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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
)
Rules and Regulations Implementing the CG Docket No. 02-278
Telephone Consumer Protection Act of 1991 )
CG Docket No. 05-338
Junk Fax Prevention Act of 2005 )
)
)
)
ANNUAL REPORT ON UNSOLICITED FACSIMILE ADVERTISEMENTS
Adopted: January 4, 2007 Released: January 4, 2007
By the Chief, Enforcement Bureau:
I. Introduction
1. In this item, the Federal Communications Commission ("FCC" or
"Commission"), through the Enforcement Bureau, reports to Congress
regarding complaints received and enforcement undertaken with respect
to unsolicited facsimile advertisements, as required by the Junk Fax
Prevention Act of 2005.
II. Background
2. On July 9, 2005, President George W. Bush signed the Junk Fax
Prevention Act into law, amending section 227 of the Communications
Act of 1934 ("the Act") with respect to unsolicited facsimile
advertisements. Section 227 was originally added to the Act in 1991,
codifying the Telephone Consumer Protection Act of 1991 ("TCPA"). This
section addressed the growing number of telephone marketing calls and
certain telemarketing practices thought to be an invasion of consumer
privacy, including the sending of unsolicited advertisements to
telephone facsimile machines. Among the provisions contained in the
TCPA is section 227(b)(1)(C), which prohibits the use of any telephone
facsimile machine, computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine. An "unsolicited
advertisement" is "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."
3. In 1992, the Commission adopted section 64.1200 of the rules to
implement the TCPA's protective telemarketing restrictions. In section
64.1200(a)(3), the Commission incorporated verbatim the TCPA's general
prohibition on the sending of facsimile advertisements without the
recipient's prior express invitation or permission. The Commission
nonetheless determined that an established business relationship
("EBR") between a fax sender and recipient indicates the necessary
invitation or permission for an otherwise unsolicited fax
advertisement to be sent.
4. The Junk Fax Prevention Act: (1) mandates the EBR exemption; (2)
provides a definition of an EBR to be used in the context of
unsolicited facsimile advertisements and standards for the application
of the EBR to permit the sending of unsolicited facsimile
advertisements; (3) requires the sender of a facsimile advertisement
to provide specified notice and contact information on the facsimile
that allows the recipient to "opt-out" of any future facsimile
advertisements from the sender; and (4) establishes requirements for
fax recipients who seek to exercise their "opt-out" rights. On April
5, 2006, the Commission amended section 64.1200 consistent with the
requirements of the Junk Fax Prevention Act. The amended rules went
into effect on August 1, 2006.
5. Section 3 of the Junk Fax Prevention Act requires the Commission to
submit an annual report to Congress regarding enforcement of
Commission rules relating to the transmission of unsolicited facsimile
advertisements. Section 3 states:
(g) JUNK FAX ENFORCEMENT REPORT.--The Commission shall submit an annual
report to Congress regarding the enforcement during the past year of the
provisions of this section relating to sending of unsolicited
advertisements to telephone facsimile machines, which report shall
include--
(1) the number of complaints received by the Commission during such year
alleging that a consumer received an unsolicited advertisement via
telephone facsimile machine in violation of the Commission's rules;
(2) the number of citations issued by the Commission pursuant to section
503 during the year to enforce any law, regulation, or policy relating to
sending of unsolicited advertisements to telephone facsimile machines;
(3) the number of notices of apparent liability issued by the Commission
pursuant to section 503 during the year to enforce any law, regulation, or
policy relating to sending of unsolicited advertisements to telephone
facsimile machines;
(4) for each notice referred to in paragraph (3)--
(A) the amount of the proposed forfeiture penalty involved;
(B) the person to whom the notice was issued;
(C) the length of time between the date on which the complaint was filed
and the date on which the notice was issued; and
(D) the status of the proceeding;
(5) the number of final orders imposing forfeiture penalties issued
pursuant to section 503 during the year to enforce any law, regulation, or
policy relating to sending of unsolicited advertisements to telephone
facsimile machines;
(6) for each forfeiture order referred to in paragraph (5)--
(A) the amount of the penalty imposed by the order;
(B) the person to whom the order was issued;
(C) whether the forfeiture penalty has been paid; and
(D) the amount paid;
(7) for each case in which a person has failed to pay a forfeiture penalty
imposed by such a final order, whether the Commission referred such matter
for recovery of the penalty; and
(8) for each case in which the Commission referred such an order for
recovery--
(A) the number of days from the date the Commission issued such order to
the date of such referral;
(B) whether an action has been commenced to recover the penalty, and if
so, the number of days from the date the Commission referred such order
for recovery to the date of such commencement; and
(C) whether the recovery action resulted in collection of any amount, and
if so, the amount collected.
