Before the

FEDERAL COMMUNICATIONS COMMISSION

# Washington, D.C. 20554

In the Matter of )

) File No. EB-02-TC-120

Fax.com, Inc. ) NAL/Acct. No. 200232170004

) FRN 0007-2970-47

Apparent Liability for Forfeiture )

## ORDER OF FORFEITURE

Adopted: December 31, 2003 Released: January 5, 2004

By the Commission:

## INTRODUCTION

1.  In this Order of Forfeiture, we assess a monetary forfeiture of
    \$5,379,000 against Fax.com, Inc. (Fax.com)[^1] for willful and
    repeated violations of the Communications Act of 1934, as amended
    (Act), and our rules and orders. For the reasons set forth below, we
    find that Fax.com willfully and repeatedly violated section
    227(b)(1)(C) of the Act,[^2] as well as the Commission's rules[^3]
    and orders[^4] by sending unsolicited advertisements to telephone
    facsimile machines on behalf of its clients on 489 separate
    occasions. We also require Fax.com to file a report with the
    Enforcement Bureau within 30 days of this order regarding whether it
    has come into compliance with the Act and our rules and orders
    prohibiting unsolicited commercial faxes. This report, along with
    any additional complaints and information we may receive, will be
    used to consider any additional appropriate enforcement action
    against Fax.com or entities on whose behalf Fax.com is acting.

## BACKGROUND

2.  The facts and circumstances surrounding this case are set forth in
    the Notice of Apparent Liability (*Fax.com NAL*) previously issued
    by the Commission, and need not be reiterated at length.[^5]
    Fax.com, according to its website, specializes in transmitting its
    clients' advertisements to telephone facsimile machines whose
    numbers are contained in the Fax.com database. In its promotional
    materials, Fax.com also offers to design or improve its clients'
    advertising copy. The unsolicited facsimile advertisements that were
    the subject of the *Fax.com NAL* are the product of Fax.com's
    broadcasting enterprise. Most of the advertisements do not promote
    products, goods, or services provided by Fax.com but, instead,
    promote a wide variety of products, goods, or services offered by
    numerous entities that have employed Fax.com to send their
    advertisements to telephone facsimile machines. [^6]

3.  In 2001, after receiving numerous complaints from consumers alleging
    that they had received unsolicited fax advertisements sent on behalf
    of six of Fax.com's clients, the Enforcement Bureau of the
    Commission issued citations to Fax.com pursuant to section 503(b)(5)
    of the Act.[^7] The Bureau cited Fax.com for violating section
    227(b)(1)(C) of the Act by transmitting unsolicited advertisements
    to consumers' telephone facsimile machines on behalf of the six
    clients.[^8]

4.  The TCPA prohibits the delivery of unsolicited advertisements to
    telephone facsimile machines "so that costs of advertising could not
    be shifted to the recipients of facsimile advertisements." [^9]
    Section 227(b)(1)(C) of the Act prohibits any person from using "a
    telephone facsimile machine, computer, or other device to send an
    unsolicited advertisement to a telephone facsimile machine."[^10]
    The Act defines "telephone facsimile machine" as "equipment which
    has the capacity: (A) to transcribe text or images, or both, from
    paper into an electronic signal and to transmit that signal over a
    regular telephone line, or (B) to transcribe text or images (or
    both) from an electronic signal received over a regular telephone
    line onto paper."[^11]

5.  The Commission warned Fax.com in the citations that it could face
    monetary forfeitures of up to \$11,000 for each *subsequent*
    violation if Fax.com either: (1) was "highly involved" on behalf of
    the sender of *any* unsolicited facsimile advertisements, or (2)
    continued to transmit advertisements for any of the six named
    clients without taking steps to ensure that those entities had
    obtained permission from recipients to fax the advertisements.[^12]

6.  In response to the citations, Fax.com acknowledged that it had
    indeed provided the lists of fax numbers to which advertisements
    were sent for each of the six clients at issue.[^13] Fax.com also
    conceded that it "has historically taken no steps to verify consent
    or established business relationships."[^14] It noted, however, that
    its clients' advertisements contain a toll-free "opt-out" number
    that fax recipients may call if they do not wish to receive
    additional advertisements.[^15]

7.  Despite our warning to Fax.com, we continued to receive information
    from consumers indicating that Fax.com was conducting its fax
    broadcasting activities in a manner that violated section
    227(b)(1)(C) of the Act and section 64.1200(a)(3) of the rules.[^16]
    Based on this additional information, which included complaints of
    unsolicited facsimile advertisements received by 46 individuals,
    businesses, or government offices[^17] between September 2001 and
    June 2002,[^18] the Commission issued the *Fax.com NAL* on August
    7, 2002. There, the Commission determined that Fax.com had
    apparently violated section 227 of the Act and the Commission's
    rules and orders by sending unsolicited advertisements to telephone
    facsimile machines on 489 separate occasions.[^19] The Commission
    also stated that Fax.com's "primary business itself constitutes a
    massive on-going violation" of the law, and that Fax.com's citation
    responses, as well as publicly available information contained on
    its website, suggested that Fax.com apparently intentionally and
    willfully violated the Act and our rules and orders.[^20] As a
    result, the Commission determined that Fax.com was apparently liable
    for a proposed forfeiture of \$5,379,000, the statutory
    maximum.[^21] Fax.com filed a response to the *Fax.com NAL* on
    August 21, 2003.[^22]

8.  Subsequent to the release of the *Fax.com NAL*, the Commission
    issued citations that included letters of inquiry (hereafter,
    "citations/letters of inquiry") to 104 businesses that had used
    Fax.com's fax broadcasting service to transmit unsolicited
    advertisements to consumers' telephone facsimile machines.[^23] In
    these documents, the Commission advised the businesses of the August
    7, 2002 *NAL* against Fax.com and informed the businesses of their
    potential liability for monetary forfeitures if they continued to
    send unsolicited advertisements to telephone facsimile machines \--
    either through Fax.com, through some other entity, or on their own.
    The citations/letters of inquiry also sought information concerning,
    among other things, the businesses' involvement with Fax.com. The
    businesses' responses to these citations/letters of inquiry are
    discussed below.

## III. DISCUSSION

9.  In its Response, Fax.com argues that it should not be found liable
    because: 1) the prohibition on sending unsolicited facsimile
    advertisements is unconstitutional under the First and Fifth
    Amendments to the Constitution; 2) the forfeiture is based on
    allegations of misconduct that were not sufficiently described in
    the *NAL;* and 3) the amount of the proposed forfeiture is excessive
    under the Eighth Amendment. As discussed below, Fax.com's arguments
    lack merit.

A. First Amendment Issue

10. Fax.com argues that the TCPA's ban on sending unsolicited facsimile
    advertisements violates its constitutional right to free speech
    under the First Amendment. According to Fax.com, it has raised a
    colorable challenge to the constitutionality of the Commission's
    actions taken pursuant to the TCPA. Fax.com relies primarily on
    *Missouri v. American Blast Fax*, a subsequently reversed 2002
    decision by the U.S. District Court for the Eastern District of
    Missouri that dismissed an action by the state of Missouri against
    American Blast Fax and Fax.com for violations of the TCPA on the
    ground that the prohibition infringed on the defendant's First
    Amendment rights.[^24] The U.S. Court of Appeals for the Eighth
    Circuit determined that the TCPA does *not* violate Fax.com's First
    Amendment free speech protections. The court found that the
    government had demonstrated a legitimate interest in restricting
    unwanted facsimile advertising to prevent the shifting of
    advertising costs to unwilling consumers and interference with the
    reception of their facsimile machines.[^25] The Eighth Circuit also
    rejected the argument that the TCPA was unconstitutional because it
    treated commercial speech differently, deferring to Congress'
    determination in enacting the TCPA, that "noncommercial calls are
    less intrusive to consumers because they are more expected."[^26]
    For the reasons set forth in that decision, as well as other court
    decisions on point,[^27] we conclude that the prohibition on
    unsolicited commercial faxes is constitutional under the First
    Amendment.

11. We also find that Fax.com's erroneous belief that its violations
    were permissible under the First Amendment, whether colorable or
    not, does not insulate it from enforcement action. Fax.com
    transmitted nearly 90 percent of the facsimiles that form the basis
    for our forfeiture action *before* the Missouri court issued its
    ruling \-- at a time when Fax.com could not have been relying on the
    Missouri court's erroneous decision. Further, Fax.com is well aware
    that prior to the Missouri court's ruling, and since that decision
    was overturned, federal legal precedent has fully supported the
    constitutionality of the TCPA.[^28] We followed this clear precedent
    in issuing citations to Fax.com that warned the company that it was
    engaging in unlawful conduct that could subject it to monetary
    forfeitures for future violations.[^29] With respect to these
    pre-Missouri decision faxes, Fax.com thus knew, or should have
    known, that its fax broadcasting activities violated the TCPA and
    could result in the assessment of a forfeiture. Consequently, we
    find no merit in Fax.com's contention that, based on the
    subsequently issued and subsequently reversed Missouri district
    court's ruling, Fax.com's conduct prior to that erroneous ruling did
    not warrant enforcement action.[^30]

12. Moreover, the faxes that Fax.com sent *after* the Missouri court's
    ruling represent a *continuation* of the company's unlawful
    activity, rather than any "reliance" on the ruling in the Missouri
    case. The fact that Fax.com *continued* this pattern of misconduct
    \-- despite our warning citations and the court cases confirming the
    statutory prohibition on unsolicited fax advertising \--
    demonstrates Fax.com's utter disregard for the law or, at the very
    least, its conscious decision to accept the risk that the anomalous
    Missouri district court ruling would be overturned, which it was.
    Moreover, as we observed in the *NAL*, the Missouri court's ruling
    was not germane to the *Fax.com* *NAL* because, to our knowledge,
    none of the fax transmissions for which we assessed forfeitures *was
    received in or sent from* the eastern judicial district of Missouri,
    a fact that Fax.com has not disputed.[^31] In short, Fax.com's First
    Amendment argument is without support in fact or law.

######## Vagueness Issue

13. Fax.com also contends that the TCPA is unconstitutional under the
    "void for vagueness" doctrine because the statute fails to give
    potential fax senders adequate warning of the conduct it proscribes
    or which entities may be found liable under the Act.[^32] Fax.com
    asserts that "the TCPA fails to specify what parties may be liabile
    under the Act."[^33] Fax.com also maintains that it is "often
    impossible for an ordinary person to determine whether a fax
    advertises 'the commercial availability or quality of any property,
    goods or services' and thus is prohibited by the TCPA."[^34] These
    claims too are without merit.

14. Only a statute that "either forbids or requires the doing of an act
    in terms so vague that \[persons\] of common intelligence must
    necessarily guess at its meaning and differ as to its application"
    is considered void for vagueness under the Fifth Amendment; the
    government must "articulate its aims with a reasonable degree of
    clarity."[^35] We disagree with Fax.com's arguments that the TCPA's
    commercial fax solicitation ban fails to meet this test or that it
    is insufficiently precise to ensure that it is not enforced in an
    arbitrary or discriminatory manner.[^36] We have no doubt that the
    TCPA provides more than such reasonable clarity and precision for
    persons of common intelligence. Indeed, since we first warned
    Fax.com specifically with our citations that its activities violated
    the law, Fax.com has been apprised of the fact that its faxes were
    prohibited by the TCPA. Fax.com therefore knew, or clearly should
    have known, what was necessary to avoid continuing to violate the
    TCPA. Fax.com cannot now credibly argue that it did not know what
    conduct the TCPA prohibited.

#### Sufficiency of the Record

15. Fax.com next contends that it cannot be held liable for the proposed
    forfeiture because the *NAL* is based "in substantial part on
    allegations of misconduct which have not previously been raised
    \[and\] which are not sufficiently described in the NAL to permit
    Fax.com to respond."[^37]

16. Fax.com is incorrect. As a threshold matter, the staff's citations
    provided Fax.com with *actual notice* that its fax broadcasting
    activities violated federal law \-- as well as a warning that future
    misconduct would not be tolerated. [^38] Fax.com cannot now feign
    ignorance that its behavior would result in penalty. Moreover, the
    staff's citations informed Fax.com that *the very nature of its
    bu*siness \-- the practice of sending unsolicited fax advertisements
    \-- was in flagrant violation of the TCPA. Despite such
    notification, Fax.com continued its pattern of misconduct, as
    evidenced by the numerous consumer complaints that formed the basis
    for the *NAL*. [^39]

17. Nor do we find merit in Fax.com's claim that its misconduct was not
    "sufficiently described" in the *NAL* to permit it to respond in an
    appropriate manner.[^40] Fax.com credits the Commission with
    attaching copies of specific faxes to the citations ("so that
    Fax.com had the opportunity to review those faxes and respond to
    them with particularity....").[^41] By contrast, Fax.com complains,
    the Commission did not attach copies of the 489 suspect faxes to the
    *NAL*, instead providing the following information for each fax: the
    name of the recipient; the date of transmission; the name of the
    entity whose property, goods or services were advertised; and the
    toll-free opt-out numbers, each traced to Fax.com, that appeared on
    the face of the advertisements. Fax.com contends that, without
    copies of the 489 faxes, it is not able to "confirm or deny whether
    any of the allegedly violative faxes listed in the table were in
    fact sent by Fax.com."[^42]

