Federal Communications Commission DA 08-1686 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Tri-State Printer & Copier Supply Co., Inc. d/b/a Tri-State Printer and Supply d/b/a Tri-State Printer & Copier d/b/a Tri-State Printer & Copier Co. Apparent Liability for Forfeiture ) ) ) ) ) ) ) ) ) File No. EB-04-TC-102 NAL/Acct No. 200832170059 FRN: 0016644700 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: July 17, 2008 Released: July 18, 2008 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”)1, we find that Tri-State Printer & Copier Supply Co., Inc. (“Tri-State”)2 apparently willfully or repeatedly violated section 227 of the Communications Act of 1934, as amended (“Act”), and the Commission’s related rules and orders, by delivering at least two unsolicited advertisements to the telephone facsimile machines of at least two consumers.3 Based on the facts and circumstances surrounding these apparent violations, we find that Tri-State is apparently liable for a forfeiture in the amount of $9,000. 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 Tri-State is also doing business as Tri-State Printer and Supply, Tri-State Printer & Copier and Tri-State Printer & Copier Co. Tri-State has offices at 930 Briars Bend, Alpharetta, GA 30004, 660 2nd Place, Garden City, NY 11530, 71 N. Franklin St., Hempstead, NY 11550 and 16 Court Street, Brooklyn, NY 11241. John Smith is listed as the Owner and President of Tri-State. Domenica Gambino is listed as the Chief Executive Officer of Tri-State. Accordingly, all references in this NAL to “Tri-State” also encompass the foregoing individuals and all other principals and officers of this entity, as well as the corporate entity itself. 3 See 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3); see also Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order and Third Order on Reconsideration, 21 FCC Rcd 3787 (2006). Federal Communications Commission DA 08-1686 2 II. BACKGROUND 2. Section 227(b)(1)(C) of the Act makes it “unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States . . . to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.”4 The term “unsolicited advertisement” is defined in the Act and the Commission’s rules 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 in writing or otherwise.”5 Under the Commission’s rules, an “established business relationship”6 exception permits a party to deliver a message to a consumer if the sender has an established business relationship with the recipient and the sender obtained the number of the facsimile machine through the voluntary communication by the recipient, directly to the sender, within the context of the established business relationship, or through a directory, advertisement, or a site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution.7 3. On June 4, 2004, in response to one or more consumer complaints alleging that Tri-State had faxed unsolicited advertisements, the Enforcement Bureau (“Bureau”) issued a citation8 to Tri-State, pursuant to section 503(b)(5) of the Act.9 The Bureau cited Tri-State for using a telephone facsimile machine, computer, or other device, to send unsolicited advertisements for printers, copiers and toner cartridges to a telephone facsimile machine, in violation of section 227 of the Act and the Commission’s related rules and orders. The citation warned Tri-State 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.10 The citation informed Tri-State that within thirty (30) 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. Tri-State did not request an interview or otherwise respond to the citation.11 4 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3). 5 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(13). 6 An “established business relationship” is defined as a prior or existing relationship formed by a voluntary two-way communication “with or without an exchange of consideration, on the basis of an inquiry, application, purchase or transaction by the business or residential subscriber regarding products or services offered by such person or entity, which relationship has not been previously terminated by either party.” 47 C.F.R. § 64.1200(f)(5). 7 See 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64(a)(3)(i), (ii). 8 Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division, Enforcement Bureau, File No.EB-04-TC-102, issued to Tri-State on June 4, 2004. 9 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). 10 Bureau staff mailed the citation to the following addresses: Tri-State, 16 Court Street, Brooklyn, NY 11241-0102, Attention: John Smith, Domenica Gambino, and Harry Samuel; 71 N. Franklin Street, Hempstead, NY 11550-3049, Attention: John Smith, Domenica Gambino, and Harry Samuel; 660 2nd S. Place, Garden City, NY, 11530-5204, Attention: John Smith, Domenica Gambino, and Harry Samuel. See n.2, supra. 11 Following the issuance of the citation, the Commission received two complaints from two consumers alleging that Tri-State faxed unsolicited advertisements to them. These violations, occurring after the Commission’s citation, resulted in the issuance of a Notice of Apparent Liability for Forfeiture against Tri-State on June 27, 2007, in the amount of $9,000. Tri-State Printer & Copier Supply Co., Inc., Notice of Apparent Liability for Forfeiture, 22 FCC (continued....) Federal Communications Commission DA 08-1686 3 4. Despite the citation’s warning that subsequent violations could result in the imposition of monetary forfeitures, we have received additional consumer complaints indicating that Tri-State continued to engage in such conduct after issuance of the citation.12 We base our action here specifically on two complaints filed by two consumers establishing that Tri-State continued to send two unsolicited advertisements to telephone facsimile machines after the date of the citation.13 5. 