Federal Communications Commission DA 07-4652 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of See Through Windows & Doors LLC Apparent Liability for Forfeiture ) ) ) ) ) ) ) ) ) File No. EB-03-TC-144 NAL/Acct. No. 200832170005 FRN: 0017132275 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: November 16, 2007 Released: November 16, 2007 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”)1, we find that See Through Windows & Doors LLC (“See Through Windows”)2 apparently willfully or repeatedly violated section 64.1200(c)(2) of the Commission’s rules, by making two telephone calls for the purpose of delivering telephone solicitations to two residential telephone consumers who had registered their telephone numbers on the National Do-Not-Call Registry.3 Based on the facts and circumstances surrounding these apparent violations, we find that See Through Windows is apparently liable for a forfeiture in the amount of $20,000. 1 See 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 does not hold a license, permit, certificate or other authorization issued by the Commission or an applicant for any of those listed instrumentalities so long as such person (A) 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 residence; and (C) subsequently engages in conduct of the type described in the citation). 2 According to publicly available information, See Through Windows is also doing business as See-Thru Windows LLC. All references in this NAL to See Through Windows encompass See-Thru Windows LLC as well as any other affiliated entities. See Through Windows & Doors LLC has offices at 231 Westhampton Place, Capitol Heights, Maryland 20743; 231 Westhampton Place, Capitol Heights, Maryland 20743; 2640 Crain Highway, Waldorf, Maryland 20601; 4004 Walney Road, Chantilly, Virginia 20151; and 12468 Dillingham Square, Lake Ridge, Virginia 22192. Charles Brown, Owner, is listed as the contact person for See Through Windows. Accordingly, all references in this NAL to See Through Windows also encompass the foregoing individual and all other principals and officers of this entity, as well as the corporate entity itself. 3 See 47 C.F.R. § 64.1200(c)(2). Federal Communications Commission DA 07-4652 2 II. BACKGROUND 2. Section 64.1200(c)(2) of the Commission’s rules generally prohibits the delivery of telephone solicitations to residential telephone numbers that are contained in the National Do-Not-Call Registry, except in certain limited situations.4 Under the Communications Act of 1934, as amended (“Act”), and the Commission’s rules, a “telephone solicitation” means “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”5 Not every promotional call, however, constitutes a prohibited telephone solicitation under this rule. Calls made by or on behalf of a tax-exempt nonprofit organization are not considered to be telephone solicitations.6 Similarly, calls that are made to a person who either has provided prior express invitation or permission to call7 or has an established business relationship8 with the caller are not considered to be telephone solicitations. In addition to these statutory exemptions, section 64.1200(c)(2)(iii) also permits telephone solicitations to National Do-Not-Call registrants in the limited situation in which the caller has a personal relationship with the called party.9 3. Entities making telephone solicitations must honor do-not-call registrations no later than 31 days after a number is placed on the National Do-Not-Call Registry,10 and for a period of no less than five years. To accomplish this, section 64.1200(c)(2)(i)(D) requires entities making telephone solicitations to use a version of the National Do-Not-Call Registry obtained no more than 31 days before any telephone solicitation is made, and to document this process. An entity that does not claim one of the exemptions set forth above is not liable for calling a telephone number on the National Do-Not-Call 4 47 C.F.R. § 64.1200(c)(2). 5 47 U.S.C. §227(a)(3); 47 C.F.R. §64.1200(f)(12). 6 Id. 7 Section 64.1200(c)(2)(ii) of our rules requires that prior express invitation or permission “must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed.” 47 C.F.R. § 64.1200(c)(2)(ii). 8 For Do-Not-Call purposes, the term “established business relationship” means “a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber’s purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber’s inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.” 47 C.F.R. § 64.1200(f)(4). The established business relationship exception does not apply when a telephone subscriber has made a company-specific do-not-call request. A company-specific do-not-call request terminates an established business relationship for telemarketing purposes even if the requester continues to do business with the company. 