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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
US Notary, Inc. ) File No. EB-00-TC-
011
)
Apparent Liability for Forfeiture ) NAL/Acct. No.
X3217-006
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 27, 2000 Released: August 1, 2000
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
(NAL), we find that US Notary, Inc. (US Notary)1 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.2 Based on the
facts and circumstances surrounding these apparent violations,
we find that US Notary is apparently liable for forfeiture in
the amount of $90,000.3
II. BACKGROUND
2. On July 12, 1999, in response to several consumer
letters indicating that US Notary had faxed unsolicited
advertisements, the Commission staff issued a citation to US
Notary, pursuant to section 503 of the Act.4 Specifically, the
staff cited US Notary for allegedly using a telephone facsimile
machine, computer, or other device, to send unsolicited
advertisements to a telephone facsimile machine, in violation
of section 227 of the Act and the Commission's rules and
orders. The unsolicited advertisements offered a ``One Day
Training Seminar'' to become a Notary Public. The citation
included copies of the consumer letters, and informed US Notary
that subsequent violations could result in the imposition of
monetary forfeitures of up to $11,000 per violation.5 The
citation informed US Notary that within 21 days of the date of
the citation, it could either request a personal interview at
the nearest Commission field office, or provide a written
statement responding to the citation. The signed return
receipt card shows that US Notary received the citation on July
17, 1999. The owner of US Notary, Bruce Johnson met with
Commission staff on August 3, 1999. During that meeting, the
staff advised Mr. Johnson that it is unlawful to send
unsolicited advertisements to telephone facsimile machines, as
defined by the Telephone Consumer Protection Act (TCPA) and the
Commission's rules,6 and provided him with a copy of the TCPA.
3. Despite the citation and the subsequent August 3,
1999 meeting, the Commission has received several letters
stating that US Notary continued to fax unsolicited
advertisements.7 We base our action here on unsolicited
advertisements that US Notary has sent since July 17, 1999, the
day US Notary received the staff's citation.8
4. The Arrick Robotics Letter. Mr. Roger Arrick, owner
of Arrick Robotics states that US Notary faxed an unsolicited
advertisement to Arrick Robotics in December 1999, March 2000
and again on April 28, 2000.9 Mr. Arrick further states that
at no time did he or anyone at Arrick Robotics give US Notary
permission or invitation to send these faxes. Additionally,
Mr. Arrick states that Arrick Robotics does not have an
established business relationship with US Notary.10
5. The Joe Shields Letter. Mr. Joe Shields, a Systems
Engineering Specialist who is employed by Lockheed Martin at
Johnson Space Center, states that US Notary faxed unsolicited
advertisements to Johnson Space Center on the following dates:
(1) October 11, 1999; (2) October 12, 1999; (3) one fax between
October 11, 1999 and October 16, 1999; (4) December 10, 1999 at
approximately 9:41 a.m.; (5) December 10, 1999 at approximately
12:01 p.m.; (6) February 28, 2000 at approximately 9:47 a.m.;
(7) February 28, 2000 at approximately 11:52 a.m.; (8) March
1, 2000; (9) two faxes on May 3, 2000 at approximately 3:05
p.m.; (10) two faxes on May 3, 2000 at approximately 3:06
p.m.11 Mr. Shields states that neither he nor anyone else at
Johnson Space Center gave US Notary permission to send
advertisements to Johnson Space Center's fax machine. Mr.
Shields further states that Johnson Space Center does not have
an established business relationship with US Notary.
6. The Pratt Letter. Mr. William Pratt states that US
notary sent an unsolicited advertisement to his telephone
facsimile machine in April 2000. Mr. Pratt further states that
the facsimile did not have a header.12 Additionally, Mr. Pratt
states that neither he nor anyone else authorized US Notary to
send these faxes and that he does not have an established
business relationship with US Notary.
7. The other faxes. The remaining consumer letters
supporting this NAL were forwarded to us by the Texas Office of
the Attorney General and are factually similar to the
allegations in the consumer letters described above.13 US
Notary also faxed two unsolicited advertisements to the Texas
Office of the Attorney General.14
A. Violations Evidenced in the Letters.
8. 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.''15 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.''16 The Commission has determined,
however, that an established business relationship establishes
consent to receive telephone facsimile advertisement
transmissions.17 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.18
9. Each facsimile transmission upon which this NAL is
based describes the same commercial service, a ``Notary Public
One Day Training Seminar'' with an ``Early Registration
Special,'' ``$119.00 [for the] First Person ($139 if postmarked
[after a certain date]).'' We find that these facsimiles fall
within the definition of an unsolicited advertisement.19
10. The record indicates that none of the recipients of
the faxes described in the letters had an established business
relationship with US Notary, and there is no evidence that they
gave US Notary permission or invitation to send the facsimile
transmissions. Thus US Notary appears to have sent each
facsimile transmission without the prior express invitation or
permission of the recipient.
