Federal Communications Commission FCC 14-17
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of 
Scott Malcolm
DSM Supply, LLC
Somaticare, LLC
Apparent Liability for Forfeiture
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File No.: EB-TCD-12-00001013
NAL/Acct. No.:  201432170003
FRN:  0023383201
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted:  February 24, 2014   Released:  February 24, 2014
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find that Scott Malcolm,
DSM Supply, LLC (DSM), and Somaticare, LLC (Somaticare) (collectively, the DSM parties) apparently 
willfully and repeatedly violated Section 227(b)(1)(C) of the Communications Act of 1934, as amended 
(the Communications Act or Act), and Section 64.1200(a)(4) of the Commission’s rules, by sending 115
unsolicited advertisements, or “junk faxes,” to the telephone facsimile machines of 26 consumers.
1
  The 
advertisements, which promote a variety of chiropractic supplies offered by “DSM Supply,” arrived in 
private homes and health care offices across the United States.  The faxes have been an unwanted 
intrusion and expense for consumers and, as reported by some health care practitioners, a serious 
disruption to their practices.  Further, because the faxes failed to include the required opt-out notice, the 
DSM parties made it difficult, if not impossible, for consumers to find relief.  Numerous complainants 
consistently describe unsuccessful attempts to stop the onslaught of DSM advertisements—attempts that 
sometimes stretched over years but never brought an end to the unwanted faxes.  Based on the facts and 
circumstances surrounding these 115 apparent violations, we apply the maximum forfeiture penalty and 
find that Mr. Malcolm, DSM, and Somaticare are apparently jointly and severally liable for a forfeiture in 
the amount of $1,840,000.
II. BACKGROUND
2. The Telephone Consumer Protection Act of 1991 (TCPA) was enacted by Congress to 
address problems of abusive telemarketing, including junk faxes.
2
  Unsolicited faxes often impose 
unwanted burdens on the called party, including costs of paper and ink, and making fax machines 
unavailable for legitimate business messages.  Section 227(b)(1)(C) of the Act thus 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, unless the unsolicited advertisement is from a 
sender with an established business relationship with the recipient . . . .”
3
  As relevant here, an 
                                                          
1
See 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(4).    
2
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394 (1991) (codified at 47 U.S.C.
§ 227).  See also Junk Fax Prevention Act of 2005, Pub. L. No. 109-21, 119 Stat. 359 (2005). 
3
47 U.S.C. § 227(b)(1)(C); see also 47 C.F.R. § 64.1200(a)(4).  
Federal Communications Commission FCC 14-17
2
“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, in writing or otherwise.”
4
  Nonetheless, it is permissible to send such fax 
advertisements to recipients with whom the sender has an established business relationship (EBR),
5
as 
long as the receiving fax number has been provided voluntarily by the recipient,
6
the advertisement 
includes a clear and conspicuous notice that tells the recipient how to avoid receiving additional fax 
advertisements,
7
and the EBR has not been effectively terminated by a party’s instructions to stop sending 
fax advertisements.
8
3. All unsolicited facsimile advertisements must contain an opt-out notice on the first page 
of the advertisement stating that the recipient is entitled to request that the sender not send any future 
advertisements.
9
  This notice must include a domestic contact telephone number and a facsimile machine 
number that the recipient may use to transmit an opt-out request to the fax sender 24 hours a day, 7 days a 
week.
10
  A fax sender must honor such opt-out requests within the shortest reasonable time, not to exceed 
30 days, and is expressly prohibited from sending unsolicited advertisements to any party—including a 
party doing business with the sender—who has made a valid opt-out request unless that party 
subsequently provides the sender prior express invitation or permission to deliver a fax advertisement.
11
  
Accordingly, under the Commission’s rules, a do-not-fax request terminates an established business 
relationship for purposes of fax advertising so that unsolicited facsimile advertisements may no longer 
lawfully be sent even if the party opting out continues to do business with the sender.
12
4. On December 20, 2011, in response to numerous consumer complaints alleging that DSM 
had faxed unsolicited advertisements, the Enforcement Bureau (Bureau) issued a citation to DSM, 
Somaticare, and Mr. Malcolm, as President of both DSM and Somaticare,
13
pursuant to Section 503(b)(5) 
                                                          