47 C.F.R. § 64.1200(f)(4)(i); see also Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd 14014, 14070, para. 96 (2003); Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd 8752, 8766 n.47, 8770 n.63 (1992); see also H.R. Rep. 102-317, 1st Sess., 102nd Cong. at 15 (1991); Charvat v. Dispatch Consumer Services, Inc., 95 Ohio St. 3d 505, 769 N.E.2d 829 (2002). 9 The term “personal relationship” means “any family member, friend, or acquaintance of the telemarketer making the call.” 47 C.F.R. § 64.1200(f)(14). 10 The 31-day requirement applies to telephone solicitations made on or after January 1, 2005. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Order, 19 FCC Rcd 19215 (2004). Previously, the Commission's rules provided that do-not-call registrations had to be honored within 3 months. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd 14014, 14040, para. 38 (2003). The 3-month provision applied to telephone solicitations made before January 1, 2005. Federal Communications Commission DA 07-4652 3 Registry only if it is able to demonstrate both that it has fully complied with the Commission’s standards governing use of the National Do-Not-Call Registry as set out in section 64.1200(c)(2)(i)(A)-(E) of the rules, and that the particular telephone solicitation call was the result of specific error.11 4. In order to comply with the Commission’s standards, a person or entity initiating a telephone solicitation must first demonstrate that, as part of its routine business practice it has: (1) established and implemented written procedures to comply with the do-not-call rules; (2) trained its personnel, and any entity assisting in its compliance, in the procedures established pursuant to the do-not- call rules; (3) maintained and recorded a list of telephone numbers the seller may not contact; (4) used a process to prevent telemarketing to any telephone number on any list established pursuant to the do-not- call rules employing a version of the National Do-Not-Call Registry obtained from the administrator of the Registry within a designated time frame, and has maintained records documenting this process; and (5) used a process to ensure that it does not sell, rent, lease, purchase, or use the Registry for any purpose except national do-not-call compliance, and that it has purchased access to the Registry from the Registry administrator without participating in any cost sharing arrangement with any other entity. We reiterate, however, that the “safe harbor” from liability only applies if such person or entity is able to show that the particular violative calls made in spite of adherence to the enumerated do-not-call procedures were the result of specific error. 5. On July 2, 2004, in response to one or more consumer complaints alleging that See Through Windows had made telephone calls for the purpose of delivering telephone solicitations to residential telephone consumers who had registered their telephone numbers on the National Do-Not-Call Registry, the Commission staff issued a citation12 to See Through Windows, pursuant to section 503(b)(5) of the Act.13 The staff cited See Through Windows for delivering one or more telephone solicitations to residential telephone consumers who had registered their telephone numbers on the National Do-Not-Call Registry, in violation of section 64.1200(c)(2) of the Commission’s rules. The citation, which the staff served by certified mail, return receipt requested, warned See Through Windows that subsequent violations could result in the imposition of monetary forfeitures of up to $11,000 per violation, and included a copy of the consumer complaints that formed the basis of the citation.14 The citation informed See Through Windows that within 30 (thirty) days of the date of the citation, it could either request an interview with Commission staff, or could provide a written statement responding to the citation. By letters dated December 8, 2003, February 28, 2004 and May 24, 2004,15 See Through Windows informed the Commission that technical problems prevented See Through Windows from accessing the Registry and that it would correct this issue. 6. Despite the citation’s warning that subsequent violations could result in the imposition of monetary forfeitures, we have received additional consumer complaints indicating that See Through 11 47 C.F.R. §64.1200(c0(2)(1)(A)-(E). 12 Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division, Enforcement Bureau, File No. EB-03-TC-144, issued to See Through Windows on July 2, 2004. 