18. Contrary to Fax.com's contentions, the *Fax.com NAL* described in
    detail the evidence upon which the proposed forfeiture was based,
    including the numerous consumer complaints; the sworn declarations
    filed in support of these complaints; and the unsolicited
    advertisements that Fax.com sent to the complainants' facsimile
    machines.[^43] Indeed, the *NAL* contained all the information
    required by section 503(b)(4) of the Act.[^44] Beyond these basic
    statutory requirements, it is within the Commission's discretion to
    present the evidence in the most useful format.[^45] Moreover, each
    document cited in the *NAL*, including copies of all 489 faxes, has
    been available for Fax.com to examine since the issuance of the
    *NAL*. Indeed, the record of *every* forfeiture proceeding is
    available to alleged violators.[^46] Hence, Fax.com could easily
    have obtained copies of any or all of the faxes listed in Table 1 to
    the *NAL*.[^47]

19. Without having reviewed the faxes at issue, Fax.com questions, in
    its initial Response to the *NAL*, the Commission's determination
    that Fax.com transmitted the faxes listed in Table 1 to the
    *NAL*.[^48] Fax.com asserts that neither the toll-free opt-out
    numbers displayed in the allegedly violative faxes, nor the
    telephone fax number displayed in many of the headers of these
    faxes, establish that Fax.com sent out the faxes at issue.[^49]
    Significantly, however, Fax.com does not directly deny that it sent
    the faxes at issue.

20. Fax.com reiterates these arguments in a "Second Supplement" to its
    Response, which it filed after obtaining and reviewing the materials
    cited in the *Fax.com NAL*. These materials included all of the
    complaints that formed the basis for the *NAL*, as well as all
    associated faxes. Despite its review of the record, however, Fax.com
    continues to advance its unsupported assertions, and, once again,
    fails to provide any specific information to counter the
    Commission's findings that Fax.com sent the faxes at issue, and that
    these faxes constitute prohibited advertisements as defined in
    section 227 of the Act and the Commission's rules and orders.[^50]

21. Further, Fax.com does not dispute the Commission's finding that
    Fax.com's toll-free opt-out numbers appear on each prohibited
    advertisement. Indeed, as the Commission noted in the *NAL*, the
    wording of Fax.com's opt-out notices, and the fact that these
    notices were included in advertisements for individual entities, is
    a transparent attempt to deceive consumers into believing that the
    opt-out numbers were associated with individual advertisers rather
    than with Fax.com.[^51] Nor does Fax.com dispute the Commission's
    conclusion that Fax.com was the subscriber for the opt-out numbers
    at the time the faxes were sent. Fax.com also fails to present
    evidence to counter our finding that Fax.com held the telephone
    number printed on at least one client's advertisement as the contact
    number for the advertised product.

22. In sum, the record before us confirms Fax.com's direct involvement
    in the fax transmissions at issue. Despite this clear evidence,
    Fax.com speculates that some of these businesses may have
    appropriated Fax.com's toll-free numbers and unlawfully tampered
    with the originating facsimile machines to falsify automatic
    identification data - - either inadvertently, or with the purpose of
    sending faxes that would be attributed to Fax.com. We find such
    speculation to be disingenuous, considering that Fax.com has not
    directly denied sending the faxes at issue. Moreover, the record
    contains abundant evidence from Fax.com's own clients that confirms
    Fax.com's involvement in the fax transmissions at issue.[^52]

23. As noted above, the Commission sought additional information after
    the release of the *Fax.com NAL* by issuing citations and letters of
    inquiry to businesses that had hired Fax.com to transmit unsolicited
    advertisements on their behalf to consumers' telephone facsimile
    machines. The Commission advised the businesses of the August 7,
    2002 *NAL* against Fax.com and informed them of their potential
    liability for monetary forfeitures if they continued to send
    unsolicited advertisements to telephone facsimile machines, either
    through Fax.com, through some other entity, or on their own.[^53]

24. The businesses' responses, which we have incorporated into the
    record, provide additional evidence that Fax.com transmitted the
    faxes at issue in the *NAL*. For example, the response from Direct
    Source Copiers, Inc., one of Fax.com's clients, confirms that not
    only did Fax.com transmit unsolicited advertisements on behalf of
    Direct Source Copiers, but Fax.com also went to great lengths to
    *deceive* Direct Source copiers into facilitating Fax.com's unlawful
    activities. According to Direct Source Copiers' president, Fax.com
    initially told Direct Source Copiers that Fax.com's activities
    complied with federal law. Then, after the Commission issued the
    *Fax.com NAL*, Fax.com continued to assure Direct Source Copiers
    that it offered clients a "fully legal service," and that Fax.com
    had "prior permission" to send fax ads on Direct Source Copiers'
    behalf to the contacts in Fax.com's database -- statements that are
    blatantly false, as the consumer declarations demonstrate. As Direct
    Source Copiers later learned, the "contacts" in Fax.com's database
    had *not* given Fax.com permission to receive fax advertising.[^54]

25. The response from Quality Auto Mart also illustrates Fax.com's
    unscrupulous practices.[^55] In a response to the Commission's
    citation letter, the president of Quality Auto Mart recounts how he
    had to demand that Fax.com stop sending faxes on his company's
    behalf after learning that the opt-out numbers that Fax.com had
    printed on his company's faxes were not working numbers.[^56]
    Similarly, John Jurcisin, D.P.M, and Great West Funding explain that
    they eventually realized that Fax.com's service was unlawful,
    despite Fax.com's claims that it was in compliance with state and
    federal requirements.[^57] Both companies were forced to demand that
    Fax.com cease its unlawful activities.[^58] In light of such
    responses and the other evidence of record, we affirm the
    Commission's determination that the 489 faxes detailed in Table 1 to
    the *Fax.*com *NAL* are unlawful unsolicited advertisements, and
    that Fax.com sent the faxes at issue.

#### Appropriateness of Assessed Forfeiture Amount

26. As discussed in the *Fax.com NAL*, 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.[^59] In exercising such authority, we have the discretion to
    apply an upward adjustment of the forfeiture amount based on the
    particular facts and circumstances of the violation(s).[^60] In the
    *Fax.com NAL*, we noted that the Commission had previously
    considered \$4,500 per unsolicited fax advertisement as an
    appropriate base amount,[^61] which the Commission has adjusted
    upwards to \$10,000 per unsolicited fax advertisement in those
    instances where the fax recipient had previously asked the sender to
    refrain from faxing the materials.[^62] In the instant case, we
    assessed the maximum forfeiture of \$11,000 per unsolicited fax
    advertisement, based upon evidence that Fax.com's business itself is
    predicated upon a knowing and willful violation of the federal
    restrictions on fax advertising contained in the Act and the
    Commission's rules and orders.[^63]

27. Fax.com contends that our proposed forfeiture violates the due
    process guarantee of the Fifth Amendment and the excessive penalties
    clause of the Eighth Amendment to the Constitution.[^64] Fax.com
    argues that forfeitures such as those considered in the *Fax.com
    NAL* "can go so far beyond the actual damages suffered that the
    statutory damages come to resemble punitive damages."[^65] Fax.com
    also asserts that our proposed forfeiture is disproportionate
    because it is "220,000 times the harm alleged," which Fax.com
    calculates at "pennies a page in paper and toner."[^66] Finally,
    Fax.com contends that in the *Fax.com NAL*, we relied upon
    "supposedly non-decisional" information of "dubious reliability" to
    conclude that the maximum forfeiture is warranted for Fax.com's
    egregious conduct. Fax.com characterizes our forfeiture rationale as
    "at best disingenuous, if not affirmatively misleading," and
    requests that we reissue an NAL that does not describe such
    conduct.[^67]

28. Contrary to Fax.com's argument, the fact that we described numerous
    examples of Fax.com's egregious conduct in addition to the 489
    violative faxes does not mean that these examples formed the sole
    basis for our decision to impose the maximum forfeiture. Indeed, we
    specifically stated:

> It is clear from Fax.com's own promotional materials and its responses
> to our citations that Fax.com's primary business activity itself
> constitutes a massive on-going violation of section 227(b)(1)(C) of
> the Act and section 64.1200(a)(3) of the Commission's rules, and that
> Fax.com is well aware of this fact. Fax.com's primary commercial
> offering is a fax broadcasting service that clearly does not comply
> with federal restrictions governing facsimile advertisements. As
> outlined above, by its own admission and as demonstrated by the
> consumer information, Fax.com generally conducts its fax broadcasting
> without any regard to whether the fax recipient has an established
> business relationship with either Fax.com or the advertiser, or has
> otherwise granted express permission for the advertisement to be sent.
> We conclude that this unlawful undertaking merits maximum forfeitures
> for each of the violations at issue here. *Although we believe that
> the nature of Fax.com's enterprise by itself warrants imposition of a
> maximum forfeiture for each violation, we discuss below the
> particularly egregious aspects of Fax.com's conduct.*[^68]

Fax.com's insistence that we reissue the *NAL* without descriptions of
Fax.com's egregious conduct is clearly unavailing. The *Fax.com NAL*
proposed the maximum forfeiture for each of the 489 violative faxes
because of Fax.com's fax broadcasting activities, which, by Fax.com's
own admission, were undertaken without regard to the requirements of
federal law.[^69] Any other aspects of Fax.com's business activities
that are described in the *NAL* were not of decisional significance in
setting the forfeiture amount, and we clearly emphasized this fact. We
are entitled to include such publicly available "background" information
in our orders, as long as any proposed penalties are fully supported by
the evidence of record. In the instant proceeding, we cited *extensive*
record evidence to support our proposed forfeiture. Even after finally
taking advantage of the opportunity to review these cited materials,
which have been available for public inspection since August 7, 2002,
Fax.com continues to attack our conclusions without addressing any
specific supporting materials or providing *any* information to
discredit our extensive documentation.[^70]

29. Further, we find that Fax.com's constitutional arguments reflect a
    fundamental misunderstanding of the purpose of Commission forfeiture
    policies and procedures. Forfeitures are not meant to serve as
    compensatory damages for harms caused, but rather are meant to
    penalize unlawful activity. In the instant proceeding, we sought to
    penalize Fax.com for its egregiously unlawful conduct. As detailed
    in the *Fax.com NAL*, Fax.com not only subjected consumers to
    greater numbers of unlawful faxes, its deceptive marketing also left
    its predominantly small business clients vulnerable to federal,
    state, and private enforcement actions that may involve substantial
    monetary penalties. The record further demonstrates that Fax.com
    failed to disclose to its clients the broad prohibition on faxing
    unsolicited advertisements imposed by section 227 of the Act and the
    Commission's rules and orders. Fax.com also affirmatively misstated
    federal law governing unsolicited facsimile advertisements. In light
    of Fax.com's egregiously unlawful activity, we conclude that our
    proposed forfeiture did not violate Fax.com's constitutional rights.

30. Moreover, the Supreme Court has held that a penalty violates due
    process only when it is "so severe and oppressive as to be wholly
    disproportionate to the offense, and obviously unreasonable."[^71]
    In the instant proceeding, we carefully calculated the proposed
    forfeiture *in direct proportion to Fax.com's offense*, which, as
    discussed above, was in flagrant violation of the law. Hence, we
    affirm our conclusion in the *NAL* that Fax.com's unlawful
    undertaking merited the maximum forfeiture for each of the
    violations at issue \--particularly because the illegal nature of
    Fax.com's enterprise *by itself* warrants imposition of the maximum
    forfeiture for each violation.

#### CONCLUSION AND ORDERING CLAUSES

31. After reviewing the information filed by Fax.com in its Responses to
    the *NAL*, we find that Fax.com has failed to identify facts or
    circumstances to persuade us that there is any basis for modifying
    the forfeiture proposed in the *Fax.com NAL*. As discussed above,
    Fax.com has not shown any mitigating circumstances sufficient to
    warrant a reduction of the forfeiture penalty.

32. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act,
    47 U.S.C. § 503(b), and section 1.80 (f)(4) of the Commission's
    rules, 47 C.F.R. § 1.80(f)(4), that Fax.com, Inc. SHALL FORFEIT to
    the United States Government the sum of \$5,379,000 for willfully
    and repeatedly violating section 227 of the Act, 47 U.S.C. § 227,
    section 64.1200 of the Commission's rules, 47 C.F.R. § 64.1200, and
    the Commission's orders concerning the Telephone Consumer Protection
    Act.[^72]

33. IT IS FURTHER ORDERED that a copy of this Order of Forfeiture SHALL
    BE SENT by certified mail to Kevin Katz, President, Fax.com, Inc.,
    120 Columbia Street, Suite 500, Aliso Viejo, California 92656 and
    Kevin Katz, President, Fax.com, Inc., 30872 South Coastal Highway,
    Suite 201, Laguna Beach, California 92651. In addition, IT IS
    FURTHER ORDERED that a copy of this Order of Forfeiture SHALL BE
    SENT by certified mail to Harry F. Cole, Esquire, Fletcher, Heald &
    Hildreth P.L.C., 1300 N. 17^th^ Street -- 11^th^ Floor, Arlington,
    VA 22209, and Mary Ann L. Wymore, Esquire, Greensfelder, Hemker &
    Gale, P.C., 10 South Broadway, Suite 2000, St. Louis, Missouri
    63102, Fax.com's attorneys of record.

