**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. EB- 06-TC-398       |
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| Trinity Marketing                | ** | NAL/Acct. No. 200732170073   |
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| Apparent Liability for           | *  | FRN: 0016773525              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: August 28, 2007 Released: September 10, 2007**

By the Commission:

# I. INTRODUCTION

1.  In this *Notice of Apparent Liability for Forfeiture* ("NAL")[^1],
    we find that Trinity Marketing[^2] 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 seven unsolicited advertisements to the
    telephone facsimile machines of at least six consumers.[^3] Based on
    the facts and circumstances surrounding these apparent violations,
    we find that Trinity Marketing is apparently liable for a forfeiture
    in the amount of \$31,500.

**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."[^4] 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."[^5] Under the
    Commission's Rules, an "established business relationship"[^6]
    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.[^7]

3.  On September 11, 2006, in response to one or more consumer
    complaints alleging that Trinity Marketing had faxed unsolicited
    advertisements, the Commission staff issued a citation[^8] to
    Trinity Marketing, pursuant to section 503(b)(5) of the Act.[^9] The
    staff cited Trinity Marketing for using a telephone facsimile
    machine, computer, or other device, to send unsolicited
    advertisements for residential mortgage loan refinancing to a
    telephone facsimile machine, in violation of section 227 of the Act
    and the Commission's related rules and orders. The citation, which
    the staff served by certified mail, return receipt requested, warned
    Trinity Marketing 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.[^10] The citation informed Trinity Marketing that
    within 30 days of the date of the citation, it could either request
    an interview with Commission staff, or could provide a written
    statement responding to the citation. Trinity Marketing did not
    request an interview or otherwise respond to the citation.

4.  Despite the citation's warning that subsequent violations could
    result in the imposition of monetary forfeitures, we have received
    additional consumer complaints indicating that Trinity Marketing
    continued to engage in such conduct after receiving the
    citation.[^11] We base our action here specifically on complaints
    filed by six consumers establishing that Trinity Marketing continued
    to send seven unsolicited advertisements to telephone facsimile
    machines after the date of the citation.[^12]

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.[^13] 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."[^14]

### III. DISCUSSION

> **A.** **Violations of the Commission's Rules Restricting Unsolicited
> Facsimile Advertisements**

6.  We find that Trinity Marketing 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 seven unsolicited advertisements to the six consumers
    identified in the Appendix. This NAL is based on evidence that six
    consumers received unsolicited fax advertisements from Trinity
    Marketing *after* the Bureau's citation. The facsimile transmissions
    advertise residential mortgage loan refinancing. Further, according
    to the complaints, the consumers neither had an established business
    relationship with Trinity Marketing nor gave Trinity Marketing
    permission to send the facsimile transmissions.[^15] The faxes at
    issue here therefore fall within the definition of an "unsolicited
    advertisement."[^16] Based on the entire record, including the
    consumer complaints, we conclude that Trinity Marketing apparently
    violated section 227 of the Act and the Commission's related rules
    and orders by sending seven unsolicited advertisements to six
    consumers' facsimile machines.

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B.  **Proposed Forfeiture**

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7.  We find that Trinity Marketing is apparently liable for a forfeiture
    in the amount of \$31,500. 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.[^17] We apply that base amount to
    each of seven of the apparent violations. Thus, a total forfeiture
    of \$31,500 is proposed. Trinity Marketing 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.[^18]

### IV. CONCLUSION AND ORDERING CLAUSES

8.  We have determined that Trinity Marketing 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 seven unsolicited advertisements to the six consumers
    identified in the Appendix. We have further determined that Trinity
    Marketing is apparently liable for a forfeiture in the amount of
    \$31,500.

9.  Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act,
    and section 1.80 of the Rules, 47 C.F.R. § 1.80, 47 U.S.C. § 503(b),
    that Trinity Marketing is hereby NOTIFIED of this APPARENT LIABILITY
    FOR A FORFEITURE in the amount of \$31,500 for willful or repeated
    violations of section 227(b)(1)(C) of the Communications Act, 47
    U.S.C. § 227(b)(1)(C), sections 64.1200(a)(3) of the Commission's
    rules, 47 C.F.R. § 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,[^19] within thirty (30) days of the release date
    of this *Notice of Apparent Liability for Forfeiture*, Trinity
    Marketing SHALL PAY the full amount of the proposed forfeiture or
    SHALL FILE a written statement seeking reduction or cancellation of
    the proposed forfeiture.

11. Payment by check or money order, payable to the order of the
    "Federal Communications Commission," may be mailed to Forfeiture
    Collection Section, Finance Branch, Federal Communications
    Commission, P.O. Box 358340, Pittsburgh, PA 15251. Payment by
    overnight mail may be sent to Mellon Client Service Center, 500 Ross
    Street, Room 670, Pittsburgh, PA 15262-0001, Attn: FCC Module
    Supervisor. Payment by wire transfer may be made to: ABA Number
    043000261, receiving bank Mellon Bank, and account number 911-6229.
    The payment should note NAL/Acct. No. 200732170073.