4
47 U.S.C. § 227(a)(5); 47 C.F.R. § 64.1200(f)(15). 
5
For purposes of faxing, an established business relationship is defined as “a prior or existing relationship formed 
by a voluntary two-way communication between a person or entity and a business or residential [telephone] 
subscriber 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)(6); see also 47 
U.S.C. § 227(a)(2); Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report 
and Order and Third Order on Reconsideration, 21 FCC Rcd 3787, 3797–99, paras. 18–20 (2006) (Junk Fax 
Prevention Act R&O), modified on other grounds, 23 FCC Rcd 15059 (2008).
6
47 U.S.C. § 227(b)(1)(C)(ii); 47 C.F.R. § 64.1200(a)(4)(ii).
7
47 U.S.C. § 227(b)(1)(C)(iii); 47 C.F.R. § 64.1200(a)(4)(iii).
8
47 C.F.R. § 64.1200(a)(4)(vi).  
9
47 U.S.C. § 227(b)(1)(C)(iii); 47 C.F.R. § 64.1200(a)(4).  
10
47 C.F.R. § 64.1200(a)(4)(iii)(D) and (E); see also 47 U.S.C. § 227(b)(2)(D)(iv)(I).  If neither the required 
telephone number nor facsimile machine number is toll-free, a separate cost-free mechanism such as a website or 
e-mail address must be available for a recipient to transmit an opt-out request.  47 C.F.R. § 64.1200(a)(4)(iii)(D)(2); 
47 U.S.C. § 227(b)(2)(D)(iv)(II).
11
47 C.F.R. § 64.1200(a)(4)(vi); see also 47 U.S.C. § 227(b)(2)(D)(ii).  The opt-out notice must state that failure to 
honor an opt-out request within 30 days is unlawful.  47 C.F.R. § 64.1200(a)(4)(iii)(B); see also 47 U.S.C. 
§ 227(b)(2)(D)(ii).
12
See 47 C.F.R. § 64.1200(a)(4)(vi); Junk Fax Prevention Act R&O, 21 FCC Rcd at 3806, para. 35.
13
Citation from Richard A. Hindman, Chief, Telecommunications Consumers Division, FCC Enforcement Bureau, 
to Somaticare, Inc. aka DSM Supply, LLC and DSM Supply, LLC aka Somaticare, Inc. (Dec. 20, 2011) (on file in 
EB-TCD-12-00001013) (Somaticare/DSM Citation).  The citation was addressed to both DSM and Somaticare, and 
directed to the attention of Mr. Malcolm.  It expressly warned that future violations of the Act and the Commission’s 
(continued....)
Federal Communications Commission FCC 14-17
3
of the Act.
14
  The Bureau cited DSM, Somaticare, and Mr. Malcolm for using a telephone facsimile 
machine, computer, or other device to send unsolicited advertisements to telephone facsimile machines in 
violation of Section 227(b)(1)(C) of the Act and Section 64.1200(a)(4) of the Commission’s rules, and
attached 20 representative consumer complaints documenting multiple violations.  The citation informed 
the recipients that within 30 days of the date of the citation, they could either request an interview with 
Commission staff or provide a written statement responding to the citation.  None of the DSM parties 
responded in any way.
15
  Despite the citation’s warning that subsequent violations could warrant 
monetary forfeitures, we have received over 350 additional complaints indicating that the DSM parties 
continued to send unlawful fax advertisements after the 2011 citation.
III. DISCUSSION
A. Apparent Violations of Section 227(b)(1)(C) of the Act and Section 64.1200(a)(4) of 
the Commission’s Rules Restricting Facsimile Advertisements 
5. We find that Scott Malcolm, DSM Supply, LLC, and Somaticare, LLC, violated Section 
227(b)(1)(C) of the Act and Section 64.1200(a)(4) of the Commission’s rules by using a telephone 
facsimile machine, computer, or other device to send 115 unsolicited advertisements to 26 consumers 
between February 25, 2013 and January 21, 2014.  Each of the consumers listed in Appendix A has 
provided evidence that he or she received at least one fax that advertised DSM’s chiropractic supplies.  
These consumers have further indicated that they received the DSM advertisements without expressly 
authorizing such faxes to be sent.  While three consumers confirm a purchase from DSM that created an 
EBR that entitled DSM to send its fax advertisements,
16
the advertisements did not include a notice to 
inform the recipients how to opt out of receiving additional ads in the future, a key requirement to satisfy
the EBR exemption.
17
Additionally, one of the consumers who acknowledged an EBR with DSM also 
provided information showing that he told DSM to stop sending its advertisements at least 30 days before 
receipt of the fax ads at issue here
18
—notice that terminated DSM’s permission to fax under the EBR
exemption.
19
  Numerous other consumers who never purchased anything from or made any inquiry to 
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rules governing telephone solicitations and unsolicited advertisements “may subject you and your company to 
monetary forfeitures.” Id.  
14
47 U.S.C. § 503(b)(5) (requiring the Commission to issue a citation of the violation charged, prior to a notice of 
possible forfeiture or determination of a forfeiture, against a person who does not hold a license, permit, certificate 
or other authorization issued by the Commission, who is not an applicant for any such instrumentality, or who is not 
engaged in any activities for which such instrumentality is necessary).   
15
The DSM parties acknowledged receipt of the citation, as evidenced by a signed United States Postal Service 
return receipt, Article Number 7009 0080 0000 6070 2476 (Somaticare, Inc. aka DSM Supply, LLC, Attn: Scott 
Malcolm, President/Owner, 1187 Judd Court, Suite 104, Dallas, TX 75243).  
16
See FCC Form 1088A—Junk Fax Complaint from R. LaFreniere (May 13, 2013) (LaFreniere Complaint); FCC 
Form 1088A—Junk Fax Complaint from D. Radke (Dec. 18, 2013) (December Radke Complaint); FCC Form 
1088A—Junk Fax Complaint from J. Cain (June 20, 2013) (Cain Compliant).
17
See 47 U.S.C. § 227(b)(1)(C)(iii); 47 C.F.R. § 64.1200(a)(4)(i)–(iii).
18
December Radke Complaint (“Repeatedly requested removal from their fax list, by fax, and phone.  Continued 
faxes despite their promises to remove—this has been going on for several years.”); FCC Form 1088A—Junk Fax 
Complaint from D. Radke (Nov. 25, 2013) (November Radke Complaint) (“Have requested MULTIPLE times to be 
removed from fax and phone solicitations, over the past several years.”).  The other consumers who did business 
with DSM both reported having made do-not-fax requests, but were unable to provide a time frame for those 
requests to demonstrate that they were made at least 30 days prior to receipt of a subsequent DSM fax 
advertisement.  LaFreniere Complaint (reporting do-not-fax requests “on no less than 3 occasions”); Cain Complaint 
(reporting “multiple” do-not-fax requests).
19
Fax senders must honor opt-out requests within the shortest reasonable time, not to exceed 30 days, and are 
expressly prohibited from sending unsolicited advertisements to any party who has made a valid opt-out request 
(continued....)
Federal Communications Commission FCC 14-17
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DSM also report that their do-not-fax instructions were repeatedly ignored.  Almost all of the consumers 
who filed complaints provided copies of DSM advertisements that do not contain any opt-out notice or 
affirmatively stated that the advertisements they received from DSM did not include such a notice.  
6. Despite the absence of any opt-out notice on the DSM advertisements, all but one of the 
consumers listed in Appendix A have stated that they attempted to stop the faxes by contacting DSM by
either a phone call to its sales number, a fax to its facsimile number, or a letter to its business address.
20
  
