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Federal Communications Commission FCC 18-14
Before the
Federal Communications Commission
Washington, DC 20554
In the Matter of
Scott Malcolm
DSM Supply, LLC
Somaticare, LLC
)
)
)
)
)
File No.:  EB-TCD-12-00001013
NAL/Acct. No.:  201432170003
FRN:  0023383201
ORDER ON RECONSIDERATION
Adopted:  February 15, 2018 Released:  February 15, 2018
By the Commission:  Commissioner O’Rielly approving in part and dissenting in part.
I. INTRODUCTION
1. In February 2016, the Federal Communications Commission (Commission) issued a 
forfeiture order (Forfeiture Order) holding Scott Malcolm liable, jointly and severally, with DSM Supply, 
LLC, and Somaticare, LLC (collectively, Malcolm), for the illegal transmission of unsolicited facsimile 
advertisements.
1
  The Commission found that Malcolm violated the Telephone Consumer Protection Act 
(TCPA) and its implementing regulations, and imposed a forfeiture of $1,840,000.
2
  Malcolm filed a 
“Request for Reconsideration” (Petition) asking the Commission to reconsider the amount of the 
forfeiture.
3
  
2. Malcolm’s Petition makes one new argument—that the proposed forfeiture constitutes an 
excessive fine prohibited by the Eighth Amendment to the U.S. Constitution.  This argument is based on 
three claims:  (1) that Malcolm had “some basis” to believe that these faxes did not violate the law and 
Commission regulations, (2) that unsolicited faxes are “annoying” but involve no “economic injury to the 
recipients or to the government,” and (3) the forfeiture amount “will permanently destroy Malcolm’s 
livelihood.”
4
  As discussed more fully below, we dismiss the Petition for failure to comply with the 
Commission’s rules, which required Malcolm to raise such arguments in the response to the Notice of 
Apparent Liability.  As a separate and independent ground for rejecting the Petition, and for the reasons 
stated below, we conclude that it fails to demonstrate that the forfeiture amount violates the Excessive 
Fines Clause of the Eighth Amendment.
1
 Scott Malcolm, DSM Supply, LLC, Somaticare, LLC, Forfeiture Order, 31 FCC Rcd 1652 (2016) (Forfeiture 
Order).
2
 Forfeiture Order, 31 FCC Rcd at 1654, para. 9; Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 
(TCPA).
3
 See Scott Malcolm, DSM Supply, LLC, Somaticare, LLC, Request for Reconsideration, 2-3 (received Mar. 18, 
2016) (on file in EB-TCD-12-00001013) (Petition).  The Commission treats this “Request for Reconsideration” as a 
petition for reconsideration.
4
 Id. at 2.
Federal Communications Commission FCC 18-14
2
II. DISCUSSION
A. Malcolm’s Petition Relies on Facts and Arguments that He Could Have Presented 
Previously and is Thus Procedurally Deficient
3. Pursuant to the Commission’s rules (Rules), a petition for reconsideration that relies on 
facts or arguments not previously presented to the Commission may be granted only if it relies on facts or 
arguments that (i) relate to events that have occurred or circumstances that have changed since the 
petitioner’s last opportunity to present such matters to the Commission, (ii) were unknown to the 
petitioner until after the last opportunity to present them to the Commission, or (iii) the Commission or its 
designee determines that reconsideration of the facts or arguments relied on is required in the public 
interest.
5
  
4. Malcolm “does not contest the imposition of liability on him personally.”
6
  The sole 
argument in the Petition is that the forfeiture is “excessive” in violation of the Eighth Amendment.
7
  
Malcolm raises this Eighth Amendment argument for the first time in his Petition.  However, that claim 
does not rely on events that have occurred or circumstances that have changed since his prior filings.  
5. The Commission has already provided Malcolm with the opportunity to raise this 
argument, and he did not do so.  The Communications Act of 1934, as amended (Act), requires the 
Commission to advise those subject to forfeiture of the amount of the Commission’s proposed penalty, 
and to provide an opportunity to challenge the proposed amount, including asserting an inability to pay.
