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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                              
                                                                        
                                         )                              
                                                                        
                                         )                              
                                                                        
     In the Matter of                    )   File No. EB-07-TC-1259     
                                                                        
     Atlas Advertising, Inc.             )   NAL/Acct No. 200832170049  
                                                                        
     Apparent Liability for Forfeiture   )   FRN: 0017835091            
                                                                        
                                         )                              
                                                                        
                                         )                              
                                                                        
                                         )                              


                  NOTICE OF APPARENT LIABILITY FOR FORFEITURE

   Adopted: June 6, 2008 Released: June 6, 2008

   By the Chief, Enforcement Bureau:

   I. INTRODUCTION

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       that Atlas Advertising, Inc. ("Atlas") 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 one unsolicited advertisement to the telephone
       facsimile machine of at least one consumer. Based on the facts and
       circumstances surrounding this apparent violation, we find that Atlas
       is apparently liable for a forfeiture in the amount of $4,500.

   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, 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 April 9, 2007, in response to one or more consumer complaints
       alleging that Atlas had faxed unsolicited advertisements, the
       Enforcement Bureau ("Bureau") issued a citation to Atlas, pursuant to
       section 503(b)(5) of the Act. The Bureau cited Atlas 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 Atlas 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 Atlas 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. Atlas 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 an
       additional consumer complaint indicating that Atlas continued to
       engage in such conduct following the issuance of the citation. We base
       our action here specifically on a complaint filed by one consumer
       establishing that Atlas continued to send one unsolicited
       advertisement to a telephone facsimile machine 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 Atlas 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 one unsolicited
       advertisement to the consumer identified in the Appendix. This NAL is
       based on evidence that the consumer received an unsolicited fax
       advertisement from Atlas after the Commission's citation. The
       facsimile transmission advertises a steel building clearance sale.
       Further, according to the complaint, the consumer neither had an
       established business relationship with Atlas nor gave Atlas permission
       to send the facsimile transmission. The fax at issue here therefore
       falls within the definition of an "unsolicited advertisement."  Based
       on the entire record, including the consumer complaint, we conclude
       that Atlas apparently violated section 227 of the Act and the
       Commission's related rules and orders by sending one unsolicited
       advertisement to the consumer's facsimile machine.

    B. Proposed Forfeiture

    7. We find that Atlas is apparently liable for a forfeiture in the amount
       of $4,500. 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 the one apparent violation. Thus, a total
       forfeiture of $4,500 is proposed. Atlas 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 Atlas Advertising, 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 one unsolicited advertisement to the one consumer
       identified in the Appendix. We have further determined that Atlas
       Advertising, Inc. is apparently liable for a forfeiture in the amount
       of $4,500.

    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 Atlas
       Advertising, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
       FORFEITURE in the amount of $4,500 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, Atlas Advertising,
       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). Atlas
   Advertising 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 Atlas Advertising, Inc., Attention: George
   Poelcher, 310 Bridge Street, Beaver, PA 15009 and 310 Bridge Street, W.
   Bridgewater, PA 15009.

   FEDERAL COMMUNICATIONS COMMISSION

   Kris Anne Monteith

   Chief, Enforcement Bureau

                                    APPENDIX

                         Complainant and Violation Date


     Complainant received facsimile solicitations   Violation Date(s)  

     Jamie Gelhaus                                  6/7/07             



   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).

   Atlas has offices at 310 Bridge Street, Beaver, PA 15009 and 310 Bridge
   Street, W. Bridgewater, PA 15009. George Poelcher is the contact for
   Atlas. Accordingly, all references in this NAL to "Atlas" 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: 64.1200(a)(3)(i), (ii).

   Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
   Consumers Division, Enforcement Bureau, File No.EB-07-TC-1259, issued to
   Atlas on April 9, 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).

   Bureau staff mailed the citation to the following address: Atlas,
   Advertising, Inc., 310 Bridge Street, Beaver, PA 15009. See n.2, supra.

   See Appendix for a listing of the consumer complaints against Atlas
   requesting Commission action.

   We note that evidence of additional instances of unlawful conduct by Atlas
   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 8, 2007, from Jamie Gelhaus (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 complainant involved
   in this action is 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 08-1349

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   Federal Communications Commission DA 08-1349