Without the required opt-out notice, fax recipients could only guess which means of contact might enable 
them to lodge a do-not-fax request that actually would be recorded and honored.  The record 
demonstrates, however, that the DSM parties have done little or nothing to honor do-not-fax requests no 
matter how they were received. A few complainants have noted a brief respite from these faxes only to 
have the advertisements shortly resume in full force.
21
  Two different complainants use identical words to 
summarize the typical DSM experience succinctly:  “They will not stop.”
22
  
7. Overwhelmingly, consumers have reported rude and unresponsive encounters during 
attempts to lodge a do-not-fax request with DSM.  One consumer notes that a DSM representative
“actually laughed and said ‘whatever’ when I informed him I would be reporting him to the FCC.”
23
  
Most significant, regardless of the response received when making a do-not-fax request, 25 consumers
listed in Appendix A have reported receiving a fax advertisement from DSM after making such a request, 
and 17 consumers have shown that they received a DSM fax advertisement more than 30 days after they 
instructed Mr. Malcolm or one of his employees to stop faxing.
8. Consumers have compellingly documented the disruption, expense, and frustration 
caused both by receipt of the DSM parties’ unlawful advertisements and by the unpleasant and 
unsuccessful attempts to permanently stop them. 
? “On 11-26-2012 Scott from DSM Supply promised to stop unwanted faxes.  The faxes have 
kept coming regularly despite several other requests to stop.”
24
? “For the last 15 months we have been in business I have called EVERY time we receive a fax 
to have us removed.  The person on the other end is rude and we are not removed. . . . These 
faxes come multiple times per month.”
25
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unless that party subsequently provides to the sender prior express invitation or permission to deliver a fax 
advertisement.  47 C.F.R. § 64.1200(a)(4)(vi).
20
As noted below, both the voice and facsimile numbers displayed for DSM on the fax advertisements belong to 
Somaticare.  See infra para. 18.
21
See, e.g., FCC Form 1088A—Junk Fax Complaint from M. Servant (Mar. 22, 2013) (Servant Complaint) (“Have 
contacted DSM multiple times over the past year to ask to have my fax # removed from their list.  After a few 
weeks, the faxes resume.”); FCC Form 1088A—Junk Fax Complaint from K. Oricchio (Nov. 26, 2013) (“They 
stopped faxing for 3 months and are now back faxing—3 pages per fax.”).
22
FCC Form 1088A—Junk Fax Complaint from S. Pagano (May 13, 2013) (Pagano Complaint); LaFreniere 
Complaint.
23
Servant Complaint. See also FCC Form 1088A—Junk Fax Complaint from K. Durham (June 17, 2013) (“I have 
also told them that I was going to have to report them to the FCC and they then hung up on me.”).
24
FCC Form 1088A—Junk Fax Complaint from D. Riffel (June 14, 2013) (June Riffel Complaint).  See also FCC 
Form 1088A—Junk Fax Complaint from D. Riffel (Jan. 16, 2013) (“We have made at least six requests in the last 
six months, some verbal by phone number listed on the fax . . . several by fax back to number listed on the margin.  
There is no opt-out information and none of the requests have been honored, they don’t even offer to comply when 
asked verbally.  Flagrant disregard of our requests.”).
25
FCC Form 1088A—Junk Fax Complaint from T. Ibinger (Feb. 25, 2013).
Federal Communications Commission FCC 14-17
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? “They send multiple faxes daily and use up ink and paper.  Please help.”
26
? “We have called, faxed, etc. dozens of time to this vendor and yet still keep getting 3 faxes a 
week at 3 pages per fax.”
27
? “They have sent us faxes for years.  We call them every time we receive a fax and ask them 
to remove us.  On one occasion I called several times and they hung up on me, laughed at me, 
and never removed us from their list.”
28
? “These faxes are graphic laden and consume a lot of toner, costing my company money.”
29
? “I was verbally abused . . . after asking them to stop sending me faxes.”
30
? “Have requested MULTIPLE times to be removed from fax and phone solicitations, over the 
past several years, and yet we continue to get at least two sets (multiple pages, multiple 
copies) of faxes from this company on a regular basis.  When we call, the representatives are 
actually hostile to us. . . .  The one time we DID order from them was five or better years ago 
. . . now they want us to continue to pay for their advertisements in toner and fax minutes!”
31
9. The experiences of these complainants provide convincing evidence that the unlawful 
and abusive practices by the DSM parties have been both consistent and longstanding.  Based on the 
record before us, we conclude that Mr. Malcolm, DSM, and Somaticare apparently violated Section 
227(b)(1)(C) of the Act and Section 64.1200(a)(4) of the Commission’s rules by sending at least 115
unsolicited facsimile advertisements between February 25, 2013 and January 21, 2014 that did not meet 
the statutory requirements for an EBR or corresponding notice.
B. Proposed Forfeiture
10. After we have first issued a citation to a person, as we have in this case, Section 503(b) of 
the Act authorizes the Commission to propose a forfeiture for subsequent conduct of the type described in 
the citation that violates the Act, or any rule, regulation, or order issued by the Commission under the 
Act.
32
  Section 503(b)(2)(E) mandates that, “[i]n determining the amount of such a forfeiture penalty, the 
Commission or its designee shall 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.”
33
  Our forfeiture guidelines set forth the base 
amount for penalties for certain kinds of violations and identify criteria, consistent with the Section 
503(b)(2)(E) factors, that may influence whether we adjust the base amount downward or upward.
34
  For 
example, we may adjust a penalty upward for “[e]gregious misconduct,” an “[i]ntentional violation,” or 
where the subject of an enforcement action has engaged in “[p]rior violations of any FCC requirements” 
                                                          
