**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. EB- 07-TC-2540      |
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| Tropical Travel Marketing        | ** | NAL/Acct. No. 200832170068   |
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| Apparent Liability for           | *  | FRN: 0017919812              |
| Forfeiture                       | *) |                              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: October 2, 2008 Released: October 7, 2008**

By the Commission:

# I. INTRODUCTION

1.  In this *Notice of Apparent Liability for Forfeiture* ("NAL")[^1],
    we find that Tropical Travel Marketing ("Tropical Travel")[^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 21 unsolicited
    advertisements to the telephone facsimile machines of at least 17
    consumers.[^3] Based on the facts and circumstances surrounding
    these apparent violations, we find that Tropical Travel is
    apparently liable for a forfeiture in the amount of \$94,500.

**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 June 29, 2007, in response to one or more consumer complaints
    alleging that Tropical Travel had faxed unsolicited advertisements,
    the Enforcement Bureau ("Bureau") issued a citation[^8] to Tropical
    Travel, pursuant to section 503(b)(5) of the Act.[^9] The Bureau
    cited Tropical Travel for using a telephone facsimile machine,
    computer, or other device, to send unsolicited advertisements for
    vacation travel packages to a telephone facsimile machine, in
    violation of section 227 of the Act and the Commission's related
    rules and orders. The citation warned Tropical Travel 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 Tropical Travel 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. Tropical Travel 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
    17 additional consumer complaints indicating that Tropical Travel
    continued to engage in such conduct after the citation was
    issued.[^11] We base our action here specifically on 17 complaints
    filed by 17 consumers establishing that Tropical Travel continued to
    send 21 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. 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 Tropical Travel 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 21 unsolicited advertisements to the 17 consumers identified
    in the Appendix. This NAL is based on evidence that 17 consumers
    received unsolicited fax advertisements from Tropical Travel *after*
    the Bureau's citation. The facsimile transmissions advertise
    vacation travel packages. Further, according to the complaints, the
    consumers neither had an established business relationship with
    Tropical Travel nor gave Tropical Travel 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 Tropical Travel apparently violated section 227 of the Act and
    the Commission's related rules and orders by sending 21 unsolicited
    advertisements to 17 consumers' facsimile machines.

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B.  **Proposed Forfeiture**

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7.  We find that Tropical Travel is apparently liable for a forfeiture
    in the amount of \$94,500. 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 21 apparent violations. Thus, a total forfeiture of \$94,500
    is proposed. Tropical Travel 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 Tropical Travel 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 21 unsolicited advertisements to the
    17 consumers identified in the Appendix. We have further determined
    that Tropical Travel Marketing is apparently liable for a forfeiture
    in the amount of \$94,500.

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,
    that Tropical Travel Marketing is hereby NOTIFIED of this APPARENT
    LIABILITY FOR A FORFEITURE in the amount of \$94,500 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*, Tropical
    Travel 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 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). Tropical Travel Marketing 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 regular mail to Tropical Travel Marketing, Attention:
Louis Quiles, CEO, 1450 Eden Drive, Deltona, FL 32725-3766.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX**

**Complainants and Violation Dates**

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

  Paul Wharton, Homestar Direct        10/15/2007

  Hannah Graves                        10/15/2007

  Suzanne Steele                       10/17/2007

  Misty Elkins, Niche Jewelry          10/17/2007

  Michael Carpenter                    10/17/2007

  Karl Kohl, Gold'n Country Gifts LLC  10/16/2007

  Edward Paladino                      10/18/2007

  Mark Lebovitz, L2 Consulting         10/15/2007, 10/17/2007
  Services, Inc.                       

  Christy McGinty                      10/17/2007

  Rae Weese, Durango Button Company,   10/24/2007
  Inc.                                 

  Walter Alexander                     10/24/2007

  Jewel Clay, Troutman Sanders LLP     10/17/2007, 10/30/2007

  Thomas Walsh, International Protein  10/30/2007
  Colloids, Inc.                       

  Charles Somerville, Eastman Kodak    10/30/2007
  Company                              

  Joe Shields, Lockheed Martin         10/30/2007 (three faxes)

  Mel Manuel                           10/30/2007

  Patrick Ross, Palmer Disposable      10/30/2007
  Products                             
  ------------------------------------ ----------------------------------

[^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]: According to publicly available information, Tropical Travel has
    offices at 1450 Eden Drive, Deltona, FL 32725-3766. Louis Quiles,
    CEO, is listed as the contact person for Tropical Travel.
    Accordingly, all references in this NAL to "Tropical Travel" 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. § 64.1200(a)(3)(i),(ii).

[^8]: Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications
    Consumers Division, Enforcement Bureau, File No. EB-07-TC-2540
    issued to Tropical Travel on June 29, 2007.

[^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: Tropical Travel
    Marketing, Attn: Louis Quiles, CEO, 1450 Eden Drive, Deltona, FL
    32725-3766. *See* n.Error: Reference source not found, *supra*.

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

[^12]: Following the issuance of this citation, the Commission continued
    to receive complaints from multiple consumers alleging that Tropical
    Travel faxed unsolicited advertisements to them. These complaints,
    received after the Commission's citation, resulted in the issuance
    of a Notice of Apparent Liability for Forfeiture against Tropical
    Travel in the amount of \$49,500. *Tropical Travel*, Notice of
    Apparent Liability for Forfeiture, FCC 08-162, released July 3,
    2008. We note that evidence of additional instances of unlawful
    conduct by Tropical Travel 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,* FCC 08-154, rel. June
    13, 2008.( amendment of section 1.80(b) to reflect inflation left
    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 October 15, 2007, from Paul Wharton,
    Homestar Direct (stating that he has never done any business with
    the fax advertiser, never made an inquiry or application to the fax
    advertiser, and never gave permission for the company to send the
    fax.) The complainants involved in this action are 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);](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.