**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. EB-07-TC-13289      |
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| Rentex                           | ** | NAL/Acct No. 200932170014    |
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| Apparent Liability for           | *  | FRN: 0018289884              |
| Forfeiture                       | *) |                              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: December 18, 2008 Released: December 19, 2008**

By the Chief, Enforcement Bureau:

# I. INTRODUCTION

1.  In this *Notice of Apparent Liability for Forfeiture* ("NAL")[^1],
    we find that Rentex[^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 one unsolicited advertisement to the telephone facsimile
    machine of at least one consumer.[^3] Based on the facts and
    circumstances surrounding this apparent violation, we find that
    Rentex is apparently liable for a forfeiture in the amount of
    \$4,500.

**II. BACKGROUND**

2.  Section 227(b)(1)(C) of the Act makes it "unlawful for any person
    within the United States, or any person outside the United States if
    the recipient is within the United States . . . to use any telephone
    facsimile machine, computer, or other device to send, to a telephone
    facsimile machine, an unsolicited advertisement."[^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 November 9, 2007, in response to one or more consumer complaints
    alleging that Rentex had faxed unsolicited advertisements, the
    Enforcement Bureau ("Bureau") issued a citation[^8] to Rentex,
    pursuant to section 503(b)(5) of the Act.[^9] The Bureau cited
    Rentex for using a telephone facsimile machine, computer, or other
    device, to send unsolicited advertisements for computer and audio
    visual rentals, in violation of section 227 of the Act and the
    Commission's related rules and orders. The citation warned Rentex
    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 Rentex that within thirty (30)
    days of the date of the citation, it could either request an
    interview with Commission staff, or could provide a written
    statement responding to the citation. Rentex did not request an
    interview or otherwise respond to the citation.

4.  Despite the citation's warning that subsequent violations could
    result in the imposition of monetary forfeitures, we have received
    an additional consumer complaint indicating that Rentex continued to
    engage in such conduct after issuance of the citation.[^11] We base
    our action here specifically on one complaint filed by one consumer
    establishing that Rentex sent an unsolicited advertisement to a
    telephone facsimile machine after the date of the citation.[^12]

5.  Section 503(b) of the Act authorizes the Commission to assess a
    forfeiture 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. The maximum penalty for such a violation is \$11,000 for
    a violation occurring before September 2, 2008, and \$16,000 for a
    violation occurring on or after September 2, 2008.[^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 Rentex apparently violated section 227 of the Act and
    the Commission's related rules and orders by using a telephone
    facsimile machine, computer, or other device to send at least one
    unsolicited advertisement to the consumer identified in the
    Appendix. This NAL is based on evidence that the consumer received
    an unsolicited fax advertisement from Rentex *after* the
    Commission's citation. The facsimile transmission advertised
    computer and audio visual equipment. Further, according to the
    complaint, the consumer neither had an established business
    relationship with Rentex nor gave Rentex permission to send the
    facsimile transmission.[^15] The fax at issue here therefore falls
    within the definition of an "unsolicited advertisement."[^16] Based
    on the entire record, including the consumer complaint, we conclude
    that Rentex apparently violated section 227 of the Act and the
    Commission's related rules and orders by sending one unsolicited
    advertisement to a consumer's facsimile machine.

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B.  **Proposed Forfeiture**

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7.  We find that Rentex is apparently liable for a forfeiture in the
    amount of \$4,500. Although the *Commission's Forfeiture Policy
    Statement* does not establish a base forfeiture amount for violating
    the prohibition against using a telephone facsimile machine to send
    unsolicited advertisements, the Commission has previously considered
    \$4,500 per unsolicited fax advertisement to be an appropriate base
    amount.[^17] We apply that base amount to the one apparent
    violation. Thus, a total forfeiture of \$4,500 is proposed. Rentex
    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 Rentex apparently violated section 227 of
    the Act and the Commission's related rules and orders by using a
    telephone facsimile machine, computer, or other device to send at
    least one unsolicited advertisement to the consumer identified in
    the Appendix. We have further determined that Rentex is apparently
    liable for a forfeiture in the amount of \$4,500.

