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Atlas Advertising, Inc

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Released: October 20, 2010

Federal Communications Commission

FCC 10-168

Before the

Federal Communications Commission

Washington, D.C. 20554

)
In the Matter of
)
File No. EB-07-TC-1259
)
Atlas Advertising, Inc.
)
NAL/Acct. No. 200832170070
)
)

FRN: 0017835091

FORFEITURE ORDER

Adopted: September 16, 2010


Released: September 28, 2010

By the Commission:

I.

INTRODUCTION

1.
In this Forfeiture Order ("Order"), we issue a monetary forfeiture in the amount of
$45,000 against Atlas Advertising, Inc. ("Atlas") for willful and repeated violations of section 227 of the
Communications Act of 1934, as amended ("Act"),1 and the Commission's related rules and orders,2 by
delivering at least ten unsolicited advertisements to the telephone facsimile machines of at least ten
consumers.

II.

BACKGROUND

2.
This Forfeiture Order arises from two distinct Notices of Apparent Liability for
Forfeiture3 that were issued against Atlas. The facts and circumstances surrounding these cases are set
forth in the NALs and need not be reiterated at length.
3.
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,


1 47 U.S.C. 227.
2 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).
3 Atlas Advertising, Inc, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 8774 (Enf. Bur. 2008); Atlas
Advertising, Inc,
Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 13753 (2008) (collectively "NALs").
4 47 U.S.C. 227(b)(1)(C); 47 C.F.R. 64.1200(a)(3).

Federal Communications Commission

FCC 10-168

goods, or services which is transmitted to any person without that person's prior express invitation or
permission in writing or otherwise."5 There is, however, an exception to the Commission's rule that
permits a party to deliver unsolicited advertisements to persons with whom it has an established business
relationship6 if certain conditions are met (i.e., the sender obtained the number of the facsimile machine
either (i) through a voluntary communication by the recipient directly to the sender within the context of
the established business relationship, or (ii) through a directory, advertisement, or site on the Internet to
which the recipient voluntarily agreed to make available its facsimile number for public distribution).7

4.
On April 9, 2007, in response to one or more consumer complaints alleging that Atlas
had faxed unsolicited advertisements, the Enforcement Bureau ("Bureau") issued a citation8 to Atlas,
pursuant to section 503(b)(5) of the Act.9 The Bureau cited Atlas for using a telephone facsimile
machine, computer, or other device, to send unsolicited advertisements for factory unclaimed buildings,
in violation of section 227 of the Act and the Commission's related rules and orders. The citation warned
Atlas 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 Atlas that within thirty (30) days of the date of the citation, it could either request an
interview with Commission staff, or provide a written statement responding to the citation. Atlas did not
request an interview or otherwise respond to the citation.
5.
Following the issuance of the citation, the Commission received complaints from ten
consumers alleging that Atlas faxed at least ten unsolicited advertisements to them. These violations,
which occurred after the Bureau's citation, resulted in the issuance of two Notices of Apparent Liability
for Forfeiture against Atlas, one on June 6, 2008, in the amount of $4,500, and one on September 17,
2008, in the amount of $40,500.11 The NALs ordered Atlas to either pay the proposed forfeiture amounts
within thirty (30) days or submit evidence or arguments in response to the NALs to show that no
forfeitures should be imposed or that some lesser amounts should be assessed. Atlas did not respond to
the NALs or pay the proposed forfeiture amounts.


5 See 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." See 47 U.S.C. 227(a)(2); see also 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-1259, issued to Atlas on April 9, 2007.
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 Bureau staff mailed the citation to the following address: Atlas Advertising, Inc., Attn: George Poelcher, 310
Bridge Street, Beaver, PA 15009.
11 See n.3, supra; see also 47 U.S.C. 503(b)(1).
2

Federal Communications Commission

FCC 10-168

III. DISCUSSION

6.
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, 2008.12 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."13
7.
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.14 In the NALs, we applied that base amount to the ten
apparent violations.
8.
Atlas did not respond to the NALs or pay the proposed forfeiture amounts. Atlas has
failed to identify facts or circumstances to persuade us that there is a basis for modifying the proposed
forfeiture, and we are not aware of any mitigating circumstances that would warrant a reduction of the
forfeiture penalties. For these reasons, and based on the information before us, we hereby impose a total
forfeiture of $45,000 for Atlas's willful and repeated violation of section 227 of the Act and the
Commission's related rules and orders, as set forth in the NALs.

III.

ORDERING CLAUSES

9.
Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Communications Act of
1934, as amended, 47 U.S.C. 503(b), and section 1.80(f)(4) of the Commission's rules, 47 C.F.R.
1.80(f)(4), that Atlas Advertising, Inc. IS LIABLE FOR A MONETARY FORFEITURE to the United
States Government in the sum of $45,000 for willfully and repeatedly violating 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 as described in the paragraphs above.


12 Section 503(b)(2)(C) provides for forfeitures of 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).
13 See 47 U.S.C. 503(b)(2)(D); see also 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).
14 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).
3

Federal Communications Commission

FCC 10-168

10.
Payment of the forfeiture shall be made in the manner provided for in section 1.80 of the
Commission's rules within thirty (30) days of the release of this Order. If the forfeiture is not paid within
the period specified, the case may be referred to the Department of Justice for collection pursuant to
section 504(a) of the Act.15 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). Atlas Advertising, Inc. will also send electronic notification to
Johnny.Drake@fcc.gov on the date said payment is made. 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.
11.
IT IS FURTHER ORDERED that a copy of the Forfeiture Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Atlas Advertising, