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 Federal  Communications  Commission  FCC  02-  226 
 Before  the  FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  D.  C.  20554 


 In  the  Matter  of  )  )  File  No.  EB-  02-  TC-  120 


 Fax.  com,  Inc.  )  NAL/  Acct.  No.  200232170004  )  FRN  0007-  2970-  47 
 Apparent  Liability  for  Forfeiture  ) 


 NOTICE  OF  APPARENT  LIABILITY  FOR  FORFEITURE 
 Adopted:  August  2,  2002  Released:  August  7,  2002 
 By  the  Commission:  Commissioner  Abernathy  issuing  a  statement. 
 I.  INTRODUCTION 
 1.  In  this  Notice  of  Apparent  Liability  for  Forfeiture  (NAL),  we  find  that  Fax.  com,  Inc.  (Fax.  com)  1  apparently  willfully  or  repeatedly  violated  section  227  of  the  Communications 
 Act  of  1934,  as  amended  (Act),  2  and  the  Commissions  rules  and  orders,  by  sending  unsolicited  advertisements  to  telephone  facsimile  machines  on  489  separate  occasions.  3  Based  on  the  facts 
 and  circumstances  surrounding  these  apparent  violations,  we  find  that  Fax.  com  is  apparently  liable  for  forfeiture  in  the  amount  of  $5,379,000.  4 


 1  Fax.  com,  Inc.  is  headquartered  at  120  Columbia  Street,  Suite  500,  Aliso  Viejo,  California  92656. 
 According  to  Dun  &  Bradstreet  Business  Information  Report,  Fax.  com  began  operations  in  1998.  Fax.  com  is  a  closely  held  corporation  whose  president,  Mr.  Kevin  Katz,  owns  35%  of  the  capital  stock.  Value  Capital  owns  33% 


 of  capital  stock  and  Fax.  com  employees  own  the  remaining  32%  of  capital  stock.  See  Dun  &  Bradstreet  Business  Information  Report,  April  3,  2002.  For  purposes  of  this  NAL,  we  specify  that  Fax.  com  encompasses  all  affiliated 
 entities,  successors,  and  assigns  as  well  as  its  corporate  officers,  Mr.  Katz,  Thomas  Roth,  Jeffrey  Dupree,  and  Eric  Wilson. 


 2  Section  227  was  added  to  the  Communications  Act  of  1934  by  the  Telephone  Consumer  Protection  Act  of 
 1991,  Pub.  L  102-  243,  105  Stat.  2394,  and  is  most  commonly  known  as  the  TCPA. 
 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,  7  FCC  Rcd  8752,  8779,  (1992)  (TCPA  Report  and  Order)  (stating  that  section  227  of  the  Act  prohibits  the  use  of  telephone  facsimile  machines  to  send  unsolicited 


 advertisements). 
 4  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  .  .  .  . 
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 Federal  Communications  Commission  FCC  02-  226 
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 II.  BACKGROUND 
 2.  Fax.  com  characterizes  itself  as  a  fax  broadcaster,  transmitting  messages  to  telephone  facsimile  machines  on  behalf  of  other  entities  for  a  fee.  According  to  its  website, 
 Fax.  com  specializes  in  transmitting  its  clients  advertisements  to  telephone  facsimile  machines  whose  numbers  are  contained  in  the  Fax.  com  database,  which  it  touts  as  the  industrys  largest 
 fax  number  database.  5  In  its  promotional  materials,  Fax.  com  also  offers  to  design  or  improve  its  clients  advertising  copy.  6  The  unsolicited  facsimile  advertisements  that  are  the  subject  of 
 this  NAL  are  the  product  of  Fax.  coms  fax  broadcasting  enterprise.  With  the  exception  of  one  message,  7  the  advertisements  do  not  promote  products,  goods,  or  services  provided  by  Fax.  com 
 but,  instead,  promote  a  wide  variety  of  products,  goods,  or  services  offered  by  numerous  entities  that  have  employed  Fax.  com  to  send  their  advertisements  to  telephone  facsimile  machines. 


 3.  In  December  2000  and  May  2001,  after  receiving  correspondence  from  consumers  who  complained  about  having  been  faxed  unsolicited  advertisements  on  behalf  of  six 
 Fax.  com  clients,  the  Commission  staff  issued  citations  to  Fax.  com  8  pursuant  to  section  503(  b)(  5)  of  the  Act.  9  The  staff  cited  Fax.  com  for  allegedly  violating  section  227(  b)(  1)(  C)  of  the  Act  and 


 5  See  http://  www/  fax.  com/  Services/  faxblast.  asp  (website  accessed  May  29,  2002).  Fax.  coms  website, 
 copyrighted  2000,  contains  the  following  additional  claims: 


 Fax.  com  is  the  only  company  that  can  boast  16  million  fax  numbers.  With  another  16  million  records  soon  available,  Fax.  com  will  be  the  leading  place  to  purchase  fresh  fax  broadcasting  data. 
 http://  www.  fax.  com/  company_  profile/  our_  business.  asp  (website  accessed  May  29,  2002). 
 Broadcast  your  advertising  fax  based  on  radius,  Zip  Codes,  Metro  Area,  Area  Code,  County,  State  or  the  entire  U.  S.  using  a  database  that  will  exceed  30  million  fax  numbers. 
 http://  www.  fax.  com/  Why_  use_  fax/  direct.  asp  (website  accessed  May  29,  2002). 
 6  See  http://  www.  fax.  com/  Consumer_  support/  FAQs.  asp  (website  accessed  May  29,  2002)  (  If  you  would  like, 
 we  can  send  you  a  questionnaire  about  your  company,  consult  with  you  and  design  outstanding  fax  broadcast  ads  for  you.);  http://  www.  fax.  com?  Services/  addl_  seerv.  asp  (website  accessed  May  29,  2002)  (  Our  design  department 


 will  work  with  you  to  design  your  fax  ad,  choose  type  fonts,  create  graphics,  and  develop  the  ideal  fax  that  will  achieve  the  greatest  response.). 


 7  See  note  40,  infra. 
 8  Citation  letters  from  Kurt  A.  Schroeder,  Deputy  Chief,  FCC  Telecommunications  Consumers  Division  to 
 Kevin  Katz,  Fax.  com  President  (Dec.  26,  2000;  May  11,  2001;  May  31,  2001)  (collectively  Fax.  com  Citations  or  staff  citations). 


 9  47  U.  S.  C.    503(  b)(  5).  Under  section  503(  b)(  5),  the  Commission  may  not  assess  a  forfeiture  penalty 
 against  any  person  that  does  not  hold  a  license,  permit,  certificate,  or  other  Commission  authorization,  and  is  not  an  applicant  for  such  instruments,  unless  (  A)  such  person  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  persons  place  of  residence;  and  (C)  subsequently  engages  in  conduct  of  the  type 
 described  in  the  citation.  We  note  that  this  section  does  not  require  the  multiple  citations  given  by  the  staff  here;  only  a  single  citation  was  necessary  before  initiation  of  a  forfeiture  proceeding. 
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 section  64.1200(  a)(  3)  of  the  Commissions  rules  by  transmitting  unsolicited  advertisements  to  consumers  telephone  facsimile  machines  on  behalf  of  the  six  clients.  10  The  citations  noted  that 
 although  entities  that  merely  transmit  facsimile  messages  on  behalf  of  others  are  not  liable  for  compliance  with  the  prohibition  on  faxing  unsolicited 
 advertisements,  the  exemption  from  liability  does  not  exist  when  a  fax  transmitter  has  a  high  degree  of  involvement  or  actual  notice  of  an  illegal  use  and  [has] 
 fail[  ed]  to  take  steps  to  prevent  such  transmissions.    Accordingly,  fax  transmitters  do  not  enjoy  an  absolute  exemption  from  liability  under  the  TCPA 
 and  the  Commissions  Rules.  11 
 4.  The  citations  informed  Fax.  com  that  it  could  face  monetary  forfeitures  up  to  $11,000  for  each  subsequent  violation  if  Fax.  com  either  (1)  was  highly  involved  on  behalf  of  the 
 sender  of  any  unsolicited  facsimile  advertisements,  or  (2)  continued  to  transmit  advertisements  for  the  six  named  clients  without  taking  steps  to  ensure  that  those  entities  had  obtained 
 permission  from  recipients  to  fax  the  advertisements.  The  citations  also  directed  Fax.  com  to  answer  several  questions  regarding  its  general  practices  with  respect  to  its  fax  broadcasting 
 activities  and  its  specific  arrangements  with  the  six  clients.  Finally,  the  citations  informed  Fax.  com  that  within  21  days  of  the  date  of  each  citation,  it  could  either  request  a  personal 
 interview  at  the  nearest  Commission  field  office,  or  provide  a  written  statement  responding  to  the  citation. 