8
    
The Commission issued a Notice of Apparent Liability (NAL) in which Malcolm was notified of the 
proposed forfeiture amount and informed that he could “file a written statement seeking reduction or 
cancellation of the proposed forfeiture,” should he decide not to pay the forfeiture outright.
9
  He did not 
respond in a timely manner.  The NAL also contained specific requirements for putting forth an “inability 
to pay” argument.
10
  He did not follow those requirements.  Instead, Malcolm filed an untimely response 
to the NAL (NAL Response) nearly seven months after the filing deadline and did not dispute his ability 
to pay in that pleading.
11
  
5
 47 CFR § 1.106(c).
6
 See Petition at 2; see also Scott Malcolm, DSM Supply, LLC, Somaticare, LLC, Notice of Apparent Liability for 
Forfeiture, 29 FCC Rcd 2476, 2483-84, paras. 16–19 & n.53 (2014) (NAL) (finding personal liability); Forfeiture 
Order, 31 FCC Rcd at 1653, para. 5.  Malcolm also does not challenge the liability of DSM Supply, LLC, or 
Somaticare, LLC.  With respect to violations of the TCPA, Malcolm notes that he “does not assert that the 
requirements of [various statutory exceptions] were in fact met; he asserts only that there is some basis for his 
thinking that they were.”  Id. at 3.  
7
 Petition at 2.
8
 47 U.S.C. §§ 503(b)(4)(A), (C).
9
 NAL, 29 FCC Rcd at 2485, para. 23.
10
 Id. at 2486, para. 27 (“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.”).   
11
 See Scott Malcolm, DSM Supply, LLC, Somaticare, LLC, Response of Malcolm et al to Notice of Apparent 
Liability for Forfeiture (received Oct. 16, 2014) (on file in EB-TCD-12-00001013) (NAL Response).  Although the 
Commission rejected the NAL Response as untimely, it considered and rejected the arguments put forth therein.  
Forfeiture Order, 31 FCC Rcd at 1652-54, paras. 3-8.
Federal Communications Commission FCC 18-14
3
6. Malcolm’s newly raised Eighth Amendment argument relies in part on a “deprivation of 
livelihood” claim.
12
  The argument is premised on tax returns from 2012 to 2014, which either predate his 
NAL Response,
13
 as is the case for 2012 and 2013 tax returns, or are based on economic factors that 
Malcolm was aware of at the time of his NAL Response.
14
  None of the factual claims that Malcolm 
makes to support the new Eighth Amendment argument has come to light since his last opportunity to 
present them to the Commission, nor were any of the cited facts then unknown to him.
15
  There is no 
information in the tax returns that Malcolm could not have presented earlier to the Commission; therefore 
they do not provide a basis for reconsideration.
7. Moreover, we find the public interest does not require the Commission to reopen the 
forfeiture decision to consider information or arguments that Malcolm could have, but did not, present 
earlier.  The Act contains numerous safeguards for persons such as Malcolm who do not hold a 
Commission license or authorization.
16
  Malcolm was provided notice—in the form of a citation 
(Citation)—that he was in violation of the TCPA and our rules; he was given an opportunity to discuss 
the notice.
17
  The Commission only took further action against Malcolm when he continued to violate the 
law following his receipt of the Citation.
18
  Subsequently, Malcolm had an opportunity to raise his Eighth 
Amendment arguments in his NAL Response and declined to do so.  Malcolm’s TCPA violations were 
numerous, egregious, and occurred after being issued a citation advising him that he was violating the 
law.  
8. Further, enforcement of our procedural rules promotes orderliness and finality in the 
administrative process and thereby serves the public interest, convenience, and necessity.