26
FCC Form 1088A—Junk Fax Complaint from L. Addison (May 13, 2013) (Addison Complaint).
27
FCC Form 1088A—Junk Fax Complaint from K. Miller (Mar. 1, 2013).
28
FCC Form 1088A—Junk Fax Complaint from A. Ortelli. (May 21, 2013).
29
Servant Complaint.
30
Pagano Complaint.
31
November Radke Complaint.
32
47 U.S.C. § 503(b)(5).
33
47 U.S.C. § 503(b)(2)(E). 
34
See 47 C.F.R. § 1.80(b)(8) note.  The absence of a particular type of violation from the forfeiture guidelines must 
“not be taken to mean that the violation is unimportant or nonexistent,” and “[t]he Commission retains discretion to 
impose forfeitures for other violations. . . .”  Commission’s Forfeiture Policy Statement, Report & Order, 12 FCC 
Rcd 17087, 17110 (1997). 
Federal Communications Commission FCC 14-17
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or a “[r]epeated or continuous violation.”
35
  Currently, the maximum penalty that the Commission may 
impose against a party such as Mr. Malcolm, DSM, or Somaticare is $16,000 per violation.
36
11. The Commission has generally considered $4,500 per unsolicited fax advertisement an 
appropriate base forfeiture for violating the prohibition against sending them.
37
  In addition, when a 
consumer requests that facsimile messages stop but they continue, the Commission has previously 
considered $10,000 per unsolicited fax advertisement the appropriate forfeiture for such an egregious 
violation.
38
  Over time, however, proposed forfeitures of these sizes have failed to deter the more 
persistent violators of the junk fax rules.  Accordingly, the Commission has applied upward adjustments 
to multiple and repeated violations of our junk fax rules
39
and to violators whose practices are egregious.
40
   
                                                          
35
47 C.F.R. § 1.80(b)(8) note, sec. II (Adjustment Criteria for Section 503 Forfeitures). 
36
Section 503(b)(2)(D) of the Act provides for forfeitures of up to $10,000 for each violation by a person who is not 
a regulated entity such as a broadcast station licensee or common carrier.  47 U.S.C. § 503(b)(2)(D).  The 
Commission periodically adjusts this and other forfeiture amounts for inflation.  Both currently and at the time of the  
violations set forth in Appendix A, the maximum forfeiture was set at $16,000 for each violation of this type 
committed by a party subject to section 503(b)(2)(D).  See 47 C.F.R. § 1.80(b)(5) (2012), 47 C.F.R. § 1.80(b)(7) 
(amended and renumbered pursuant to Amendment of Section 1.80(b) of the Commission’s Rules, Adjustment of 
Civil Monetary Penalties to Reflect Inflation, Order, 28 FCC Rcd 10785 (Enf. Bur. 2013)).
37
See Get-Aways, Inc., Notice of Apparent Liability for Forfeiture, 15 FCC Rcd 1805, 1812, para. 16 (1999); Get-
Aways, Inc., Forfeiture Order, 15 FCC Rcd 4843 (2000); Five Star Adver., Inc., Notice of Apparent Liability For 
Forfeiture, 23 FCC Rcd 17699, 17701–02, para. 7 (2008) (Five Star NAL); Five Star Adver., Inc., Forfeiture Order, 
27 FCC Rcd 622 (2012) (Five Star Forfeiture Order).  
38
Tri-StarMktg., Inc, Notice of Apparent Liability for Forfeiture, 15 FCC Rcd 11295, 11300, para. 12 (2000); Tri-
Star Mktg., Inc., Forfeiture Order, 15 FCC Rcd 23198 (2000); Five Star NAL, 23 FCC Rcd at 17701–02, para. 7 
(2008); Five Star Forfeiture Order, 27 FCC Rcd 622.  
39
In recent cases involving multiple and repeated violations of the junk fax rules—but not additional aggravating 
factors like deceit—the Commission has proposed the adjustment through a lump sum, resulting in an overall 
penalty that is more than the sum of applying the base forfeiture, but less than applying the statutory maximum, to 
all violations involved. See Nat’l Emps. Benefit Grp., Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 
2734, 2737, para. 8 (2012) (NEBG NAL) (applying a $150,000 upward adjustment in proposing a forfeiture for 97 
junk fax violations); Laser Techs., Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 10792, 10795, para. 9 
(2011) (applying a $50,000 upward adjustment in proposing a forfeiture for 40 junk fax violations); Presidential 
Who’s Who, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 8989, 8993–95, paras. 11–13 (2011) (applying 
a $150,000 upward adjustment in proposing a forfeiture for 31 junk fax violations, taking into account the violator’s 
73 prior junk fax violations); The Street Map Co., Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 8318, 
8321–22, paras. 10–11 (2011) (applying a $75,000 upward adjustment in proposing a forfeiture for 51 junk fax 
violations, taking into account the violator’s prior 11 junk fax violations). When aggravating factors, such as deceit, 
have accompanied numerous violations of the junk fax rules, the Commission has generally increased the forfeiture 
for each violation involved to the statutory maximum. See Tim Gibbons/United Emp. Benefits Grp., Notice of 
Apparent Liability for Forfeiture, 27 FCC Rcd 11432, 11437–38, paras. 10–14 (2012) (Gibbons/UEBG NAL) 
(proposing the maximum forfeiture penalty for 99 junk fax violations, taking into account the violator’s prior 
violations, deceptive conduct, and related violations); Patrick Keane a/k/a/ The Street Map Co., Notice of Apparent 
Liability for Forfeiture, 27 FCC Rcd 13757, 13761, paras. 9–13 (2012) (Patrick Keane NAL) (proposing the 
maximum forfeiture penalty for 38 junk fax violations, taking into account the violator’s prior violations, deceptive 
conduct, and related violations).
40
In proposing maximum forfeiture penalties, the Commission has taken note of violators’ deceitful conduct, 
misrepresentation of material facts, and attempts to evade law enforcement. See Sabrina Javani d/b/a EZ Bus.
Loans, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 7921(2012) (EZ Busisness NAL); Teresa Goldberg 
a/k/a Tammy Pocknett d/b/a Software Training Co. et al., Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 
2723 (2012); Travel Club Mktg. d/b/a Travelink Corp. et al., Notice of Apparent Liability for Forfeiture, 26 FCC 
Rcd 15381 (2011).       
Federal Communications Commission FCC 14-17
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12. As our past upward adjustments indicate, different and more substantial penalties are 
appropriate for persons and entities who engage in a significant number of violations, especially those 
whose conduct is egregious.  The DSM facsimile advertisements prompted over 350 complaints to the 
Commission after the Bureau first warned these parties that their conduct violated the law.  These 
complaints indicate that Mr. Malcolm, DSM, and Somaticare are knowing, flagrant, and persistent 
violators of the junk fax rules and are not likely to be deterred from continuing to send unsolicited faxes, 
and violating other junk fax rules, unless a substantial penalty is assessed.  Although Section 503(b)(6) of 
the Communications Act
41
does not permit the Commission to assess a forfeiture for those violations that 
occurred more than one year prior to the date of this NAL, the volume and egregious nature of the 
apparent violations justifies the maximum penalty possible for the 115 violations that occurred within the 
past year.
13. Many of the consumers claim that they received DSM advertisements by fax for months 
or even for years, so that far more unwanted faxes were apparently sent to these parties than the specific 
faxes reported in their complaints and listed in Appendix A.
42
In addition, the DSM parties regularly sent 
as many as three separate advertisements in a single transmission,
43
and in some instances faxed duplicate 
transmissions containing multiple advertisements within minutes.
44
  The complaints show that the multi-
page transmissions with sizable text and graphic images consume undue amounts of consumers’ paper 
and ink, while also extending the time that fax machines are unavailable for their owners’ lawful use.
45
  