6. This first report covers the one-year period immediately following
enactment of the Junk Fax Prevention Act: from July 9, 2005 through
July 9, 2006.
III. Enforcement Actions REGARDING THE SENDING OF UNSOLICITED
ADVERTISEMENTS TO TELEPHONE FACSIMILE MACHINES IN VIOLATION OF The Act and
THE COMMISSION'S RULES: July 9, 2005 - July 9, 2006
A. Complaints
7. The Commission is committed to taking effective action to protect
consumers from junk fax violators. Individuals, businesses, and others
can submit complaints about the receipt of unsolicited facsimile
advertisements, or "junk faxes," to the Commission by e-mail, postal
mail, fax, telephone, or the Internet (using an on-line complaint form
- Form 475 - that appears on the Commission's web site). Complaints
submitted to the Commission often refer to the receipt of multiple
unsolicited facsimile advertisements from different entities. Thus, a
single complaint frequently represents multiple alleged violations of
the TCPA and the Commission's rules. In virtually all cases, the
telephone numbers used in the advertisements are the only pieces of
information that potentially connect the sender to the particular
advertisement. Accordingly, these numbers are critical to the
Commission's ability to address alleged violations.
8. During the period July 9, 2005 through July 9, 2006, the Commission
received 47,704 junk fax complaints representing 102,004 alleged
violations. The Commission has fully addressed nearly 85 percent of
the 102,004 alleged violations. By "fully addressed," we mean that a
citation was issued against the entities responsible for the alleged
violations in a complaint; the violations alleged have been found to
be non-actionable because the complaint failed to provide any
information to identify the alleged violator; or the complaint lacked
necessary, corresponding information to support a citation.
B. Citations
9. The Commission, through the Enforcement Bureau's Telecommunications
Consumers Division, has issued 125 citations since July 9, 2005. These
citations were issued against entities using telephone numbers
associated with 59 percent of the potentially actionable violations.
10. The Commission is continuing to process the remaining balance of
violations. Because the method employed by the Commission permits
enforcement action to be taken first against violators associated with
the most frequently occurring telephone numbers, this balance
typically reflects complaints often associated with only one alleged
violation and a discrete telephone number. The citations that have
been issued are listed below.
CITATION
ENTITY CITED
DATE
Adventure Marketing
d.b.a. Travel Center Corporation
6/16/06
d.b.a. Corporate Travel Center
d.b.a. Corporate Rate Travel Center
Affordable American Healthcare
7/21/06
d.b.a AHB consulting
All the Best Vacations 9/11/06
Alliance Healthcare LLC 3/16/06
America's Toner
a.k.a. American Toner 7/21/06
a.k.a. Fiducia, Inc.,
American Designers & Builders 11/30/06
American Insurance 9/11/06
American Life Health Center 11/30/06
American Turf Equipment 9/11/06
Amerilist 11/30/06
Aras Marketing 10/19/06
Ariant Solutions 10/24/06
BCJR, Inc. 12/22/05
Blaze Marketing 10/20/06
Blue Networks 9/11/06
Brett Hiatt d.b.a. Ryke 9/11/06
Briar Rose Company
11/30/06
d.b.a. 48 Long Stems
Bruce Plastics 9/11/06
Business Payment Systems, LLC 11/8/06
Capital Health & Dental 10/2/06
C.N.A. Mortgage Group
11/1/06
d.b.a. 1^st Place Mortgage
COA Networks 9/11/06
Construction Expo, Inc. 10/24/06
Cornerstone Management Enterprises 12/6/06
Cost Crunch, Inc. 9/11/06
Cyberdata, Inc. 2/15/06
D.P. Martin & Associates, Inc. 6/15/06
DAB Sales, Inc.
