**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. EB- 06-TC-120       |
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| Hot Lead LLC                     | ** | NAL/Acct. No. 200932170001   |
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| d/b/a The Hot Lead Company       | *  | FRN: 0016773533              |
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| Apparent Liability for           | ** |                              |
| Forfeiture                       |    |                              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: November 5, 2008 Released: November 5, 2008**

By the Commission:

# I. INTRODUCTION

1.  In this *Notice of Apparent Liability for Forfeiture* ("NAL")[^1],
    we find that The Hot Lead LLC ("Hot Lead")[^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 eight unsolicited advertisements to
    the telephone facsimile machines of at least seven consumers.[^3]
    Based on the facts and circumstances surrounding these apparent
    violations, we find that Hot Lead is apparently liable for a
    forfeiture in the amount of \$47,000.

**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 May 5, 2006, in response to one or more consumer complaints
    alleging that Hot Lead had faxed unsolicited advertisements, the
    Enforcement Bureau ("Bureau") issued a citation[^8] to Hot Lead,
    pursuant to section 503(b)(5) of the Act.[^9] The Bureau staff cited
    Hot Lead for using a telephone facsimile machine, computer, or other
    device, to send unsolicited advertisements for mortgage financing,
    health and life insurance, credit and debit card services, interior
    shutters, custom-logo shirts/T-shirts, fax advertising and sales
    leads to telephone facsimile machines, in violation of section 227
    of the Act and the Commission's related rules and orders. The
    citation warned Hot Lead 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 Hot
    Lead 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. Hot Lead did not
    request an interview or otherwise respond to the citation.[^11]

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 Hot Lead continued to
    engage in such conduct.[^12] We base our action here specifically on
    complaints filed by seven consumers establishing that Hot Lead
    continued to send eight unsolicited advertisements to telephone
    facsimile machines after the date of the citation.[^13]

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.[^14] 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."[^15]

### III. DISCUSSION

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

6.  We find that Hot Lead 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 eight
    unsolicited advertisements to the seven consumers identified in the
    Appendix. This NAL is based on evidence that seven consumers
    received unsolicited fax advertisements from Hot Lead *after* the
    Bureau's citation. The facsimile transmissions advertise commercial
    loans and shirts. Further, according to the complaints, the
    consumers neither had an established business relationship with Hot
    Lead nor gave Hot Lead permission to send the facsimile
    transmissions.[^16] The faxes at issue here therefore fall within
    the definition of an "unsolicited advertisement."[^17] Based on the
    entire record, including the consumer complaints, we conclude that
    Hot Lead apparently violated section 227 of the Act and the
    Commission's related rules and orders by sending eight unsolicited
    advertisements to seven consumers' facsimile machines.

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B.  **Proposed Forfeiture**

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7.  We find that Hot Lead is apparently liable for a forfeiture in the
    amount of \$47,000. 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.[^18] We apply that base amount to each of six of the
    apparent violations. In addition, where the consumer requests the
    company to stop sending facsimile messages, and the company
    continues to send them, the Commission has previously considered
    \$10,000 per unsolicited fax advertisement the appropriate
    forfeiture for such egregious violations.[^19] Here, one consumer
    specifically requested that Hot Lead cease sending facsimiles.
    Notwithstanding these requests, an additional two facsimiles were
    sent to this consumer. We therefore apply the \$10,000 amount to
    each of these two apparent violations. Thus, a total forfeiture of
    \$47,000 is proposed. Hot Lead 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.[^20]

### IV. CONCLUSION AND ORDERING CLAUSES

8.  We have determined that The Hot Lead LLC 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 eight unsolicited advertisements to the seven
    consumers identified in the Appendix. We have further determined
    that The Hot Lead LLC is apparently liable for a forfeiture in the
    amount of \$47,000.

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,
    that The Hot Lead LLC is hereby NOTIFIED of this APPARENT LIABILITY
    FOR A FORFEITURE in the amount of \$47,000 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,[^21] within twenty (20) days of the release date
    of this *Notice of Apparent Liability for Forfeiture*, The Hot Lead
    LLC 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). The Hot Lead LLC 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 by regular mail to: The Hot Lead LLC,
    Attention: Mr. Greg Horne, 16901 Dallas Parkway, Addison, Texas
    75001; The Hot Lead Company, Attention: Mr. Greg Horne, 1400 Preston
    Road #300, Plano, Texas; and The Hot Lead Company, Attention: Mike
    Horne, Manager, PO Box 12057, Las Vegas, NV 89112.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX**

**Complainants and Violation Dates**

  ----------------------------------- -----------------------------------
  **Complainant received facsimile    **Violation Date(s)**
  advertisements**                    

  Jan Deswik, D&A Infotech            11/06/2007

  Albert Chi                          11/06/2007

  Janice Nicolosi                     11/19/2007

  Kathryn Han                         11/19/2007

  Gayle Teufel                        11/23/2007

  Denneth Furuta                      11/27/2007
  ----------------------------------- -----------------------------------

  ----------------------------------- -----------------------------------
  **Complainant received facsimile    **Violation Date(s)**
  advertisements after requesting no  
  more be sent**                      

  Allan Gelbard                       11/19/2007; 11/23/2007
  ----------------------------------- -----------------------------------

[^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]: According to publicly available information, Hot Lead is also
    doing business as The Hot Lead Company. Therefore, all references in
    this NAL to "Hot Lead" encompass Hot Lead as well as The Hot Lead
    Company. Hot Lead has offices at 16901 Dallas Parkway, Addison,
    Texas 75001. The Hot Lead Company has offices at 1400 Preston Road
    #300, Plano, Texas 75903. Mr. Greg Horne, is listed as the contact
    person for both Hot Lead and The Hot Lead Company. Hot Lead also
    lists as a principal Mike Horne, Manager, PO Box 12057, Las Vegas,
    NV 89112. Accordingly, all references in this NAL to "Hot Lead" also
    encompass the foregoing individuals and all other principals and
    officers of the entity noted herein, as well as the corporate
    entities themselves.

[^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-06-TC-120 issued
    to Hot Lead on May 5, 2006.

[^9]: *See* 47 U.S.C. § 503(b)(5) (authorizing the Commission to issue
    citations to non-common carriers for violations of the Act or of the
    Commission's rules and orders).

[^10]: Commission staff mailed the citation to 16901 Dallas Parkway,
    Addison, Texas 75001 and 1400 Preston Road #300, Plano, Texas 75903.
    *See* n.Error: Reference source not found, *supra*.

[^11]: Following the issuance of the citation, the Commission continued
    to receive complaints from multiple consumers alleging that Hot Lead
    faxed unsolicited advertisements to them. These complaints, received
    after the Commission's citation, resulted initially in the issuance
    of two Notices of Apparent Liability for Forfeiture against Hot
    Lead: on August 14, 2007 in the amount of \$2,168,500, *The Hot Lead
    LLC,* Notice of Apparent Liability For Forfeiture, 22 FCC Rcd 15924
    (2007), and on December 26, 2007 in the amount of \$423,000, *The
    Hot Lead LLC,* Notice of Apparent Liability For Forfeiture, 22 FCC
    Rcd 22212 (2007). Accordingly, on March 19, 2008, the Commission
    issued a Forfeiture Order to Hot Lead based on these NALs in the
    amount of \$2,591,500, *The Hot Lead LLC,* Forfeiture Order, 23 FCC
    Rcd 5282 (2008) Subsequent additional complaints resulted in the
    issuance of two additional Notices of Apparent Liability for
    Forfeiture against Hot Lead: in the amount of \$695,000, *The Hot
    Lead LLC,* Notice of Apparent Liability For Forfeiture, 23 FCC Rcd
    8982 (2008), and in the amount of \$739,500, *The Hot Lead LLC,*
    Notice of Apparent Liability For Forfeiture, 23 FCC Rcd 11674
    (2008). To date, Hot Lead has not filed a response to any of these
    NALs or to the Forfeiture Order.

[^12]: *See* Appendix for a listing of the consumer complaints against
    Hot Lead requesting Commission action.

[^13]: We note that evidence of additional instances of unlawful conduct
    by Hot Lead may form the basis of subsequent enforcement action.

[^14]: 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 to \$16,000).

[^15]: 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).

[^16]: *See, e.g.*, complaint dated November 19, 2007, from Allan
    Gelbard (stating that he has never done any business with the fax
    advertiser, never made an inquiry or application to the fax
    advertiser, never gave permission for the company to send the fax,
    and requested the company not to fax an advertisement). The
    complainants involved in this action are listed in the Appendix.

[^17]: *See* 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(13)
    (definition previously at § 64.1200(f)(10)).

[^18]: *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).

[^19]: *See Carolina Liquidators, Inc.*, Notice of Apparent Liability
    for Forfeiture, 15 FCC 16837, 16842 (2000); *21^st^ Century Fax(es)
    Ltd., AKA 20^th^ Century Fax(es)*, 15 FCC Rcd 24406, 24411 (2000).

[^20]: *See* 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).

[^21]: 47 C.F.R. § 1.80.