19
  It also 
promotes the efficient use of Commission resources.  Neither the Act nor Rules require the Commission 
to be administratively burdened by petitions for reconsideration that reargue issues that were already 
addressed, or that rely on facts or arguments that the petitioner could have—but did not—present to the 
Commission at an earlier stage.
20
   Indeed, as the Commission has long recognized, “[n]o judging process 
in any branch of government could operate efficiently or accurately if such a procedure were allowed.”
21
  
For all these reasons, we conclude that the public interest would not be served by consideration of 
Malcolm’s new argument.  Accordingly, we dismiss the Petition on procedural grounds.  
12
 In addition to Malcolm’s “deprivation of livelihood” argument, the Petition relies on some of the facts and 
arguments Malcolm previously raised and the Commission rejected.  For example, Malcolm reiterates a claim from 
his NAL Response that the facsimile advertisements in question were solicited or otherwise fell under the 
established business relationship exception.  Compare id. at 5, with Petition at 2-3.  We have previously considered 
and rejected these arguments and need not revisit them here.
13
 See NAL Response.
14
  See Petition at 5; see also Scott Malcolm, DSM Supply, LLC, Somaticare, LLC, Declaration of Scott Malcolm, 
part 3, exhs. B, C, and D (received Mar. 18, 2016) (on file with EB-TCD-00001013) (Malcolm Declaration).
15
 47 CFR § 1.106(c).
16
 See 47 U.S.C. § 503(b)(5).
17
 Somaticare, Inc. aka DSM Supply, LLC and DSM Supply, LLC aka Somaticare, Inc., Citation (EB Dec. 20, 2011) 
(on file in EB-TCD-12-00001013) (Citation).  The citation was addressed to both DSM and Somaticare, and 
directed to the attention of Mr. Malcolm.
18
 Id.
19
 Think 12 Corporation d/b/a Hello Depot, Order on Review, 27 FCC Rcd 16618, 16620, para. 10 (2012).
20
 Indeed, the lack of new facts or information suggest that the Petition could be dismissed or denied by the 
Enforcement Bureau.  See 47 CFR § 1.106(p).
21
 Colorado Radio Corp. v. FCC, 118 F.2d 24, 26 (D.C. Cir. 1941), cited, e.g., in Expanding the Economic and 
Innovation Opportunities of Spectrum Through Incentive Auctions, Order on Reconsideration, 31 FCC Rcd 1367, 
1372 para. 10 & n.40 (2016).
Federal Communications Commission FCC 18-14
4
B. The Commission’s Reasonably Imposed Forfeiture is Constitutional 
9. Although we dismiss the Petition on procedural grounds, we also reject Malcolm’s 
Eighth Amendment argument on the merits, as a separate and independent ground for our decision.  
10. Whether a fine subject to scrutiny under the Eighth Amendment is unconstitutionally 
“excessive” depends on whether the amount of the fine is “grossly disproportional” to the gravity of the 
underlying offense.
22
  One factor that is often highly probative, if not dispositive, is whether the fine in 
question is within the prescribed statutory maximum for the underlying offense.
23
  Additional factors that 
routinely bear on whether a fine is grossly disproportional to the gravity of the underlying offense 
include:  (1) the nature and extent of the underlying offense, including whether it was in furtherance of 
other illegal conduct; (2) whether the person fined is within the class of persons for whom the authorizing 
statute was principally designed;
24
 and (3) the nature of the harm caused by the sanctioned person’s 
conduct.
25
  Finally, the burden to establish that a fine is grossly disproportional lies with the party 
challenging the fine.
26
11. Malcolm does not meet his burden to show that the forfeiture imposed is 
unconstitutionally excessive.  First, the Commission’s forfeiture did not exceed the statutory maximum of 
$16,000 per violation for the offense in effect at the time of the violation.
27
  The Commission explained in 
the NAL why assessing the maximum forfeiture per violation was consistent with Commission precedent 
and was necessary to deter future violations by Malcolm and his companies.