7/29/05
d.b.a. The Engineered Solution
Darin Whitney/Ifkey/Integrity 9/11/06
Debo Oke/Modena Int'l 9/11/06
Diamond Voice Messaging 3/31/06
Didar Khalsa 9/11/06
Digital Business Designs 11/30/06
Doctorplan 11/7/05
E. Speed Mortgage Dot Com, LLC 11/15/06
ELI, Inc.
6/14/06
a.k.a. Extreme Leads, Inc.
Emmerich Group 9/11/06
Exectech of Florida, LLC 11/17/06
FastTrack Financial 10/20/06
Fax Marketing Corporation 10/26/05
Fleet Pro, USA 12/5/06
Florida Enterprises, Inc. 5/26/06
Foresight Marketing 5/26/06
Global Business Acquisitions, Inc. 12/20/05
Global Marketing Network, Inc. 11/17/06
GP Marketing, Inc. 7/17/06
Guardian Communications, Inc. 3/16/06
H&H Trading 10/20/06
Home Video Experts 9/11/06
Homefield Financial, Inc.
a.k.a. Homefield Financial - First Haven, Inc.
8/30/06
d.b.a. Pacific Coast Funding
d.b.a. Discount Funding
Hosting Svcs/CI Hot.com 9/11/06
Ian Shere 9/11/06
Infasource.com
5/12/06
d.b.a. Infasource, Inc.
Intercoast Marketing
3/27/06
a.k.a. Corporate, Inc./Intercoast Marketing
J. Riesebeck 9/11/06
JAK Productions 9/11/06
Japheth Paramanandam 9/11/06
Jason Abraham 6/28/06
Jeff Casey 9/11/06
Kenneth London 9/11/06
Kilner Mortgage Group, Inc. 6/2/06
Link Point Marketing, Inc.
11/2/05
a.k.a. Capitol Corporate Services, Inc.
Local Point Financial 6/23/06
Lou Schienhoft/A-1 Locks 9/11/06
Mario's Roofing 12/14/05
Matrix LS, Inc. 10/4/05
Meridian Marketing Group 10/20/06
Mexico Marketing LLC 6/30/06
Mike Hatley/LG&D 9/11/06
Modena Mortgage Solutions and Modena Advertising, Inc 8/31/06
Money Warehouse 10/19/06
Mortgage Connection 10/24/06
Mountain Valley Teleservices 9/11/06
Muhlstocker & Holzwanger 9/11/06
N2itivel Innovations 9/11/06
National Business Information Corporation 8/31/05
National Seminars 11/1/06
New Prospect Marketing 5/17/06
Newtech Resources 10/20/06
Nextasys Corporation 5/5/06
Nitt Enterprises, Inc. 1/23/06
NULIFE Resource Development Corporation 10/26/05
Omega Group Healthnetz 9/11/06
On Demand Marketing, LLC 10/26/06
OWW Liquidators, LLC
8/28/06
a.k.a. Case Furniture & Design, LLC
Pacific Shores Realty 9/11/06
Pacific West 9/11/06
PATLive, Inc. 12/5/06
Performance Roofing 2/10/06
Peter Roberto 9/11/06
Pinnacle Surety 11/7/06
Premiere Global Services, Inc. 8/29/06
Prime Communications 8/1/05
Private Page, Inc. 10/24/06
Progressive Business 9/11/06
Promotional Marketing 2/1/06
Promotions International LTD 4/21/06
R & M Marketing
11/17/06
d.b.a. BCS Debt Collection Services
Red Rose International LTD
6/12/06
d.b.a. Blue Jay, Inc.
