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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB- 07-TC-051
DD&S Companies, Inc. ) NAL/Acct. No. 200832170042
Apparent Liability for Forfeiture ) FRN: 0017584947
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 24, 2008 Released: March 25, 2008
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that DD&S Companies, Inc. ("DD&S") 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 DD&S
is apparently liable for a forfeiture in the amount of $9,000.00.
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 January 18, 2007, in response to one or more consumer complaints
alleging that DD&S had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to DD&S, pursuant to
section 503(b)(5) of the Act. The Bureau cited DD&S for using a
telephone facsimile machine, computer, or other device, to send
unsolicited advertisements 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 DD&S 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 complaint that formed
the basis of the citation. The citation informed DD&S 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. In response to the citation, DD&S's Chief Financial
Officer and Secretary stated by letter that the fax referenced in the
citation was sent by someone who was "no longer with our company, and
I cannot find any documentation that this fax was authorized." The
letter also stated that "[w]e believe that our existing corporate
policy will prevent this error from reoccuring."
4. Despite the citation's warning that subsequent violations could result
in the imposition of monetary forfeitures, we have received two
additional consumer complaints indicating that DD&S continued to
engage in such conduct after receiving the citation. We base our
action here specifically on two complaints filed by two consumers
establishing that DD&S 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 DD&S 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. This
NAL is based on evidence that two consumers received unsolicited fax
advertisements from DD&S after the Bureau's citation. The facsimile
transmissions advertised workers' compensation insurance. Further,
according to the complaints, the consumers neither had an established
business relationship with DD&S nor gave DD&S 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 DD&S
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 DD&S is apparently liable for a forfeiture in the amount
of $9,000.00. 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. We apply that base amount to each of the two apparent
violations. Thus, a total forfeiture of $9,000.00 is proposed. DD&S
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 DD&S Companies, 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 DD&S
Companies, Inc. is apparently liable for a forfeiture in the amount of
$9,000.00.
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 DD&S Companies,
Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in
the amount of $9,000.00 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, DD&S Companies,
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[s] 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). 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. 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.
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 DD&S Companies, Inc., Attention: Thomas B. Rumfelt,
President, 244 E. Park Ave., Lake Wales, FL 33853 and Post Office Box
960, Lake Wales, FL 33859.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant sent facsimile solicitations Violation Date(s)
Rocco Pinto, Ferguson Associates 5/23/2007
James Maxim, Williams/Transco 5/29/2007
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 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).
According to publicly available information, DD&S has offices at 244 E.
Park Ave., Lake Wales, FL 33853. Thomas B. Rumfelt, President, is listed
as the contact person for DD&S. Accordingly, all references in this NAL to
"DD&S" also encompass the foregoing individual 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 C.F.R. S: 64 (a)(3)(i), (ii).
Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
Consumers Division, Enforcement Bureau, File No. EB-07-TC-051 issued to
DD&S on January 18, 2007.
See 47 U.S.C. S: 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).
Commission staff mailed the citation to Thomas B. Rumfelt, President, 244
E. Park Ave., Lake Wales, FL 33853 and Post Office Box 960, Lake Wales, FL
33859. See n.2, supra.
Letter from Helene Bradley, CPA, Chief Financial Officer/DD&S Secretary to
Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division,
Enforcement Bureau, dated February 12, 2007.
See Appendix for a listing of the consumer complaints against DD&S
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
DD&Smay 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) (this recent amendment of section
1.80(b) to reflect inflation left the forfeiture maximum for this type of
violator at $11,000).
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 May 23, 2007, from Rocco Pisto (stating that he
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.
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.
47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 08-671
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Federal Communications Commission DA 08-671