For the health care offices that have been the primary targets,
46
these faxes can be more than an 
inconvenience and unwarranted expense.  Some health care professionals or office employees have 
described how the DSM parties’ frequent and lengthy faxes disrupted their practices and possibly 
interfered with patient care.
47
  
14. As described above, the faxes failed to provide any opt-out information to instruct 
recipients how to avoid receiving future fax advertisements from the DSM parties.  Even more 
significant, the complaints powerfully demonstrate the DSM parties’ complete indifference to the fax 
recipients’ persistent efforts to make do-not-fax requests even without benefit of an opt-out notice.
48
  The 
DSM parties either lacked procedures to record and honor do-not-fax requests, or simply disregarded such 
requests.  All but one of the consumers listed in Appendix A attempted to make a do-not-fax request, and 
                                                          
41
47 U.S.C. § 503(b)(6). 
42
See, e.g., FCC Form 1088A—Junk Fax Complaint from M. Eisenberg (Mar. 11, 2013) (“I have copies of faxes 
from this sender that date back at least one year”); FCC Form 1088A—Junk Fax Complaint from R. Habeger (May 
13, 2013) (Habeger Complaint) (reporting regular receipt of faxes despite 2010 do-not-fax request).
43
Each of these advertisements constitutes a separate violation.  When a complainant has documented receipt of 
multiple advertisements in a single transmission, typically by providing copies of the faxes, we apply a separate 
penalty for each advertisement.  See Appendix A.
44
See, e.g., FCC Form 1088A—Junk Fax Complaint from T. Nicasio (May 13, 2013) (faxes attached to complaint
show that duplicate multi-page transmissions were received within 15 minutes of one another).
45
See, e.g., Servant Complaint and Addison Complaint.
46
Twenty-four of the 26 complainants listed in Appendix A are chiropractic or other health care offices.
47
See, e.g., FCC Form 1088A—Junk Fax Complaint from J. Danaka (Jan. 23, 2013) (“[T]he only way to avoid the 
faxes is to turn off our fax at night.  This is a doctor’s office and we need our fax to receive information regarding 
our patients.”); FCC Form 1088A—Junk Fax Complaint from J. Dubats (Jan. 23, 2013) (“We have been having 
problems with this company sending faxes on our patient referral line. . . . [T]oday after I requested nicely that they 
please stop they hung up and faxed another sheet to our office.”).
48
Habeger Complaint (stating receipt of 3–4 faxes per week since 2010 and documenting five do-not-fax requests); 
FCC Form 1088A—Junk Fax Complaint from K. Bauman (Apr. 22, 2013) (“Sent numerous faxes to opt out”); FCC 
Form 1088A—Junk Fax Complaint from A. Green (June 3, 2013) (made three phone calls and sent three faxes to 
opt-out).
Federal Communications Commission FCC 14-17
8
17 of the consumers have provided information showing that they received at least one DSM fax 
advertisement more than 30 days after they made a do-not-fax request;
49
each such subsequent fax 
constitutes an additional violation of the Commission’s rules that could carry a separate penalty of up to 
$16,000 each.  In this case, we consider these additional violations as aggravating factors that warrant 
upward adjustments of our base forfeiture amounts.
50
    
15. Weighing the facts before us, we propose the maximum penalty allowed under the Act 
and the Commission’s rules, $16,000, for each of the 115 instances in which the DSM parties sent an 
unsolicited facsimile advertisement without satisfying the requirements to invoke the established business 
relationship exemption—a total penalty of $1,840,000.  
16. Consistent with prior NALs, the proposed penalty here applies to Mr. Malcolm
personally, whether acting in his own name or through DSM or Somaticare.
51
  As demonstrated more 
fully below, there exists such a unity of interest and ownership that no separate personality exists as 
between Mr. Malcolm and DSM or Somaticare.  These entities merely function as instrumentalities of Mr. 
Malcolm, and Mr. Malcolm cannot be allowed to circumvent personal liability simply by forming 
purportedly different organizations.
52
  