28
  In particular, the 
Commission explained that it had generally considered $4,500 per unsolicited fax advertisement as a base 
forfeiture for violating the prohibition against sending junk faxes.
29
  The Commission also explained that 
it applies an upward adjustment to $10,000 per unsolicited fax advertisement where consumers request 
that facsimile messages stop, but the sender continues, and imposes more substantial forfeitures (as in this 
case) to persistent violators and violators whose practices are egregious.
30
  In this case, the Commission 
applied the statutory maximum of $16,000 per violation because Malcolm’s “advertisements prompted 
over 350 complaints to the Commission after the Bureau first warned these parties that their conduct 
22
 United States v. Bajakajian, 524 U.S. 321, 334 (1998).
23
 Courts have said, for example, that “[n]o matter how excessive (in lay terms) an administrative fine may appear, if 
the fine does not exceed the limits prescribed by the statute authorizing it, the fine does not violate the Eighth 
Amendment.”  Newell Recycling Co. v. EPA, 231 F.3d 204, 210 (5th Cir. 2000) (internal quotation marks omitted).  
Similarly, the D.C. Circuit readily upheld the Commission’s imposition of the maximum statutory penalty (adjusted 
for inflation) against an unlicensed radio operator who challenged that penalty as excessive.  See Grid Radio v. FCC, 
278 F.3d 1314, 1322 (D.C. Cir. 2002) (noting that the statutory amount was “neither indefinite nor unlimited,” and 
that it did not “seem excessive in view of the [petitioner’s] continued and willful violation of the licensing 
requirement”).
24
 Malcolm is a “person” for purposes of the TCPA—he either personally sent the faxes or was responsible for their 
transmission.  Forfeiture Order, 31 FCC Rcd at 1653, para. 5; NAL, 29 FCC Rcd at 2484, para. 19.
25
 See, e.g., United States v. Viloski, 814 F.3d 104, 109 (2d Cir. 2016), cert. denied, 137 S. Ct. 1223 (2017); Collins 
v. SEC, 736 F.3d 521, 526-27 (D.C. Cir. 2013).
26
 See, e.g., Viloski, 814 F.3d at 109.  
27
 47 U.S.C. § 503(b)(2)(D); 47 CFR § 1.80(b)(5) (2012); id. § 1.80(b)(7) (amended and renumbered pursuant to 
Amendment of Section 1.80(b) of the Commission’s Rules, Adjustment of Civil Monetary Penalties to Reflect 
Inflation, Order, 28 FCC Rcd 10785 (EB 2013)). 
28
 NAL, 29 FCC Rcd at 2481-82, paras. 11-12.
29
 See id. at 2481, para. 11.
30
 Id. at 2481-82, paras. 11-12.
Federal Communications Commission FCC 18-14
5
violated the law.”
31
  Malcolm and his companies were found to be “knowing, flagrant, and persistent 
violators of the junk fax rules” that were “not likely to be deterred from continuing to send unsolicited 
faxes, and violating other junk fax rules, unless a substantial penalty is assessed.”
32
  Thus, the 
Commission assessed a forfeiture of $16,000 per violation for the 115 violations that occurred within the 
applicable statute of limitations based on its finding that the volume and egregious nature of the violations 
justified the maximum penalty possible.
33
  Because the forfeiture was within the statutory limits, there is a 
strong indication that it was not excessive.
12. Malcolm contrasts this case with Texas v. American Blastfax, Inc. (Blastfax), a case 
brought by the State of Texas under the TCPA and the Texas Deceptive Trade Practices Act, TEX. BUS. 
& COMM. CODE Section 17.41 (DTPA).
34
  The court found the principals of Blastfax jointly and 
severally liable for continuing to send junk faxes even after the court had notified them that their conduct 
violated the TCPA.
35
  The court imposed damages under the TCPA of $459,375 and $20,000 in attorney’s 
fees.
