Federal Communications Commission FCC 08-132 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Sunstar Travel and Tours, Inc. Apparent Liability for Forfeiture ) ) ) ) ) ) ) ) ) File No. EB-07-TC-502 NAL/Acct. No. 200832170046 FRN: 0017724774 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: May 20, 2008 Released: May 28, 2008 By the Commission: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”)1, we find that Sunstar Travel and Tours, Inc. (“Sunstar”)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 34 unsolicited advertisements to the telephone facsimile machines of at least 31 consumers.3 Based on the facts and circumstances surrounding these apparent violations, we find that Sunstar is apparently liable for a forfeiture in the amount of $169,500. 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 is not a common carrier 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, Sunstar is also doing business as SS Travel and Tours, S-Star Travel and Tour, Vacation Clearinghouse, Vacation Clearance Center, and Travel Clearance Center. Therefore, all references in this NAL to “Sunstar” encompass Sunstar as well as SS Travel and Tours, S-Star Travel and Tour, Vacation Clearinghouse, Vacation Clearance Center, and Travel Clearance Center. Sunstar has offices at 1123 E. Altamonte Dr., Altamonte Springs, FL 32701. Joseph Hanna, President, is listed as the contact person for Sunstar. Accordingly, all references in this NAL to “Sunstar” also encompass the foregoing individual and all other principals and officers of this entity or entities, as well as the corporate entity or entities. 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 FCC 08-132 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 May 17, 2007, in response to one or more consumer complaints alleging that Sunstar had faxed unsolicited advertisements, the Enforcement Bureau (“Bureau”) issued a citation8 to Sunstar, pursuant to section 503(b)(5) of the Act.9 The Bureau cited Sunstar for using a telephone facsimile machine, computer, or other device, to send unsolicited advertisements for vacation packages to a telephone facsimile machine, in violation of section 227 of the Act and the Commission’s related rules and orders. The citation warned Sunstar 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 Sunstar that within 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. Sunstar did not request an interview or otherwise respond to the citation. 4. Despite the citation’s warning that subsequent violations could result in the imposition of monetary forfeitures, we have received 13 additional consumer complaints indicating that Sunstar continued to engage in such conduct after receiving the citation.11 We base our action here specifically on 13 complaints filed by 13 consumers establishing that Sunstar continued to send 15 unsolicited advertisements to telephone facsimile machines after the date of the citation.12 5. Section 503(b) of the Act authorizes the Commission to assess a forfeiture of up to 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. § 64.1200(a)(3)(i), (ii). 8 Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division, Enforcement Bureau, File No. EB-07-TC-502 issued to Sunstar on May 17, 2007. 9 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). 10 Commission staff mailed the citation to 1123 E. Altamonte Dr., Altamonte Springs, FL 32701. See n.2, supra. 11 See Appendix for a listing of the consumer complaints against Sunstar requesting Commission action. 12 We note that evidence of additional instances of unlawful conduct by Sunstar may form the basis of subsequent enforcement action. Federal Communications Commission FCC 08-132 3 $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.13 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.”14 III. DISCUSSION A. Violations of the Commission’s Rules Restricting Unsolicited Facsimile Advertisements 6. We find that Sunstar 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 34 unsolicited advertisements to the 31 consumers identified in the Appendix. This NAL is based on evidence that 31 consumers received unsolicited fax advertisements from Sunstar after the Bureau’s citation. The facsimile transmissions advertised vacations. Further, according to the complaints, the consumers neither had an established business relationship with Sunstar nor gave Sunstar permission to send the facsimile transmissions.15 The faxes at issue here therefore fall within the definition of an “unsolicited advertisement.”16 Based on the entire record, including the consumer complaints, we conclude that Sunstar apparently violated section 227 of the Act and the Commission’s related rules and orders by sending 34 unsolicited advertisements to 31 consumers’ facsimile machines. B. Proposed Forfeiture 7. We find that Sunstar is apparently liable for a forfeiture in the amount of $169,500. 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.17 We apply that base amount to each of 31 of the apparent violations. In addition, where 13 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). 14 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). 15 See, e.g., complaint dated July 9, 2007, from Monte C. Shalett (stating that he has never done any business with the fax advertiser, never made an inquiry or application to the fax advertiser, never gave permission for the company to send the fax, and requested the company not to fax an advertisement). The complainants involved in this action are listed in the Appendix. 16 See 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(13) (definition previously at § 64.1200(f)(10)). 17 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). Federal Communications Commission FCC 08-132 4 the consumer requests the company to stop sending facsimile messages, and the company continues to send them, the Commission has previously considered $10,000 per unsolicited fax advertisement the appropriate forfeiture for such egregious violations.18 Here, three consumers specifically requested that Sunstar cease sending facsimiles. Notwithstanding these requests, three additional facsimiles were sent to these consumers. Thus, we apply the $10,000 amount to three apparent violations. Thus, a total forfeiture of $169,500 is proposed. Sunstar 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 Sunstar Travel and Tours, 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 34 unsolicited advertisements to the 31 consumers identified in the Appendix. We have further determined that Sunstar Travel and Tours, Inc. is apparently liable for a forfeiture in the amount of $169,500. 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, that Sunstar Travel and Tours, Inc.] is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of $169,500 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, Sunstar Travel and Tours, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 11. Payment of the forfeiture must be made by credit card through the Commission’s Revenue and Receivables Operations Group at (202) 418-1995, or by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include the 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. Payments[s] by wire transfer may be made to ABA Number 021030004, receiving bank Federal Reserve Bank of New York, and account number 27000001. 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. Questions, please contact the Financial Operations Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. 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, 18 See Carolina Liquidators, Inc., Notice of Apparent Liability for Forfeiture, 15 FCC 16,837, 16,842 (2000); 21st Century Fax(es) Ltd., AKA 20th Century Fax(es), 15 FCC Rcd 24,406, 24,411 (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 FCC 08-132 5 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 to Sunstar Travel and Tours, Inc., Attention: Joseph Hanna, President, 1123 E. Altamonte Dr., Altamonte Springs, FL 32701. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary Federal Communications Commission FCC 08-132 6 APPENDIX Complainants and Violation Dates Complainant sent facsimile solicitations Violation Date(s) Margaret Bergin 7/19/2007 Michael Branagan 7/10/2007 Karl Banach 7/5/2007 Joe Shields 7/12/2007 Aline Taylor 6/22/2007;7/24/2007 R. Bryan Tilden 7/26/2007 Doreen Franklin 7/25/2007 Max Talbot-Minkin 7/25/2007 Peter Jacob 7/2/2007 Warren Davis 7/20/2007;7/24/2007 Lisa Stephen 7/19/2007 Neil Twenter 7/11/2007 Mark Kirshke 8/8/2007 Jack Lubowsky 8/13/2007 Lynda Doucette 8/13/2007 Nanci Lamborn 8/14/2007 Kathy Collins 8/9/2007; 8/16/2007 William Crowell 8/16/2007 Dennis DeDonatis 8/16/2007 Gregory Stricherz 8/20/2007 Kevin Photiades 8/20/2007 Kimberly Ciesla 8/22/2007 Scott Peacock 8/22/2007 The Westminster 8/22/2007 Adrienne Hermann 8/1/2007 Laurence Zuckerman 8/6/2007 Richard Sanderson 8/1/2007 Barbara Lee 8/2/2007 Complainant sent facsimile solicitations after requesting no more be sent Violation Date(s) Monte C. Shalett 7/9/2007 Edward Weinstein 8/15/2007 Steve Heller 8/12/2007