 5.  On  January  31,  2001,  June  1,  2001,  and  June  21,  2001,  Fax.  com  responded  to  the  citations  with  virtually  identical  pleadings  that  were  filed  jointly  on  behalf  of  Fax.  com  and  its  six 
 cited  clients.  In  each  instance,  Fax.  com  and  the  clients  claimed  that  the  prohibition  on  faxing  unsolicited  advertisements  contained  in  section  227  and  the  Commissions  implementing 
 regulations  is  an  unconstitutional  infringement  on  the  First  Amendment  free  speech  rights  of  Fax.  com  and  its  advertisers.  Fax.  com  also  addressed  the  staffs  questions  regarding  its  fax 
 broadcasting  operations.  In  that  regard,  Fax.  com  claimed  that  although  it  offers  clients  advice  and  assistance  relative  to  graphics  presentations,  it  had  not  exercised  any  editorial  control  over 
 any  of  the  advertisements  that  were  at  issue  in  the  six  citations.  12  Nonetheless,  Fax.  com 


 10  The  staff  also  cited  the  following  Fax.  com  clients  for  alleged  violations  of  section  227  and  the 
 Commissions  rules  and  orders:  Platinum  Travel  Club  and  Teleconcepts  Technologies;  Colorjet,  Inc.;  Millenium  Marketing  and  Sales,  Ltd.;  Website  University;  US  Travel  Services,  Inc.;  and  Advanced  Cellular  Communications, 


 Inc.  This  proceeding  does  not  encompass  any  actions  against  the  cited  companies. 
 11  Fax.  com  Citations  at  2  (footnotes  omitted)  (citing  Rules  and  Regulations  Implementing  the  Telephone 
 Consumer  Protection  Act  of  1991,  Memorandum  Opinion  and  Order,  10  FCC  Rcd  12391,  12407  (1995)  (TCPA  Memorandum  Opinion  and  Order));  TCPA  Report  and  Order,  7  FCC  Rcd  8752,  8780  (1992)  (quoting  Use  of 


 Common  Carriers,  2  FCC  Rcd  2819,  2820  (1987))). 
 12  January  31  Response  at  27;  June  1  Response  at  28;  June  21  Response  at  27. 
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 emphasized  that  it  retains  discretion  to  refuse  to  transmit  any  advertisement  it  deems  offensive  or  misleading.  13  Fax.  com  stated  that  it  provided  the  fax  distribution  lists  for  each  of  six  clients 
 whose  advertisements  were  addressed  by  the  citations.  Fax.  com  explained  that  it  compiles  its  database  of  telephone  facsimile  numbers  by  (1)  purchasing  lists  of  fax  numbers  from 
 independent  vendors,  (2)  identifying  fax  numbers  through  its  own  research  methods,  and  (3)  recording  fax  numbers  provided  by  individuals  who  have  asked,  through  an  automated  process, 
 to  be  included  in  Fax.  coms  database.  With  respect  to  the  telephone  facsimile  numbers  obtained  from  independent  vendors  and  Fax.  coms  research  efforts,  Fax.  com  conceded  that  it  has 
 historically  taken  no  steps  to  verify  consent  or  established  business  relationships.  14  Fax.  com  stated  that  it  routinely  sends  what  it  characterizes  as  a  non-  commercial  message  regarding 
 missing  children  to  each  number  added  to  the  Fax.  com  database.  15  Entitled  Your  Permission  Please,  the  message  asks  recipients  to  agree  to  receive  from  Fax.  com  alerts  regarding  missing 
 children.  The  message  states  that  to  help  offset  the  cost  of  the  missing  children  alerts,  Fax.  com  will  also  send  a  limited  amount  of  commercial  paid  advertising  not  to  exceed  one  fax  per 
 week.  The  message  instructs  recipients  who  do  not  wish  to  receive  the  alerts  or  advertisements  to  call  a  toll-  free  opt-  out  number.  Finally,  Fax.  com  emphasized  that  it  only  transmits 
 advertisements  that  contain  such  an  opt-  out  number  that  fax  recipients  may  call  if  they  do  not  wish  to  receive  similar  advertisements  in  the  future.  16 


 6.  Following  Fax.  coms  receipt  of  the  staffs  citations,  the  Commission  has  continued  to  receive  information  from  numerous  consumers  indicating  that  Fax.  com  is  still 
 conducting  its  fax  broadcasting  activities  in  a  manner  that  apparently  violates  section  227(  b)(  1)(  C)  of  the  Act  and  section  64.1200(  a)(  3)  of  the  rules.  The  forfeiture  proposed  herein  is 
 based  on  this  body  of  consumer  information,  which  alleges  that  after  Fax.  coms  receipt  of  the  staffs  citations,  consumers  continued  to  receive  a  variety  of  unsolicited  facsimile 
 advertisements,  all  traceable  to  Fax.  com. 
 7.  Table  1,  Unsolicited  Advertisements  Transmitted  by  Fax.  com  and  Subject  to  Forfeiture  Pursuant  to  FCC  02-  226,  lists  489  unsolicited  fax  advertisements  that  form  the  basis 
 of  this  NAL.  17  Although  only  one  of  these  advertisements  mentions  Fax.  com  in  any  way,  some 
 13  January  31  Response  at  27;  June  1  Response  at  29;  June  21  Response  at  28. 
 14  January  31  Response  at  30;  June  1  Response  at  31-  32;  June  21  Response  at  30. 
 15  January  31  Response  at  30-  31;  June  1  Response  at  32;  June  21  Response  at  31.  Judging  by  information 
 provided  by  consumers  to  this  Commission,  it  does  not  appear  that  Fax.  com  is  using  this  message  routinely  at  the  present  time;  only  one  such  message  is  included  in  the  instant  forfeiture  action.  See  note  40,  infra. 


 16  January  31  Response  at  28-  29;  June  11  Response  at  27;  June  21  Response  at  27-  28. 
 17  As  set  forth  in  Table  1,  these  unsolicited  facsimile  advertisements  were  received  by  46  individuals, 
 businesses,  or  government  offices  between  September  2001  and  March  2002.  Although  some  consumers  correspondence  and  related  declarations  detail  additional  unsolicited  advertisements  received  before  August  7,  2001, 


 we  do  not  list  these  violations  in  Table  1  because  they  are  beyond  the  one-  year  statute  of  limitations  set  forth  in  section  503(  b)(  6)(  B)  of  the  Act,  5  U.  S.  C.    503(  b)(  6)(  B).  Finally,  we  note  that  evidence  of  additional  instances  of 
 unlawful  conduct  by  Fax.  com,  subject  to  section  503(  b)(  6)(  B)  s  statute  of  limitations,  may  form  the  basis  of  additional  enforcement  actions. 
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 consumers  were  able  to  discover  that  Fax.  com  had  transmitted  the  ads.  By  obtaining  information  that  identifies  Fax.  com  as  the  telephone  subscriber  for  (1)  the  various  toll-  free  opt-  out  telephone 
 numbers  that  are  displayed  on  each  advertisement,  and/  or  (2)  the  telephone  facsimile  machine  numbers  from  which  various  advertisements  were  sent,  which  are  displayed  in  the 
 advertisements  fax  headers,  the  Commission  staff  has  confirmed  that  Fax.  com  sent  each  advertisement  listed  in  Table  1. 


 8.  Nine  consumers  have  provided  information  showing  that  they  each  received  over  20  unsolicited  and  unwanted  advertisements  that  were  transmitted  by  Fax.  com  clients  on  behalf 
 of  its  clients.  18  The  remaining  36  consumers  have  provided  between  one  and  16  unsolicited  fax  ads  each.  19  Each  consumer  who  has  provided  information  regarding  the  fax  messages  at  issue 
 herein  has  signed  a  declaration,  under  penalty  of  perjury,  attesting  that  he  or  she  (1)  is  either  the  owner  of  or  responsible  for  the  telephone  facsimile  machine  that  received  the  advertisement(  s); 
 (2)  did  not  have  an  established  business  relationship  with  either  Fax.  com  or  the  entity  whose  products,  goods,  or  services  were  being  advertised;  and  (3)  did  not  grant  prior  express  permission 
 or  invitation  for  the  faxes  to  be  sent.  20 
 9.  Consumer  complaints  about  the  faxes  offer  a  snapshot  of  the  disruption,  expense,  and  inconvenience  caused  by  Fax.  coms  unwanted  fax  transmissions.  21  For  instance,  several 


 18  See  Table  1  recording  faxes  received  by  Robert  Isaac  Carr  (27  faxes),  George  D.  Demet  (29  faxes),  Robert 
 R.  Dzimidas  (21  faxes),  L.  (  Les)  R.  Docks  (24  faxes),  Allan  Howard  Frey  (21  faxes),  Heather  Ann  Hartnett  (30  faxes),  Douglas  M.  McKenna  (95  faxes;  28  faxes    residential  line,  67  faxes    business  line),  John  P.  Strang  (30 


 faxes),  and  Wayne  George  Strang  (48  faxes). 
 19  Some  consumers  indicate  that  they  actually  have  received  far  more  advertisements  from  Fax.  com  than  they 
 have  submitted  to  the  Commission.  See  Facsimile  message  from  John  Koltun  to  Evelyn  Dyson,  FCC  Telecommunications  Consumers  Division  (Apr.  12,  2002);  facsimile  message  from  George  Craig  (on  behalf  of  Gary 


 Chou,  Internal  Revenue  Service)  to  Evelyn  Dyson,  FCC  Telecommunications  Consumers  Division  (Mar.  18,  2002). 
 20  One  consumer  describes  particular  circumstances  to  show  that  he  neither  solicited  the  faxes  nor  permitted 
 another  individual  to  do  so  on  his  behalf.  See  Declaration  of  Wayne  George  Strang  (Jul.  22,  2002)  (stating  that  Mr.  Strang  is  the  only  member  of  his  household  and,  thus,  the  only  individual  entitled  to  grant  access  to  his  telephone 


 facsimile  machine). 
 21  Although  not  the  basis  for  our  action  here,  we  note  that  accounts  in  public  media,  litigation  against  Fax.  com, 
 and  correspondence  to  the  Commission  describe  in  detail  substantial  disruption  and  expense  caused  by  Fax.  coms  widespread  fax  broadcasting  of  unsolicited  advertisements.  See  E-  Mail  Bill  May  Fail  to  Curtail  Spamming,  Brett 


