Federal Communications Commission FCC 08-90 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of America’s Toner Apparent Liability for Forfeiture ) ) ) ) ) ) ) ) ) File No. EB- 06-TC-131 NAL/Acct. No. 200832170012 FRN: 0017433186 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: March 19, 2008 Released: March 21, 2008 By the Commission: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”)1, we find that America’s Toner2 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 14 unsolicited advertisements to the telephone facsimile machines of at least 14 consumers.3 Based on the facts and circumstances surrounding these apparent violations, we find that America’s Toner is apparently liable for a forfeiture in the amount of $63,000.00. 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, America’s Toner is also doing business as American Toner and Fiducia, Inc. Therefore, all references in this NAL to “America’s Toner” encompass America’s Toner as well as American Toner and Fiducia, Inc. America’s Toner has offices at 96 Westmoreland Ave., Suite 13, Addison, IL 60101; 87 Eisenhower Ln S, Lombard, IL 60148-5409; 603 Country Club Drive, Bensenville, IL 60106; and 9919 E. 47th Place, Tulsa, OK 74146-4731. John David is listed as the contact person for America’s Toner. Accordingly, all references in this NAL to “America’s Toner” also encompass the foregoing individual 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 FCC 08-90 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 July 21, 2006, in response to one or more consumer complaints alleging that America’s Toner had faxed unsolicited advertisements, the Bureau issued a citation8 to America’s Toner, pursuant to section 503(b)(5) of the Act.9 The Bureau cited America’s Toner for using a telephone facsimile machine, computer, or other device, to send unsolicited advertisements for toner and ink cartridges to a telephone facsimile machine, in violation of section 227 of the Act and the Commission’s related rules and orders. The citation, which was served by certified mail, return receipt requested, warned America’s Toner 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 America’s Toner 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. America’s Toner did not request an interview, but did acknowledge receipt of the citation and stated that “[a]ny faxes that were received by consumers other than Americas Toner customer were transmitted in error [sic]” and that the company was promoting to its own customers “via telephone and not by facsimile methods.”11 4. Despite the citation’s warning that subsequent violations could result in the imposition of 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-06-TC-131, issued to America’s Toner on July 21, 2006. 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 Commission staff mailed the citation to America’s Toner aka American Toner aka Fiducia, Inc., Attn: John David, 96 Westmoreland Ave., Suite 13, Addison, IL 60601; America’s Toner aka American Toner aka Fiducia, Inc., Attn: John David, 87 Eisenhower Ln S, Lombard IL 60148-5409; and America’s Toner aka American Toner aka Fiducia, Inc., Attn: John David, 603 Country Club Drive, Bensenville, IL 60106. See n.2, supra. 11 Letter from John David, America’s Toner, to Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division, Enforcement Bureau, dated Aug. 18, 2006. Federal Communications Commission FCC 08-90 3 monetary forfeitures, we have received 14 additional consumer complaints indicating that America’s Toner continued to engage in such conduct after receiving the citation.12 We base our action here specifically on 14 complaints filed by 14 consumes establishing that America’s Toner continued to send 14 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 America’s Toner 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 14 unsolicited advertisements to the 14 consumers identified in the Appendix. This NAL is based on evidence that 14 consumers received unsolicited fax advertisements from America’s Toner after the Bureau’s citation. The facsimile transmissions advertise toner cartridges. Further, according to the complaints, the consumers neither had an established business relationship with America’s Toner nor gave America’s Toner 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 America’s Toner apparently violated section 227 of the Act and the Commission’s related rules and orders by sending 14 unsolicited advertisements to 14 consumers’ facsimile machines. 12 See Appendix for a listing of the consumer complaints against America’s Toner requesting Commission action. 13 We note that evidence of additional instances of unlawful conduct by America’s Toner 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) (this recent amendment of section 1.80(b) to reflect inflation left the forfeiture maximum for this type of violator at $11,000). 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). 16 See, e.g., complaint dated May 2, 2007, from Sandra Tokarski (stating that she has never done any business with the fax advertiser, never made an inquiry or application to the fax advertiser, and never gave permission for the company to send the fax). The complainants involved in this action are listed in the Appendix below. 17 See 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(13) (definition previously at § 64.1200(f)(10)). Federal Communications Commission FCC 08-90 4 B. Proposed Forfeiture 7. We find that America’s Toner is apparently liable for a forfeiture in the amount of $63,000.00. 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 each of the 14 apparent violations. Thus, a total forfeiture of $63,000.00 is proposed. America’s Toner 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 America’s Toner 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 14 unsolicited advertisements to the 14 consumers identified in the Appendix. We have further determined that America’s Toner is apparently liable for a forfeiture in the amount of $63,000.00. 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 America’s Toner is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of $63,000.00 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, America’s Toner 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: 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 FCC 08-90 5 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, 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. 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 20554.21 15. 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 America’s Toner, aka American Toner, aka Fiducia, Inc., Attention: John David, 96 Westmoreland Ave., Suite 13, Addison, IL 60601; 87 Eisenhower Ln S, Lombard IL 60148-5409; 603 Country Club Drive, Bensenville, IL 60106; and 9919 E. 47th Place, Tulsa, OK 74146-4731. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 21 47 C.F.R. § 1.19. Federal Communications Commission FCC 08-90 6 APPENDIX Complainant received facsimile solicitations Violation Date(s) Sandra Tokarski May 2, 2007 Donna Aase May 15, 2007 Poland Plumbing Co., Inc. May 16, 2007 Allen Reichman, MD May 21, 2007 Doug Range June 12, 2007 Todd Wilson June 12, 2007 Leeor Dicker June 14, 2007 Alyssa Louagie June 19, 2007 JoEllyn Martin June 19, 2007 Jamie Gelhaus June 20, 2007 Chuck Greydanus June 20, 2007 Judy Hatchett June 20, 2007 Fran Daversa June 21, 2007 Kiisha Hanks June 26, 2007