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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB- 05-TC-072
Troescher Typing Service ) NAL/Acct. No. 200732170063
Apparent Liability for Forfeiture ) FRN: 0016723884
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 14, 2008 Released: May 14, 2008
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Troescher Typing Service ("Troescher") 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 nine unsolicited advertisements to the telephone
facsimile machines of at least seven consumers. Based on the facts and
circumstances surrounding these apparent violations, we find that
Troescher is apparently liable for a forfeiture in the amount of
$46,000.
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 January 6, 2006, in response to one or more consumer complaints
alleging that Troescher had faxed unsolicited advertisements, the
Enforcement Bureau ("Bureau") issued a citation to Troescher, pursuant
to section 503(b)(5) of the Act. The Bureau cited Troescher for using
a telephone facsimile machine, computer, or other device, to send
unsolicited advertisements for commercial and residential
refinance/loans 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 Troescher 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 Troescher 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. The citation was returned to the Commission stamped
"Refused." Troescher 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 seven
additional consumer complaints indicating that Troescher continued to
engage in such conduct after receiving the citation. We base our
action here specifically on complaints filed by seven consumers
establishing that Troescher continued to send nine 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 Troescher 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 nine
unsolicited advertisements to the seven consumers identified in the
Appendix. This NAL is based on evidence that seven consumers received
unsolicited fax advertisements from Troescher after the Bureau's
citation. The facsimile transmissions advertise loan refinancing.
Further, according to the complaints, the consumers neither had an
established business relationship with Troescher nor gave Troescher
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 Troescher apparently violated section 227
of the Act and the Commission's related rules and orders by sending
nine unsolicited advertisements to seven consumers' facsimile
machines.
B. Proposed Forfeiture
7. We find that Troescher is apparently liable for a forfeiture in the
amount of $46,000. 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 each of eight of the apparent
violations. In addition, where the consumer requests the company to
stop sending facsimile messages, and the company continues to send
them, the Commission has previously considered $10,000 per unsolicited
fax advertisement the appropriate forfeiture for such egregious
violations. Here, one consumer specifically requested that Troescher
cease sending facsimiles. Notwithstanding this request, an additional
facsimile was sent to this consumer. Thus, we apply the $10,000 amount
to this apparent violation. Thus, a total forfeiture of $46,000 is
proposed. Troescher 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 Troescher Typing Service 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 nine unsolicited advertisements to the seven consumers
identified in the Appendix. We have further determined that Troescher
Typing Service is apparently liable for a forfeiture in the amount of
$46,000.
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,
that Troescher Typing Service is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE in the amount of $46,000 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, Troescher Typing
Service SHALL PAY the full amount of the proposed forfeiture or SHALL
FILE a written statement seeking reduction or cancellation of the
proposed forfeiture.
11. Payment of the forfeiture must be made by credit card through the
Commission's Revenue and Receivables Operations Group at (202)
418-1995, or by check or similar instrument, payable to the order of
the Federal Communications Commission. The payment must include the
Account Number and FRN Number referenced above. Payment by check or
money order may be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payments[s] by wire transfer
may be made to ABA Number 021030004, receiving bank Federal Reserve
Bank of New York, and account number 27000001. Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer - Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Questions, please contact the Financial
Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov.
12. The response, if any, must be mailed both to the Office of the
Secretary, Federal Communications Commission, 445 12th Street, SW,
Washington, DC 20554, ATTN: Enforcement Bureau - Telecommunications
Consumers Division, and to Colleen Heitkamp, Chief, 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 Troescher Typing Service, Attention: Mr. Loren William
Troescher, Jr., Owner, 1625 Olympic Blvd., Suite M 104, Los Angeles,
California 90015.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainant sent facsimile solicitations Violation Date(s)
Kim Marasti 5/24/2007, 6/19/2007
James Frohn 5/23/2007
Mike Arman 5/15/2007, 6/19/2007
Scott Starr 6/27/2007
Mary Watt 6/08/2007
Valerie Malone 6/28/2007
Complainant sent facsimile solicitations after Violation Date(s)
requesting no more be sent
David Townsend 6/07/2007
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, Troescher has offices at 1625
Olympic Blvd., Suite M 104, Los Angeles, California 90015. Mr. Loren
William Troescher, Jr., Owner, is listed as the contact person for
Troescher. Accordingly, all references in this NAL to Troescher 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-05-TC-072 issued to
Troescher on January 6, 2006.
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 1625 Olympic Blvd., Suite M 104,
Los Angeles, California 90015. See n.2, supra.
Following the issuance of the citation, The Commission continued to
receive complaints from multiple consumers alleging that Troescher faxed
unsolicited advertisements to them. These complaints, received after the
Commission's citation, resulted in the issuance of two NALs against
Troescher: Troescher Typing Service, Notice of Apparent Liability for
Forfeiture, 22 FCC Rcd 13180 (Enf. Bur. 2007), in the amount of $22,500;
and Troescher Typing Service, Notice of Apparent Liability for Forfeiture,
22 FCC Rcd 19789 (Enf. Bur. 2007), in the amount of $9,000. To date,
Troescher has not filed a response to these NALs.
See Appendix for a listing of the consumer complaints against Troescher
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by
Troescher 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) (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 June 27, 2007, from David Townsend (stating
that he had no established business relationship with the fax advertiser,
never made an inquiry or application to the fax advertiser, never gave
permission for the advertiser to send the fax, and requested the company
not to fax an advertisement). 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 Carolina Liquidators, Inc., Notice of Apparent Liability for
Forfeiture, 15 FCC 16,837, 16,842 (2000); 21st Century Fax(es) Ltd., AKA
20th Century Fax(es), 15 FCC Rcd 24,406, 24,411 (2000).
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 FCC 08-129
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Federal Communications Commission FCC 08-129