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.14 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.”15 III. DISCUSSION A. Violations of the Commission’s Rules Restricting Unsolicited Facsimile Advertisements 6. We find that Tri-State apparently violated section 227 of the Act and the Commission’s related rules and orders by using a telephone facsimile machine, computer, or other device to send at least two unsolicited advertisements to the consumers identified in the Appendix. This NAL is based on evidence that the consumers received unsolicited fax advertisements from Tri-State after the Commission’s citation. The facsimile transmissions advertised printers, copiers and toner cartridges. Further, according to the complaints, the consumers neither had an established business relationship with (...continued from previous page) Rcd 11556 (2007). Accordingly, on April 22, 2008, the Commission issued a Forfeiture Order to Tri-State based on this NAL in the amount of $9,000, Tri-State Printer & Copier Supply Co., Inc., Forfeiture Order, 23 FCC Rcd 6599 (2008). To date, Tri-State has not filed a response to the NAL or the Forfeiture Order. 12 See Appendix for a listing of the consumer complaints against Tri-State requesting Commission action. 13 We note that evidence of additional instances of unlawful conduct by Tri-State may form the basis of subsequent enforcement action. 14 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) (amendment of section 1.80(b) to reflect inflation left the forfeiture maximum for this type of violator at $11,000) Amendment of Section 1.80(b) of the Commission’s Rules, Adjustment of Forfeiture Maxima to Reflect Inflation, FCC 08-154, rel. June 13, 2008 (when effective, forfeiture maximum for this type of violator increased to $16,000). 15 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). Federal Communications Commission DA 08-1686 4 Tri-State nor gave Tri-State permission to send the facsimile transmissions.16 The faxes at issue here therefore fall within the definition of an “unsolicited advertisement.”17 Based on the entire record, including the consumer complaints, we conclude that Tri-State apparently violated section 227 of the Act and the Commission’s related rules and orders by sending two unsolicited advertisements to two consumers’ facsimile machines. B. Proposed Forfeiture 7. We find that Tri-State is apparently liable for a forfeiture in the amount of $9,000. Although the Commission’s Forfeiture Policy Statement does not establish a base forfeiture amount for violating the prohibition against using a telephone facsimile machine to send unsolicited advertisements, the Commission has previously considered $4,500 per unsolicited fax advertisement to be an appropriate base amount.18 We apply that base amount to the two apparent violations. Thus, a total forfeiture of $9,000 is proposed. Tri-State 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.19 IV. CONCLUSION AND ORDERING CLAUSES 8. We have determined that Tri-State Printer & Copier Supply Co., Inc. apparently violated section 227 of the Act and the Commission’s related rules and orders by using a telephone facsimile machine, computer, or other device to send at least two unsolicited advertisements to the two consumers identified in the Appendix. We have further determined that Tri-State Printer & Copier Supply Co., Inc. is apparently liable for a forfeiture in the amount of $9,000. 9. 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 Tri-State Printer & Copier Supply Co., Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of $9,000 for willful or repeated violations of section 227(b)(1)(C) of the Communications Act, 47 U.S.C. § 227(b)(1)(C), sections 64.1200(a)(3) of the Commission’s rules, 47 C.F.R. § 64.1200(a)(3), and the related orders described in the paragraphs above. 10. IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the Commission’s rules,20 within thirty (30) days of the release date of this Notice of Apparent Liability for Forfeiture, Tri- State Printer & Copier Supply Co., Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 16 See, e.g., complaint dated September 28, 2007, from Rita Freed (stating that she has never done business with the fax advertiser, never made an inquiry or application to the fax advertiser and never given permission for the fax advertiser to fax an advertisement to her). The complainants involved in this action are listed in the Appendix. 17 See 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(13) (definition previously at § 64.1200(f)(10)). 18 See Get-Aways, Inc., Notice of Apparent Liability For Forfeiture, 15 FCC Rcd 1805 (1999); Get-Aways, Inc., Forfeiture Order, 15 FCC Rcd 4843 (2000); see also US Notary, Inc., Notice of Apparent Liability for Forfeiture, 15 Rcd 16999 (2000); US Notary, Inc., Forfeiture Order, 16 FCC Rcd 18398 (2001); Tri-Star Marketing, Inc., Notice of Apparent Liability For Forfeiture, 15 FCC Rcd 11295 (2000); Tri-Star Marketing, Inc., Forfeiture Order, 15 FCC Rcd 23198 (2000). 19 See 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3). 20 47 C.F.R. § 1.80. Federal Communications Commission DA 08-1686 5 11. Payment of the forfeiture must be made by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include the NAL/Account Number and FRN Number referenced above. Payment by check or money order may be mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank – Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number 021030004, receiving bank TREAS/NYC, and account number 27000001. For payment by credit card, an FCC Form 159 (Remittance Advice) must be submitted. When completing the FCC Form 159, enter the NAL/Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A (payment type code). Tri-State Printer & Copier Supply Co., Inc. will also send electronic notification on the date said payment is made to Johnny.drake@fcc.gov. Requests for full payment under an installment plan should be sent to: Chief Financial Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact the Financial Operations Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures. 12. 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. 13. 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. 14. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by Certified Mail Return Receipt Requested and First Class Mail to Tri-State Printer & Copier Supply Co., Inc., Attention: John Smith, President, Domenica Gambino, Chief Executive Officer, 930 Briars Bend, Alpharetta, GA 30004, 660 2nd Place, Garden City, NY 11530, 71 N. Franklin St., Hempstead, NY 11550 and 16 Court Street, Brooklyn, NY 11241. FEDERAL COMMUNICATIONS COMMISSION Kris Anne Monteith Chief, Enforcement Bureau Federal Communications Commission DA 08-1686 6 APPENDIX Complainants and Violation Dates Complainant received facsimile solicitations Violation Date(s) Rita Freed 9/28/07 Robert Lewis 9/3/07