34. IT IS FURTHER ORDERED that a copy of this Order of Forfeiture SHALL
    BE SENT by certified mail to the following affiliated entities,
    successors or assigns of Fax.com, Inc.:

> Tech Access Systems Corporation, 280 W. Sierra Madre Blvd., #231,
> Sierra Madre, California 91024; Tech Access Systems Corporation, 521 ½
> South Myrtle Avenue, Suite 1, Monrovia, California 91016; Telecom Tech
> Support, 26081 Merit Circle, #112, Laguna Hills, California 92653;
> Telecom Tech Support c/o Robert Battaglia, 3621 Vista Campana South,
> Oceanside, California 92057; Everglades Enterprises, c/o Cozen &
> O'Connor, 200 Four Falls Corp Center, #400, Conshohocken, Pennsylvania
> 19428 (Attention: Shari Odenheimer); Everglades Enterprises, c/o Joe
> Garson, 352 South Canon Drive, Beverly Hills, California 90212;
> Lighthouse Marketing, LLC, 23411 Laguna Hills Drive, Suite K25, Aliso
> Viejo, California 92656l; Lighthouse Marketing, LLC, 15440 Laguna
> Canyon Road, Irvine, California 92618; Impact Marketing Solutions,
> LLC, 5404 Alton Parkway, Suite 5A #114, Irvine, California 92604;
> Impact Marketing Solutions, LLC, 15440 Laguna Canyon Road, Irvine,
> California 92618; Data Research Systems, Inc., 26895 Aliso Creek Road,
> Suite B #681, Aliso Viejo, California 92656; Data Research Systems,
> Inc., 92 Argonaut, Aliso Viejo, California 92656; and its attorney of
> record, David Felsenthal, Esquire,1900 Avenue of the Stars, Lost
> Angeles, California 90067.

35. IT IS FURTHER ORDERED that Fax.com, Inc. SHALL FILE a report with
    the Chief, Telecommunications Consumers Division, Enforcement
    Bureau, FCC, within 30 days from the release of this Order, on
    whether it has come into compliance with the Act and our rules and
    orders as cited in this Order of Forfeiture; such report shall
    encompass the activities of all persons and entities described in
    footnote 1, *supra.*

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

[^1]: Fax.com, a California-based company that began operating in 1998,
    characterizes itself as a "fax broadcaster," transmitting messages
    to telephone facsimile machines on behalf of other entities for a
    fee. For purposes of this Order, "Fax.com" encompasses its
    president, Kevin Katz, as well as its other corporate officers,
    including Thomas Roth, Jeffrey Dupree, and Eric Wilson. In addition,
    Fax.com encompasses all affiliated entities, successors, and assigns
    of Fax.com, including, but not limited to, Tech Access Systems
    Corporation; Telcom Tech Support; Everglades Enterprises, Lighthouse
    Marketing, LLC; Impact Marketing Solutions, LLC; and Data Research
    Systems, Inc.

[^2]: *See* 47 U.S.C. § 227(b)(1)(C). Section 227 was added to the Act
    by the Telephone Consumer Protection Act of 1991, Pub.L. 102-243,
    105 Stat. 2394, 2402 (1991), and is most commonly known as the
    "TCPA."

[^3]: *See* 47 C.F.R. § 64.1200(a)(3). In *Rules and Regulations
    Implementing the Telephone Consumer Protection Act of 1991,* Report
    and Order, 18 FCC Rcd 14,014 (2003) (*2003 TCPA Report & Order),*
    the Commission amended the rules that govern telephone solicitations
    and unsolicited advertisements, including those sent by facsimile
    machines. In this Order, however, we cite to the rule sections in
    effect at the time of Fax.com's violations.

[^4]: *See Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991, Report and Order*, 7 FCC Rcd 8752, 8779
    (1992) (stating that section 227 prohibits the use of telephone
    facsimile machines to send unsolicited advertisements).

[^5]: *See Fax.com, Inc.,* Notice of Apparent Liability for Forfeiture,
    17 FCC Rcd 15,927 (2002) (*Fax.com NAL).* The *Fax.com NAL* was
    issued pursuant to section 503(b)(1) of the Act, which gives the
    Commission authority 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 . . . ." 47 U.S.C. § 503(b)(1).

[^6]: *See Fax.com NAL,* 17 FCC Rcd at 15,928.

[^7]: *See* 47 U.S.C. § 503(b)(5). This section provides that the
    Commission may not assess a forfeiture penalty against any person
    that does not hold a license, permit, certificate, or other
    Commission authorization, and is not an applicant for such
    instruments, *unless* "(A) such person 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."

[^8]: 47 U.S.C. § 227(b)(1)(C). We also issued citations to the
    following Fax.com clients for alleged violations of section 227 and
    the Commission's rules and orders: Platinum Travel Club and
    Teleconcepts Technologies; Colorjet, Inc.; Millenium Marketing and
    Sales, Ltd.; Website University; US Travel Services, Inc.; and
    Advanced Cellular Communications, Inc. We did not, however, propose
    further enforcement action against these companies. *Id.* at 15,929
    n.10.

[^9]: *See Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991*, 10 FCC Rcd 12391, 12405 (1995) (*1995 TCPA
    Reconsideration Order)* (citing H.R. Rep. No. 317, 102^nd^ Cong.,
    1^st^ Sess. 25 (1991)).

[^10]: This blanket prohibition applies to all unsolicited
    advertisements transmitted to telephone facsimile machines. The Act
    prohibits the sending of unsolicited advertisements by facsimile to
    either business or residential telephone facsimile machines. In
    addition, the prohibition on sending unsolicited fax advertisements
    applies to both interstate and intrastate transmissions. *See* 47
    U.S.C. § 152(b); 47 U.S.C. § 227(e). Section 227 is not subject to
    the provision that generally excludes Commission jurisdiction over
    intrastate matters. Section 227 does not, however, preempt state law
    that imposes more restrictive intrastate requirements than those set
    forth in the Act. The Act defines an "unsolicited advertisement" 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. 47
    U.S.C. § 227(a)(4); 47 C.F.R § 64.1200(f)(5). The Commission
    originally determined that an established business relationship
    between a fax sender and recipient demonstrates consent to receive
    facsimile advertisements. Recently, however, the Commission
    concluded that an established business relationship does not
    constitute prior express invitation or permission to send fax
    advertisements, and that a consumer's invitation or permission must
    be recorded in a signed, written statement that contains the
    telephone number where faxes may be delivered and that clearly
    evinces the consumer's agreement to receive fax advertising from the
    sender. *See 2003 TCPA Report & Order*, 18 FCC Rcd at 14,014. The
    written consent requirement, but not the overall prohibition, was
    recently stayed, thus reinstating the "established business
    relationship" option on a temporary basis. *Rules and Regulations
    Implementing the Telephone Consumer Protections Act of 1991*, FCC
    03-230 (rel. Oct. 3, 2003).