Response Card Marketing 9/11/06
Rick Seargent/Digital Call 9/11/06
RMG Communications 9/11/06
Shielding Steel 10/19/06
SMC, LLC 10/12/05
SNIC Travel 5/5/06
The Hot Lead LLC
5/5/06
a.k.a. The Hot Lead Company
The Phoenix Lending Group, Inc.
4/14/06
a.k.a. Phoenix Lending Group, Inc.
TJS Brokerage 9/11/06
Today's Choice Marketing 9/11/06
Trinity Marketing 9/11/06
Troescher Typing Service 1/6/06
Turner Mortgage 9/11/06
U.S. Steel and Aluminum
10/25/06
a.k.a. Steel Building and Structure Systems
United Commercial Mortgage 9/11/06
United Copy Systems 9/11/06
Universal Roofing 9/11/06
Ureach Tech 9/11/06
US Marketing, Inc. 10/20/06
US Seminar
3/31/06
a.k.a. U S Seminar Corporation
VacuVent 9/11/06
Venali, Inc./VL.Net Technology 9/11/06
Victory Star Realty 9/11/06
Vox Systems 6/15/06
West Fax, Inc.
8/29/06
d.b.a. Smart voice.
Wholesale Connection Company
a.k.a. WCC Services 7/14/06
a.k.a. Call Centers of America Corporation
C. Notices of Apparent Liability for Forfeiture
11. During the period of July 9, 2005 through July 9, 2006, the Commission
issued one Notice of Apparent Liability for Forfeiture (NAL),
proposing a civil forfeiture penalty of $776,500 against First Choice
Healthcare, Inc. (First Choice), for violations of section
227(b)(1)(C) of the Act and section 64.1200(a)(3) of the rules. The
NAL addresses 98 unsolicited facsimile advertisements sent by First
Choice to 37 businesses and individuals without either the recipients'
prior express invitation or permission or an EBR. The Commission
received complaints from these 37 fax recipients between 138 and 364
days prior to issuance of the First Choice NAL on February 28, 2006.
First Choice filed a response to the NAL on April 24, 2006. In
addition, shortly after the end of the period covered by this report,
on September 20, 2006, the Commission issued a $153,000 NAL against
the National Business Information Corporation (NBIC). This NAL
addresses 34 unsolicited facsimile advertisements sent by NBIC to 8
consumers without either the recipients' prior express invitation or
permission or an EBR. The NBIC NAL was based, in part, on complaints
received during the reporting period.
D. Forfeiture Orders
12. During the period July 9, 2005 through July 9, 2006, the Commission
issued one Forfeiture Order on March 10, 2006, imposing a civil
forfeiture penalty of $22,500 on Elf Painting and Wallpapering (Elf)
for sending five unsolicited facsimile advertisements to five
consumers in violation of section 227(b)(1)(C) of the Act and section
64.1200(a)(3) of the rules. Elf has neither paid the forfeiture
penalty nor responded to the Forfeiture Order. By letter dated July
31, 2006, the Commission's Office of General Counsel requested that
the Department of Justice initiate a proceeding against Elf to collect
the forfeiture penalty.
E. Referrals to the Department of Justice of Unpaid Forfeiture Penalties
13. During the period July 9, 2005 through July 9, 2006, the Commission
did not refer any unpaid forfeiture penalties to the Department of
Justice for collection. As indicated above, the Commission referred
the sole unpaid forfeiture penalty that was imposed during this period
shortly after July 9, 2006.
IV. Ordering clauses
14. Accordingly, this report is issued pursuant to the Junk Fax Prevention
Act of 2005, Pub. L. No. 109-21, 119 Stat. 359, and section 227 of the
Communications Act of 1934, as amended, 47 U.S.C. S 227, and under
authority delegated by sections 0.111 and 0.311 of the Commission's
rules, 47 C.F.R. SS 0.111, 0.311.