13 See 47 U.S.C. § 503(b)(5) (authorizing the Commission to issue citations to persons who do not hold a license, permit, certificate or other authorization issued by the Commission or an applicant for any of those listed instrumentalities for violations of the Act or of the Commission’s rules and orders). 14 Commission staff mailed the citation to 1350 Beverly Road, Suite 115, PMB 208, McLean, Virginia 22101; 3101 Hubbard Road, Landover, Maryland 20785; and 11132a Rockville Pike, Rockville, Maryland 20852. See n.2, supra. 15 Letters dated December 8, 2004; February 28, 2004; and May 24, 2004 from D.S. Berenson, L.C., Johanson Berenson LLP to Kurt Schroeder, Deputy Chief, Telecommunications Consumers Division, Enforcement Bureau, Federal Communications Commission, File No. EB-04-TC-144. Federal Communications Commission DA 07-4652 4 Windows continued to engage in such conduct after receiving the citation.16 On February 9, 2007 and July 6, 2007, the Commission staff sent letters of inquiry (LOIs) to See Through Windows in order to further investigate the alleged violations.17 See Through Windows responded to the LOIs on March 1, 2007, August 3, 2007, and August 13, 2007.18 After review of See Through Windows’ responses to the LOIs, we base our action here specifically on complaints filed by two consumers establishing that See Through Windows continued to deliver two telephone solicitations after the date of the citation to 2 consumers who had registered their telephone numbers on the National Do-Not-Call Registry.19 7. 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 III. DISCUSSION A. Violations of the Commission’s Rules 8. We find that See Through Windows apparently violated section 64.1200(c)(2) of the Commission’s rules and orders by delivering at least two telephone solicitations to the two consumers identified in the Appendix who had registered their telephone numbers on the National Do-Not-Call registry. This NAL is based on evidence that two consumers who had registered their telephone numbers on the National Do-Not-Call registry received telephone solicitations from See Through Windows after the Commission staff’s citation. In its responses to the Commission’s LOIs, See Through Windows has not contested that the calls at issue advertise a product or service. Hence the calls fall within the definition of a “telephone solicitation.”22 Further, we find that the calls at issue here were not made on 16 See Appendix for a listing of the consumer complaints against See Through Windows requesting Commission action. 17 Letters from Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division, Enforcement Bureau, File No. EB-03-TC-144 to See Through Windows, dated February 9, 2007 and July 6, 2007. 18 Letters dated March 1, 2007, August 3, 2007 and August 13, 2007 from Kevin M. Tierney, Johanson Berenson LLP to Kurt Schroeder, Deputy Chief, Telecommunications Consumers Division, Enforcement Bureau, Federal Communications Commission, File No. EB-03-TC-144. 19 We note that evidence of additional instances of unlawful conduct by See Through Windows may form the basis of subsequent enforcement action. 20 Section 503(b)(2)(C) provides for forfeitures up to $10,000 for each violation in cases not covered by subparagraph (A) or (B), which address forfeitures for violations by licensees and common carriers, among others. See 47 U.S.C. § 503(b). In accordance with the inflation adjustment requirements contained in the Debt Collection Improvement Act of 1996, Pub. L. 104-134, Sec. 31001, 110 Stat. 1321, the Commission implemented an increase of the maximum statutory forfeiture under section 503(b)(2)(C) to $11,000. See 47 C.F.R. §1.80(b)(3); Amendment of Section 1.80 of the Commission’s Rules and Adjustment of Forfeiture Maxima to Reflect Inflation, 15 FCC Rcd 18221 (2000); see also Amendment of Section 1.80(b) of the Commission’s Rules and Adjustment of Forfeiture Maxima to Reflect Inflation, 19 FCC Rcd 10945 (2004) (this recent amendment of section 1.80(b) to reflect inflation left the forfeiture maximum for this type of violator at $11,000). 21 47 U.S.C. § 503(b)(2)(D); The 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, 17100-01 para. 27 (1997) (Forfeiture Policy Statement), recon. denied, 15 FCC Rcd 303 (1999). 