B. Forfeiture Amount.
11. We conclude that US Notary apparently willfully or
repeatedly violated the Act and the Commission's rules and
orders by using a telephone facsimile machine, computer, or
other device to send unsolicited advertisements to telephone
facsimile machines. US Notary apparently did not cease its
unlawful conduct even after the Commission staff issued a
citation warning that it was engaging in unlawful conduct and
could be subject to monetary forfeitures and subsequently met
with US Notary to discuss its unlawful conduct. Accordingly, a
proposed forfeiture is warranted against US Notary 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.
12. 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.20
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.''21
13. 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 considered
$4,500 per unsolicited facsimile to be an appropriate base
amount.22 We apply that base amount to each of the 20 apparent
violations here. This results in a total proposed forfeiture
of $90,000. US Notary 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.23
III. CONCLUSION AND ORDERING CLAUSES
14. We have determined that US Notary 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 20 unsolicited advertisements to the consumers
identified above. We have further determined that US Notary is
apparently liable for forfeiture in the amount of $90,000.
15. 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
US Notary, Inc. IS HEREBY NOTIFIED of an Apparent Liability for
Forfeiture in the amount of $90,000 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) and 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.
16. 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, US Notary, Inc. SHALL
PAY the full amount of the proposed forfeiture24 OR SHALL FILE
a response showing why the proposed forfeiture should not be
imposed or should be reduced.
17. IT IS FURTHER ORDERED that a copy of this Notice of
Apparent Liability for Forfeiture SHALL BE SENT by certified
mail to Bruce Johnson, Owner, US Notary, Inc., 1033 Vista
Sierra Dr., El Cajon, California.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
_________________________
1 US Notary, Inc. is headquartered at 1033 Vista Sierra Dr,
El Cajon, California. According to Dun & Bradstreet Business
Information Report, US Notary began operations in 1998 and
provides schooling or educational services, specializing in
educational services on notary law. The owner of US Notary is
Bruce Johnson. US Notary employs 8 people, including its
owner. See Dun & Bradstreet Business Information Report, April
7, 2000.
2 See 47 U.S.C. § 227; 47 C.F.R. § 64.1200(a)(3); see also
Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, Report and Order, 7 FCC Rcd 8752, 8779,
¶ 54 (1995) (TCPA Report and Order) (stating that Section 227
of the Act prohibits the use of telephone facsimile machines to
send unsolicited advertisements).
3 47 U.S.C. § 503(b)(1). The Commission has the authority
under this section of the Act to assess a forfeiture against
any person who has ``willfully or repeatedly failed to comply
with any of the provisions of this Act or of any rule,
regulation, or order issued by the Commission under this Act .
. ..'' See also 47 U.S.C. § 503(b)(5) (stating that the
Commission has the authority under this section of the Act to
assess a forfeiture penalty against any person who is not a
common carrier so long as (A) such person is first issued a
citation of the violation charged; (B) is given a reasonable
opportunity for a personal interview with an official of the
Commission, at the field office of the Commission nearest to
the person's place of resident; and (C) subsequently engages in
conduct of the type described in the citation).
4 See 47 U.S.C. § 503(b)(5) (authorizing the Commission to
issue citations to non-common carriers for violations of the
Act or of the Commission's rules and orders).
5 The following consumer letters requesting Commission
action were attached to the citation: (1) Linda Lehr, Request
for Commission Action (February 23, 1999) (stating that a
number of unsolicited advertisements were received via
facsimile from US Notary); (2) Diana C. Heard, Request for
Commission Action (June 7, 1999) (stating that she received
facsimiles that contained unsolicited advertisements from US
Notary); (3) George Kanaan, President of Sigma Marble and
Granite, Inc. Request for Commission Action (June 7, 1999)
(stating that he received a number of unsolicited faxes without
his permission from US Notary); (4) David K. Zimmerman, Request
for Commission Action (May 19, 1998) (stating that he received
an unsolicited advertisement via facsimile from US Notary); and
(5) Lynne C. Goldsand, Greenhaven Associates, Inc., Request for
Commission Action, (June 17, 1999) (stating that she received
two unsolicited advertisements via facsimile from US Notary).