[^11]: 47 U.S.C. § 227(b)(1)(C).

[^12]: *See Fax.com NAL*, 17 FCC Rcd at 15,929.

[^13]: Fax.com responded to the citations on January 31, 2001, June 1,
    2001, and June 21, 2001, with pleadings filed jointly on behalf of
    Fax.com and its six cited clients.

[^14]: *See* Fax.com January 31 Response at 30; June 1 Response at
    31-32; June 21 Response at 30.

[^15]: January 31 Response at 28-29; June 11 Response at 27; June 21
    Response at 27-28. Fax.com asserted that it only transmitted
    advertisements that contain such an opt-out number. *Id.*

[^16]: As the Commission noted in the *Fax.com NAL*, several consumers
    describe being awakened very late at night or in the early hours of
    the morning by the noise of their fax machines receiving an
    unsolicited advertisement from a Fax.com client. *See Fax.com NAL*,
    17 FCC Rcd at 15,931-32. Some of the consumers also described their
    unsuccessful \-- and frustrating \-- efforts to remove their
    telephone facsimile numbers from Fax.com's database. *Id.*

[^17]: Each complainant signed a declaration, under penalty of perjury,
    attesting that s/he (1) is either the owner of or responsible for
    the telephone facsimile machine that received the advertisement(s);
    (2) did not have an established business relationship with either
    Fax.com or the entity whose products, goods, or services were being
    advertised; and (3) did not grant prior express permission or
    invitation for the faxes to be sent. *See Fax.com NAL*, 17 FCC Rcd
    at 15,931.

[^18]: In the *Fax.com NAL,* the Commission mistakenly stated that the
    faxes at issue were received from September 2001 until *March 2002*.
    *See Fax.com NAL*, 17 FCC Rcd at 15,930 n.17. Table 1 to the *NAL*,
    however, correctly designates that the transmissions were received
    from September 2001 until *June 2002*. This mistake does not,
    however, affect the violations at issue in this order*.*

[^19]: In Table 1 to the *Fax.com NAL*, the Commission listed the 489
    unsolicited fax advertisements that formed the basis of the
    *Fax.com* *NAL*. The Commission explained that the record linked
    Fax.com with each of the telephone subscribers for (1) the toll-free
    opt-out telephone numbers that were displayed on each advertisement
    and/or (2) the telephone facsimile machine numbers from which
    various advertisements were sent. *See* *Fax.com NAL*, 17 FCC Rcd at
    15,930-31.

[^20]: *See* *Fax.com NAL*, 17 FCC Rcd at 15,938.

[^21]: *See* *id.* at 15,943.

[^22]: Fax.com Response, Aug. 21, 2003 (Response). Fax.com had longer
    than the usual 30-day period in which to file its response, *see* 47
    C. F.R. § 1.80(f)(3), because of an order issued by the U.S.
    District Court for the Eastern District of Missouri on August 29,
    2002, staying the *Fax.*com forfeiture proceeding until further
    notice. *See* discussion *infra* at paragraph 10. On August 26,
    2003, after reversal of that decision, Fax.com supplemented its
    response with a supporting declaration from Kevin Katz, the
    President of Fax.com. *See* Fax.com Supplement to Response, filed
    Aug. 26, 2003. On September 11, 2003, pursuant to a request from
    Fax.com's attorney, Commission staff granted Fax.com an additional
    10 business days to review the record of the forfeiture proceeding
    and file any necessary supplemental response. In a letter filed on
    September 15, 2003, Fax.com argued that 10 days was not an adequate
    period of time for it to obtain and review all of the evidence of
    record, and to prepare a response. *See* Letter from Harry F. Cole,
    counsel for Fax.com, to Colleen A. Heitkamp, Chief, TCD, Sept. 15,
    2003. In an effort to allow Fax.com to develop a more complete
    response to the *Fax.com* NAL, Commission staff granted Fax.com an
    additional 10 business days to review the record and file any
    supplementary response. *See* Letter from Colleen A. Heitkamp,
    Chief, TCD, to Harry F. Cole, counsel for Fax.com, Oct. 8, 2003.
    Fax.com filed its supplementary response on Oct. 20, 2003. In total,
    Fax.com had 90 days from the date on which the forfeiture proceeding
    recommenced in which to file a complete response to the *Fax.com
    NAL*.

[^23]: *See, e.g., Market Wizard Alerts,* Citation and Letter of
    Inquiry, TCD (Aug. 13, 2002); *Burt Custom Finance*, Citation and
    Letter of Inquiry, TCD (Aug. 13, 2002).

[^24]: *Missouri ex. rel. Nixon v. American Blast Fax, Inc & Fax.com,
    Inc.*, 196 F. Supp.2d 920, 933 (E.D. Mo. 2002) (*American Blast
    Fax*). In *American Blast Fax*, in which the Commission and the
    United States intervened to defend the constitutionality of the
    TCPA's fax restriction, the district court determined, among other
    things, that the government had failed to meet its burden of
    demonstrating that the harms from unsolicited advertisements were
    significant, and that the restriction on unsolicited commercial
    advertising would alleviate them to a material degree. *American
    B*l*ast Fax,* 196 F.Supp. at 933. The government appealed, and the
    district court issued a stay of the *Fax.*com forfeiture proceeding,
    pending further judicial proceedings. On September 6, 2002,
    Commission staff notified those companies to which it had issued or
    planned to issue citations and letters of inquiry in connection with
    the *Fax.com NAL* that they need not respond until further notice.
    *See supra* footnote 22.

[^25]: *Id.* at 655.

[^26]: *Id.*

[^27]: *See Destination Ventures v. FCC*, 46 F.3d 54, 55-57 (9^th^ Cir.
    1995) (ban on unsolicited fax advertisements does not violate the
    advertiser's First Amendment rights because it reasonably fits the
    government's interest in preventing the shifting of advertising
    costs to consumers); *Minnesota v. Sunbelt Communications and
    Marketing*, 282 F. Supp. 2d 976, 981-84 (D.Minn. 2002); *Texas v.
    American Blast Fax*, 121 F. Supp. 2d 1085, 1091-92 (W.D. Tex. 2000);
    *Kenro, Inc. v. Fax Daily, Inc.*, 962 F.Supp. 1162, 1167-69 (S.D.
    Ind. 1997) (ban on unsolicited fax advertisements is narrowly
    tailored to achieve the government's intended purpose and does not
    violate the First Amendment guarantee of commercial free speech).