 Arquette,  eWEEK  Magazine,  www.  eweek.  com/  article/  0,  3658,  s=  1868&  a=  8229,  00.  asp,  2001  WL  4412169  (July  16,  2001)  (describing  disruption  caused  by  business  organizations  receipt  of  up  to  1,000  faxes  per  week  from 
 Fax.  com): 
 We  have  320  DID  (direct  inward  dialing)  fax  numbers  assigned  to  our  organization  and  recently  had  to  add  two  more  inbound  trunks  to  keep  up  with  the  number  of  unsolicited  faxes  Fax.  com  was 
 pumping  out.  During  one  week,  Fax.  com  took  up  all  four  of  the  inbound  lines  that  feed  our  320  RightFax  server  numbers  for  1.  5  hours,  virtually  shutting  down  our  fax  system  for  that  time. 
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 consumers  describe  being  awakened  very  late  at  night  or  in  the  early  hours  of  the  morning  by  the  noise  of  their  fax  machines  receiving  an  unsolicited  advertisement  from  a  Fax.  com  client.  22 
 Another  consumer,  Elkins  Cox,  describes  the  expense  and  inconvenience  of  receiving  Fax.  coms  unwanted  transmission  on  an  older  telephone  facsimile  machine  and  states  that  he  has  chosen  to 
 turn  off  his  machine  rather  than  deal  with  the  stream  of  unsolicited  advertisements.  23  Robert  McMeekin,  M.  D.,  complains  about  receiving  unsolicited  advertisements  on  a  line  that  is  reserved 


 See  also  Fighting  Back  on  the  Fax,  Ed  Foster,  InfoWorld  Magazine,  2001  WL  22048648  (Aug.  13,  2001)  (relaying  readers  reports  of  disruption  caused  by  Fax.  com:  We  received  over  100  faxes  from  Fax.  com  even 
 though  we  had  previously  opted  out  for  all  our  135  or  so  incoming  phone  numbers.  .  .);  Covington  &  Burling  v.  International  Marketing  &  Research,  Inc.,  et.  al.,  Second  Amended  Complaint,  Civil  Action  No.  01-  004360  (D.  C. 
 Superior  Court,  filed  Dec.  13,  2001)  ($  2.45  million  lawsuit  alleging  Fax.  com  bombarded  law  firm  with  1,634  unsolicited  advertisements  during  one  week,  substantially  interfer[  ing]  with  the  work  of  the  firm.);  Letter  from 
 Phillip  L.  Verveer  and  David  M.  Don,  counsel  for  j2  Global  Communications,  Inc.  to  Kurt  Schroeder,  Deputy  Chief,  FCC  Telecommunications  Consumers  Division  (May  9,  2001)  (describing  disruption  to  j2s  business  operations 
 caused  by  faxes  transmitted  by  Fax.  com  and  other  fax  broadcasters  that  send  unsolicited  advertisements): 
 Over  the  last  several  months,  Fax.  com  and  American  Blast  Fax  (and  its  affiliates)  have  flooded  j2s  telephone  facsimile  lines  with  hundreds  of  unsolicited  faxes,  despite  j2s  requests  that  they  cease 
 and  desist  transmission  of  unsolicited  faxes.  The  flood  of  unsolicited  advertisements  severely  disrupts  the  j2  service,  interferes  with  customers  abilities  to  utilize  the  services,  and  on  many 
 occasions,  crashes  j2s  servers  for  several  hours  at  a  time  during  the  workday.  When  a  server  crashes,  j2  customers  are  unable  to  access  their  accounts  and  thus  cannot  receive  or  send  faxes  and 
 voicemails  using  the  j2  service.  Delivery  of  legitimate  faxes  to  customers  email  accounts  is  often  delayed  for  hours. 


 See  also  j2  Global  Communications,  Inc.  Secures  Agreement  to  End  Unsolicited  Fax  Spam,  j2  Global  Communications,  Inc.  Press  Release,  http://  biz.  yahoo.  com/  prnews/  020130/  law050  (Jan  30,  2002)  (reporting  that  j2 
 secured  an  agreement  to  end  Fax.  coms  transmission  of  unsolicited  fax  advertisements  to  j2s  more  than  4.5  million  customers). 


 22  See  Letter  from  James  Allan  Dobbins  to  the  Direct  Marketing  Association  (Oct.  4,  2001);  facsimile  message 
 from  Richard  V.  N.  Ginn  to  Carmen  Bates,  FCC  Telecommunications  Consumers  Division  (Mar.  16,  2002);  Letter  from  Steven  M.  Greenberg  to  FCC  (Dec.  7,  2001);  Letter  from  Sally  Collins  to  FCC  Consumer  Information  Bureau 


 (Dec.  13,  2001). 
 23  Letter  from  Elkins  Cox  to  FCC  Consumer  Information  Bureau  (Sep.  21,  2001)  and  attached  letter  from 
 Elkins  Cox  to  Georgia  Governors  Office  of  Consumer  Affairs  (Sep.  5,  2001)  (  In  my  home  setup,  I  must  answer  the  phone,  realize  it  is  a  fax  call,  and  transfer  the  call  to  the  fax  machine,  which  prints  the  fax  at  a  cost  of  $.  30  per 


 page). 
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 for  the  receipt  of  patient  medical  data,  and  emphasizes  the  serious  disruption  to  patient  care  caused  by  such  unwanted  faxes.  24 
 10.  Some  consumers  complain  about  unsuccessful  attempts  to  remove  their  telephone  facsimile  machine  numbers  from  Fax.  coms  database  and  describe  frustration  with  Fax.  coms 
 automated  opt-  out  lines,  which  do  not  identify  Fax.  com  as  the  entity  responsible  for  the  fax  number  database.  25  Fax.  com  is  not  identified  on  its  clients  advertisements  and  similarly,  in 
 many  cases,  the  advertiser  itself  is  unnamed.  26  In  such  instances,  consumers  describe  difficulties  in  ascertaining  the  entity  to  which  they  should  direct  a  complaint  about  receipt  of  the  faxes. 
 Some  consumers  who  were  able  to  contact  either  the  advertiser  or  Fax.  com  report  that  they  encountered  hostility,  misrepresentation,  and  unresponsiveness.  For  example,  Andrew  Hansis 
 has  asked  the  Commission  to  take  action  with  respect  to  two  unsolicited  advertisements  he  received  in  October  2001,  neither  of  which  identified  the  company  whose  service  was  being 


 24  Letter  from  Robert  R.  McMeekin,  M.  D.  to  FCC  Consumer  Information  Bureau  (Jan.  11,  2002).  Dr. 
 McMeekin  mistakenly  identifies  two  faxes  as  being  transmitted  on  October  31  and  December  31,  2000.  The  faxes  included  with  Dr.  McMeekins  letter  contain  header  information  that  shows  that  they  actually  were  received  on 


 those  days  in  the  year  2001. 
 25  Information  provided  by  consumers  indicates  that  Fax.  com  continued  to  send  faxes  even  after  receiving  opt-out 
 calls.  For  instance,  a  log  provided  by  William  Robert  White,  President  of  Regency  Sales,  Inc.,  documents  over  50  attempts  between  May  2000  and  August  2001  to  use  Fax.  coms  opt-  out  numbers  to  halt  Regencys  receipt  of 


 unsolicited  advertisements  from  Fax.  com  clients.  Despite  these  attempts,  Fax.  com  continued  to  transmit  unsolicited  advertisements  to  Regency,  as  evidenced  by  at  least  12  faxes  received  by  Regency  from  December  2001  to  February 
 2002.  See  Table  1;  see  also  Letter  from  Andrew  Hansis  to  Consumer  Information  Bureau  (Oct.  5,  2001)  (October  5  Hansis  Letter)  (stating  that  Mr.  Hansis  continued  to  receive  faxes  even  after  using  Fax.  coms  automated  opt-  out 
 system  and  speaking  with  a  senior  Fax.  com  employee  in  an  effort  to  end  the  faxing);  Consumer  Form  for  Telephone-  Related  Issues  from  Norman  Jensen,  III  (recd  Jan.  8,  2002)  (consumer  continued  to  receive  at  least  one 
 advertisement  a  week  despite  repeatedly  calling  opt-  out  numbers  and  faxing  a  message  to  the  originating  fax  number  asking  that  his  telephone  facsimile  number  be  removed  from  the  fax  number  database);  Consumer  Form  for 
 Telephone-  Related  Issues  from  Dora  Wong  Goto  (recd  Oct.  15,  2001)  (Goto  Complaint  Form);  annotated  copies  of  faxes  submitted  by  James  Allan  Dobbins.  It  is  clear  that  a  call  to  one  Fax.  com  opt-  out  line  does  not  end  all  fax 
 transmissions  from  the  company.  We  emphasize  here  that  even  an  effectively  administered  opt-  out  system  does  not  change  the  statutory  ban  on  sending  unsolicited  facsimile  advertisements  or  insulate  such  transmissions  from 
 statutory  penalties.  However,  the  fact  that  Fax.  com  apparently  does  not  even  adhere  to  its  own  stated  procedures  makes  its  conduct  even  more  egregious. 


