**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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| The Hot Lead LLC                 | ** | NAL/Acct. No. 200732170072   |
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| d/b/a The Hot Lead Company       | *  | FRN: 0016773533              |
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| Apparent Liability for           | ** |                              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: December 26, 2007 Released: December 26, 2007**

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 sixty-one unsolicited advertisements
    to the telephone facsimile machines of at least thirty-nine
    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 \$423,000.

**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
    Commission staff issued a citation[^8] to Hot Lead, pursuant to
    section 503(b)(5) of the Act.[^9] The 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, and custom-logo shirts/T-shirts 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 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 after receiving the citation.[^12] We base
    our action here specifically on complaints filed by thirty-nine
    consumers establishing that Hot Lead continued to send sixty-one
    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 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.[^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 sixty
    unsolicited advertisements to the thirty-eight consumers identified
    in the Appendix. This NAL is based on evidence that the consumers
    received unsolicited fax advertisements from Hot Lead *after* the
    Commission's citation. The facsimile transmissions advertise
    mortgage financing, health and life insurance, and custom-logo
    shirts/T-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 sixty-one unsolicited
    advertisements to thirty-nine 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 \$423,000. 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 thirty-four of the
    apparent violations. In addition, where the consumer requests that
    the company 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, seventeen
    consumers specifically requested that Hot Lead cease sending
    facsimiles. Notwithstanding these requests, an additional
    twenty-seven facsimiles were sent to these consumers. Thus, we apply
    the \$10,000 amount to each of twenty-seven of the apparent
    violations." Thus, a total forfeiture of \$423,000 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 sixty-one unsolicited advertisements to the
    thirty-nine consumers identified in the Appendix. We have further
    determined that The Hot Lead LLC is apparently liable for a
    forfeiture in the amount of \$423,000.

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 \$423,000 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 thirty (30) 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 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. 200732170072.

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.[^22]

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 The Hot Lead LLC, Attention: Mr. Greg Horne,
    16901 Dallas Parkway, Addison, Texas 75001 and The Hot Lead Company,
    Attention: Mr. Greg Horne, 1400 Preston Road #300, Plano, Texas
    75903.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

APPENDIX

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

  Gillian Ackland                      4/1/07

  Brian Bilionis                       2/23/07

  Carla Boorsma                        4/23/07

  Raymond Carolin                      5/30/07

  Kevin David                          4/10/07

  Julie Fisher                         5/13/07

  Wendy Gulla                          4/3/07; 4/13/07; 4/14/07; 4/14/07

  Donna Halfpenny                      4/10/07

  Marilyn Johnson                      4/07 (2 faxes)

  Lisa Kormos                          12/27/06

  Edward LeBlanc                       4/26/07

  Mary Monroe                          4/20/07

  Russell Owens                        3/27/07; 4/22/07

  Laura Palmberg                       4/6/07

  Carolyn Platz                        4/6/07; 4/8/07; 4/16/07

  Donny Prosisa                        4/12/07

  Frederic Roberts                     4/5/07

  Peter Sobota                         5/11/07; 5/15/07

  Wesley Staples                       3/7/07; 4/9/07

  Joe Stephan                          2/9/07

  Thomas Ventura                       1/10/07

  Ruth Weinstein                       4/8/08; 4/15/07; 4/18/07

  Gordon Wood                          4/13/07

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

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

  Thomas Abbott                        4/10/07; 4/13/07

  Alan Arps                            4/5/07; 4/8/07

  Mary Bankston                        4/9/07

  Henry Bergmann                       4/30/07

  Luethel P. Boyd                      4/1/07 (2 faxes)

  Shao Chiang                          5/15/07

  Belinda Deering                      5/20/07

  Cheryl Geisbush                      4/4/07

  Robert Josefek                       3/22/07; 3/25/07; 4/7/07; 4/9/07;
                                       4/10/07; 4/22/07; 4/29/07

  Janet Lapins                         3/9/07

  Warren Martin                        4/3/07

  Mary Mikit                           4/12/07

  Russell Owens                        5/9/07

  Wesley Staples                       4/8/07

  Joe Stephan                          4/2/07

  Shaun Stuart                         4/13/07

  Magda Summerfield (for Phil          4/5/07; 4/12/07
  Robinson)                            

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

[^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. Mr. Greg Horne, is listed as the contact person for Hot
    Lead. The Hot Lead Company has offices at 6009 W. Parker Road, Suite
    149-114, Plano, Texas 75093-8120 and 1400 Preston Road #300, Plano,
    Texas 75903. Mr. Greg Horne, is listed as the contact person for The
    Hot Lead Company. Accordingly, all references in this NAL to "Hot
    Lead" 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. § 64.1200(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 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 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 in the issuance of a
    Notice 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, FCC 07-147 (August 14,
    2007).

[^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) 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).

[^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 April 25, 2007, from Marilyn Johnson
    (stating that "The attached fax copies have been sent to me
    unsolicited." "I did not give these advertisers permission to send
    faxes nor did I ever do business with them."). The complainants
    involved in this action are listed in the Appendix below.

[^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 16,837, 16,842 (2000); *21^st^ Century
    Fax(es) Ltd., AKA 20^th^ Century Fax(es)*, 15 FCC Rcd 24,406, 24,411
    (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.

[^22]: 47 C.F.R. § 1.1914.