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                         Before the
                FEDERAL COMMUNICATIONS COMMISSION
                     Washington, D.C. 20554
  
  In the Matter of                   )
                                )
  Tri-Star Marketing, Inc.           )    File No. EB-00-TC-009
                                )
  Apparent Liability for Forfeiture       )    NAL/Acct. No. X3217-005       
                      
          NOTICE OF APPARENT LIABILITY FOR FORFEITURE
                                
     Adopted: June 15, 2000         Released: June 22, 2000
  
  By the Commission:
                                
                      I.INTRODUCTION
  
  1.      In this Notice of Apparent Liability for Forfeiture (NAL), we find that Tri-Star
  Marketing, Inc. (Tri-Star) apparently willfully or repeatedly violated section 227 of the
  Communications Act of 1934, as amended (Act), and the Commission's rules and orders, by
  sending unsolicited advertisements to telephone facsimile machines on eight separate occasions. 
  Based on the facts and circumstances surrounding these apparent violations, we find that Tri-Star
  is apparently liable for forfeiture in the amount of $47,000.
                       II.BACKGROUND
  
  3.  On July 12, 1999, in response to several consumer letters indicating that Tri-Star had
  faxed unsolicited advertisements to consumers' telephone facsimile machines, the Commission staff
  issued a citation to Tri-Star, pursuant to section 503 of the Act.  The staff cited Tri-Star for
  allegedly using a telephone facsimile machine, computer, or other device, to send unsolicited
  advertisements to another telephone facsimile machine, in violation of section 227 of the Act and
  the Commission's rules and orders.  The unsolicited advertisements offered access to a commercial
  service, a "Secret Cash Processing Institution" that supposedly would make the consumer an
  "Instant Millionaire."  The citation, which the staff served by certified mail, return receipt requested,
  informed Tri-Star that subsequent violations could result in the imposition of monetary forfeitures
  of up to $11,000 per violation and included copies of consumer letters that formed the basis of the
  citation.  The citation informed Tri-Star that within 21 days of the date of the citation, it could
  either request a personal interview at the nearest Commission field office, or could provide a written
  statement responding to the citation.  The Commission received the signed return receipt evidencing
  Tri-Star's receipt of the citation on July 16, 1999. Tri-Star provided a written response to the
  citation, dated July 16, 1999.  Nothing in the response justified the violations.
  
  4.  Despite the citation's warning that subsequent violations could result in the imposition
  of monetary forfeitures, the Commission received several consumer letters stating that Tri-Star had
  continued to engage in such conduct after receiving the citation.  We base our action here on
  consumer letters sent to the Commission alleging that Tri-Star sent unsolicited advertisements on
  or after August 18, 1999, more than a month after Tri-Star received the staff's citation.  
  
  5.      The Coastal Response Consultants Letter.  Mr. D. David Haven, Jr., owner of Coastal
  Response Consultants (Coastal), an Admiralty and Naval Architecture/Marine Engineering Firm,
  states that Tri-Star faxed two unsolicited advertisements to Coastal in October 1999.  Mr. Haven
  states that after receiving an unsolicited advertisement via facsimile from Tri-Star on October 10,
  1999, he sent a letter to Tri-Star on October 13, 1999, requesting that it refrain from sending
  additional unsolicited advertisements and asking that it remove Coastal from its distribution list. 
  Mr. Haven further states that despite this request, Tri-Star faxed another unsolicited advertisement
  to Coastal on either October 18, 1999, or October 19 1999.  Mr. Haven states that neither he or
  anyone else at Coastal ever gave Tri-Star permission or invitation to send these faxes, and that
  Coastal does not have an established business relationship with Tri-Star.     
  
  6.      The Rodio & Ursillo Letter.  On September 16, 1999, Mr. Jeffrey M. Gibson, a partner
  in the law firm of Rodio and Ursillo, LTD (R&U), filed a letter requesting Commission action and
  stating that Tri-Star faxed two unsolicited advertisements to R&U.  Mr. Gibson states that after
  receiving an unsolicited facsimile in March of 1999, he sent a letter to Tri-Star requesting that his
  number be removed from their distribution list.  Mr. Gibson states that by correspondence dated
  March 23, 1999, Mr. Dary G. Reidlinger, President and CEO of Tri-Star, apologized for the error
  and assured Mr. Gibson that his number would be removed.  In his letter to Mr. Gibson, Mr.
  Reidlinger stated that his company rents lists, "use[s] them only once" and deletes them immediately
  after use.  Mr. Gibson states, however, that he received another unsolicited facsimile for Tri-Star
  on August 19, 1999.  Mr. Gibson states that neither he nor anyone else at R&U gave Tri-Star
  permission or invitation to send advertisements to R&U's fax machine, and that R&U does not have
  a prior business relationship with Tri-Star.
  
  7.      The Crilly Letter.  On October 15, 1999, Mr. Stephen Crilly filed a letter requesting
  Commission action, stating that Tri-Star sent an unsolicited advertisement to his fax machine.  In
  his Declaration, Mr. Crilly states that he contacted Tri-Star on several occasions to request that his
  number be removed from Tri-Star's distribution list.  Mr. Crilly states that he spoke with a Tri-
  Star representative who advised him that his fax number was obtained from a fax vending company. 
  Mr. Crilly states that he did not authorize Tri-Star to send these faxes and that he does not have an
  established business relationship with Tri-Star.
   