22 See 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(12). Federal Communications Commission DA 07-4652 5 behalf of a tax exempt, nonprofit organization. In addition, according to the complaints and subsequently filed responses by See Through Windows, the consumers neither had an established business relationship with nor gave the company prior express invitation or permission to deliver the telephone solicitations. Finally, See Through Windows made the calls at issue more than thirty-one (31) days after the consumers placed their residential telephone numbers on the National Do-Not-Call Registry. Based on the entire record, including the consumer complaints, we conclude that See Through Windows apparently violated section 64.1200(c)(2) the Commission’s rules by delivering 2 telephone solicitations to 2 consumers who had registered their telephone numbers on the National Do-Not-Call registry . B. Proposed Forfeiture 9. We find that See Through Windows is apparently liable for a forfeiture in the amount of $20,000. The Commission's Forfeiture Policy Statement does not establish a base forfeiture amount for violating the prohibition on making telephone solicitations to customers who have registered on the National Do-Not-Call Registry.23 The Commission has found that a national do-not-call violation implicates the same concern as a violation of the company specific do-not-call rules and, accordingly, justifies the application of the $10,000 base amount that the Commission previously proposed for company specific do-not call violations.24 We apply that base amount to each of the 2 apparent telephone solicitation violations. Thus, we propose a total forfeiture of $20,000. See Through Windows will 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.25 IV. CONCLUSION AND ORDERING CLAUSES 10. We have determined that See Through Windows apparently violated section 64.1200(c)(a) of the Commission’s rules by delivering at least two Telephone solicitations to the two consumers identified in the Appendix who had registered their telephone numbers on the National Do- Not-Call registry. We have further determined that See Through Windows is apparently liable for a forfeiture in the amount of $20,000. 11. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act, 47 U.S.C. § 503(b), and section 1.80 of the Rules, 47 C.F.R. § 1.80, and under the authority delegated by sections 0.111 and 0.311 of the Commission’s rules, 47 C.F.R. §§ 0.111, 0.311, that See Through Windows is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of $20,000 for willful or repeated violations of section 64.1200(c)(2) of the Commission’s rules, 47 C.F.R. § 64.1200(c)(2), and the related orders described in the paragraphs above. 12. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the Commission’s rules,26 within thirty (30) days of the release date of this Notice of Apparent Liability for Forfeiture, See Through Windows SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 23 The 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 (1997), recon. denied, 15 FCC Rcd 303 (1999) (Forfeiture Policy Statement). 24 Dynasty Mortgage, LLC, Order of Forfeiture, 22 FCC Rcd 9453, 9469, para. 43 (2007). 25 See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3). 26 47 C.F.R. § 1.80. Federal Communications Commission DA 07-4652 6 13. Payment by check or money order, payable to the order of the “Federal Communications Commission,” may be mailed to Forfeiture Collection Section, Finance Branch, Federal Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251. Payment by overnight mail may be sent to Mellon Client Service Center, 500 Ross Street, Room 670, Pittsburgh, PA 15262-0001, Attn: FCC Module Supervisor. Payment by wire transfer may be made to: ABA Number 043000261, receiving bank Mellon Bank, and account number 911-6229. The payment should note NAL/Acct. No. 200832170005. 14. The response, if any, must be mailed both to the Office of the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, DC 20554, ATTN: Enforcement Bureau – Telecommunications Consumers Division, and to Colleen Heitkamp, 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. 15. 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. 16. Requests for payment of the full amount of this Notice of Apparent Liability for Forfeiture under an installment plan should be sent to: Chief, Revenue and Receivables Operations Group, 445 12th Street, SW, Washington, DC 20554.27 17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by Certified Mail Return Receipt Requested to See Through Windows, Attention: Charles Brown, 231 Westhampton Place, Capitol Heights, Maryland 20743 and See Through Windows’ counsel, Johanson Berenson LLP, Attention: Kevin M. Tierney, 1350 Beverly Road, Suite 115, PMB 208, McLean, Virginia 22101. FEDERAL COMMUNICATIONS COMMISSION Kris Anne Monteith Chief, Enforcement Bureau 27 47 C.F.R. § 1.1914. Federal Communications Commission DA 07-4652 7 APPENDIX Complainant received telephone solicitations after registering on the National Do-Not-Call Registry Violation Date(s) Bob Baltz 02/28/2007 Cynthia Carmichael 12/1/2006