6 See 47 U.S.C. § 227; 47 C.F.R. § 64.1200(a)(3).
7 See (1) William Pratt, Request for Commission Action
(April 1, 2000) (stating that he received 1 unsolicited
facsimile advertisements from US Notary in April 2000); (2)
Roger Arrick, Owner of Arrick Robotics, Request for Commission
Action (December 17, 1999, February 28, 2000, April 2000)
(stating that he received 3 unsolicited advertisements by fax
from US Notary in December 1999, March 2000 and on April 28,
2000); (3) Joe Shields, Engineering Specialist, Lockheed
Martin/Johnson Space Center, Request for Commission Action (
December 12, 1999, December 13, 1999, October 16, 1999, October
21, 1999, March 16, 2000) (stating that US Notary used a
telephone facsimile machine to send 12 unsolicited
advertisements to Johnson Space Center's fax machine in October
and December 1999, and again in February and March 2000); (4)
C. Brad Schuelke, Assistant Attorney General, Texas Attorney
General's Office, Request for Commission Action (May 18, 2000)
(stating that 2 unsolicited advertisements were faxed to the
Texas Attorney General's Office); (5) David Guenthrer, The Lone
Star Report, via the Texas Attorney General's Office, Request
for Commission Action (May 18, 2000) (stating that he received
1 unsolicited advertisement by fax from US Notary); and (6)
Bernice Tesmer, via the Texas Attorney General's Office,
Request for Commission Action (May 18, 2000) (stating that she
received 1 unsolicited advertisement by fax from US Notary). A
letter was also received from the National Notary Association
(NNC) regarding unsolicited advertisements faxed by US Notary
to several NNC members. This letter, however, will not be used
in assessing the forfeiture amount for US Notary because NNC's
members did not file complaints.
8 We note that evidence of additional instances of unlawful
conduct by US Notary may form the basis of subsequent
enforcement action.
9 See Declaration of Roger Arrick, owner of Arrick Robotics.
10 Id.
11 See Declaration of Joe Shields, Engineering Specialist,
Lockheed Martin/Johnson Space Center.
12 See Declaration of William Pratt.
13 See supra note 7 (listing the consumer letters that form
the basis for this NAL).
14 See C. Brad Schuelke, Assistant Attorney General, Texas
Attorney General's Office, Request for Commission Action (May
18, 2000).
15 47 U.S.C. § 227(b)(1)(C). Section 227 defines a telephone
facsimile machine as ``equipment which has the capacity (A) to
transcribe text or images, or both, from paper into an
electronic signal and to transmit that signal over a regular
telephone line, or (B) to transcribe text or images (or both)
from an electronic signal received over a regular telephone
line onto paper.'' 47 U.S.C. § 227(a)(2); 47 C.F.R. §
64.1200(f)(4). This blanket prohibition applies to all
unsolicited advertisements transmitted to any telephone
facsimile machine, whether business or residential.
16 47 C.F.R. § 64.1200(f)(5).
17 See Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Memorandum Opinion and Order,
10 FCC Rcd 12391, 12408, ¶ 37 (1995) (TCPA Memorandum Opinion
and Order).
18 Id.
19 An unsolicited advertisement is ``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.'' 47 U.S.C. §
227(a)(4); 47 C.F.R. § 64.1200(f)(5).
20 Section 503(b)(2)(C) provides for forfeitures up to
$10,000 for each violation by cases not covered by
subparagraphs (A) or (B), which address forfeitures for
violations by licensees and common carriers, among others. See
47 U.S.C. § 503(b). The Commission amended its rules by adding
a new subsection to its monetary forfeiture provisions that
incorporates by reference the inflation adjustment requirements
contained in the Debt Collection Improvement Act of 1996, Pub.
L. 104-134, Sec. 31001, 110 Stat. 1321, enacted on April 26,
1996. Thus, the maximum statutory forfeiture pursuant to
section 503(b)(2)(C) increased from $10,000 to $11,000. See
Amendment of Section 1.80 of the Commission's Rules, 12 FCC Rcd
1038 (1997).
21 47 U.S.C. § 503(b)(2)(D); Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC
Rcd 17087, 17100-17101, ¶ 27 (1997), recon. denied, 15 FCC Rcd
303 (1999) (Forfeiture Policy Statement).
22 See Get-Aways, Inc., Notice of Apparent Liability For
Forfeiture, 15 FCC Rcd. 1805 (1999; Get-Aways, Inc, Forfeiture
Order, FCC 00-67 (released March 2, 2000).
23 See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).
24 The forfeiture amount should be paid by check or money
order drawn to the order of the Federal Communications
Commission. Reference should be made on US Notary's, Inc.'s
check or money order to ``NAL/Acct/ No. X3217-006.'' Such
remittances must be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482.