  8.      The remaining consumer letters.  The remaining consumer letters supporting this NAL
  are factually similar to the allegations in the consumer letters described above.  In each case, the
  consumer states that Tri-Star used a telephone facsimile machine to send an unsolicited
  advertisement to the consumer's telephone facsimile machine.  In each case, the consumer states
  that Tri-Star (a) was not authorized to send the unsolicited facsimile to the consumer's fax machine,
  and (b) does not have an established business relationship with the consumer. 
  
                       IX.DISCUSSION
  
  
       A.   Violations Evidenced in the Letters.
  
  2.      Section 227(b)(1)(C) of the Act prohibits any person from using "a telephone facsimile
  machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile
  machine." An unsolicited advertisement is defined as "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."  The Commission has determined, however,
  that an established business relationship establishes consent to receive telephone facsimile
  advertisement transmissions.  The mere distribution or publication of a telephone facsimile number
  does not confer invitation or permission to transmit advertisements to a particular telephone
  facsimile machine. 
  
  3.      As discussed above, each facsimile transmission upon which this NAL is based offers
  access to the same commercial service, a "Secret Cash Processing Institution [That] Will Make You
  An 'Instant Millionaire' with a Unique Million Dollar 'Cash Account' Opened Up Just For You  
  Guaranteed!"  We find that these facsimiles clearly fall within the definition of an "advertisement." 
  Additionally, Tri-Star appears to have sent each facsimile transmission without the prior express
  invitation or permission of the recipient.  The record indicates that none of the consumers at issue
  had an established business relationship with Tri-Star.  The record further indicates that Tri-Star
  continued to send faxes to consumers who specifically requested that their fax numbers be removed
  from Tri-Star's distribution list.  Such evidence demonstrates that Tri-Star did not have any prior
  express permission or invitation to send the facsimile transmissions.
   
       D.   Forfeiture Amount.
  
  5.      Tri-Star apparently willfully or repeatedly violated the Act and the Commission's rules
  and orders by using a telephone facsimile machine to send unsolicited advertisements to other
  telephone facsimile machines.  Tri-Star apparently did not cease its unlawful conduct even after the
  Commission issued a citation warning that it was engaging in unlawful conduct and could be subject
  to monetary forfeitures. Accordingly, a proposed forfeiture is warranted against Tri-Star for its
  apparent willful or repeated violations of section 227 of the Act and of the Commission's rules and
  orders regarding the faxing of unsolicited advertisements.  
  
  6.      Section 503(b) of the Act authorizes the Commission to assess a forfeiture of up to
  $11,000 for each violation of the Act or of any rule, regulation, or order issued by the
  Commission under the Act by a non-common carrier or other entity not specifically designated
  in section 503 of 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 require."
  
  7.      Although the Commission's Forfeiture Policy Statement does not establish a base
  forfeiture amount for violating the prohibition on using a telephone facsimile machine to send
  unsolicited advertisements, we have previously used $4,500 per unsolicited fax advertisement as
  an appropriate base amount.  We apply that base amount to each of six of the apparent violations. 
  We find that the other two violations justify a higher proposed forfeiture because Tri-Star
  apparently faxed unsolicited advertisements to R&U and Coastal after each had requested that Tri-
  Star refrain from faxing unsolicited advertisements.  We find that in each case, these consumers
  specifically notified Tri-Star to cease its unlawful conduct, but Tri-Star willfully and repeatedly
  continued to violate section 227 of the Act and the Commission's rules and orders.  We believe that
  assessing a higher forfeiture amount is warranted based on the nature and gravity of the violations
  and the continued need to ensure compliance with section 227 of the Act and the Commission's
  rules and orders.  For those two violations, we find Tri-Star apparently liable in the amount of
  $10,000.  This results in a total forfeiture of $47,000.  Tri-Star shall have the opportunity to submit
  evidence and arguments in response to this NAL to show that no forfeiture should be imposed or
  that some lesser amount should be assessed.
  
  
           VIII.CONCLUSION AND ORDERING CLAUSES
  
  9.      We have determined that Tri-Star apparently violated section 227 of the Act and the
  Commission's rules and orders by using a telephone facsimile machine, computer, or other device
  to send eight unsolicited advertisements to the consumers identified above.  We have further
  determined that Tri-Star is apparently liable for forfeitures in the amount of $47,000. 
  
  10.     Accordingly, IT IS ORDERED, pursuant to section 503(b)(5) of the Act, as amended,
  47 U.S.C.  503(b)(5), and section 1.80 of the Commission's rules, 47 C.F.R.  1.80, that Tri-Star
  Marketing, Inc. IS HEREBY NOTIFIED of an Apparent Liability for Forfeiture in the amount of
  $47,000 for willful or repeated violations of section 227(b)(1)(C) of the Act, 47 U.S.C. 
  227(b)(1)(C), sections 64.1200(a)(3), 64.1200(f)(5), of the Commission's rules, 47 C.F.R. 
  64.1200(a)(3), 64.1200(f)(5), and the related orders described in the paragraphs above.
  
  11.     IT IS FURTHER ORDERED, pursuant to section 1.80 of the Commission's rules, 47
  C.F.R.  1.80, that within thirty (30) days of the release of this Notice, Tri-Star Marketing, Inc.
  SHALL PAY the full amount of the proposed forfeiture OR SHALL FILE a response showing
  why the proposed forfeiture should not be imposed or should be reduced.
  
  12.     IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for
  Forfeiture SHALL BE SENT by certified mail to Dary Riedlinger, Owner, Tri-Star Marketing, Inc.,
  2906 & 2910 Hoyt Ave., Everett, Washington 98201.
  
  
  
                           FEDERAL COMMUNICATIONS COMMISSION
  
  
                           Magalie Roman Salas
                                                              Secretary