17. According to publicly available records maintained by the Texas Secretary of State, Scott 
Malcolm is both the president and director—and, in fact, the only “member” or corporate officer—of both 
DSM and Somaticare.  DSM was formed as a limited liability company in 2006 with Mr. Malcolm 
designated as the sole “initial Member”;
53
no filings or records show any other member of the company 
from that time to the present.  DSM was “forfeited” twice and designated “inactive” by the Secretary of 
State—in May of both 2008 and 2010—for failure to file a franchise tax return or pay state franchise tax.   
In October 2008, Mr. Malcolm sought and received reinstatement for DSM after the Texas Comptroller of 
Public Accounts cleared DSM for reinstatement.  After DSM’s May 2010 tax forfeiture, Mr. Malcolm did 
not correct the deficiencies or seek reinstatement for over two years.  During that time, Mr. Malcolm,
acting for himself and using the name of DSM, continued to send junk faxes in violation of the Act and 
the Commission’s rules.  In fact, some of the faxes that formed the basis for the December 20, 2011, 
citation to Mr. Malcolm, DSM, and Somaticare were sent during the period when DSM was not a legal 
                                                          
49
See supra para. 7.
50
  The Commission has previously treated opt-out notice violations as aggravating factors in assessing maximum 
forfeitures for faxing unsolicited advertisements, but the Commission has explicitly noted that these violations are 
separate and distinct, and could carry separate penalties of up to $16,000 each.  Gibbons/UEBG NAL, 27 FCC Rcd at
11438, para. 14; EZ Business NAL, 27 FCC Rcd at 7926, paras. 10–11.
51
See Patrick Keane NAL, 27 FCC Rcd at 13762, para. 13; Patrick Keane a/k/a The Street Map Co., Forfeiture 
Order, 28 FCC Rcd 6688, 6690, para. 6 (2013); Gibbons/UEBG NAL, 27 FCC Rcd at 11438–39, para. 15; Tim 
Gibbons/United Emp. Benefits Grp., Forfeiture Order, 28 FCC Rcd 6679, 6681, para. 8 (2013).
52
See Texas v. Am. Blastfax, 164 F. Supp. 2d 892, 897–98 (W.D. Texas 2001) (“[I]f the officer directly participated 
in or authorized the statutory violation, even though acting on behalf of the corporation, he may be personally 
liable” for violations of the TCPA).  See also United States v. Pollution Servs. of Oswego, Inc., 763 F.2d 133, 134–
35 (2nd Cir. 1985) (“In light of the clear congressional intent to hold ‘person[s]’ liable for violations [of the Rivers 
and Harbors Appropriations Act], we see no reason to shield from civil liability those corporate officers who are 
personally involved in or directly responsible for statutorily proscribed activity”).  Like in the Oswego case, the 
TCPA embodies the congressional intent to hold “persons” liable for violations.  See 47 U.S.C. § 227(b)(1).  See 
also 47 U.S.C. § 153(39) (defining a “person” to include individuals as well as corporate entities).  In other contexts 
the courts have found the responsible corporate officer of a company to be personally liable for unlawful acts where 
the corporate officer was in a position of responsibility vis-à-vis the illegal conduct, had the power to prevent others 
from engaging in such conduct or to promptly correct the violation, and failed to take action.  See e.g. United States 
v. Hodges X-Ray, Inc., 759 F.2d 557, 560–62 (6th Cir. 1985).
53
Certificate of Formation of DSM Supply, LLC (filed in the Office of the Secretary of State of Texas, Corporations 
Division; June 29, 2006).
Federal Communications Commission FCC 14-17
9
entity.  DSM was reinstated on May 30, 2012, and apparently has remained active since then. 
18. Somaticare was incorporated as Somaticare, Inc., in 1999
54
and then converted to a 
limited liability company in 2000.  Again, Scott Malcolm is listed as the sole corporate officer of 
Somaticare, and the Texas Secretary of State records show no other individual with an interest in either 
the corporation or company.  In 2006, Somaticare—like DSM—was forfeited for tax infractions. 
Somaticare, however, never sought reinstatement and remains inactive according to the Texas Secretary 
of State. Despite these facts, billing records show that “Somaticare, Inc.” is the subscriber for contact 
telephone numbers that appear on both DSM’s advertisements and its website.
55
  Specifically, the junk 
faxes associated with the complaints herein say they are from DSM Supply and show a telephone number
for the sending fax machine (800-290-6642) and a telephone number for responses to DSM (800-285-
2807); both telephone numbers are registered in the name of “Somaticare, Inc.” and at the same street 
address that is recorded for DSM (both on the fax advertisements themselves and with the Texas 
Secretary of State).  The response number  that is listed on the faxes and is assigned to “Somaticare, Inc.”
is also listed as the response number on DSM’s website.
56
  Thus, while neither Somaticare, Inc., nor 
Somaticare, LLC, are recognized legal entities, Mr. Malcolm continues to use the name to conduct his 
business and send the apparent unlawful junk faxes that form the basis of this NAL.
19. In light of these facts, Sections 217 and 227 of the Act provide additional bases for 
holding Mr. Malcolm personally liable.  Section 217 provides in relevant part that “the act, omission, or 
failure of any officer, agent, or other person acting for or employed by any . . . user, acting within the 
scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such . . . 
user as well as that of the person.”
57
  In 21st Century Fax(es) LTD. aka 20
th
Century Fax(es), the 
Commission cited Section 217 as applying in a case involving TCPA matters and suggested that a junk 
fax sender is a “user” as contemplated by Section 217.
58
Thus, under Section 217, Mr. Malcolm, as well 
as DSM and Somaticare, are “users” under Section 217, and to the extent that someone other than Mr. 
Malcolm physically operated the facsimile machines, liability for those actions is attributable to Mr. 
Malcolm and the companies.  In 21st Century, the Commission further explained that under Section 
227(b)(1), “the term ‘person’ . . . includes the individual who actually performs the faxing as well as the 
corporate entity on whose behalf he or she is acting.”
59
  Again, because the evidence described above 
demonstrates that Mr. Malcolm either personally sent the unwanted faxes or was responsible for their 
transmission, we find that Mr. Malcolm was sufficiently involved in the operations of the companies that 
he is a “person” liable for unlawful conduct within the meaning of Section 227.  In sum, for multiple 
reasons we find that Mr. Malcolm, DSM, and Somaticare are jointly and severally liable for the 
apparently unlawful conduct.
20. Accordingly, we propose the maximum $16,000 penalty for each of the 115 violations of 
Section 227(b)(1)(C) of the Act and Section 64.1200(a)(4) of the Commission’s rules that are explained 
above and recorded in Appendix A, for a total penalty of $1,840,000.  This penalty takes into account, in 
                                                          
