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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of ) File No. EB-06-TC-250
RMG Communications ) NAL/Acct. No. 200732170075
Apparent Liability for Forfeiture ) FRN: 0016773590
)
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: August 28, 2007 Released: September 10, 2007
By the Commission:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that RMG Communications ("RMG") 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 11 unsolicited advertisements to the telephone facsimile
machines of at least 4 consumers. Based on the facts and circumstances
surrounding these apparent violations, we find that RMG is apparently
liable for a forfeiture in the amount of $71,500.
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,
there is an "established business relationship" exception that 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 September 9, 2006, in response to one or more consumer complaints
alleging that RMG had faxed unsolicited advertisements, the
Commission staff issued a citation to RMG, pursuant to section
503(b)(5) of the Act. The staff cited RMG Communications for using a
telephone facsimile machine, computer, or other device, to send
unsolicited advertisements for various services 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 RMG 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 RMG 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. RMG
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 RMG continued to
engage in such conduct after receiving the citation. We base our
action here specifically on complaints filed by 4 consumers
establishing that RMG continued to send 11 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 RMG 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 11 unsolicited
advertisements to the 4 consumers identified in the Appendix. This NAL
is based on evidence that the consumers received unsolicited fax
advertisements from RMG after the Bureau's citation. The facsimile
transmissions advertise various services, including health insurance.
Further, according to the complaints, the consumers neither had an
established business relationship with RMG, nor gave RMG 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 RMG apparently violated section 227 of
the Act and the Commission's related rules and orders by sending 11
unsolicited advertisements to 4 consumers' facsimile machines.
B. Proposed Forfeiture
7. We find that RMG is apparently liable for a forfeiture in the amount
of $71,500. 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 7 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, 1 consumer specifically requested that RMG cease
sending facsimiles. Notwithstanding these requests, an additional 4
facsimiles were sent to that consumer. Thus, we apply the $10,000
amount to each of 4 of the apparent violations. Thus, a total
forfeiture of $71,500 is proposed. RMG 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 RMG Communications 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 11 unsolicited advertisements to the 4 consumers identified in
the Appendix. We have further determined that RMG Communications is
apparently liable for a forfeiture in the amount of $71,500.
9. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act, and
section 1.80 of the Rules, 47 C.F.R. S: 1.80, 47 U.S.C. S: 503(b),
that RMG Communications is hereby NOTIFIED of this APPARENT LIABILITY
FOR A FORFEITURE in the amount of $71,500 (seventy-one thousand five
hundred dollars) 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, RMG Communications
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.
200732170075.
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 RMG Communications, Attention: Greg Horne, 3401 Norman
Berry Drive, Suite 114, East Point, GA 30344, and 6009 W. Parker Road,
Suite 149-114, Plano, TX 75093.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
APPENDIX
Complainant sent facsimile Violation Date(s)
solicitations
Pankaj Parikh 4/4/2007; 4/5/2007; 4/10/2007; 2/10/2007;
4/24/2007
Garry Jaffe 2/15/2007
James Friedman 2/18/2007
Complainant was sent facsimile solicitations Violation Date(s)
after requesting no more be sent
Robert Josefek 10/16/06; 12/13/06/;
12/26/06/; 1/10/07
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).
RMG Communications has offices at 3401 Norman Berry Drive, Suite 114,
East Point, GA 30344, and 6009 W. Parker Road, Suite 149-114, Plano, TX
75093. Greg Horne is listed as the contact person for RMG. Accordingly,
all references in this NAL to RMG 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-06-TC-250, issued to
RMG Communications on September 9, 2006.
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 3401 Norman Berry Drive, Suite
114, East Point, GA 30344, and 6009 W. Parker Road, Suite 149-114, Plano,
TX 75093. See n.2, supra.
See Appendix for a listing of the consumer complaints against RMG
requesting Commission action.
We note that evidence of additional instances of unlawful conduct by RMG
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 Feb. 18, 2007, from James Friedman (stating
that the fax was an advertisement for health insurance, that the fax was
unsolicited, and that the complainant has no business relationship with
the fax sender). 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 07-153
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Federal Communications Commission FCC 07-153