15. IT IS ORDERED that the Secretary SHALL SEND copies of this report to
the appropriate committees and subcommittees of the United States
House of Representatives and the United States Senate.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Junk Fax Prevention Act of 2005, Pub. L. No. 109-21, 119 Stat. 359 (2005).
Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 State
2394 (1991), codified at 47 U.S.C.
S 227.
47 U.S.C. S 227(a)(5). The Junk Fax Prevention Act added the final phrase
"in writing or otherwise" to the definition of "unsolicited
advertisement." Prior to 2005, therefore, the definition did not include
that specification regarding prior express invitation or permission to
transmit an advertisement. See n. 5, infra.
47 C.F.R. S 64.1200; Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Report and Order, 7 FCC Rcd 8752 (1992)
(1992 TCPA Order).
1992 TCPA Order, 7 FCC Rcd at 8779, n. 87. In 2003, the Commission
reversed this determination, concluding instead that a recipient's prior
express permission must be in writing and include the recipient's
signature. Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, Report and Order, 18 FCC Rcd 14014,14127-29
(2003). The Commission stayed the effective date of this requirement
during reconsideration before the Commission and Congressional
consideration of the Junk Fax Prevention Act. Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Order on
Reconsideration, 18 FCC Rcd 16972, 16974-75 (2003); Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, Order, 19 FCC
Rcd 20125 (2004); Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Order, 20 FCC Rcd 11424 (2005); Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991 -
Junk Fax Prevention Act of 2005, Notice of Proposed Rulemaking and Order,
20 FCC Rcd 19758, 19772 (2005). Enactment of the Junk Fax Prevention Act,
including the revised definition of an "unsolicited advertisement,"
effectively overrules the stayed 2003 rule requiring written and signed
express permission. Junk Fax Prevention Act, Sec. 2(g); see n. 3, supra.
Junk Fax Prevention Act, Sec. 2(a).
Junk Fax Prevention Act, Sec. 2(b); 47 U.S.C. S 227(b)(2). To implement
the statutory requirements, the Commission amended the rules to specify
that for purposes of sending of facsimile advertisements, the term
"established business relationship" means "a prior or existing
relationship formed by a voluntary two-way communication between a person
or entity and a business or residential subscriber 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); Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991 - Junk Fax Protection Act of 2005, Report
and Order and Third Order on Reconsideration, 21 FCC Rcd 3787, 3812 (2006)
(2006 Junk Fax Prevention Act Report and Order).
Junk Fax Prevention Act, Sec. 2(c).
Id., Sec. 2(d).
2006 Junk Fax Prevention Act Report and Order, 21 FCC Rcd 3787.
Junk Fax Prevention Act, Sec. 3; 47 U.S.C. S 227(g).
Because the rule amendments mandated and authorized by the Junk Fax
Prevention Act did not take effect until after this time period, this
report covers enforcement actions undertaken under the earlier version of
the Commission's rules.
See Letter from Kevin J. Martin, Chairman, FCC, to Senator Susan M.
Collins, Chairwoman, Committee on Homeland Security & Governmental Affairs
(June 2, 2006) (stating that the Commission is taking several actions to
improve the efficiency of the junk fax enforcement process).
First Choice is headquartered at 1055 F Street, San Diego, California
92101.
Elf operates out of two locations: 10309 Cherry View Court, Oakton,
Virginia 22124-2530 and 1835 Monroe Street, N.W., Washington, DC
20010-1014.
On August 3, 2006, the Department of Justice informed the Commission that
the claim was forwarded to the United States Attorney's Office in the
Eastern District of Virginia. This referral to the Department of Justice
occurred outside the time period covered by this report.
Elf Painting and Wallpapering, see para. 18, supra.
(Continued from previous page)
(continued....)
Federal Communications Commission DA 07-16
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Federal Communications Commission DA 07-16