 26  Over  20  per  cent  of  the  faxes  listed  in  Table  1  do  not  identify  the  entity  whose  products,  goods,  or  services 
 are  being  advertised.  Section  227(  d)(  1)(  B)  of  the  Act  and  section  68.  318  of  the  Commissions  rules  require  that  all  faxes  display  in  a  margin  at  the  top  or  bottom  of  each  page  or  on  the  first  page  of  a  fax  transmission,  the  following 


 information:  the  date  and  time  of  transmission;  the  name  of  the  individual,  business,  or  other  entity  that  sent  the  fax;  and  the  telephone  number  of  either  the  sending  machine  or  the  individual,  business,  or  other  entity  responsible  for 
 sending  the  fax.  With  respect  to  identification  requirements  for  the  fax  sender  and  the  telephone  number  of  the  sender  or  sending  machine,  the  Commission  has  determined  that  the  entity  that  creates  the  content  of  the  fax 
 message  is  generally  responsible  for  compliance.  Rules  and  Regulations  Implementing  the  Telephone  Consumer  Protection  Act  of  1991,  Order  on  Further  Reconsideration,  12  FCC  Rcd  4609,  4610  n.  7,  4613  (1997)  (finding  that 
 liability  rests  with  entity  that  is  responsible  for  the  content  of  the  fax  message,  not  with  a  fax  broadcaster  that  does  not  determine  the  message  content  or  to  whom  they  are  sent.)  If,  however,  a  fax  broadcaster  voluntarily  chooses 
 to  place  its  own  identifying  information  on  a  message  faxed  for  another  entity,  it  must  be  clear  which  entity  is  the  content  originator  and  which  entity  is  merely  the  transmitter  of  the  message.  12  FCC  Rcd  at  4613. 
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 advertised.  27  With  respect  to  the  first  advertisement,  Mr.  Hansis  states  that  he  called  the  telephone  number  provided  on  the  advertisement  for  service  orders  and  was  provided  with  a 
 name  and  telephone  number  of  a  responsible  individual  with  whom  he  could  discuss  the  unsolicited  advertisement.  After  unsuccessfully  attempting  to  reach  this  individual,  Mr.  Hansis 
 reports  he  received  a  telephone  call  from  Charles  Martin,  an  employee  of  Fax.  com.  According  to  Mr.  Hansis,  Mr.  Martin  was  unwilling  to  tell  me  the  source  of  how  the  number  was  placed  in 
 the  database,  only  that  it  was  called  in  at  an  earlier  date.  28 
 III.  DISCUSSION 
 11.  Section  227(  b)(  1)(  C)  of  the  Act  prohibits  any  person  from  using  a  telephone  facsimile  machine,  computer,  or  other  device  to  send  an  unsolicited  advertisement  to  a  telephone 
 facsimile  machine.  29  An  unsolicited  advertisement  is  defined  as  any  material  advertising  the  commercial  availability  or  quality  of  any  property,  goods,  or  services  which  is  transmitted  to  any 
 person  without  that  persons  prior  express  invitation  or  permission.  30  The  Commission  has  determined  that  an  established  business  relationship  between  a  fax  sender  and  recipient 
 demonstrates  consent  to  receive  telephone  facsimile  advertisement  transmissions.  31  The  mere  distribution  or  publication  of  a  telephone  facsimile  number,  however,  does  not  confer  invitation 
 or  permission  to  transmit  advertisements  to  a  particular  telephone  facsimile  machine.  32 
 A.  Constitutional  Issue. 
 12.  Fax.  com  and  its  client  advertisers  have  argued  that  the  broad  prohibition  on  sending  unsolicited  facsimile  advertisements  violates  their  constitutional  right  to  free  speech 
 guaranteed  under  the  First  Amendment.  Federal  courts  have  previously  considered  similar  arguments.  For  example,  the  Court  of  Appeals  for  the  Ninth  Circuit,  where  Fax.  com  is  located, 
 has  determined  that  the  TCPA  does  not  violate  the  First  Amendments  protection  of  commercial 


 27  Letter  from  Andrew  Hansis  to  Consumer  Information  Bureau  (Oct.  4,  2001)  (October  4  Hansis  Letter); 
 October  5  Hansis  Letter. 
 28  October  4  Hansis  Letter;  see,  e.  g.,  Goto  Complaint  Form  (consumer  made  two  calls  to  Fax.  com  but  was 
 unable  to  reach  a  live  person  or  have  calls  returned). 
 29  47  U.  S.  C.    227(  b)(  1)(  C).  Section  227  defines  a  telephone  facsimile  machine  as  equipment  which  has  the 
 capacity  (A)  to  transcribe  text  or  images,  or  both,  from  paper  into  an  electronic  signal  and  to  transmit  that  signal  over  a  regular  telephone  line,  or  (B)  to  transcribe  text  or  images  (or  both)  from  an  electronic  signal  received  over  a 


 regular  telephone  line  onto  paper.  Id.    227(  a)(  2).  This  blanket  prohibition  applies  to  all  unsolicited  advertisements  transmitted  to  telephone  facsimile  machines.  The  Act  does  not  permit  the  sending  of  unsolicited 
 advertisements  by  facsimile  to  either  business  or  residential  telephone  facsimile  machines. 
 30  47  U.  S.  C.    227(  a)(  4);  47  C.  F.  R.    64.  1200(  f)(  5). 


 31  See  TCPA  Report  and  Order,  7  FCC  Rcd  at  8779  n.  87;  TCPA  Memorandum  Opinion  and  Order,  10  FCC 
 Rcd  at  12408. 
 32  Id. 
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 speech.  33  Moreover,  administrative  agencies  are  to  presume  that  the  statutes  that  Congress  directs  them  to  implement  are  constitutional.  34  Accordingly,  we  reject  Fax.  coms  arguments  in 
 this  regard. 
 B.  Fax.  coms  Liability  Under  47  U.  S.  C.    227(  b)(  1)(  C)  and  47  C.  F.  R.    64.1200(  a)(  3). 
 13.  Because  of  the  nature  of  its  operations,  Fax.  com  is  liable  for  violations  of  section  227(  b)(  1)(  C)  of  the  Act  and  section  64.1200(  a)(  3)  of  our  rules  even  though  it  generally  acts  on 
 behalf  of  other  parties  in  sending  unsolicited  advertisements  to  telephone  facsimile  machines.  The  Commission  has  held  that  the  prohibition  on  sending  unsolicited  fax  advertisements  does  not 
 apply  to  fax  broadcasters  that  operate  like  common  carriers  by  merely  transmitting  their  customers  messages  without  determining  either  content  or  destination.  35  In  finding  that  such 
 entities  are  not  liable  under  section  227(  b)(  1)(  C)  of  the  Act  or  section  64.1200(  a)(  3)  of  the  rules,  the  Commission  has  focused  on  the  nature  of  an  entitys  activity  rather  than  any  label  that  that 
 entity  may  claim.  Specifically,  the  Commissions  rulings  clearly  indicate  that  a  fax  broadcasters  exemption  from  liability  is  based  on  the  type  of  activities  it  undertakes,  and  only  exists  [  i]  n  the 
 absence  of  a  high  degree  of  involvement  or  actual  notice  of  an  illegal  use  and  failure  to  prevent  such  transmissions.    36  Regardless  of  whether  Fax.  com  characterizes  itself  as  a  disinterested  fax 
 broadcaster,  it  is  clear  that  the  companys  activities  place  it  outside  the  exempted  category  of  fax  broadcasting  applied  by  Commission  and  render  it  a  fax  sender  within  the  meaning  of  section 
 227(  b)(  1)(  C). 
 14.  The  record  here  clearly  establishes  that  Fax.  com  uses  its  own  extensive  distribution  list  of  telephone  facsimile  numbers  to  send  its  clients  advertisements,  and  that  it 
 knowingly  sends  advertisements  to  such  numbers  without  regard  to  whether  the  facsimile  machine  owner  or  responsible  party  either  granted  permission  to  send  the  advertisement  or  had 


 33  See  Destination  Ventures  v.  FCC,  46  F.  3d  54,  55-  57  (9  th  Cir.  1995)  (ban  on  unsolicited  fax  advertisements 
 does  not  violate  the  advertisers  First  Amendment  rights  because  it  reasonably  fits  the  governments  interest  in  preventing  the  shifting  of  advertising  costs  to  consumers);  see  also  Kenro,  Inc.  v.  Fax  Daily,  Inc.,  962  F.  Supp.  1162, 


 1167-  69  (S.  D.  Ind.  1997)  (ban  on  unsolicited  fax  advertisements  is  narrowly  tailored  to  achieve  the  governments  intended  purpose  and  does  not  violate  the  First  Amendment  guarantee  of  commercial  free  speech);  Texas  v. 
 American  Blast  Fax,  121  F.  Supp.  2d  1085,  1091-  92  (W.  D.  Tex.  2000).  But  see  Missouri  v.  American  Blast  Fax,  196  F.  Supp.  920  (E.  D.  Mo.  2002),  appeal  pending  Nos.  02-  2705,  02-  2707  (8  th  Cir.)  (government  failed  to 
 demonstrate  that  the  harms  associated  with  unsolicited  facsimile  advertisements  are  real,  that  the  blanket  prohibition  on  faxing  such  materials  would  significantly  alleviate  such  harms,  and  that  the  prohibition  was  not  more  extensive 
 that  necessary  to  serve  the  governments  interests).  The  latter  case  is  not  implicated  in  this  NAL  because  none  of  the  fax  transmissions  for  which  we  are  assessing  a  forfeiture  were  received  in  or,  to  our  knowledge,  sent  from  the 
 eastern  judicial  district  of  Missouri. 
 34  Johnson  v.  Robison,  415  U.  S.  361,  368  (1974)  (quoting  Oestereich  v.  Selective  Service  Board,  393  U.  S. 
 233,  242  (1968)  (Harlan,  J.,  concurring  in  result)  (  Adjudication  of  the  constitutionality  of  congressional  enactments  has  generally  been  thought  beyond  the  jurisdictions  of  administrative  agencies.)). 


 35  TCPA  Memorandum  Opinion  and  Order,  10  FCC  Rcd  at  12407.  See  TCPA  Report  and  Order,  7  FCC  Rcd 
 at  8780. 
 36  Id.  (quoting  Use  of  Common  Carriers,  2  FCC  Rcd  at  2820). 
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 an  established  business  relationship  with  the  advertiser  or  Fax.  com.  37  In  addition,  Fax.  com  apparently  reviews  the  text  of  its  clients  advertisements,  not  only  to  assist  with  graphic  design,  38 
 but  also  to  assess  content.  39  Such  conduct  is  clear  evidence  of  Fax.  coms  high  degree  of  involvement  in  the  unlawful  activity.  Moreover,  the  staffs  citations  provided  Fax.  com  with 
 actual  notice  that  its  fax  broadcasting  activities  do  not  comply  with  federal  law. 
 C.  Violations  Evidenced  by  the  Consumer  Correspondence. 
 15.  As  an  initial  matter,  the  staff  has  reviewed  every  facsimile  that  forms  the  basis  for  this  NAL  to  confirm  that  each  message  advertises  the  commercial  availability  or  quality  of  a 
 product,  good  or  service  and,  thus,  constitutes  an  advertisement  as  set  forth  by  section  227(  a)(  4)  of  the  Act  and  section  64.1200(  f)(  5)  of  our  rules.  40  Further,  the  record  indicates  that  the 
 consumers  at  issue  neither  granted  express  permission  to  send  the  advertisements  nor  had  an  established  business  relationship  with  either  Fax.  com  or  the  entities  on  whose  behalf  the 
 advertisements  were  faxed.  41  In  light  of  this  information,  we  conclude  that  the  489  faxes 


 37  See  para.  5,  supra. 
 38  See  note  6,  supra. 
 39  Fax.  coms  website  states  that  [  a]  s  a  responsible  service  provider,  Fax.  com  makes  a  conscious  effort  to 
 censor  any  offensive  literature  or  graphic  content  from  its  platform.  http://  www.  fax.  com/  company_  profile/  our_  business.  asp  (website  accessed  May  29,  2002).  In  addition,  as  indicated 


 above,  in  response  to  our  citations,  Fax.  com  has  suggested  that  it  may  review  its  clients  advertisements  to  ensure  that  they  are  not  offensive  or  misleading.  See  para.  5,  supra.  Such  editorial  influence  is  inconsistent  with 
 Fax.  coms  claim  that  it  does  not  exercise  control  over  the  content  of  its  clients  advertisements.  Fax.  coms  close  involvement  in  the  undertakings  of  its  clients  is  evidenced  by  the  fact  that  Fax.  com  is  the  subscriber  for  the  toll-  free 
 sales  number  (800-  550-  0406)  displayed  on  one  of  its  clients  advertisements.  See,  e.  g.,  Advertisements  from  Infinity  Communications  to  Heather  Ann  Hartnett  (Nov.  2,  2001;  Dec.  12,  2001). 


 40  47  U.  S.  C.    227(  a)(  4);  47  C.  F.  R.    64.  1200(  f)(  5);  see  para.  8,  supra.  The  advertisements  include 
 promotions  for  cellular  telephone  service,  stock  market  offerings,  commercially  offered  seminars,  clocks,  vacation  packages,  office  supplies  and  equipment,  and  insurance  services.  The  Moneyline  Reports  stock  advertisements, 


 claim,  This  Fax  is  intended  for  information  purposes  only  and  is  not  a  commercial  solicitation  under  the  Telephone  Consumer  Protection  Act.  It  is  not  an  offer  to  buy  or  sell  anything.  Despite  this  disclaimer,  the  faxes  clearly 
 promote  a  stock  offering  and  thus  constitute  an  advertisement  under  47  U.  S.  C.    227(  a)(  4)  and  47  C.  F.  R.    64.  1200(  f)(  4).  See,  e.  g.,  Advertisement  from  Moneyline  Report  to  John  P.  Strang  (Oct.  16,  2001)  (  Moneyline 
 Report  is  putting  FXGP  on  our  Strong  Buy-  Aggressive  Growth  recommendation  list.  .  .  .).  Finally,  one  of  the  advertisements  included  in  this  forfeiture  action  is  Fax.  coms  own  Your  Permission  Please  message,  which 
 purportedly  seeks  permission  to  fax  consumers  both  missing  children  alerts  and  a  limited  amount  of  paid  commercial  advertising.  See  Advertisement  from  Fax.  com  to  Heather  Ann  Hartnett  (Dec.  31,  2001).  Contrary  to 
 Fax.  coms  assertion,  such  messages  are  indeed  both  commercial  and  prohibited  under  section  227(  b)(  1)(  C)  of  the  Act  and  section  64.  1200(  a)(  3)  of  our  rules.  See  TCPA  Memorandum  Opinion  and  Order,  10  FCC  Rcd  at  12408 
 ([  F]  acsimile  requests  for  permission  to  transmit  would  impose  costs  on  facsimile  recipients  unless  and  until  the  recipient  were  able  to  ask  that  such  transmissions  be  stopped.  This  kind  of  negative  option  (in  which  the  sender 
 presumes  consent  unless  advised  otherwise)  is  contrary  to  the  statutory  requirement  for  prior  express  permission  or  invitation.). 
 41  In  fact,  several  consumers  indicate  that  Fax.  com  continued  to  fax  advertisements  to  them  even  after  they 
 attempted  to  stop  such  faxes  by  calling  one  or  more  of  Fax.  coms  toll-  free  opt-  out  numbers.  See  note  25,  supra. 
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 detailed  in  Table  1  all  are  unsolicited  advertisements  and,  thus,  violate  the  statutory  prohibition  on  faxing  such  materials. 
 D.  Forfeiture  Amount. 
 16.  As  set  forth  above,  we  conclude  that  Fax.  com  apparently  willfully  or  repeatedly  violated  the  Act  and  the  Commissions  rules  and  orders  by  using  a  telephone  facsimile  machine, 
 computer,  or  other  device  to  send  unsolicited  advertisements  to  telephone  facsimile  machines.  Fax.  com  apparently  did  not  cease  its  unlawful  conduct  even  after  the  Commission  staff  issued 
 citations  warning  that  it  was  engaging  in  unlawful  conduct  and  could  be  subject  to  monetary  forfeitures  for  subsequent  violations.  Accordingly,  a  proposed  forfeiture  is  warranted  against 
 Fax.  com  for  its  apparent  willful  or  repeated  violations  of  the  ban  on  unsolicited  facsimile  advertisements  contained  in  section  227  of  the  Act  and  the  Commissions  rules  and  orders. 


 17.  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.  42  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.  43 
 18.  Although  the  Commissions  Forfeiture  Policy  Statement  does  not  establish  a  base  forfeiture  amount  for  violating  the  prohibition  on  sending  unsolicited  advertisements  to  a 
 telephone  facsimile  machine,  we  have  previously  considered  $4,500  per  unsolicited  fax  advertisement  as  an  appropriate  base  amount.  44  In  addition,  we  have  previously  assessed  a 
 higher  forfeiture  of  $10,000  per  unsolicited  fax  advertisement  in  instances  in  which  the  fax  recipient  had  previously  asked  the  sender  to  refrain  from  faxing  such  materials.  45 


 42  Section  503(  b)(  2)(  C)  provides  for  forfeitures  up  to  $10,  000  for  each  violation  by  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  Commissions  Rules  and  Adjustment  of  Forfeiture  Maxima  to  Reflect  Inflation,  15  FCC  Rcd  18221  (2000). 


 43  47  U.  S.  C.    503(  b)(  2)(  D);  The  Commissions  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-  17101,  (1997),  recon.  denied,  15  FCC  Rcd  303  (1999)  (Forfeiture  Policy  Statement). 


 44  See  Get-  Aways,  Inc.,  Notice  of  Apparent  Liability  For  Forfeiture,  15  FCC  Rcd.  1805,  1812  (1999);  see  also 
 Carolina  Liquidators,  Inc.,  Notice  of  Apparent  Liability  for  Forfeiture,  15  FCC  Rcd  16837,  16842  (2000)  (Carolina  Liquidators  NAL);  Tri-  Star  Marketing,  Notice  of  Apparent  Liability  for  Forfeiture,  15  FCC  Rcd  11295,  11300 


 (2000)  (Tri-  Star  NAL);  US  Notary,  Inc.  Notice  of  Apparent  Liability  for  Forfeiture,  15  FCC  Rcd  16999,  17003  (2000). 