36
  The amount in Blastfax was substantially lower than the amount that the Commission imposed on 
Malcolm, but that does not make the Commission’s decision excessive, arbitrary, or capricious.  The 
court in Blastfax chose to impose an amount on the basis of what it deemed to be the “average cost [per 
page] of receiving an unwanted fax.”
37
  The Commission chose instead to assess a fine that was based on 
and consistent with the statutory guidelines.  It was within the Commission’s discretion to do so.  
13. Second, the Commission’s reasonably imposed forfeiture is presumptively constitutional 
because it was not arbitrary or capricious.  As the D.C. Circuit has explained, when an agency’s decision 
to impose a penalty is not arbitrary and capricious, that “goes most of the way to compelling rejection of 
[any Eighth Amendment challenge to that penalty].”
38
  The court further noted that “[a] penalty that is not 
far out of line with similar penalties imposed on others and that generally meets the statutory objectives 
seems highly unlikely to qualify as excessive in constitutional terms.”
39
  Here, as explained above and at 
greater length in the NAL, the forfeiture is reasonable and well in line with penalties the Commission has 
imposed in similar cases.
40
14. Further, the analysis through which the Commission determined to impose the forfeiture 
against Malcolm was not arbitrary or capricious.  As discussed above, Malcolm had notice (in the form of 
the Citation) that his conduct was unlawful, and that penalties of up to $16,000 per violation were 
31
 Id. at 2482, para. 12.
32
 Id. at 2482, para. 12.
33
 Id. at 2482, para. 12.  The Commission would also have taken account of Malcolm’s ability to pay.  See NAL, 29 
FCC Rcd at 2480-81, para. 10.  However, Malcolm made no showing concerning that factor in his untimely 
response to the NAL.  See Forfeiture Order, 31 FCC Rcd at 1652, para 2.
34
 Texas v. American Blastfax, Inc., 164 F.Supp.2d 892 (W.D. Tex. 2001).
35
 See Petition at 3-4, citing Blastfax, 164 F.Supp.2d at 898, 903.  Malcolm and the principals in Blastfax are both 
culpable under the TCPA.  The “notice” in Blastfax involved a previous order by the court in the same case finding 
that Blastfax violated the TCPA and Blastfax continued to violate the TCPA after receiving such notice.  Here, 
Malcolm received “notice” from the Commission in the Citation that his conduct violated the TCPA and he 
continued to violate the TCPA even after receiving such notice.  
36
 Blastfax, 160 F.Supp.2d at 901.  The court also imposed the statutory maximum of $10,000 in penalties for 
violating the DTPA.  Id. 
37
 Id.  The court in Blastfax relied on an expert witness who presented evidence about the cost of receiving unwanted 
faxes.  The Commission is not compelled to accept evidence presented to another tribunal in another case.
38
 Collins, 736 F.3d at 527.
39
 Id.
40
 NAL, 29 FCC Rcd at 2481, nn.37-40.
Federal Communications Commission FCC 18-14
6
possible for any future violations.  Malcolm did not seek Commission guidance, and the Commission 
subsequently received more than 350 complaints concerning similar misconduct by Malcolm’s 
businesses.
41
  The record showed 115 violations affecting 26 customers, and evidence in the record 
suggests that these represent a fraction of  the unsolicited faxes that Malcolm and his companies sent.
42
  
Moreover, the Commission could have imposed separate penalties for faxes consumers received from 
Malcolm after having requested to opt out, but we elected not to do so.
43
 
15. In order to determine the appropriate forfeiture amount, the Commission addressed the 
“degree of culpability” and “history of prior offenses,” as well as the egregious character of the violations 
at issue.
44
  The Commission also discussed Malcolm’s indifference to the repeated do-not-fax requests 
made by the recipients of his illegal facsimiles, the large volume of illegal facsimiles, and the extensive 
text and graphics included in many of the facsimiles.
45
  These qualities made Malcolm’s facsimiles 
particularly egregious, consuming undue amounts of paper and ink as well as impeding the right of 
consumers to use their fax machines in a lawful manner.
46
  The Commission also highlighted the rude and 
dismissive nature of Malcolm’s responses to consumers as reported in consumer complaints.
47
  For 
example:
? “I was verbally abused . . . after asking them to stop sending me faxes.”
48
? “I have also told them that I was going to have to report them to the FCC and they then 
hung up on me.”
49
? “They have sent us faxes for years.  We call them every time we receive a fax and ask 
them to remove us.  On one occasion I called several times and they hung up on me, 
laughed at me, and never removed us from their list.”
50
16. Although Malcolm contends that his offense was not serious,
51
 the available statutory 
penalties that Congress established, and the Commission’s findings concerning the prolonged, disruptive, 
and egregious nature of Malcolm’s misconduct, belie that claim.
52
41
 Forfeiture Order, 31 FCC Rcd at 1653, para. 6; NAL, 29 FCC Rcd at 2477-78, 2482, paras. 4, 12; Citation at para 
3.  Any confusion on Malcolm’s part is of his own making and we find no support for his claim that he acted in 
“good faith” with “some basis” to believe that these faxes did not violate the law.  See Petition at 2-3.  If Malcolm 
had any doubt regarding his conduct with respect to the violations, the Citation provided an opportunity to respond 
and to meet with the Bureau to discuss the violations.  Citation at 3.  Malcolm, however, never responded or sought 
to meet with the staff.  Thus, any confusion regarding whether the fax advertisements at issue in this case violated 
the Act or Rules rests solely with Malcolm.  
42
 NAL, 29 FCC Rcd at 2482, paras. 12-13.
43
 Id. at 2482, para. 14.
44
 Id. at 2484-85, para. 20.
45
 See id. at 2482-83, paras. 13-14.
46
 See id. at 2482, para. 13.
47
 See id. at 2479-80, para. 8.
48
 FCC Form 1088A—Junk Fax Complaint from S. Pagano (May 13, 2013).
49
 FCC Form 1088A—Junk Fax Complaint from K. Durham (June 17, 2013).
50
 FCC Form 1088A—Junk Fax Complaint from A. Ortelli (May 21, 2013).
51
 See Petition at 4-5 (Malcolm asserts that at most his illegal faxes were “annoying”).
52
 Even crediting Malcolm’s assertion that he was not sending the faxes in connection with any consumer fraud or 
deceptive trade practice (Petition at 4 & n.3), he does not meet his burden of showing the forfeiture imposed was 
grossly disproportional to the gravity of his offense.  The fact that his violations could have been even more 
(continued….)
Federal Communications Commission FCC 18-14
7
17. In short, the record shows that:  (1) there were a significant number of consumer 
complaints supporting our action in this case; (2) affected customers were unable to stop the unwanted 
faxes;
53
 (3) Malcolm’s faxes did not include an opt-out notice required by the rules;
54
 (4) consumers’ 
requests to stop the faxes were met with rude responses and inaction;
55
 (5) faxes Malcolm sent were laden 
with graphics, and so used significant amounts of toner—costing businesses money and making fax 
machines unavailable for extended periods of time;
56
 and (6) the faxes disrupted medical practices, and 
possibly interfered with patient care.
57
  On this record, the forfeiture the Commission imposed—which 
fell within statutory limits—was reasonable and not grossly disproportional to the gravity of the 
underlying offense.
58
C. Malcolm Fails to Show that the Commission’s Forfeiture Will Deprive Him of a 
Future Ability to Make a Living
18. Malcolm claims in the Petition that the forfeiture would destroy his economic 
livelihood.
59
  First, the fact that a fine may challenge Malcolm’s future economic livelihood is not, in 
itself, dispositive in showing that the fine was unconstitutional.
60
  Second, Malcolm has not adequately 
supported that claim.
19. Malcolm states that his “present level of income”
61
 and present assets
62
 are insufficient to 
satisfy the forfeiture—and that he presently has no expectation of receiving “any inheritance or gift of any 
amount.”
63
  But as the First Circuit has explained, “a defendant's inability to satisfy a forfeiture at the time 
of conviction, in and of itself, is not at all sufficient to render a forfeiture unconstitutional, nor is it even 
the correct inquiry.”
64
  For one thing, “even if there [were] ‘no sign’ that [Malcolm] could satisfy the 
forfeiture in the future, there is always a possibility that [he] might be fortunate enough ‘to legitimately 
(Continued from previous page)  
reprehensible does not detract from the gravity of the offenses he did commit. 
53
 NAL, 29 FCC Rcd at 2479, para. 6.
54
 Id. at 2478-79, para. 5.
55
 Id. at 2479, paras. 6-7.
56
 Id. at 2479, 2482, paras. 8, 13.
57
 Id. at 2482, para. 13.
58
 Insofar as Malcolm claims he believed in good faith (or at least could have believed in good faith) that his conduct 
was lawful (Petition at 3), the Commission reasonably disagreed in view of the Citation Malcolm received and 
evidence that the vast majority of the complainants here had no relationship whatsoever with Malcolm’s companies. 
Forfeiture Order, 31 FCC Rcd at 1653, paras. 4, 6.
59
 Petition at 5. 
60
 See Viloski, 814 F.3d at 111-12 (“Whether a forfeiture would destroy a defendant’s livelihood is a component of 
the proportionality analysis, not a separate inquiry.  Accordingly, a forfeiture that deprives a defendant of his 
livelihood might nonetheless be constitutional, depending on his culpability or other circumstances.”  (footnote 
omitted)); see also Bajakajian, 524 U.S at 333-34 (“The test for the [constitutional] excessiveness of a punitive 
forfeiture involves solely a proportionality determination.” (emphasis added)).  But see United States v. Levesque, 
546 F.3d 78, 85 (1st Cir. 2008) (treating possible deprivation of livelihood as an independently relevant 
consideration, separate and apart from the question of gross disproportionality).
61
 Malcolm Declaration at para. 8.
62
 Id. at para. 4.
63
 Id. at para. 7.
64
 Levesque, 546 F.3d at 85. 
Federal Communications Commission FCC 18-14
8
come into money.’”
65
  In addition, Malcolm offers no basis for the Commission to conclude that his 
estimated “present” income (for the year 2015) is representative of his future earning potential.  His 
reported wages for 2013, for example, are considerably greater than his estimate of his present income.  
And Malcolm presents no evidence concerning his educational background, physical capacity, or 
professional skills that might enable the Commission to assess his future earning potential.  Nor did 
Malcolm provide evidence about his assets. 
20. We note as well that Malcolm and his companies DSM, LLC, and Somaticare, LLC, are 
jointly and severally liable for the forfeiture.  Although Malcolm makes vague claims concerning the 
assets of DSM (suggesting they are not sufficient to satisfy the forfeiture),
66
 those claims are 
unsubstantiated.  Malcolm makes no showing at all concerning Somaticare, beyond stating that it “was 
not in business” during 2013.
67
  In short, when (1) there may be assets available from Malcolm’s 
companies to pay the forfeiture, (2) he has made no reliable showing concerning his future earning 
potential or present assets, and (3) he may yet come into funds with which to pay the forfeiture in the 
future, Malcolm has not come close to showing that the forfeiture will deprive him of his future 
livelihood.  
21. Accordingly, even if we were to consider the substance of Malcolm’s Petition, we would 
find no reason to modify or cancel the forfeiture.
68
III. CONCLUSION
22. Upon review of the Petition and the entire record, we conclude that Malcolm’s Petition 
failed to meet the requirements of Section 1.106 of the Rules.
69
  Reconsideration is appropriate when the 
petitioner either demonstrates a material error or omission in the underlying order or raises additional 
facts not known or not existing until after the petitioner’s last opportunity to present such matters.
70
  
Malcolm’s Petition fails to raise new issues that were not already addressed by the Commission or new 
facts or arguments which the petitioner did not previously present to the Commission despite having an 
opportunity to do so.
71
  We further conclude that the public interest does not require us to reconsider our 
65
 Id. at 85.
66
 See Malcolm Declaration at para. 5.
67
 Malcolm Declaration at para. 1 n.1.
68
 Malcolm argues that for the Commission to “establish a violation of §227(b)(1)(C) proof of intent is required.”  
Petition at 3.  For “intent” Malcom cites Section 503(b)(l)(B) requiring a finding that a person must have “willfully 
or repeatedly” violated the Act or Rules before the Commission may impose a forfeiture.  See id.; see also 47 U.S.C. 
§ 503(b)(1).  Malcolm is wrong with respect to “intent” and the “willfully or repeatedly” standard proscribed in 
Section 503(b)(1)(B).  It is well established that “the term ‘willful’ means that the violator knew it was taking the 
action in question, irrespective of any intent to violate the Communications Act, while ‘repeatedly’ means more than 
once.”  Peninsula Communications, Inc., 17 FCC Rcd 2832, 2835 (2002) (footnotes citing Commission precedent 
omitted).  In this case, Malcolm’s admission that he “constructively pushed the button that sent the offending faxes” 
evidences that Malcolm knew he was “taking the action in question,” which meets the requirement that the conduct 
must be willful.  Petition at 3.  Further, the forfeiture in this case is based on proof of Malcolm sending 115 
unsolicited advertisements to the telephone facsimile machines of 26 consumers making the violations “repeated.”  
69
 47 CFR § 1.106.
70
 See 47 CFR § 1.106(c); EZ Sacramento, Inc., Memorandum Opinion and Order, 15 FCC Rcd 18257, 18257, para. 
2 (EB 2000) (citing WWIZ, Inc., Memorandum Opinion and Order, 37 FCC 685, 686 (1964), aff’d sub. nom. Lorain 
Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S. 967 (1966)); see also Ely Radio, LLC, 
Memorandum Opinion and Order, 27 FCC Rcd 7608, 7610, para. 6 (EB 2012) (articulating the standard of review 
for Petitions for Reconsideration). 
71
 47 CFR § 1.106(c).
Federal Communications Commission FCC 18-14
9
previous findings.
72
  Moreover, even if we were to consider the merits of Malcolm’s arguments, we would 
find no basis for reconsideration.  We therefore find that the Commission properly decided the matters 
raised, and we uphold the Forfeiture Order for the reasons stated therein.
IV. ORDERING CLAUSES
23. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Act and Section 
1.106 of the Rules, the Request for Reconsideration filed by Scott Malcolm, DSM Supply, LLC, and 
Somaticare, LLC, is hereby DISMISSED, or in the alternative DENIED.
73
24. IT IS FURTHER ORDERED that, pursuant to Section 503(b) of the Act and Section 
1.80 of the Rules,
74
 Scott Malcolm, DSM Supply, LLC, and Somaticare, LLC, ARE JOINTLY AND 
SEVERALLY LIABLE FOR A MONETARY FORFEITURE of one million eight hundred forty 
thousand dollars ($1,840,000) for willfully and repeatedly violating Section 227(b)(1)(C) of the Act and 
Section 64.1200(a)(4) of the Rules.
25. IT IS FURTHER ORDERED that a copy of this Order on Reconsideration shall be sent 
by first class mail and certified mail, return receipt requested, to Scott Malcolm’s attorney, Lawrence 
Fischman, Glast, Phillips & Murray, PC, 14801 Quorum Drive, Suite 500, Dallas, TX 75254.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
72
 See 47 CFR § 1.106(c).
73
 47 U.S.C. § 405; 47 CFR § 1.106.
74
 47 U.S.C. § 503(b); 47 CFR § 1.80.