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Federal Communications Commission FCC 16-22
      
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of
Scott Malcolm
DSM Supply, LLC
Somaticare, LLC
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File No.:  EB-TCD-12-00001013
NAL/Acct. No.:  201432170003
FRN:  0023383201    
FORFEITURE ORDER
Adopted: February 18, 2016 Released:  February 18, 2016
By the Commission:  Commissioner O’Rielly concurring in part and dissenting in part.
1. We impose a penalty of $1,840,000 against Scott Malcolm, DSM Supply, LLC (DSM), 
and Somaticare, LLC (Somaticare) (collectively, the DSM Parties), for sending 115 unsolicited 
advertisements to the telephone facsimile machines of 26 consumers.  These fax advertisements
(commonly known as junk faxes) were directed primarily to health care practitioners, many of whom 
repeatedly attempted to stop the relentless barrage of unwanted and unsolicited advertisements for 
chiropractic products from the DSM Parties.
1
  The intrusion, expense, and disruption of business activities
(including patient care) that resulted from these junk faxes highlight the harms that Congress sought to 
prevent by prohibiting unsolicited fax advertisements.  The Commission has adopted rules to implement 
this prohibition, and we hold the DSM Parties accountable for their violations of these rules.
2. On February 24, 2014, the Commission issued a Notice of Apparent Liability for 
Forfeiture (NAL) proposing a $1,840,000 forfeiture against the DSM Parties
2
for willful and repeated 
violation of Section 227(b)(1)(C) of the Communications Act of 1934, as amended (Act), and Section 
64.1200(a)(4) of the Commission’s rules (Rules) by delivering advertisements to telephone facsimile 
machines without prior express invitation or permission or without meeting the requirements for 
advertisements faxed under an established business relationship.
3
  None of the DSM Parties filed a timely 
response to the NAL.  Based on the information before us, we affirm the forfeiture proposed in the NAL.
3. The DSM Parties failed to file a timely response to the NAL or request an extension of 
time to respond to the NAL.  Instead, counsel for the DSM Parties waited until almost seven months after 
the filing deadline to send any response to the Commission.
4
  We reject the NAL Response as untimely.  
Further, even if we did consider the DSM Parties’ untimely response, we would reject the arguments 
contained therein for the reasons explained below.  
                                                     
1
See Scott Malcolm, Notice of Apparent Liability for Forfeiture, 29 FCC Rcd 2476, 2479-80, para 8 (2014) (NAL).  
As explained in the NAL, “consumers . . . compellingly documented the disruption, expense, and frustration caused 
both by receipt of the DSM parties’ unlawful advertisements and by the unpleasant and unsuccessful attempts to 
permanently stop them.” Id.  Multiple consumers described receiving numerous junk faxes for extended periods, in 
one case “for years,” despite repeatedly asking the sender to stop.  Id. 
2
Id. at 2477–84, paras. 4–19 (providing a more complete discussion of the facts and history of this case). The NAL
is incorporated herein by reference.  
3
See 47 U.S.C. § 227(b)(1)(C); 47 CFR § 64.1200(a)(4).
4
See DSM Parties’ Response to Notice of Apparent Liability for Forfeiture (received Oct. 16, 2014) (on file in EB-
TCD-12-00001013) (NAL Response).
Federal Communications Commission FCC 16-22
      
2
4. The DSM Parties summarily contest certain facts in the NAL (e.g., that the fax 
advertisements were unsolicited and sent without prior express invitation or permission of the recipients) 
but fail to provide any documentary or other reliable support for their claims or in any way rebut the 
NAL’s findings or description of information provided by complainants under penalty of perjury.
5
  
Similarly, although the DSM Parties claim to “have an established business relationship with all of the 
complainants,”
6
as noted in the NAL, while three confirmed having purchased something from DSM, the 
faxes sent to them did not include the required opt-out notice and the DSM Parties failed to establish any 
such relationships with the remaining complainants.
7
5. Moreover, in seeking to remove Scott Malcolm from this action because he allegedly did 
not personally transmit the faxes, the NAL Response fails to address in any way our detailed finding that 
the DSM Parties are jointly and severally liable for the unlawful faxing because “there exists such a unity 
of interest and ownership that no separate personality exists as between Mr. Malcolm and DSM or 
Somaticare” and that “because the evidence . . . demonstrates that Mr. Malcolm either personally sent the 
unwanted faxes or was responsible for their transmission, . . . Mr. Malcolm was sufficiently involved in 
the operations of the companies that he is a ‘person’ liable for unlawful conduct within the meaning of 
Section 227.”
8
  
