**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. EB-06-TC-250        |
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| RMG Communications               | ** | NAL/Acct. No. 200932170002   |
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| Apparent Liability for           | *  | FRN: 0016773590              |
| Forfeiture                       | *) |                              |
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**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: October 20, 2008 Released: October 22, 2008**

By the Chief, Enforcement Bureau:

# I. INTRODUCTION

1.  In this *Notice of Apparent Liability for Forfeiture* ("NAL")[^1],
    we find that RMG Communications ("RMG")[^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 advertisements to the
    telephone facsimile machine of one consumer.[^3] Based on the facts
    and circumstances surrounding these apparent violations, we find
    that RMG 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 September 9, 2006, in response to one or more consumer complaints
    alleging that RMG had faxed unsolicited advertisements, the
    Enforcement Bureau ("Bureau") issued a citation[^8] to RMG, pursuant
    to section 503(b)(5) of the Act.[^9] The Bureau cited RMG for using
    a telephone facsimile machine, computer, or other device, to send
    unsolicited advertisements for health and life insurance and
    t-shirts with company logo to a telephone facsimile machine, in
    violation of section 227 of the Act and the Commission's related
    rules and orders. The citation warned RMG 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 RMG 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. RMG 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 RMG continued to
    engage in such conduct after issuance of the citation.[^12] We base
    our action here specifically on a complaint filed by a consumer
    establishing that RMG continued to send one unsolicited
    advertisement to a telephone facsimile machine 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 RMG 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 RMG *after* the Bureau's citation. The facsimile
    transmission advertised mortgage loans and health care. Further,
    according to the complaint, the consumer neither had an established
    business relationship with RMG nor gave RMG permission to send the
    facsimile transmission.[^16] The fax at issue here therefore falls
    within the definition of an "unsolicited advertisement."[^17] Based
    on the entire record, including the consumer complaint, we conclude
    that RMG apparently violated section 227 of the Act and the
    Commission's related rules and orders by sending one unsolicited
    advertisement to one consumer's facsimile machine.

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B.  **Proposed Forfeiture**

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7.  We find that RMG 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.[^18] We apply that base amount to the apparent violation.
    Thus, a forfeiture of \$4,500 is proposed. RMG 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.[^19]

### IV. CONCLUSION AND ORDERING CLAUSES

8.  We have determined that RMG Communications 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 RMG
    Communications 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 RMG
    Communications 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,[^20] within thirty (30) days of the release date
    of this *Notice of Apparent Liability for Forfeiture*, RMG
    Communications 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). RMG Communications 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 RMG Communications, Attention: Greg
Horne, 3401 Norman Berry Drive, Suite 114, East Point, GA 30344, 6009 W.
Parker Road, Suite 149-114, Plano, TX 75093, and 16901 Dallas Parkway,
Addison, TX 75001.

> FEDERAL COMMUNICATIONS COMMISSION

Kris Anne Monteith

Chief, Enforcement Bureau

**APPENDIX**

**Complainant and Violation Date**

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

  Alberto Hernandez                    11/08/07
  ------------------------------------ ----------------------------------

[^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) (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]: RMG Communications has offices at 3401 Norman Berry Drive, Suite
    114, East Point, GA 30344, 6009 W. Parker Road, Suite 149-114,
    Plano, TX 75093, and 16901 Dallas Parkway, Addison, TX 75001. Greg
    Horne is listed as the contact person for RMG. Accordingly, all
    references in this NAL to RMG 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). *See also*
    47 U.S.C. § 227(a)(2).

[^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-250,
    issued to RMG Communications on September 9, 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 instrumentalities for violations of the Act or of the
    Commission's rules and orders).

[^10]: Commission staff mailed the citation to the following addresses:
    3401 Norman Berry Drive, Suite 114, East Point, GA 30344, and 6009
    W. Parker Road, Suite 149-114, Plano, TX 75093. *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 RMG
    faxed unsolicited advertisements to them. These complaints, received
    after the Commission's citation, resulted in the issuance of two
    Notices of Apparent Liability for Forfeiture against RMG: on
    September 10, 2007, in the amount of \$71,500, *RMG Communications,*
    Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 17133
    (2007); and on June 12, 2008 in the amount of \$49,500, *RMG
    Communications,* Notice of Apparent Liability for Forfeiture, 23 FCC
    Rcd 9827 (2008).

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

[^13]: We note that evidence of additional instances of unlawful conduct
    by RMG 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* complaint dated Nov. 8, 2007, from Alberto Hernandez
    (stating that he has never purchased anything from the company being
    advertised in the fax or made an inquiry or application to the
    company or given consent for the company to send the fax). The
    complainant involved in this action is 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* 47 U.S.C. § 503(b)(4)(C); 47 C.F.R. § 1.80(f)(3).

[^20]: 47 C.F.R. § 1.80.