 45  See  Carolina  Liquidators  NAL,  15  FCC  Rcd  at  16842;  Tri-  Star  NAL,  15  FCC  Rcd  at  11300. 
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 19.  In  the  instant  case,  we  believe  that  the  maximum  forfeiture  amount  of  $11,000  per  violation  is  warranted  for  each  unsolicited  advertisement  transmitted  by  Fax.  com  and 
 documented  by  the  consumer  correspondence.  It  is  clear  from  Fax.  coms  own  promotional  materials  and  its  responses  to  our  citations  that  Fax.  coms  primary  business  activity  itself 
 constitutes  a  massive  46  on-  going  violation  of  section  227(  b)(  1)(  C)  of  the  Act  and  section  64.1200(  a)(  3)  of  the  Commissions  rules,  and  that  Fax.  com  is  well  aware  of  this  fact.  Fax.  coms 
 primary  commercial  offering  is  a  fax  broadcasting  service  that  clearly  does  not  comply  with  federal  restrictions  governing  facsimile  advertisements.  As  outlined  above,  by  its  own  admission 
 and  as  demonstrated  by  the  consumer  information,  Fax.  com  generally  conducts  its  fax  broadcasting  without  any  regard  to  whether  the  fax  recipient  has  an  established  business 
 relationship  with  either  Fax.  com  or  the  advertiser,  or  has  otherwise  granted  express  permission  for  the  advertisement  to  be  sent.  We  conclude  that  this  unlawful  undertaking  merits  maximum 
 forfeitures  for  each  of  the  violations  at  issue  here.  Although  we  believe  that  the  nature  of  Fax.  coms  enterprise  by  itself  warrants  imposition  of  a  maximum  forfeiture  for  each  violation, 
 we  discuss  below  the  particularly  egregious  aspects  of  Fax.  coms  conduct. 
 20.  Fax.  coms  Actions  with  Respect  to  Private  Suits  to  Enforce  Section  227.  We  are  especially  concerned  because  it  appears  that  Fax.  com  has  acted  in  a  manner  that  thwarts  the 
 unique  statutory  enforcement  mechanism  established  by  section  227  of  the  Act.  Under  the  statute,  the  Commission,  state  attorneys  general,  or  aggrieved  consumers  may  initiate  actions  to 
 enforce  certain  prohibitions  and  restrictions  contained  in  section  227  of  the  Act,  including  the  prohibition  on  sending  unsolicited  fax  advertisements.  Section  227(  b)(  3)  affords  consumers  an 
 opportunity  to  initiate  actions  in  state  courts  to  enjoin  violations  of,  inter  alia,  the  prohibition  on  faxing  unsolicited  advertisements,  and/  or  to  recover  damages  equivalent  to  the  actual  monetary 
 loss  caused  by  such  violations  or  $500,  whichever  is  greater,  for  each  violation.  Damages  may  be  trebled  if  a  court  determines  that  the  violation  was  willful  and  knowing.  As  we  describe 
 below,  Fax.  com  appears  to  have  engaged  in  a  pattern  of  deception  and  intimidation  to  conceal  its  involvement  in  sending  prohibited  faxes  47  and  to  frustrate  consumers  efforts  to  exercise  the 
 statutory  private  right  of  action. 


 46  Fax.  coms  website,  copyrighted  2000,  claims: 
 By  mid-  1999,  all  systems  were  in  place  with  an  initial  broadcasting  capacity  of  two  million  faxes  per  day.  Following  its  plan  to  continue  increasing  line  capacity  to  three  million  faxes  per  day  by 
 2001,  Fax.  com  is  well  on  its  way. 
 http://  www.  fax.  com/  company_  profile/  about.  asp  (website  accessed  May  29,  2002). 
 47  As  mentioned  above,  only  one  of  the  489  faxes  that  form  the  basis  for  this  NAL  identifies  Fax.  com  in  any 
 way.  Nonetheless,  Fax.  coms  various  toll-  free  opt-  out  numbers  appear  on  each  advertisement.  In  fact,  the  wording  of  the  opt-  out  notices,  and  the  fact  that  they  are  contained  on  advertisements  for  individual  entities,  clearly  convey 


 the  erroneous  impression  that  opt-  out  numbers  are  associated  with  individual  advertisers.  See,  e.  g.,  Advertisement  from  Y2  Marketing  to  D.  Leon  Taylor  (Oct.  16,  2001)  (  If  you  received  this  fax  in  error  and  would  like  to  have  your 
 number  removed  from  our  database,  call  toll-  free  at  800-  822-  9033;  Advertisement  from  eStock  Pick  of  the  Week  to  Robert  Isaac  Carr  (Jan.  9,  2002)  (  To  have  your  name  removed  from  our  database,  please  call  our  toll  free  service  at: 
 (800)-  331-  4510);  Advertisements  from  Central  Imaging  Supply  to  L.  (  Les)  R.  Docks  (Nov.  2  and  8,  2001)  (  To 
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 Federal  Communications  Commission  FCC  02-  226 
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 21.  We  have  obtained  evidence  that  Fax.  com  employee  Charles  Martin  filed  an  apparently  false  statement  regarding  his  employment  status  before  a  California  court  considering 
 a  consumers  section  227(  b)(  3)  claim  for  damages  against  Fax.  com  client  American  Benefit  Mortgage.  In  two  statements  filed  with  the  Los  Angeles  Superior  Court  and  signed  under 
 penalty  of  perjury,  Mr.  Martin  falsely  identifies  himself  both  as  Compliance  Manager  for  American  Benefit  Mortgage,  Inc.  and  as  Officer  of  the  Company  [American  Benefit  Mortgage] 
   Manager  of  Human  Resources.  48  Through  Mr.  Martins  false  claim  to  be  employed  by  a  client,  Fax.  com  subverts  the  judicial  decision-  making  process  and  skews  the  statutory  private 
 right  of  action  accorded  under  section  227  by  ensuring  that  the  court  does  not  have  an  accurate  record  upon  which  to  base  its  decision. 


 22.  We  have  also  obtained  letters,  signed  by  Mr.  Martin,  that  were  received  by  consumers  in  response  to  demand  letters  49  that  the  consumers  sent  to  Fax.  com  clients  seeking 
 to  obtain  monetary  damages  for  unsolicited  advertisements.  Mr.  Martins  letters  are  labeled  Inadmissible  Settlement  Communication,  and  state  that  the  consumers  that  fall  under  .  .  . 
 exceptions  .  .  .  to  receiving  facsimile  messages  under  47  U.  S.  C.  Section  227.  50  In  addition,  Mr.  Martin  warns  the  consumers  to  expect  countersuits  that  if  they  pursue  their  private  right  of 
 action  in  the  state  courts  where  they  reside: 
 If  you  pursue  this  matter  in  Virginia  our  company  will  seek  civil  and  criminal  charges  in  California.  51 


 have  your  number  removed  from  our  database,  please  call  our  automated  toll-  free  center  at  800-  457-  5410).  As  shown  in  Tables  2  and  3,  however,  opt-  out  numbers  are  not  assigned  uniquely  to  individual  advertisers.  These 
 tables  reveal  that  a  single  advertiser  may  be  associated  with  multiple  opt-  out  numbers  and  likewise  a  single  opt-  out  number  may  be  associated  with  multiple  advertisers. 


 48  Representative  Appearance  Declaration  Pursuant  to  CCP  116.540(  B)  signed  by  Charles  Martin  and  filed 
 in  Los  Angeles  Superior  Court  (Feb.  26,  2001,  Apr.  3,  2001).  According  to  Dun  &  Bradstreet,  Charles  Martin  is  not  an  officer  of  American  Benefit  Mortgage.  See  Dun  &  Bradstreet  Business  Information  Report  (June  7,  2002).  In 


 addition,  an  Enforcement  Bureau  staff  member  called  American  Benefit  Mortgages  automated  telephone  directory,  followed  instructions  to  press  keypads  to  spell  Mr.  Martins  name,  and  received  a  message  that  the  name  could  not 
 be  found  in  the  directory. 
 49  Demand  letters  are  a  popular  tool  among  TCPA  advocates  and  consumers  who  seek  to  self-  enforce  section 
 227  though  the  statutes  private  right  of  action.  In  such  demand  letters,  a  consumer  generally  complains  about  receiving  a  prohibited  advertisement,  asserts  the  private  right  of  action  to  recover  monetary  damages,  and  asks  the 


 advertiser  to  pay  a  specified  amount  to  avoid  being  sued  in  state  court.  We  do  not  suggest  that  any  advertiser  or  fax  broadcaster  is  obligated  to  accede  to  a  demand  letter  or  that  failure  to  do  so  somehow  indicates  an  alleged  violators 
 bad  faith. 
 50  See  Letter  from  Charles  Martin  to  Terry  P.  Carter  (Oct.  25,  2001)  (Carter  Letter);  Letter  from  Charles 
 Martin  to  Amy  K.  C.  Goebel  (Nov.  2,  2001)  (Goebel  Letter). 
 51  Carter  Letter. 
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 If  you  think  you  have  an  action  under  the  TCPA  then  file  it  in  New  Jersey.  I  will  then  pursue  civil  and  criminal  actions  against  you  in  the  California  Superior 
 Courts.  You  can  hire  local  legal  counsel  and  we  will  litigate  these  matters  with  a  jury  trial.  52 


