**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File Nos. EB-07-TC-1568,     |
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| EZPMG, Inc. and                  | ** | EB-07-TC-12725               |
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| Kenneth Elias                    | *  | NAL/Acct. No. 200832170072   |
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| Apparent Liability for           | ** | FRN: 0017996802              |
| Forfeiture                       |    |                              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: October 7, 2008 Released: October 9, 2008**

By the Commission:

# I. INTRODUCTION

1.  In this *Notice of Apparent Liability for Forfeiture* ("NAL")[^1],
    we find that EZPMG, Inc. []{.mark}and Kenneth Elias ("EZPMG") [^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 twenty-five
    unsolicited advertisements to the telephone facsimile machines of at
    least twenty-five consumers. [^3] Based on the facts and
    circumstances surrounding these apparent violations, we find that
    EZPMG is apparently liable for a forfeiture in the amount of
    \$112,500.

**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 April 17, 2007, in response to one or more consumer complaints
    alleging that EZPMG had faxed unsolicited advertisements, the
    Enforcement Bureau ("Bureau") issued a citation[^8] to EZPMG,
    pursuant to section 503(b)(5) of the Act.[^9] The citation warned
    EZPMG 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. Soon thereafter, the Commission staff issued a citation to
    Mr. Kenneth Elias, owner of EZPMG. [^10] The Bureau cited both
    Kenneth Elias and EZPMG for using a telephone facsimile machine,
    computer, or other device, to send unsolicited advertisements for
    mortgage services to a telephone facsimile machine, in violation of
    section 227 of the Act and the Commission's related rules and
    orders. [^11] The citations informed both Kenneth Elias and EZPMG
    that within 30 days of the date of the citation, they could either
    request an interview with Commission staff, or could provide a
    written statement responding to the citation. On April 24, 2007 and
    August 1, 2007, EZPMG responded to the citations.[^12]

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 EZPMG continued to
    engage in such conduct after issuance of the citation.[^13] We base
    our action here specifically on complaints filed by twenty-five
    consumers establishing that EZPMG continued to send twenty-five
    unsolicited advertisements to telephone facsimile machines after the
    date of the citations.[^14]

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.[^15] 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."[^16]

### III. DISCUSSION

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

6.  We find that EZPMG 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
    twenty-five unsolicited advertisements to the twenty-five consumers
    identified in the Appendix. This NAL is based on evidence that
    twenty-five consumers received unsolicited fax advertisements from
    EZPMG *after* the Bureau's citation. The facsimile transmissions
    advertise mortgage services. Further, according to the complaints,
    the consumers neither had an established business relationship with
    EZPMG nor gave EZPMG permission to send the facsimile
    transmissions.[^17] The faxes at issue here therefore fall within
    the definition of an "unsolicited advertisement."[^18] Based on the
    entire record, including the consumer complaints, we conclude that
    EZPMG apparently violated section 227 of the Act and the
    Commission's related rules and orders by sending twenty-five
    unsolicited advertisements to twenty-five consumers' facsimile
    machines.

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B.  **Proposed Forfeiture**

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7.  We find that EZPMG is apparently liable for a forfeiture in the
    amount of \$112,500. 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.[^19] We apply that base amount to each of the twenty-five
    apparent violations. Thus, a total forfeiture of \$112,500 is
    proposed. EZPMG 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 EZPMG, Inc. 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 twenty-five unsolicited advertisements to the twenty-five
    consumers identified in the Appendix. We have further determined
    that EZPMG, Inc. is apparently liable for a forfeiture in the amount
    of \$112,500.

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 EZPMG, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A
    FORFEITURE in the amount of \$112,500 for willful or repeated
    violations of section 227(b)(1)(C) of the Communications Act, 47
    U.S.C. § 227(b)(1)(C), section 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*, EZPMG, Inc.
    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). EZPMG 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 EZPMG, Inc., Attention: Kenneth Elias,
28 Harrison Avenue, Suite 213, Englishtown, NJ 07726.

> FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX**

**Complainants and Violation Dates**

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

  Ackley, Fred                         11/28/07

  Adam, Mari                           11/27/07

  Anderson, Pat                        11/15/07

  Barnes, Autumn                       11/29/07

  Baemayr, Uwe                         11/13/07

  Burr, Richard                        11/29/07

  Cohn, Ava                            11/29/07

  Glick, Lawrence                      11/13/07

  Gilliland, Lynn                      11/19/07

  Hewitt, Michael                      11/0807

  Hochhalter, Lanny                    11/19/07

  Hopper, Robert                       11/28/07

  Hogg, Susan                          11/8/07

  Klumb, Edward                        11/15/07

  Koch, Katie                          11/14/07

  Leedy, Kenneth                       11/26/07

  Marcus, Jon                          11/19/07

  Palmberg, Laura                      11/15/07

  Schlemmer, Ron                       11/20/07

  Solomon, Steven                      11/14/07

  Toorens, Hans                        11/28/07

  Trueman, Marcy                       11/13/07

  Weaver, Scott                        11/27/07

  Weiderhold, Bill                     11/26/07

  Wright, George                       11/8/07
  ------------------------------------ ----------------------------------

[^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]: EZPMG, Inc. has offices at 28 Harrison Avenue, Suite 213,
    Englishtown, NJ 07726. Kenneth Elias, owner and president of EZPMG,
    also has offices at 28 Harrison Avenue, Suite 213, Englishtown, NJ
    07726, and is listed as the contact person for EZPMG. Accordingly,
    all references in this NAL to EZPMG 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" ("EBR") 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." *See* 47 U.S.C. § 227(a)(2);
    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-1568
    issued to EZPMG, Inc. on April 17, 2007 ("April 2007 citation").