6. We further conclude that the DSM Parties’ request for clarification and retroactive waiver 
of Section 64.1200(a)(4)(iv), included in the NAL Response, is without merit and we accordingly deny it.  
First, the NAL does not allege a violation of Section 64.1200(a)(4)(iv) and, thus, even if we were to grant 
the waiver or clarify the rule, it would have no legal effect on our findings and the forfeiture we impose.  
Second, although the Commission has recognized that good cause exists to grant individual waivers to 
some parties who send fax ads with the recipient’s prior express permission where they may have been 
uncertain about whether the requirement for opt-out notices applied to them, that is not the situation 
presented in this case.
9
  The 2011 citation issued to the DSM Parties for violations of the Act and Rules 
cited, among other violations, “insufficient opt-out notices” and informed these parties of the legal 
requirements relating to such violations.
10
  Notwithstanding the Citation’s invitation to the DSM Parties to 
respond by letter, teleconference, or personal interview, the DSM Parties did not reach out to Bureau staff 
to discuss why the Bureau had found DSM’s activities in violation of the Act and Rules.  Rather, the 
DSM Parties continued their transmission of prohibited faxes, as outlined in the NAL. We accordingly 
reject their claims of “confusion” as to the requirements of the law and find that the DSM Parties were 
operating under no uncertainty as to the applicability of the opt-out requirements on fax advertisements 
during the time period covered by this forfeiture.  
                                                     
5
See NAL, 29 FCC Rcd at 2478–79, para. 5 (“These consumers have further indicated that they received the DSM 
advertisements without expressly authorizing such faxes to be sent.”); Rules and Regulations Implementing the 
Telephone Consumer Protection Act of 1991, Report and Order and Third Order on Reconsideration, 21 FCC Rcd 
3787, 3812, para. 46 (2006) (“In the event that a complaint is filed, the burden of proof rests with the sender to 
demonstrate that permission was given.”).
6
NAL Response at 5.
7
NAL, 29 FCC Rcd at 2478–79, para. 5.
8
Id. at 2483–84, paras. 16–19 (emphasis added).  
9
See Petitions for Declaratory Ruling, Waiver, and/or Rulemaking Regarding the Commission’s Opt-Out 
Requirement for Faxes Sent with the Recipient’s Prior Express Permission, Order, 29 FCC Rcd 13998 (2014) (Anda 
Order).
10
See Citation from Richard A. Hindman, Chief, Telecommunications Consumers Division, FCC Enforcement 
Bureau, to Somaticare, Inc. aka DSM Supply, LLC and DSM Supply, LLC aka Somaticare, Inc. (Dec. 20, 2011) (on 
file in EB-TCD-12-00001013 at 2 and Attachment A, section I(C)).
Federal Communications Commission FCC 16-22
      
3
7. In addition, the NAL Response fails to demonstrate that the DSM faxes at issue here 
would even qualify for waiver of Section 64.1200(a)(4)(iv) of the Commission’s rules.   The NAL 
Response appears to conflate an established business relationship with prior express permission or 
invitation to send a fax advertisement,
11
which is at odds with both the Act and the Rules, which establish 
these elements as separate provisions that permit fax advertisements to be lawfully sent.
12
  Further, with 
respect to waivers of opt-out notice requirements, the Commission has emphasized that the waivers it 
granted for fax ads sent with prior express permission “do not extend to a similar requirement to include 
an opt-out notice on fax ads pursuant to an established business relationship, as there is no confusion 
regarding the applicability of this requirement to such faxes.”
13
  Accordingly, to the extent that the DSM 
Parties seek to equate an established business relationship with prior express permission to fax, waiver of 
Section 64.1200(a)(4)(iv) of the Rules is not available even assuming, arguendo, that such established 
business relationships actually existed.  Moreover, despite the sworn complaints underlying the NAL, the 
DSM Parties offer only blanket and sometimes inconsistent assertions
14
rather than any actual evidence 
that would demonstrate either prior express permission or an established business relationship with
respect to any of the 26 complainants.  
8. Finally, with regard to the DSM Parties’ request that we clarify the statutory basis for 
Section 64.1200(a)(4)(iv) is not 47 U.S.C. § 227(b), Section 1.2 of the Rules provides that the 
Commission may issue declaratory rulings “terminating a controversy or removing uncertainty.”
15
  Since 
the subsection of the Rules at issue is inapplicable here, there is no controversy, nor is there any 
uncertainty: the Commission in 2014 concluded that section of the Act is, in fact, the statutory basis for 
Section 64.1200(a)(4)(iv).
16
We therefore deny this request as well.
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Communications 
Act of 1934, as amended,
17
and Section 1.80 of the Commission’s rules,
18
Scott Malcolm, DSM Supply, 
LLC, and Somaticare, LLC, ARE JOINTLY AND SEVERALLY LIABLE FOR A MONETARY 
FORFEITURE in the amount of one million eight hundred forty thousand dollars ($1,840,000) for 
willfully and repeatedly violating Section 227(b)(1)(C) of the Act
19
and Sections 64.1200(a)(4) of the 
Rules.
20
10. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the 
Rules within thirty (30) calendar days after the release date of this Forfeiture Order.
21
  If the forfeiture is 
                                                     
11
See, e.g., NAL Response at 5.  (“The DSM Parties did not send the complainants an unsolicited fax.  The DSM 
Parties have an established business relationship with all of the complainants.”).
12
See 47 U.S.C. § 227(a)(5), (b)(1)(C)(i); 47 CFR § 64.1200(a)(4)(i), (f)(15).
13
See Anda Order, 29 FCC Rcd at 13998, 14011, para. 2 n.2, para. 27 n.99; see also 47 U.S.C. § 227(b)(1)(C)(i)–
(iii) (establishing a valid opt-out notice as a prerequisite for permissible fax advertising pursuant to an established 
business relationship).
14
“The DSM Parties have an established business relationship with all of the complainants. . . .  Cursory review 
shows that the DSM Parties had established business relationships with most if not all of the complainants in this 
matter.” NAL Response at 5 (emphasis added).
15
47 CFR § 1.2.
16
See Anda Order, 29 FCC Rcd at 14005, para. 14 (“[W]e conclude that section 227(b) of the Act . . . is the 
statutory basis for that rule.”).
17
47 U.S.C. § 503(b).
18
47 CFR § 1.80.
19
47 U.S.C. § 227(b)(1)(C).
20
47 CFR § 64.1200(a)(4).
21
47 CFR § 1.80.
Federal Communications Commission FCC 16-22
      
4
not paid within the period specified, the case may be referred to the U.S. Department of Justice for 
enforcement of the forfeiture pursuant to Section 504(a) of the Act.
22
  
11. 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.  Scott Malcolm, 
DSM Supply, LLC, and/or Somaticare, LLC 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.
23
  When completing the 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 that should be followed based 
on the form of payment selected:
? 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.
12. Any request for making full payment over time under an installment plan should be sent 
to: Chief Financial Officer – Financial Operations, Federal Communications Commission, 445 12th 
Street, SW, Room 1-A625, Washington, DC 20554.
24
  Questions regarding payment procedures should be 
directed to the Financial Operations Group Help Desk by telephone, 1-877-480-3201, or by e-mail, 
ARINQUIRIES@fcc.gov.
13. IT IS FURTHER ORDERED, pursuant to Sections 1–4 and 227 of the 
Communications Act of 1934, as amended,
25
and Sections 1.2 and 64.1200 of the Commission’s rules,
26
that the request for clarification and retroactive waiver of Section 64.1200(a)(4)(iv) of the Commission’s
rules
27
filed by Scott Malcolm, DSM Supply, LLC, and Somaticare, LLC, IS DENIED to the extent 
discussed herein.
14. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be sent by first 
class mail and certified mail, return receipt requested, to DSM Supply, LLC, Attn: Scott Malcolm, 
President/Owner, 11837 Judd Court, Suite 106E, Dallas, TX 75243; Somaticare, LLC, Attn: Scott 
                                                     
22
47 U.S.C. § 504(a).
23
An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
24
See 47 CFR § 1.1914.
25
47 U.S.C. §§ 151–153, 227.
26
47 CFR §§ 1.2, 64.1200.
27
47 CFR § 64.1200(a)(4)(iv).
Federal Communications Commission FCC 16-22
      
5
Malcolm, President/Owner, 11837 Judd Court, Suite 106E, Dallas, TX 75243; Scott Malcolm, 11837 
Judd Court, Suite 106E, Dallas, TX 75243; and to Michael R. Cramer, Esq., The Willis Law Group, 
PLLC, 10440 N. Central Expressway, Suite 520, Dallas, TX 75231.   
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary