United Employee Benefits, LLC, apparently
violated Section 227(b)(1)(C) of the Act and Section 64.1200(a)(4) of
our rules by sending 99 unsolicited advertisements to the facsimile
machines of 87 consumers, identified in Appendix D. Under our 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
these consumers has provided evidence that he or she received a junk
fax or faxes from Tim Gibbons or United Employee Benefits, LLC without
having expressly authorized such faxes to be sent or having an
established business relationship (EBR) with Mr. Gibbons or one of his
businesses. The faxes at issue here clearly constitute advertisements,
as they advertise (supposed) commercial availability of financial
relief services. The faxes therefore fall within the definition of a
prohibited "unsolicited advertisement."

A. Proposed Forfeiture

8. After we have first issued a citation to a person under Section
503(b)(5) of the Act, as we have in this case, Section 503(b)(1)
authorizes the Commission to propose a forfeiture for subsequent
conduct of the type described in the citation that violates 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 the
subject of an enforcement action has engaged in a "[r]epeated or
continuous violation." Currently, the Commission may impose a maximum
penalty of $16,000 per violation against individuals or entities such
as Mr. Gibbons and United Employee Benefits, LLC.

9. Historically, the Commission has assessed a penalty of $4,500 per
unsolicited fax advertisement as an appropriate base forfeiture for
violating the prohibition against sending them. Recently, however, the
Commission has proposed higher penalties against entities and
individuals who have engaged in numerous and repeated violations. For
example, in the February 2012 NAL against NEBG and Mr. Gibbons, the
Commission proposed a forfeiture of $603,000, which included an upward
adjustment for the numerous junk fax violations (97) junk fax
violations involved. As we have noted in these recent cases, we intend
to apply appropriate upward adjustments, including the $16,000
statutory maximum, 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 identify to evade law enforcement, or misrepresenting
material facts, the Commission has proposed the full statutory maximum
of $16,000 per unsolicited fax.

10. Consistent with the factors that must control our determination of the
amount of a forfeiture penalty to assess for a given violation and
violator, we propose the maximum penalty of $16,000 for each of the 99
violations at issue in this NAL, for a total proposed forfeiture of
$1,584,000. As in other recent cases where the Commission has proposed
the maximum penalty, we do so here because Mr. Gibbons and United
Employee Benefits Group, LLC have apparently engaged in numerous and
repeated violations, and have done so intentionally and in an
egregious manner.

11. With today's NAL, we have now taken enforcement actions against Mr.
Gibbons and his businesses for approximately 200 apparent violations
of the Act and the Commission's implementing rules. As noted
previously, all of these apparent violations occurred after the
Enforcement Bureau first warned Mr. Gibbons, via citation, that the
conduct of faxing unsolicited ads violated the law. The fact that Mr.
Gibbons and his businesses appear to have engaged in such a large
number of violations after having been told that such conduct violated
the law strongly suggests that they acted with deliberate and
intentional disregard for TCPA requirements and the consumers the law
is designed to protect.

12. The apparent attempt of Mr. Gibbons to confuse and disguise his
businesses further suggests a deliberate intent to violate the
prohibition against sending junk faxes. As discussed above, Mr.
Gibbons appears to have called the business at issue in the February
2012 NAL and the current NAL by a number of different names, including
"Benchmark Mortgage," "National Employee Benefits Group, " "United
Employee Benefits," and "United Employee Benefits Group." The faxes of
UEB/UEBG directed recipients to the website www.uebg.org, which now
identifies yet additional business names, "United Benefits" and
"United Pre-Legal Mediation Group, LLC." At times, Mr. Gibbons'
marketing materials have suggested that these business names reflected
different actual businesses (e.g., "United Benefits originated as a
financial service to borrowers/clients of Benchmark [M]ortgage";
United Benefits has "merged under the portfolios of United Prelegal
Mediation"), but with the single exception of the Nevada limited
liability company of "United Employee Benefits, LLC" (owned/managed by
Mr. Gibbons), none of these names in fact appears to be an actual
independent legal entity, or a registered fictitious business name.
Mr. Gibbons appears to have further attempted to confuse consumers
about his business by using different addresses and phone numbers for
the different names.

13. In an apparent attempt to conceal the nature and status of his
business and confuse fax recipients still more, Mr. Gibbons
deceptively makes his faxes appear to relate to employee benefits by
formatting them to look like an office memorandum directed to
"employees." As one complainant explained, "[t]his fax disguises
itself as an `office memo' to `all employees' offering special
`employee benefit.' Not only is the sender wasting my paper and ink,
the sender is a blatant fraud." Thus, another complainant stated that
Mr. Gibbons' business "[a]ppears to be deceptive `scam' fax targeted
at misleading our employees."

14. As a further reason to impose the maximum penalty available in this
case, 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,
pertaining to the manner in which consumers are notified about and
must be able to exercise their right to opt out of receiving future
junk faxes. For example, fax advertisements that are otherwise
permissible (due to an EBR or prior express invitation or permission)
must include a domestic telephone and facsimile machine number for the
recipient to transmit an opt-out request to the sender 24 hours a day,
7 days a week. Several consumers explain, however, that the telephone
number appearing on the junk faxes, ostensibly to provide an
opportunity to opt out of receiving future advertisements from
UEB/UEBG, were not operational. One complainant stated that UEB's
"[o]pt-out phone number is not in service"; another explained that
UEB's "`do not fax' number does not appear to work" because his
requests "appear to be ignored;" and still another asked the
Commission to "shutdown these unlawful operators" because
"[n]otwithstanding contacting the facsimile removal number, these
companies continue to forward unsolicited facsimiles to our office."
In addition, all of the junk faxes that consumers provided to the
Commission also failed to include the statement, required by the Act
and the Commission's rules, that failure to honor a properly submitted
opt-out request within 30 days is unlawful. Each deficient opt-out
notice and each instance when Mr. Gibbons either failed to allow
submission of an opt-out request or failed to honor a valid opt-out
request within 30 days represents additional violations of the
Commission's rules and section 227 of the Act that could carry
separate penalties of up to $16,000 each. In this case, we are not
imposing penalties for the additional violations, but we do consider
them to be aggravating factors that also warrant upward adjustments of
our base forfeiture amounts.

15. As with the forfeiture proposed in the February 2012 NAL, the penalty
we propose in this NAL applies to Mr. Gibbons, whether acting in his
own name or through another business or individual name (e.g.,
Benchmark Mortgage, NEBG, UEBG, United Benefits, United Pre-legal
Mediation Group). As the business name UEB at issue in some of the
faxes that are the subject of this NAL may refer to the Nevada limited
liability company "United Employee Benefits, LLC," which Mr. Gibbons
owns and manages, the penalty we propose here likewise applies to that
entity.

16. Accordingly, weighing the facts before us, we propose the maximum
penalty allowed under the Act and the Commission's rules, $16,000, for
each of the 99 unsolicited fax advertisements recorded in Appendix D,
for a total penalty of $1,584,0000 against Mr. Gibbons (in his own
name and other names through which he conducts business) and United
Employee Benefits, LLC. This penalty takes into account, in the
language of Section 503(b)(2)(E), the "degree of culpability" and
"history of prior offenses," and in the language of our forfeiture
guidelines, the apparent "intentional violation[s]" and "prior
violations of . . . FCC requirements" at issue in this NAL. We believe
this upward adjustment and overall penalty against Mr. Gibbons and
United Employee Benefits, LLC are appropriate in view of the number
and scope of the apparent violations, the fact that Mr. Gibbons and
United Employee Benefits, LLC apparently engaged in much of this
misconduct intentionally and in disregard of the Commission's previous
warnings.

IV. CONCLUSION

17. We have determined that Tim Gibbons, operating as United Benefits,
United Employee Benefits, or United Employee Benefits Group, all
formerly known as Benchmark Mortgage or National Employee Benefits
Group, independently and together with United Employee Benefits, LLC,
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 99 unsolicited
advertisements to the 87 consumers identified in the Appendix D. We
have further determined that Tim Gibbons and United Employee Benefits,
LLC are apparently jointly and severally liable for a forfeiture in
the amount of $1,584,000.

V. ORDERING CLAUSES

18. 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 Tim
Gibbons, operating as United Benefits, United Employee Benefits, or
United Employee Benefits Group, all formerly known as Benchmark
Mortgage or National Employee Benefits Group, independently and
together with United Employee Benefits, LLC, are hereby NOTIFIED of
their APPARENT JOINT and SEVERAL LIABILITY FOR A FORFEITURE in the
amount of $1,584,000 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).

19. 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, Tim Gibbons,
operating as United Benefits, United Employee Benefits, or United
Employee Benefits Group, all formerly known as Benchmark Mortgage or
National Employee Benefits Group, together with United Employee
Benefits, LLC, SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.

20. 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. Tim Gibbons and United Employee Benefits,
LLC shall send electronic notification of payment to Johnny Drake at
Johnny.Drake@fcc.gov and Rosemary Cabral at Rosemary.Cabral@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.

21. 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.

22. The response, if any, 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.

23. 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.

24. 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 Tim Gibbons and United Employee
Benefits, LLC, 8871 West Flamingo Road, Suite 202, Las Vegas, NV
89147; National Employee Benefits Group, United Employee Benefits
Group, and Tim Gibbons, 2800 Post Oak Blvd, Suite 4100, Houston, TX
77056; Registered Agent for Service: Silver Shield Services, Inc.,
United Employee Benefits, LLC,, P.O. Box 3540, 3315 Highway 50, Silver
Springs, NV 89429; and Attorney Robert Ungar, counsel for Mr. Gibbons,
14724 Ventura Boulevard, Penthouse, Sherman Oaks, CA 91403.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

APPENDIX A

Sample Pre-citation Fax

APPENDIX B

NEBG's February 2012 NAL Sample Fax

APPENDIX C

Current Sample Fax

APPENDIX D

Complainants and Apparent Violation Dates

Complainant received facsimile Violation Date(s)
solicitations

Mermelstein, M. 9/6/11, 9/12/11, 11/8/11

Nowacky, G. 9/6/11

Stuart, S. 10/10/11, 3/14/12

Korver, A. 10/10/11, 3/14/12

Grout, S. 10/11/11

Izumi, J. 12/6/11

Hudkins, J. 12/12/11

MacIntyre, A. 12/15/11

Benefield, R. 9/6/11

Taylor, J. 9/7/11

Carroll, S. 9/12/11

Colby, N. 9/15/11

Camp, K. 9/19/11

Sgroi, J. 9/21/11

Hill, A. 9/22/11

Bodnar, J. 9/22/11

Ellis-Raymond, R. 9/27/11

Ritter, F. 9/29/11

Rast, R. 10/4/11

Jones, K. 10/3/11

Schieler, T. 10/3/11

Smith, S. 10/4/11

Goyda, C. 10/4/11

Smolko, J. 10/5/11

Waller, R. 10/6/11

Buchanan, N. 10/10/11

Kulakofksy, R. 10/10/11, 3/14/12

Bargmeyer, A. 10/10/11

Sturtz, W. 10/18/11

Morgan, D. (LEI Engineers) 10/18/11

Silverman, T. 11/8/11

Windham, T. 11/14/11

Sherman, M. 11/14/11, 1/4/12, 2/27/12

Weeden, H. 11/14/11

King, C. 11/15/11

Richard, M. 11/15/11

Immesberger, A. 11/21/11

Jensen, G. 11/22/11, 3/14/12

Steinberg, S. 11/28/11, 3/6/12

de Geofroy, L. 11/28/11

Schuman, A. 11/28/11, 1/11/12

Carreno, F. 12/1/11

Coleman, R. 12/1/11

Burton, L. 12/1/11

Jensen, G. 12/5/11

Patrick, D. 12/6/11

DeLong, J. 12/6/12

Buck, C. 12/12/11

Deaver, R. 12/15/11

Pfund, A. 12/15/11

Hofler, E. 12/15/11

Peterson, T. (Law Office of Tulane M. 12/15/11
Peterson)

Masters, V. 11/1/11, 12/1/11

Webb, J. 12/19/11

Lavado, H. 12/21/11, 2/21/12

Nedbalak, L. 1/4/12

Moore, C. 1/4/12

Hershberger, J. (Willis Agricultural 1/17/12
Storage, Inc.)

Telljohann, J. 1/18/12

Bye, P. 1/18/12

Anzalone, M. 1/18/12

Geiyer, R. 1/18/12

Safro, B. 1/23/12

Johnson, B. 1/26/12

Lester, R. (Septa) 1/27/12

Wolin, M. 2/06/12

Rycombel, F. (Kenton School District) 2/6/12

Leinemann, J. 2/8/12

Miller, E. 2/13/12

Johnson, B. 2/13/12

Roberson, K. 2/13/12

Curtis, T. 2/27/12

Hofkin, R. 2/27/12

Fitch, J. 3/6/12

Sanderson, R. 3/6/12

O'Daniel, D. 3/12/12

Bye, P. 3/13/12

Dunn, T. (Canyon Ranch) 3/14/12

Dumke, L. 3/21/12

Roach, P. 3/21/12

Andrews, T. 4/24/12

Nabor, J. 4/24/12

Sherman, M. 4/30/12

Partin, C. 5/8/12

Jensen, G. 6/20/12

Williams, G. 6/13/12

Bradshaw, P. 6/26/12

This case was formerly assigned the file number EB-10-TC-478. In January
2011, the Telecommunications Consumers Division reassigned this case the
number set forth in the caption.

See 47 U.S.C. S: 227(b)(1)(C);47 C.F.R. S: 64.1200(a)(4) (formerly
codified at 47 C.F.R. S: 64.1200(a)(3)). In February 2012, the Commission
amended the rules governing prerecorded advertising calls and, as a
result, largely renumbered 47 C.F.R. S: 64.1200. Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Report and
Order, 27 FCC Rcd 1830 (2012). Although the new prerecorded call
provisions have not yet taken effect pending approval by the Office of
Management and Budget, renumbering became effective on July 11, 2012.
Rules and Regulations Implementing the Telephone Consumer Protection Act
of 1991, 77 Fed. Reg. 34233-01 (June 11, 2012) (to be codified at 47
C.F.R. pt. 64). Accordingly, rules governing the use of telephone
facsimile machines to send unsolicited advertisements have been changed
from Section 64.1200(a)(3) to 64.1200(a)(4). See also Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991,
Report and Order and Third Order on Reconsideration, 21 FCC Rcd 3787
(2006).

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 on which the recipient
voluntarily made its facsimile number available for public distribution.
In addition, the unsolicited advertisement must notify the recipient of
how to opt out of receiving future such ads, subject to certain
requirements. The Commission has adopted implementing rules. See 47 C.F.R.
S: 64.1200(a)(4).

See 47 U.S.C. S: 503(b)(5).

Citation from Joshua P. Zeldis, Assistant Division Chief,
Telecommunications Consumers Division, Enforcement Bureau, File No.
EB-10-TC-478, issued to National Employee Benefits Group and Benchmark
Mortgage dba National Employee Benefits Group, on October 22, 2010.

Our records indicate that National Employee Benefits Group acknowledged
receipt of the citation, as evidenced by a signed United States Postal
Service return receipt, Article Number 7008 0500 0000 9339 3528 (National
Employee Benefits Group, Attn.: Tim Gibbons, President, 795 Folsom Street,
1st Floor, San Francisco, CA 94107).

National Employee Benefits Group, Notice of Apparent Liability for
Forfeiture, 27 FCC Rcd 2734 (2012) (February 2012 NAL). Our records
indicate that National Employee Benefits Group acknowledged receipt of the
February 2012 NAL, as evidenced by a signed United States Postal Service
return receipt, Article Number 7007 2560 001 6093 7751 (2800 Post Oak
Blvd., Suite 4100, Houston, TX 77056), as well as evidence of another
signed United States Postal Service return receipt, Article Number 7007
2560 001 7744 (8871 West Flamingo Road, Suite 202, Las Vegas, NV 89147).

February 2012 NAL, 27 FCC Rcd 2734, n.1.

On March 29, 2012, Attorney Robert M. Ungar submitted a letter on behalf
of Tim Gibbons, president of NEBG, requesting an extension to respond to
the February 2012 NAL. See Letter from Robert M. Ungar, attorney
representing Tim Gibbons, to Marlene H. Dortch, Secretary, Federal
Communications Commission (March 29, 2012) (on file in EB-10-TC-478). This
extension request was granted on April 11, 2012. See e-mail from Rosemary
Cabral , Staff Attorney, Telecommunications Consumers Division,
Enforcement Bureau, Federal Communications Commission, to Attorney Robert
M. Ungar (April 11, 2012, 2:19 p.m. E.D.T.). However, on May 9, 2012,
Attorney Ungar sent an e-mail to Rosemary Cabral, Staff Attorney,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission, indicating that despite the request for an
extension to respond to the NAL, a formal response would not be submitted.
See e-mail from Attorney Robert Ungar to Rosemary Cabral , Staff Attorney,
Telecommunications Consumers Division, Enforcement Bureau, Federal
Communications Commission (May 9, 2012, 11:01 a.m. E.D.T.).

See Appendices A, B and C.

See Appendix D for a listing of the consumer complaints against UEB/UEBG
requesting Commission action. We note that evidence of additional
instances of unlawful conduct by either Tim Gibbons, NEBG or UEBG may form
the basis of subsequent enforcement action.

http://nvsos.gov/sosentitysearch/CorpDetails.aspx?lx8nvq=YAeRCD5zwdN0ZGznnthaWA%253d%253d
(last visited on May 23, 2012).

See supra note 8.