 If  you  pursue  this  matter  in  Massachusetts  we  will  then  file  the  appropriate  actions  in  California  Superior  Court.  53 
 Mr.  Martin  does  not  identify  who  we  or  our  company  is,  and  there  is  no  information  on  the  face  of  the  letters  that  would  reveal  the  identity  of  Mr.  Martins  employer  or  the  corporate  entity 
 he  actually  represents.  54  In  two  cases,  however,  consumers  have  provided  us  with  photocopies  of  the  envelopes  in  which  Mr.  Martins  letters  arrived.  In  each  case,  the  return  address  shows  the 
 name  and  address  of  the  individual  advertisers  to  which  the  consumers  directed  their  demand  letters.  The  envelopes  also  show  a  metered  mail  stamp  indicating  that  the  letters  were  mailed 
 from  Aliso  Viejo,  California    Fax.  coms  corporate  headquarters    despite  the  fact  that  the  return  address  was  in  a  different  location.  55 


 23.  Fax.  coms  letters  are  troublesome  in  several  respects.  First,  Fax.  coms  apparent  deception  regarding  its  authorship  of  the  correspondence  appears  to  be  part  of  a  concerted  effort 
 to  discourage  private  enforcement  actions  against  Fax.  coms  individual  clients  while,  at  the  same  time,  concealing  Fax.  coms  potential  liability  for  the  violations.  In  addition,  the  letters  go 
 beyond  valid  legal  defenses  and  misrepresent  the  requirements  of  section  227(  b)(  1)(  C),  56  again 
 52  Letter  from  Charles  Martin  to  Richard  M.  Zelma  (Nov.  9,  2001)  (Zelma  Letter). 


 53  Goebel  Letter. 
 54  The  line  below  Mr.  Martins  name  simply  reads,  Compliance  Department.  See  Carter  Letter  (reference 
 line  refers  to  Advanced  Communications);  Goebel  Letter  (reference  line  refers  to  Advanced  Communications);  Letter  Zelma  Letter  (reference  line  refers  to  Colorjet,  Inc.). 


 55  The  envelope  for  the  Zelma  Letter  shows  a  return  address  for  Colojet,  Inc.  in  Louisville,  Kentucky  while 
 the  metered  postal  stamp,  PB8722193,  shows  that  the  envelope  was  mailed  from  Aliso  Viejo,  California.  Likewise,  the  envelope  for  the  Goebel  Letter  shows  a  return  address  for  Advanced  Communications  in  Long  Beach,  California 


 (located  in  Los  Angeles  County)  and  the  identical  metered  postal  stamp  number,  which  shows  that  the  envelope  was  mailed  from  Aliso  Viejo,  California  (located  in  Orange  County). 


 56  One  letter  states,  As  you  are  aware  there  are  three  exceptions  to  receiving  facsimile  messages  under  47 
 U.  S.  C.  Section  227.  You  fall  under  two  of  those  exceptions.  Carter  Letter.  In  reality,  there  is  one  exception  to  the  ban  on  faxing  unsolicited  advertisements:  when  the  recipient  has  given  prior  express  permission  or  invitation  to  send 


 the  advertisement.  47  U.  S.  C.    227(  b)(  1)(  C).  As  noted  above,  the  Commission  has  determined  that  an  established  business  relationship  between  the  fax  sender  and  recipient  constitutes  the  requisite  permission  or  invitation  to  fax. 
 See  para.  11,  supra.  Other  information  from  consumers  also  indicates  Mr.  Martins  deception  regarding  the  section  227(  b)(  1)(  C)  of  the  Act: 


 Mr.  Martin  has  continued  to  attempt  to  misinform  me  about  the  TCPA,  stating  at  various  times  that  Fax.  com  is  exempt  from  the  TCPA,  that  California  law  overrides  the  TCPA,  that  Fax.  com  was 
 a  non-  profit  organization  and  thus  exempt  from    227(  b)(  1)(  C),  that  Fax.  com  has  never  lost  a  case,  that  the  FCC  has  not  cited  Fax.  com,  etc. 
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 Federal  Communications  Commission  FCC  02-  226 
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 in  an  apparent  effort  to  convince  the  recipients  that  they  do  not  have  a  cause  of  action.  Finally,  the  letters  allude  to  retaliatory  and  possible  vexatious  court  actions  if  recipients  exercise  the 
 private  right  of  action  provided  by  section  227(  b)(  3).  57  Fax.  coms  obvious  attempts  to  thwart  consumers  statutory  private  right  of  action  threaten  the  effectiveness  of  the  unique  three-pronged 
 enforcement  mechanism  that  Congress  created  in  section  227. 
 24.  Fax.  coms  Marketing  of  Its  Fax  Broadcasting  Service.  The  record  indicates  that  Fax.  com  does  not  disclose  to  its  clients  the  broad  prohibition  on  faxing  unsolicited 
 advertisements  imposed  by  section  227  of  the  Act  and  our  rules  and  orders.  Fax.  coms  extensive  promotional  website  does  not  mention  section  227  at  all.  Information  on  the  website  creates  the 
 erroneous  impression  that  opt-  out  numbers  provide  the  only  recourse  for  consumers  who  object  to  receiving  unsolicited  fax  advertisements.  58  As  indicated  above,  federal  law  does  not  address 
 opt-  out  numbers  in  any  way  and  even  the  effective  use  of  such  numbers  in  no  way  mitigates  the  fact  that  every  unsolicited  fax  advertisement  violates  federal  law.  59  In  addition  to  deceiving 
 prospective  customers  by  omitting  crucial  information,  Fax.  com  apparently  has  affirmatively  misstated  federal  law  governing  unsolicited  facsimile  advertisements.  One  consumer  reports  a 
 conversation  with  a  Fax.  com  salesperson: 
 I  acted  hesitant  about  the  legality  of  the  whole  thing,  but  Mr.  Horvat  assured  me  that  Fax.  com  works  with  the  FCC  and  other  agencies  to  act  within  the  Federal 
 Guidelines.  He  further  stated  that  Fax.  com  includes  a  federally  required  opt-  out  number  at  the  bottom  of  the  fax  which  makes  sending  the  faxes  legal.  60 


 In  addition  to  subjecting  consumers  to  greater  numbers  of  unlawful  faxes,  Fax.  coms  deceptive  marketing  leaves  its  clients,  which  include  small  businesses,  vulnerable  to  federal,  state,  and 
 private  enforcement  actions  that  may  involve  substantial  monetary  penalties. 


 Letter  from  Mark  James,  Marketing  Power,  Inc.  to  Yanic  Hardie,  FCC  (Apr.  2,  2001)  (James  Letter). 
 57  One  consumer  has  alleged  that  he  was  a  victim  of  such  a  retaliatory  lawsuit.  Richard  Zelma,  a  well-  known 
 TCPA  advocate,  claims  that  Charles  Martin  falsely  swore  out  a  complaint  in  the  state  of  New  Jersey  charging  Mr.  Zelma  with  harassment.  State  of  New  Jersey  v.  Richard  Zelma,  Norwood  Municipal  Court  Summons  No.  S-  2001- 


 000002-  0241,  File  No.  8875.1000  (Jan.  23,  2001).  The  case  was  dismissed  for  failure  to  prosecute.  The  claims  made  by  Mr.  Zelma  and  Mr.  Martin  are  moot,  and  in  any  event,  would  not  be  properly  before  this  Commission;  we 
 therefore  take  no  position  on  the  validity  of  such  claims. 
 58  See  http://  www.  fax.  com/  Customer_  support/  FAQs.  asp  (website  accessed  May  29,  2002)  (  Q:  Do 
 prospective  clients  complain  about  receiving  the  faxes?  A:  If  someone  does  not  want  to  receive  any  more  faxes,  there  is  an  800  number  at  the  bottom  of  each  and  every  fax  sent  through  Fax.  com  that  an  individual  can  call  to  have 


 the  fax  number  removed  from  your  campaign  list.) 
 59  See  note  25,  supra.  We  note  that  the  broad  federal  prohibition  on  faxing  unsolicited  advertisements  applies 
 to  both  interstate  and  intrastate  transmissions.  See  47  U.  S.  C.    152(  b)  (section  227,  inter  alia,  is  not  subject  to  the  provision  that  generally  excludes  Commission  jurisdiction  over  intrastate  matters);  47  U.  S.  C.    227(  e)  (section  227 


 does  not  preempt  state  law  that  imposes  more  restrictive  intrastate  requirements). 
 60  James  Letter. 
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 25.  Fax.  coms  Dealings  with  the  Commission.  Fax.  com  has  not  been  forthcoming  in  its  dealings  with  the  Commission.  The  staffs  citations  directed  Fax.  com  to  describe  in  detail  its 
 involvement  in  providing,  compiling,  generating,  or  editing  distribution  lists  of  telephone  facsimile  numbers  used  to  transmit  advertisements  on  behalf  of  clients.  Specifically,  the  staff 
 asked 
 Does  your  company  employ  or  compensate  any  individuals  or  entities  outside  the  company,  including  any  tax-  exempt  nonprofit  organizations,  for  any  service, 
 activity,  assistance,  or  facilities  used  in  connection  with  your  companys  providing,  compiling,  generating,  or  editing  of  such  [distribution]  lists?  Please 
 describe  such  arrangements  in  detail. 
 Initially,  Fax.  com  suggests  that  the  staffs  inquiry  appear[  s]  to  be  completely  irrelevant  and  immaterial  to  the  violations  alleged  in  the  Citations.  61  The  Commission,  however,  has  broad 
 authority  and  discretion  to  investigate  conduct  under  its  jurisdiction  62  and  to  conduct  its  proceedings  in  such  manner  as  will  best  conduce  the  proper  dispatch  of  business  and  to  the  ends 
 of  justice.  63  Despite  its  reservations,  Fax.  com  nonetheless  purports  to  substantively  answer  the  staffs  question,  summarily  stating  that  it  uses  its  own  research  methods  as  one  means  of 
 compiling  its  facsimile  number  database.  64  In  addition,  Fax.  com  states,  Fax.  com  does  not,  to  its  knowledge,  employ  or  compensate  any  tax-  exempt  non  profit  organization(  s)  in  connection  with 
 Fax.  coms  business,  including  the  providing,  compiling,  generating  or  editing  of  distribution  list(  s)  of  telephone  numbers.  65  By  limiting  its  answer  to  tax-  exempt  nonprofit  entities,  Fax.  com 
 has  failed  to  answer  the  staffs  inquiry,  which  clearly  sought  information  pertaining  to  any  individuals  or  entities  outside  the  company,  including  any  tax-  exempt  nonprofit  organizations.  66 
 Despite  the  staffs  warning  that  the  concealment  of  any  material  fact  is  punishable  by  fine  or  imprisonment,  67  Fax.  com  did  not  disclose  to  the  Commission  its  remunerative  relationship  with 
 at  least  one  individual  who  apparently  housed  automatic  telephone  dialing  equipment  that  Fax.  com  used  to  war  dial  massive  blocks  of  telephone  numbers  to  determine  which  numbers 
 belong  to  telephone  facsimile  machines.  68 
 61  January  31  Response  at  29;  June  1  Response  at  29-  30;  June  21  Response  at  28-  29. 
 62  47  U.  S.  C.    403  provides  that  [  t]  he  Commission  shall  have  full  authority  and  power  at  any  time  to  institute 
 an  inquiry,  on  its  own  motion,  in  any  case  and  as  to  any  matter  or  thing  .  .  .  concerning  which  any  question  may  arise  under  any  provisions  of  this  Act,  or  relating  to  the  enforcement  of  any  of  the  provisions  of  this  Act. 


 63  47  U.  S.  C.    154(  j). 
 64  See  January  31  Response  at  29;  June  1  Response  at  30;  June  11  Response  at  29. 
 65  Id.  (emphasis  added). 
 66  Fax.  com  Citations  at  2  (emphasis  added). 
 67  Id. 
 68  In  this  context,  war  dialing  uses  automated  equipment  to  dial  telephone  numbers,  generally  sequentially, 
 and  software  to  determine  whether  each  number  is  associated  with  a  fax  or  voice  line.  In  April  2000,  the  state  of 
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 26.  Maximum  Forfeiture  Is  Warranted.  Fax.  coms  pervasive  and  egregious  pattern  of  deception  confirms  our  determination  that  the  maximum  forfeiture  amount  is  warranted  for  each 
 violation  set  forth  in  Table  1.  The  record  here  shows  that  even  after  the  staff  notified  Fax.  com  that  its  actions  violated  the  Act  and  the  Commissions  rules  and  orders,  Fax.  com  continued  its 
 massive  unlawful  enterprise.  The  Forfeiture  Policy  Guidelines  provide  for  upward  adjustments  to  the  maximum  statutory  forfeiture  amount  in  cases  such  as  this  which  involve  egregious 
 misconduct  and  intentional  violation.  69  Accordingly,  based  on  the  nature  and  gravity  of  Fax.  coms  conduct  and  the  continued  need  to  ensure  compliance  with  section  227(  b)(  1)(  C)  of  the 
 Act,  we  find  Fax.  com  apparently  liable  in  the  amount  of  $11,000  for  each  of  489  violations.  This  results  in  a  proposed  total  forfeiture  of  $5,379,000.  Fax.  com  shall  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.  70 


 IV.  CONCLUSION  AND  ORDERING  CLAUSES 
 27.  We  have  determined  that  Fax.  com  apparently  violated  section  227  of  the  Act  and  the  Commissions  rules  and  orders  by  using  a  telephone  facsimile  machine,  computer,  or  other 
 device  to  send  the  489  unsolicited  advertisements  identified  in  Table  1  and  discussed  above.  We  have  further  determined  that  Fax.  com  is  apparently  liable  for  forfeitures  in  the  amount  of 
 $5,379,000. 
 28.  Accordingly,  IT  IS  ORDERED,  pursuant  to  section  503(  b)(  5)  of  the  Act,  as  amended,  47  U.  S.  C.    503(  b)(  5),  and  section  1.  80  of  the  Commissions  rules,  47  C.  F.  R.    1.80, 
 that  Fax.  com,  Inc.  IS  HEREBY  NOTIFIED  of  an  Apparent  Liability  for  Forfeiture  in  the  amount  of  $5,379,000  for  willful  or  repeated  violations  of  section  227(  b)(  1)(  C)  of  the  Act,  47  U.  S.  C.   


 Washington  entered  into  a  consent  decree  with  Fax.  com  to  settle  its  complaint  alleging  that  this  war-  dialing  scheme  had  resulted  in  a  barrage  of  calls  to  telephone  lines  at  the  University  of  Washington  Medical  Center,  including  lines 
 for  emergency  services  and  patient  rooms,  in  violation  of  section  227(  a)(  1)(  A)  of  the  Act  and  section  64.  1200(  a)(  1)  of  our  rules.  State  of  Washington  v.  Fax.  com,  Inc.,  No.  C01-  0369  (W.  D.  Wash.  May  13,  2001)  (consent  decree 
 permanently  enjoining  Fax.  com  from,  inter  alia,  using  automated  dialing  equipment  to  call  any  hospital  patient  room  or  emergency  medical  telephone  number  within  Washington  state  and  providing  for  $90,  000  payment  to  the 
 state  in  civil  penalties,  damages,  and  attorneys  fees).  We  recognize  that  although  Fax.  com  has  agreed  to  an  injunction  and  monetary  payment,  it  does  not  admit  the  allegations  in  Washingtons  complaint.  We  do  not  address 
 or  pass  judgment  on  all  aspects  of  Fax.  coms  conduct  in  this  regard,  which,  in  any  event,  is  beyond  the  statute  of  limitations  set  by  the  Act.  Nonetheless,  we  need  not  ignore  materials  that  document  an  arrangement  whereby 
 Fax.  com  paid  an  individual  to  house  and  operate  the  war-  dialing  equipment.  See  Participation  Agreement  between  Fax  Broadcast  Systems  and  Mike  Salvus  (Apr.  4,  2000)  (providing  for  Mr.  Salvuss  agreement  to  house  in  his 
 residence  war-  dialing,  or  casting,  equipment  as  part  of  Fax  Broadcast  Systems  Fax  Broadcast  Placement  Program);  Dear  Participant  Form  Letter  from  Paul  L.  Stanton,  Fax  Broadcast  Systems  (Mar.  30,  2000) 
 (informing  recipients  that  Fax.  com  has  taken  over  from  Fax  Broadcast  Systems,  payments  to  participants  in  the  fax  broadcast  placement  program).  In  light  of  this  information,  it  is  clear  that  Fax.  com  did  not  honestly  answer  the 
 staffs  questions.  We  do  not  address  here  possible  sanctions  against  Fax.  com  for  its  concealment. 
 69  Forfeiture  Policy  Statement,  12  FCC  Rcd  at  17,101. 


 70  See  47  U.  S.  C.    503(  b)(  4)(  C);  47  C.  F.  R.    1.80(  f)(  3). 
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 Federal  Communications  Commission  FCC  02-  226 
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 227(  b)(  1)(  C),  and  section  64.1200(  a)(  3)  of  the  Commissions  rules,  47  C.  F.  R.    64.1200(  a)(  3),  and  the  related  orders  described  in  the  paragraphs  above. 
 29.  IT  IS  FURTHER  ORDERED,  pursuant  to  section  1.80  of  the  Commissions  rules,  47  C.  F.  R.    1.80,  that  within  thirty  (30)  days  of  the  release  of  this  Notice,  Fax.  com,  Inc.  SHALL 
 PAY  the  full  amount  of  the  proposed  forfeiture  71  OR  SHALL  FILE  a  response  showing  why  the  proposed  forfeiture  should  not  be  imposed  or  should  be  reduced. 


 30.  IT  IS  FURTHER  ORDERED  that  a  copy  of  this  Notice  of  Apparent  Liability  for  Forfeiture  SHALL  BE  SENT  by  certified  mail  to  Kevin  Katz,  President,  Fax.  com,  Inc.,  120 
 Columbia  Street,  Suite  500,  Aliso  Viejo,  California  92656. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Marlene  H.  Dortch  Secretary 


 71  The  forfeiture  amount  should  be  paid  by  check  or  money  order  drawn  to  the  order  of  the  Federal 
 Communications  Commission.  Reference  should  be  made  on  Fax.  com,  Inc.  s  check  or  money  order  to  NAL/  Acct/  No.  200232170004.  Such  remittances  must  be  mailed  to  Forfeiture  Collection  Section,  Finance  Branch,  Federal 


 Communications  Commission,  P.  O.  Box  73482,  Chicago,  Illinois  60673-  7482. 
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