[^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]: *See* Citation from Kurt A. Schroeder, Deputy Chief,
    Telecommunications Consumers Division, Enforcement Bureau, File No.
    EB-07-TC-12725 issued to Mr. Kenneth Elias on July 23, 2007 ("July
    2007 citation").

[^11]: Bureau staff mailed the April 17, 2007 citation to the following
    address: EZPMG, Inc., Attn: Kenneth Elias, 28 Harrison Avenue,
    Englishtown, NJ 07726. *See* n8, *supra*. Bureau staff mailed the
    July 23, 2007 citation to the following address: Mr. Kenneth Elias,
    28 Harrison Avenue, Suite 213, Englishtown, NJ 07726. *See* n10,
    *supra*.

[^12]: On April 24, 2007, EZPMG, Inc. responded to the April 2007
    citation. Letter from Mr. Kenneth B. Elias, President, EZPMG, Inc.,
    to Kurt A., Schroeder, Deputy Chief, Telecommunications Consumers
    Division, Enforcement Bureau, Federal Communications Commission,
    dated April 24, 2007. On August 1, 2007, EZPMG, Inc. responded to
    the July 2007 citation. Letter from Mr. Kenneth B. Elias, President,
    EZPMG, Inc., to Kurt A., Schroeder, Deputy Chief, Telecommunications
    Consumers Division, Enforcement Bureau, Federal Communications
    Commission, dated August 1, 2007. Both of EZPMG's responses stated,
    among other things, that the fax numbers used to transmit the
    advertisements were publicly listed on the Internet, and yellow page
    listings. Kenneth Elias, owner of EZPMG, included internet pages,
    from which the fax numbers were obtained. The Act and our rules,
    however, explicitly require that a fax sender must first have an
    established business relationship with the fax recipient before
    using a fax number from a voluntarily published source to send
    unsolicited fax advertisements.  *See* [47 U.S.C. §
    227](http://web2.westlaw.com/find/default.wl?vc=0&ordoc=2008885643&rp=%2Ffind%2Fdefault.wl&DB=1000546&DocName=47USCAS227&FindType=L&AP=&fn=_top&rs=WLW8.08&mt=CompanyInformation&vr=2.0&sv=Split)(b)(1)(C)(i)-(iii);
    47 C.F.R. § 64.1200(a)(3) (unsolicited fax ads prohibited unless
    sender has EBR with recipient *and* the fax number was obtained,
    inter alia, from a directory, advertisement, or Internet site to
    which the recipient voluntarily made the number available for
    distribution); *see also* *Rules and Regulations Implementing the
    Telephone Consumer Protection Act of 1991,* CG Docket Nos. 02-278
    and 05-338*, Report and Order and Third Order on Reconsideration*,
    21 FCC Rcd 3787, 3793-96 (2006) (burden of proof to demonstrate
    established business relationship is on the sender; senders of
    facsimile advertisements must have an EBR with the recipient in
    order to send the advertisement to the recipient\'s facsimile
    number; that the facsimile number was made available in a directory,
    advertisement or website does not alone entitle a person to send a
    facsimile advertisement to that number). Here, the record shows that
    EZPMG apparently did not have the requisite EBR with the fax
    recipients before using published fax numbers. Additionally,
    following the issuance of the citations, the Commission continued to
    receive complaints from multiple consumers alleging that Company
    faxed unsolicited advertisements to them. These complaints, received
    after the Commission's citations, resulted in the issuance of a
    Notice of Apparent Liability for Forfeiture against Company on
    August 21, 2008, in the amount of \$443,500. *See EZPMG, Inc. and*

    *Kenneth Elias,* Notice of Apparent Liability for Forfeiture,
    FCC-08-190 (August 21, 2008).

[^13]: *See* Appendix for a listing of the consumer complaints against
    EZPMG requesting Commission action.

[^14]: We note that evidence of additional instances of unlawful conduct
    by EZPMG may form the basis of subsequent enforcement action.

[^15]: 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
    increased the forfeiture maximum for this type of violator to
    \$16,000).

[^16]: 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).

[^17]: *See, e.g.*, complaint dated November 8, 2007, from George Wright
    (stating that he has never done any business with the fax
    advertiser, never made an inquiry or application to the fax
    advertiser, never given permission for the company to send the fax,
    and requested that the fax advertiser not fax advertisements to
    him.). The complainants involved in this action are listed in the
    Appendix.

[^18]: *See* 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(13)
    (definition previously at § 64.1200(f)(10)).

[^19]: *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).

[^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.