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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB- 07-TC-364
Y Pay More ) NAL/Acct. No. 200832170006
Apparent Liability for Forfeiture ) FRN: 0017274101
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 27, 2007 Released: December 28, 2007
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Y Pay More 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 four
unsolicited advertisements to the telephone facsimile machines of at
least three consumers. Based on the facts and circumstances
surrounding these apparent violations, we find that Y Pay More is
apparently liable for a forfeiture in the amount of $23,500.00.
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 March 7, 2007, in response to one or more consumer complaints
alleging that Y Pay More had faxed unsolicited advertisements, the
Commission staff issued a citation to Y Pay More, pursuant to section
503(b)(5) of the Act. The staff cited Y Pay More for using a telephone
facsimile machine, computer, or other device, to send unsolicited
advertisements for alternative manufacturing to a telephone facsimile
machine, in violation of section 227 of the Act and the Commission's
related rules and orders. The citation, which the staff served by
certified mail, return receipt requested, warned Y Pay More 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 Y Pay More 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. Y Pay More 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 Y Pay More continued
to engage in such conduct after receiving the citation. We base our
action here specifically on complaints filed by three consumers
establishing that Y Pay More sent four 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 Y Pay More 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 four
unsolicited advertisements to the three consumers identified in the
Appendix. This NAL is based on evidence that three consumers received
unsolicited fax advertisements from Y Pay More after the Commission's
citation. The facsimile transmissions advertise alternative
manufacturing. Further, according to the complaints, the consumers
neither had an established business relationship with Y Pay More nor
gave Y Pay More 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 Y Pay More apparently
violated section 227 of the Act and the Commission's related rules and
orders by sending four unsolicited advertisements to three consumer's
facsimile machines.
B. Proposed Forfeiture
7. We find that Y Pay More is apparently liable for a forfeiture in the
amount of $23,500.00. 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 three of the apparent violations.
In addition, where the consumer requests that the company 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 Y Pay More
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 $23,500.00 is
proposed. Y Pay More 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 Y Pay More 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 four unsolicited advertisements to the three consumers
identified in the Appendix. We have further determined that Y Pay More
is apparently liable for a forfeiture in the amount of $23,500.00.
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 Y Pay More is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of $23,500.00 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, Y Pay More 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 by check or money order, payable to the order of the "Federal
Communications Commission," may be mailed to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission, P.O. Box
358340, Pittsburgh, PA 15251. Payment by overnight mail may be sent to
Mellon Client Service Center, 500 Ross Street, Room 670, Pittsburgh,
PA 15262-0001, Attn: FCC Module Supervisor. Payment by wire transfer
may be made to: ABA Number 043000261, receiving bank Mellon Bank, and
account number 911-6229. The payment should note NAL/Acct. No.
200832170006.
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 Y Pay More, Attention: Roger Abraham, 1928 Balboa Street,
San Francisco, California 94121.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
APPENDIX
Complainant received facsimile Violation Date(s)
solicitations
Stephen King 5/6/07
Rebecca Cling 5/9/07
Corey Gumm 5/25/07
Complainant received facsimile solicitations Violation Date(s)
after requesting no more be sent
Rebecca Cling 5/13/07
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).
According to publicly available information, Y Pay More has offices at
1928 Balboa Street, San Francisco, California 94121; 1804 Anastasia Drive,
Brentwood, California 94513; and 1541 Solitude Way, Brentwood, California
94513. Roger Abraham, President/Owner, is listed as the contact person for
Y Pay More. Accordingly, all references in this NAL to Y Pay More 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 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-07-TC-364, issued to Y
Pay More on March 7, 2007.
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).
Commission staff mailed the citation to Y Pay More, Attention: Roger
Abraham, 1928 Balboa Street, San Francisco, California 94121. See n.2,
supra.
See Appendix for a listing of the consumer complaints against Y Pay More
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by Y Pay
More 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 May 6, 2007, from Stephen King (stating that he
has never done any business with the fax advertiser, never made an inquiry
or application to the fax advertiser and never given permission for the
company to send the fax); complaint dated May 9, 2007, from Rebecca Cling
(stating that she has never done any business with the fax advertiser,
never made an inquiry or application to the fax advertiser, never given
permission for the company to send the fax, and requested that the fax
advertiser not fax advertisements to her). 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 DA 07-5105
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Federal Communications Commission DA 07-5105