[^28]: *See Fax.com NAL*, 17 FCC Rcd at 15,939; *see also supra*
    footnote 27; *infra* footnote 31.

[^29]: *See id.*

[^30]: Response at 5.

[^31]: *Id*. The Commission and the United States intervened in the
    *American Blast Fax* case to defend the constitutionality of the
    TCPA's fax advertising restriction. Despite the Missouri district
    court's ruling in favor of Fax.com in that forum, every other
    federal court that considered the constitutionality of the fax
    advertising restriction, both before and after the Missouri court's
    ruling, found the restriction constitutional. *See Destination
    Ventures v. FCC*, 46 F.3d 54, 55-57 (9^th^ Cir. 1995) (ban on
    unsolicited fax advertisements does not violate the advertiser's
    First Amendment rights because it reasonably fits the government's
    interest in preventing the shifting of advertising costs to
    consumers); *Minnesota v. Sunbelt Communications and Marketing*, 282
    F.Supp.2d 976, 981-84 (D.Minn. 2002); *Texas v. American Blast Fax*,
    121 F. Supp. 2d 1085, 1091-92 (W.D. Tex. 2000); *Kenro, Inc. v. Fax
    Daily, Inc.*, 962 F.Supp. 1162, 1167-69 (S.D. Ind. 1997) (ban on
    unsolicited fax advertisements is narrowly tailored to achieve the
    government's intended purpose and does not violate the First
    Amendment guarantee of commercial free speech). State courts have
    also overwhelmingly upheld the legal validity of the restriction.
    *Texas v. Fax.com, Inc.*, No A-02-CA-080 JN, Report and
    Recommendation (W.D. Tex. May 23, 2003); *Covington & Burling v.
    International Marketing & Research, Inc.*, Civ. No. 01-4360, Order
    (D.C. Super Ct. Apr. 17, 2003); *Whiting Corp. v. MSI Marketing,
    Inc.,* No. 02 CH 6332, Opinion and Order (Ill. Circ. Ct. Apr. 3,
    2003); *Mark Chair Co. v. Mortgage Managers, Inc.*, Case No. 02 LK
    247, Order (Ill. Circ. Ct. Dec. 20, 2002); *Levitt v. Fax.com,
    Inc.*, No. 42-C-01-2218, Memorandum Opinion and Order (Md. Circ. Ct.
    Nov. 27, 2002); *Robin Hill Development Co. v. JD&T Enterprises,
    Inc.*, No. 01 L 527, Order (Ill. Circ. Ct. Oct. 3, 2002); *Micro
    Engineering, Inc. v. St. Louis Assoc. of Credit Mgmt., Inc.*, Cause
    No. 02AC-008238 X CV, Order (Mo. Circ. Ct. Aug. 13, 2002); *Kaufman
    v. ACS Sys., Inc.*, Case No. BC222588, Decision (Cal. Super. Ct. Dec
    12, 2001). *But see Bonime v.Perry Johnson, Inc.*, No. 61977/01,
    Decision and Order (N.Y. Civ. Ct. 2002) (relying on *American Blast
    Fax* district court ruling, since reversed), *appeal pending*;
    *Rudgayzer & Gratt v. Enine, Inc.*, 193 Misc.2d 449 (N.Y. Civ. Ct.
    2002) (relying on *American Blast Fax* district court ruling, since
    reversed), *appeal pending*. To have considered the Missouri court's
    decision binding on nationwide federal enforcement of the
    restriction would have resulted in nullification of every other
    court's constitutional decisions to the contrary, and would have
    created a gross legal inequity that would have left only Fax.com and
    its clients immune from federal enforcement. Such "immunity" from
    FCC (or state and private right of action) enforcement would clearly
    contravene Congress's goals in enacting the TCPA. Even if the
    Missouri district court's decision had not been reversed, it would
    not have affected all other judicial decisions to the contrary.

[^32]: *See* Response at 5-6.

[^33]: *Id.* at 8.

[^34]: *Id.*

[^35]: *Roberts v. United States Jaycees*, 468 U.S. 609, 629, 104 S.Ct.
    3244, 82 L.Ed.2d 462 (1984).

[^36]: Fax.com asserts that the court in *Texas v. American Blast Fax*
    rejected our interpretation of who is liable under the TCPA for
    unsolicited fax advertising -- fax boadcasters or the underlying
    advertiser. *See* Response at 8 (citing *Texas v. American Blast
    Fax*, 121 F. Supp. 2d 1085, 1090-92 (W.D. Tex. 2000)). In fact, the
    court simply chose to follow the explicit statutory language of the
    TCPA rather than a Commission order. *See* 121 F. Supp. 2d at 1089
    (noting that the TCPA says that "any person" sending unsolicited fax
    advertisements is liable). This led the court to exactly the same
    conclusion that we reach here -- that a fax broadcaster that serves
    as "more than a mere conduit for third party faxes" is liable under
    the TCPA. *See id*. at 1089-90 & n. 6 (under the allegations in the
    case, the fax broadcaster at issue "does more than 'simply provide
    transmission facilities' for the faxes at issue") (citing *Rules and
    Regulations Implementing the Telephone Consumer Protection Act of
    1991,* 7 FCC Rcd 8752 (1992) and the *1995 TCPA Reconsideration
    Order*).

[^37]: *See* Response at Introduction, ii.

[^38]: *See, e.g.,* *Decorize, Inc.,* Citation and Letter of Inquiry,
    TCD, Aug. 15, 2002.

[^39]: *See* *Fax.com NAL*, 17 FCC Rcd at 15,939.

[^40]: *See* *id.*

[^41]: *Id.*

[^42]: *Id.*

[^43]: *See* *Fax.com NAL*, 17 FCC Rcd at 15,931-33.

[^44]: 47 U.S.C. § 503(b)(4). This subsection requires, *inter alia*,
    that the Commission issue a written notice of apparent liability or
    a notice of opportunity for hearing prior to assessing a forfeiture.
    Such a notice must identify the legal provision that has apparently
    been violated, set out the nature of the act or omission and the
    underlying facts, and must state the date on which the apparently
    unlawful conduct occurred. In the instant proceeding, we complied
    with these requirements.

[^45]: *See* *Business Discount Plan, Inc.,* Order on Reconsideration,
    15 FCC Rcd 24,396; 24,401 (2000).

[^46]: The Commission does not disclose documents that would interfere
    with ongoing law enforcement efforts, reveal the Commission's
    internal deliberative process, or compromise the Commission's
    attorney-client or attorney work product privileges. *See* 47 U.S.C.
    §§ 552(B)(5), (7). Otherwise, virtually all of the materials
    underpinning an *NAL* are available upon request for public review.
    In some cases, including this one, certain information is withheld
    from public inspection to protect the personal privacy of
    individuals who have provided information to the Commission. For
    instance, in this case, we do not publicly disclose the home
    telephone numbers of individuals who received Fax.com's
    transmissions.

[^47]: Notwithstanding the opportunity afforded Fax.com to review this
    evidence upon the issuance of the *NAL* , the Commission granted
    Fax.com additional time for to obtain and review the record of the
    proceeding and to file any supplemental response to the *NAL*. *See
    supra* footnote 20.

[^48]: Response at 16.

[^49]: *Id.*

[^50]: *See* Second Supplement to Response of Fax.com, filed Oct. 20,
    2003. Specifically, Fax.com asserts, without any further explanation
    or proof, that "\[r\]eview of the materials \[that were cited in the
    *Fax.com NAL*\] confirms the validity of the arguments presented by
    Fax.com in its \[initial\] Response \[to the *Fax.com NAL*\]. The
    Commission has no reliable basis for its allegations against
    Fax.com." Second Supplement to Response at 1.

[^51]: *Fax.com NAL*, 17 FCC Rcd at 15938 n.47.

[^52]: *See infra* footnotes 53-57. Many of those clients submitted
    copies of contracts with Fax.com that included "indemnification
    provisions" whereby Fax.com assured the businesses that the fax
    transmissions were lawful, and agreed to represent the businesses in
    any legal actions for TCPA violations. These indemnification
    provisions are entirely inconsistent with Fax.com's position that
    advertisers acted alone to send the faxes at issue.

[^53]: *See Fax.com NAL*, 17 FCC Rcd at 15,937.

[^54]: *Direct Source Copiers, Inc*., Response to Citation, filed Oct.
    20, 2003. While some of the businesses we cited did not recall doing
    business *directly* with Fax.com, the record demonstrates that, in
    many instances, these businesses contracted with marketing or
    advertising firms that, in turn, had used Fax.com's fax services.
    Hence, many businesses were unaware that Fax.com was ultimately
    responsible for transmitting their unsolicited advertisements.

[^55]: *Quality Auto Mart,* Response to Citation, filed Aug. 30, 2002.

[^56]: *See id.*

[^57]: *See* *John Jurcisin, D.P.M,* Response to Citation, filed Sept.
    10, 2002; *Great West Funding,* Response to Citation, filed Oct. 3,
    2003. *See also* *American Marble Liquidators, Inc.*, Response to
    Citation, filed Nov. 10, 2003.

[^58]: *See id.*

[^59]: *See* section 503(b)(2)(C). This section provides for forfeitures
    up to \$10,000 for each violation for cases not covered by
    subparagraph (A) or (B), which address forfeitures for violations by
    licensees and common carriers, among others. 47 U.S.C. §
    503(b)(2)(C). In accordance with the inflation adjustment
    requirements contained in the Debt Collection Improvement Act of
    1996, Pub. L. 104-134, Sec. 31001, 110 Sta. 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. § 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).

[^60]: *See* 47 U.S.C. § 503(b)(2)(D); *The Commission's Forfeiture
    Policy Statement and Amendment of Section 1.80 of the Commission's
    Rules to Incorporate the Forfeiture Guidelines,* Report and Order,
    12 FCC Rcd 17087, 17100-17101 (1997), *recon. denied*, 15 RCC Rcd
    303 (1999) (*Forfeiture Policy Statement*).

[^61]: *See Fax.com NAL*, 17 FCC Rcd at 15,942 (citing *Get-Aways,
    Inc*., Notice of Apparent Liability For Forfeiture, 15 FCC Rcd.
    1805, 1812 (1999)); *see also Carolina Liquidators, Inc*., Notice of
    Apparent Liability for Forfeiture, 15 FCC Rcd 16837, 16842 (2000)
    (*Carolina Liquidators NAL)*; *Tri-Star Marketing*, Notice of
    Apparent Liability for Forfeiture, 15 FCC Rcd 11295, 11300 (2000)
    (*Tri-Star NAL*); *US Notary, Inc*. Notice of Apparent Liability for
    Forfeiture, 15 FCC Rcd 16999, 17003 (2000).

[^62]: *Fax.com NAL*, 17 FCC Rcd at 15,942 (citing *Carolina Liquidators
    NAL*, 15 FCC Rcd at 16842; *Tri-Star NAL,* 15 FCC Rcd at 11300). In
    the *Fax.com NAL*, the Commission also noted several instances in
    which Fax.com apparently continued to fax unsolicited advertisements
    to consumers even after they attempted to stop such faxes by calling
    *one or more* of Fax.com's opt-out numbers. *Id* at 15,933.

[^63]: *See Fax.com NAL*, 17 FCC Rcd at 15,942.

[^64]: *See* Response at 9-14.

[^65]: *Id.* at 10.

[^66]: *Id.* at 12-13. Fax.com ignores the substantial expense and
    disruption that can occur when businesses are blanketed with large
    numbers of unsolicited faxes. *See Fax.com NAL*, 17 FCC Rcd at
    15,931-32 (describing publicly available reports of how, *inter
    alia*, Fax.com transmissions not at issue in this proceeding
    interfered with work at a law firm that received over 1,500 faxes
    from Fax.com during one week, and shut down fax servers at two other
    businesses).

[^67]: *See* Response at 18.

[^68]: *Fax.com NAL*, 17 FCC Rcd at 15,938 (emphasis added, footnote
    omitted).

[^69]: *See supra* paragraph 4.

[^70]: *See* Second Supplement to Response of Fax.com, Inc. at 1-2.

[^71]: *See* *St. Louis, Iron Mt. & S. Ry. Co. v. Williams*, 251 U.S.
    63, 67, 40 S.Ct. 71, 73, 64 L.Ed. 139 (1919) *(Williams*).

[^72]: The forfeiture amount should be paid by check or money order
    drawn to the order of the Federal Communications Commission. Fax.com
    should include the reference, "NAL/Acct. No. 200232170004" on
    Fax.com's check or money order. Such remittance must be mailed to
    Forfeiture Collection Section, Finance Branch, Federal
    Communications Commission, P.O. Box 73482, Chicago, Illinois
    60673-7482. Requests for full payment under an installment plan
    should be sent to: Chief, Credit and Debt Management Center, 445
    12^th^ Street, S.W., Washington, D.C. 20554. *See* 47 C.F.R. §
    1.1914.