E-mail from David Guerro, j2 Global to Al McCloud, Access Specialist,
Telecommunications Consumers Division, Enforcement Bureau, dated February
14, 2012 (responding to a Commission inquiry, David Guerro confirmed that
from August 7, 2011 to date of production, Tim Gibbons of National
Employee Benefits Group, 1560 Youd Road, Winton, CA 95388, was listed as
the billing contact for 888-872-1112 in the carrier's records). A recent
update indicates that the number still belongs to Tim Gibbons.

http://www.nebgroup.org. The former website for Benchmark Mortgage, the
entity previously cited by the Bureau as doing business as NEBG, stated
that Benchmark "manages and oversees the financial programs and portfolios
of The National Employee Benefits Group (subsidiary of United Employees
Benefits Group)."
http://www.benchmarkmortgagebank.com/national_employee_benefits_group
(last visited on May 23, 2012). Benchmark's website appears to have since
been disabled.

http://www.dre.ca.gov/pdf_docs/loanmod_drs/H11212SF.pdf (last visited July
20, 2012).

47 C.F.R. S: 64.1200(f)(10).

In filing complaints regarding the faxes listed in Appendix D, each
consumer stated that he or she had not agreed to receive fax
advertisements from NEBG or UEBG and had not done any business with or
made an inquiry or application to NEBG or UEBG. See Junk Fax Prevention
Act R&O, 21 FCC Rcd at 3793-9, para. 9-21, 3812, para. 46 (concluding
that if a complaint is filed, the burden of proof rests on the fax sender
to demonstrate that there is a valid EBR with the recipient or that prior
express consent to fax was given).

47 U.S.C. S: 227(a)(5); 47 C.F.R. S: 64.1200(f)(15). The term "unsolicited
advertisement" means "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." See also supra note 15, and Appendix C.

47 U.S.C. S: 503(b)(5).

47 U.S.C. S: 503(b)(1)(B) and (b)(5).

47 U.S.C. S: 503(b)(2)(E).

47 C.F.R. S: 1.80(b)(6) 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)(6) 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)(7). 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 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).

February 2012 NAL, 27 FCC Rcd 2734, 2737, para. 8 (applying a $150,000
upward adjustment in proposing a forfeiture for 97 junk fax violations);
see also 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); The Street Map Company, Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 8318, 8321-22, paras. 10-11 (2010) (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).

Sabrina Javani d/b/a EZ Business Loans, Notice of Apparent Liability for
Forfeiture, FCC 12-75 (rel. July 10, 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.
Gibbon's and NEBG/UEBG'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).

http://uebg.org (last visited July 19, 2012).

Both California and Nevada law require persons (including both natural and
artificial persons) operating under fictitious names to register those
names with the state. Cal. Bus. & Prof. Code S: 17910; Nev. Rev. Stat.
602.010. As the California law states, the registration requirement is
"designed to make available to the public the identities of persons doing
business under the fictitious name." Id. S: 17900(a)(1).

FCC Form 1088A - Junk Fax Complaint from R. Rast (October 4, 2011).

FCC Form 1088A - Junk Fax Complaint from T. Dunn, Canyon Ranch (March 14,
2012). See also FCC Form 1088A - Junk Fax Complaint from J. Taylor
(September 7, 2011) ("The ad is structured as an internal memo,
fraudulently announcing `a special covered benefit being provided free to
all employees.' However it was not sent by my employer.").

47 C.F.R. S: 64.1200(a)(4)(iii)(D) and (E); see also 47 U.S.C. S:
227(b)(2)(D)(iv)(I). If neither of these numbers is toll-free, a separate
cost-free mechanism such as a website or e-mail address must be available
for a fax recipient to transmit an opt-out request. 47 C.F.R. S:
64.1200(a)(4)(iii)(D)(2); 47 U.S.C. S: 227(b)(2)(D)(iv)(II). The sender
must also include a clear and conspicuous notice on the first page of the
advertisement that the fax recipient is entitled to request that the
sender not transmit any future fax advertisements. 47 U.S.C. S:
227(b)(1)(C)(iii), 227(b)(2)(D)(i) and (ii); 47 C.F.R. S:
64.1200(a)(4)(iii).

FCC Form 1088A - Junk Fax Complaint from C. Moore, (January 4, 2012).

FCC Form 1088A - Junk Fax Complaint from T. Andrews (April 24, 2012).

FCC Form 1088A - Junk Fax Complaint from T. Peterson (December 15, 2011).

47 C.F.R. S: 64.1200(a)(4)(iii)(B); see also 47 U.S.C. S:
227(b)(2)(D)(ii).

The February 2012 NAL was issued against NEBG, which was defined to
include Mr. Gibbons. February 2012 NAL, 27 FCC Rcd at 2734 n.1.

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 12-98