54
Articles of Incorporation of Somaticare, Inc. (filed in the Office of the Secretary of State of Texas, Corporations 
Section; Nov. 16, 1999).
55
E-mail from Brenda Weaver, Logix Communications, LP, to Lisa Williford, Telecommunications Consumers 
Division, FCC Enforcement Bureau (May 28, 2013, 12:16 PM); e-mail from Brenda Weaver, Logix 
Communications, LP, to Al McCloud, Telecommunications Consumers Division, FCC Enforcement Bureau (Jan. 
13, 2013, 2:54 PM).    
56
See http://dsmsupply.com (last visited Nov. 25, 2013).
57
47 U.S.C. § 217 (emphasis added).
58
21st Century Fax(es) LTD. aka 20
th
Century Fax(es), Forfeiture Order, 17 FCC Rcd 1384, at 1386 n.16 (2002) 
(21
st
Century).
59
Id. at 1386, para. 5.
Federal Communications Commission FCC 14-17
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the language of Section 503(b)(2)(E), the “degree of culpability” and “history of prior offenses,”
60
and in 
the language of our forfeiture guidelines, the DSM parties’ apparent “egregious misconduct” and 
“intentional” and “repeated” violations.
61
IV. CONCLUSION 
21. We have determined that Scott Malcolm, DSM Supply, LLC, and Somaticare, LLC 
apparently violated Section 227(b)(1)(C) of the Act and Section 64.1200(a)(4) of the Commission’s rules, 
by using a telephone facsimile machine, computer, or other device to send 115 unsolicited fax 
advertisements to the 26 consumers identified in Appendix A.  For these 115 apparent violations, we have 
further determined that Mr. Malcolm, DSM, and Somaticare are apparently jointly and severally liable for 
a forfeiture in the amount of $1,840,000.
V. ORDERING CLAUSES
22. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Act, and 1.80 of 
the rules,
62
Scott Malcolm, DSM Supply, LLC, and Somaticare, LLC are hereby NOTIFIED of their
APPARENT JOINT and SEVERAL LIABILITY FOR A FORFEITURE in the amount of one 
million, eight hundred and forty thousand dollars ($1,840,000) for willful and repeated violations Section
227(b)(1)(C) of the Communications Act, 47 U.S.C. § 227(b)(1)(C), and Section 64.1200(a)(4) of the 
Commission’s rules, 47 C.F.R. § 64.1200(a)(4).
23. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Commission’s 
rules,
63
within thirty (30) calendar days of the release date of this Notice of Apparent Liability for 
Forfeiture, Scott Malcolm, DSM Supply, LLC, or Somaticare, LLC SHALL PAY the full amount of the 
proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the 
proposed forfeiture.
24. Payment of the forfeiture must be made by check or similar instrument, wire transfer, or 
credit card, and must include the NAL/Account number and FRN referenced above.  Scott Malcolm, 
DSM Supply, LLC, and/or Somaticare, LLC shall send electronic notification of payment to Johnny 
Drake at Johnny.Drake@fcc.gov on the date said payment is made.  Regardless of the form of payment, a 
completed FCC Form 159 (Remittance Advice) must be submitted.
64
  When completing the FCC Form 
159, enter the Account Number in block number 23A (call sign/other ID) and enter the letters “FORF” in 
block number 24A (payment type code).  Below are additional instructions the DSM parties should 
follow based on the form of payment they select:
? Payment by check or money order must be made payable to the order of the Federal 
Communications Commission. Such payments (along with the completed Form 159) must be 
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-
9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-
GL, 1005 Convention Plaza, St. Louis, MO 63101.
? Payment by wire transfer must be made to ABA Number 021030004, receiving bank 
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure 
appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank 
at (314) 418-4232 on the same business day the wire transfer is initiated.
                                                          
60
47 U.S.C. § 503(b)(2)(E).
61
47 C.F.R. § 1.80(b)(8) note, sec. II (Adjustment Criteria for Section 503 Forfeitures).
62
47 U.S.C. § 503(b); 47 C.F.R. § 1.80.
63
47 C.F.R. § 1.80.
64
An FCC Form 159 and detailed instructions for completing the form may be obtained at 
http://www.fcc.gov/Forms/Form159/159.pdf.
Federal Communications Commission FCC 14-17
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? Payment by credit card must be made by providing the required credit card information on 
FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment.   
The completed Form 159 must then be mailed to Federal Communications Commission, P.O. 
Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank –
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 
63101.
25. Any request for full payment under an installment plan must be sent to: Chief Financial 
Officer—Financial Operations, Federal Communications Commission, 445 12th Street, S.W., Room 1-
A625, Washington, D.C. 20554.
65
  If you have questions regarding payment procedures, please contact 
the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail, 
ARINQUIRIES@fcc.gov.  
26. The response, if any, must be mailed both to: Marlene H. Dortch, Secretary, Federal 
Communications Commission, 445 12
th
Street, SW, Washington, D.C. 20554, Attn: Enforcement Bureau 
–Telecommunications Consumers Division; and to Richard A. Hindman, Chief, Telecommunications 
Consumers Division, Enforcement Bureau, Federal Communications Commission, 445 12
th
Street, SW, 
Washington, D.C. 20554, and must include the NAL/Acct. No. referenced in the caption.  Documents sent 
by overnight mail (other than United States Postal Service Express Mail) must be addressed to: Marlene 
H. Dortch, Secretary, Federal Communications Commission, Office of the Secretary, 9300 East Hampton 
Drive, Capitol Heights, MD 20743.  Hand or messenger-delivered mail should be directed, without 
envelopes, to Marlene H. Dortch, Secretary, Federal Communications Commission, Office of the 
Secretary, 445 12
th
Street, SW, Washington, D.C. 20554 (deliveries accepted Monday through Friday 
8:00 a.m. to 7:00 p.m. only).  See www.fcc.gov/osec/guidelines.html for further instructions on FCC 
filing addresses.
27. 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. 
28. 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 DSM Supply, 
LLC, Attn: Scott Malcolm, President/Owner, 11837 Judd Court, Suite 106E, Dallas, TX 75243;
Somaticare, LLC, Attn: Scott Malcolm, President/Owner, 11837 Judd Court, Suite 106E, Dallas, TX 
75243; Scott Malcolm, 11837 Judd Court, Suite 106E, Dallas, TX 75243; and to Michael R. Cramer, 
registered agent for DSM Supply, LLC, 10440 N. Central Expwy, Suite 520, Dallas, TX 75231.   
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
                                                          
65
See 47 C.F.R. § 1.1914.
Federal Communications Commission FCC 14-17
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APPENDIX A
Complainants and Violation Dates
1
Complainant received facsimile solicitation(s) Violation Date(s)
M. Eisenberg 2/25/13 (2 advertisements)
3/1/13 (3 advertisements)
3/11/13
J. Cain, Ford Chiropractic, Inc. 3/1/13
3/11/13
3/22/13
K. Bauman 3/11/13
K. Miller, ACSC, Inc. 2/25/13
2/27/13
3/1/13 (3 advertisements)
R. Zimmerman, Wendell Nelson Chiropractic 2/25/13 (2 advertisements)
3/1/13 (3 advertisements)
M. Splinter-Kelleher, Soundview Physical Therapy, Inc. 2/25/13
3/1/13 (3 advertisements)
A. Green, Apopka Wellness Center 3/11/13
3/22/13
R. Bell, Renaissance Chiropractic 5/13/13
5/24/13
5/29/13
R. Hanley, Cheyenne Mountain Chiropractic 5/13/13
K. Durham, Zega Chiropractic 5/13/13
5/20/13
5/24/13
5/29/13
6/17/13
R. LaFreniere, Hartsville Family Chiropractic 5/15/13
K. Oricchio, Adirondack Physical Therapy and Sports Rehabilitation 5/20/13
5/29/13 (2 advertisements)
6/3/13
Dr. S. Fender 2/25/13
5/24/13
5/29/13
6/3/13
S. Sparks, Diaz Olson Physical Therapy and Sports Rehab 5/29/13 (2 advertisements)
5/30/13
6/4/13
                                                          
1
Some complainants appear on both lists, because they reported receiving one or more faxes before they requested 
not to receive any more faxes, and also received one or more faxes after such requests. 
Federal Communications Commission FCC 14-17
13
Complainant received facsimile solicitation(s) at least 30 days 
after requesting no more be sent Violation Date(s)
T. Ibinger, Simply Chiropractic Center 2/25/2013
J. Goldstein, Goldstein Chiropractic 2/25/13
3/22/13
5/29/13
6/3/13 
T. Nicasio, Shaw Chiropractic 2/25/13 (4 advertisements)
3/1/13 (6 advertisements)
3/11/13 (2 advertisements)
3/22/13 (2 advertisements)
5/13/13 (4 advertisements)
D. Riffel, Metropolitan Chiropractic 3/1/13 (3 advertisements)
5/29/13 (2 advertisements)
R. Habeger, Back in Motion Chiropractic 3/1/13 (3 advertisements)
3/11/13
5/13/13 (2 advertisements) 
5/20/13
5/24/13
K. Bauman 3/22/13
M. Servant, Authentic Healing 3/22/13
S. Pagano, Pagano Chiropractic Clinic PC 5/13/13
A. Green, Apopka Wellness Center 5/13/13
5/20/13
5/24/13
6/3/13
L. Addison, Rothfeld Center for Integrative Medicine 5/13/13 (2 advertisements)
5/24/13
5/29/13 (2 advertisements)
J. Cain, Ford Chiropractic, Inc. 5/13/13
5/20/13
5/29/13
6/3/13
6/17/13
A. Ortelli, Stamford Family Wellness 5/17/13
5/20/13
10/1/13
11/18/13
11/25/13
T. Edgil, Edgil Family Chiropractic 5/29/13 (2 advertisements)
S. Sparks, Diaz Olson Physical Therapy and Sports Rehab 8/1/13
D. Radke, Radke Chiropractic Office 11/25/13 (2 advertisements)
12/16/13
Federal Communications Commission FCC 14-17
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R. Allred, Whidbey General Hospital Rehabilitation Services North 11/25/13
1/21/14
K. Oricchio, Adirondack Physical Therapy and Sports Rehabilitation 11/25/13
Federal Communications Commission FCC 14-17
15
APPENDIX B
Examples of Faxes
1
                                                          
1
Receiving fax numbers redacted by the FCC.
Federal Communications Commission FCC 14-17
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Federal Communications Commission FCC 14-17
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