Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Tri-State Printer & Copier Supply Co., )
Inc.
) File No. EB-04-TC-102
d/b/a Tri-State Printer and Supply
) NAL/Acct No. 200832170059
d/b/a Tri-State Printer & Copier
) FRN: 0016644700
d/b/a Tri-State Printer & Copier Co.
)
Apparent Liability for Forfeiture
)
)
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"), we find
that Tri-State Printer & Copier Supply Co., Inc. ("Tri-State")
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. 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.
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." 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." Under the Commission's rules, an
"established business relationship" 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.
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 citation to Tri-State, pursuant
to section 503(b)(5) of the Act. 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.
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.
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. 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.
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. 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."
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 Tri-State nor
gave Tri-State permission to send the facsimile transmissions. The
faxes at issue here therefore fall within the definition of an
"unsolicited advertisement." 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. 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.
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. S: 503(b), and section 1.80 of the rules, 47 C.F.R. S: 1.80,
and under the authority delegated by sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. S:S: 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. S: 227(b)(1)(C), sections 64.1200(a)(3) of the Commission's
rules, 47 C.F.R. S: 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, 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.
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
APPENDIX
Complainants and Violation Dates
Complainant received facsimile solicitations Violation Date(s)
Rita Freed 9/28/07
Robert Lewis 9/3/07
See 47 U.S.C. S: 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. S: 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).
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.
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 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).
47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64.1200(a)(3).
47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13).
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. S: 64.1200(f)(5).
See 47 U.S.C. S: 227(b)(1)(C); 47 C.F.R. S: 64(a)(3)(i), (ii).
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.
See 47 U.S.C. S: 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).
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.
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 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.
See Appendix for a listing of the consumer complaints against Tri-State
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Tri-State may form the basis of subsequent enforcement action.
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. S: 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. S: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).
47 U.S.C. S: 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).
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.
See 47 U.S.C. S: 227(a)(4); 47 C.F.R. S: 64.1200(f)(13) (definition
previously at S: 64.1200(f)(10)).
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).
See 47 U.S.C. S: 503(b)(4)(C); 47 C.F.R. S: 1.80(f)(3).
47 C.F.R. S: 1.80.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 08-1686
1
2
Federal Communications Commission DA 08-1686