12. The response, if any, must be mailed both to the Office of the
    Secretary, Federal Communications Commission, 445 12^th^ 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 12^th^ Street, SW, Washington, DC
    20554, and must include the NAL/Acct. No. referenced in the caption.

13. The Commission will not consider reducing or canceling a forfeiture
    in response to a claim of inability to pay unless the petitioner
    submits: (1) federal tax returns for the most recent three-year
    period; (2) financial statements prepared according to generally
    accepted accounting practices; or (3) some other reliable and
    objective documentation that accurately reflects the petitioner's
    current financial status. Any claim of inability to pay must
    specifically identify the basis for the claim by reference to the
    financial documentation submitted.

14. Requests for payment of the full amount of this *Notice of Apparent
    Liability for Forfeiture* under an installment plan should be sent
    to: Chief, Revenue and Receivables Operations Group, 445 12th
    Street, SW, Washington, DC 20554.[^20]

15. IT IS FURTHER ORDERED that a copy of this *Notice of Apparent
    Liability for Forfeiture* shall be sent by Certified Mail Return
    Receipt Requested to Trinity Marketing, Attention: Ronald Bassie,
    77564 Country Club Drive, Palm Desert, California 92211.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX**

  ------------------------------------ ----------------------------------
  **Complainant sent facsimile         **Violation Date(s)**
  solicitations**                      

  Lorraine B. Williams                 10/11/06

  Howard Gordon                        10/11/06; 10/18/06

  Eckart Rahn                          10/26/06

  Brian Petro                          10/26/06

  Leonard Gaudreau                     11/01/06

  Robert Plumb                         11/20/06

                                       

                                       
  ------------------------------------ ----------------------------------

[^1]: *See* 47 U.S.C. § 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.
    §
    503(b)(5)](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS503&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw)
    (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).

[^2]: Trinity Marketing has offices at 77564 Country Club Drive, Palm
    Desert, California 92211. Ronald Bessie, is listed as the contact
    person for Trinity Marketing. Accordingly, all references in this
    NAL to "Trinity Marketing" also encompass the foregoing individual
    and all other principals and officers of this entity, as well as the
    corporate entity itself.

[^3]: *See* [47 U.S.C.
    §](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS227&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw)
    [227(b)(1)(C)](http://web2.westlaw.com/find/default.wl?DB=1000546&DocName=47USCAS227&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw);
    [47 C.F.R. §
    64.1200(a)(3)](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS64.1200&FindType=L&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw);
    *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).

[^4]: 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3).

[^5]: 47 U.S.C. §227(a)(4); 47 C.F.R. §64.1200 (f)(13).

[^6]: 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. § 64.1200(f)(5).

[^7]: *See* 47 U.S.C. § 227(b)(1)(c); 47 C.F.R. § 64 (a)(3)(i), (ii).

[^8]: Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
    Consumers Division, Enforcement Bureau, File No. EB-06-TC-398,
    issued to Trinity Marketing on September 11, 2006.

[^9]: *See* 47 U.S.C. § 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).

[^10]: Commission staff mailed the citation to 77564 Country Club Drive,
    Palm Desert, California 92211. *See* n.Error: Reference source not
    found, *supra*.

[^11]: *See* Appendix for a listing of the consumer complaints against
    Trinity Marketing requesting Commission action.

[^12]: We note that evidence of additional instances of unlawful conduct
    by Trinity Marketing may form the basis of subsequent enforcement
    action.

[^13]: 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. § 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. §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).

[^14]: 47 U.S.C. § 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).

[^15]: *See, e.g.*, complaint dated December 8, 2006, from Leonard
    Gaudreaud (stating that "I have carefully reviewed these faxes and
    have forwarded to you only these faxes that are unsolicited. I have
    not at any time requested to receive any information from any of the
    senders or businesses. I do not have a business or personal
    relationship with any of the senders or businesses."). The
    complainants involved in this action are listed in the Appendix
    below.

[^16]: *See* 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(13)
    (definition previously at § 64.1200(f)(10)).

[^17]: *See* [*Get-Aways, Inc.,* Notice of Apparent Liability For
    Forfeiture*,* 15 FCC Rcd 1805
    (1999);](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=1999290595&FindType=Y&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw)
    [*Get-Aways, Inc.,* Forfeiture Order, 15 FCC Rcd 4843
    (2000);](http://web2.westlaw.com/find/default.wl?DB=1016&SerialNum=2000065436&FindType=Y&AP=&RS=WLW4.05&VR=2.0&FN=_top&SV=Split&MT=Westlaw)
    *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).

[^18]: *See* 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).

[^19]: 47 C.F.R. § 1.80.

[^20]: 47 C.F.R. § 1.1914.