9.  Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act,
    47 U.S.C. § 503(b), and section 1.80 of the rules, 47 C.F.R. § 1.80,
    and under the authority delegated by sections 0.111 and 0.311 of the
    Commission's rules, 47 C.F.R. §§ 0.111, 0.311, that Rentex is hereby
    NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount
    of \$4,500 for willful or repeated violations of section
    227(b)(1)(C) of the Communications Act, 47 U.S.C. § 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*, Rentex SHALL
    PAY the full amount of the proposed forfeiture or SHALL FILE a
    written statement seeking reduction or cancellation of the proposed
    forfeiture.

11\. Payment of the forfeiture must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the NAL/Account Number and FRN
Number referenced above. Payment by check or money order may be mailed
to Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank --
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted.  When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Rentex Buildings, Inc.
will also send electronic notification on the date said payment is made
to Johnny.drake@fcc.gov. Requests for full payment under an installment
plan should be sent to:  Chief Financial Officer \-- Financial
Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 
20554.   Please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
regarding payment procedures.

12\. The response, if any, must be mailed both to the Office of the
Secretary, Federal Communications Commission, 445 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\. IT IS FURTHER ORDERED that a copy of this *Notice of Apparent
Liability for Forfeiture* shall be sent by Certified Mail Return Receipt
Requested and First Class Mail to Rentex, Attention: Richard G. Flaherty
III, President, 337 Summer Street, Suite 345, Boston, MA 02210.

> FEDERAL COMMUNICATIONS COMMISSION

Kris Anne Monteith

Chief, Enforcement Bureau

**APPENDIX**

**Complainant and Violation Date**

  ------------------------------------ ----------------------------------
  **Complainant received facsimile     **Violation Date**
  solicitation**                       

  Seena Easter                         4/28/08
  ------------------------------------ ----------------------------------

[^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) (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]: Rentex has offices at 337 Summer Street, Suite 345, Boston, MA
    02210. Richard G. Flaherty, III is listed as the President of
    Rentex. Accordingly, all references in this NAL to "Rentex" 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. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3); *see
    also Rules and Regulations Implementing the Telephone Consumer
    Protection Act of 1991, Report and Order and Third Order on
    Reconsideration*, 21 FCC Rcd 3787 (2006).

[^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-07-TC-13289,
    issued to Rentex on November 9, 2007.

[^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]: Bureau staff mailed the citation to the following address:
    Rentex, Attn: Richard G. Flaherty III, President, 337 Summer Street,
    Suite 345, Boston, MA 02210. *See* n.2, *supra.*

[^11]: *See* Appendix for a listing of the consumer complaint against
    Rentex requesting Commission action.

[^12]: We note that evidence of additional instances of unlawful conduct
    by Rentex 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) first to \$11,000
    and more recently to \$16,000. *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)
    (forfeiture maximum for this type of violator set at \$11,000);
    *Amendment of Section 1.80(b) of the Commission's Rules and
    Adjustment of Forfeiture Maxima to Reflect Inflation*, 19 FCC Rcd
    10945 (2004) (amendment of section 1.80(b) to reflect inflation left
    the forfeiture maximum for this type of violator at \$11,000);
    *Amendment of Section 1.80(b) of the Commission's Rules, Adjustment
    of Forfeiture Maxima to Reflect Inflation,* 23 FCC Rcd 9845 (2008)
    (amendment of section 1.80(b) to reflect inflation increased the
    forfeiture maximum for this type of violator at \$16,000).

[^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 April 29, 2008, from Seena Easter
    (stating that she has never done business with the fax advertiser,
    never made an inquiry or application to the fax advertiser and never
    given permission for the fax advertiser to fax an advertisement to
    her). The complainant involved in this action is listed in the
    Appendix.

[^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); *Get-Aways, Inc.,* Forfeiture
    Order, 15 FCC Rcd 4843 (2000); *see also US Notary, Inc.,* Notice of
    Apparent Liability for Forfeiture*,* 15 Rcd 16999 (2000*); US
    Notary, Inc.,* Forfeiture Order*,* 16 FCC Rcd 18398 (2001*)*;
    *Tri-Star Marketing, Inc.,* Notice of Apparent Liability For
    Forfeiture, 15 FCC Rcd 11295 (2000); *Tri-Star Marketing, Inc.,*
    Forfeiture Order, 15 FCC Rcd 23198 (2000).

[^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.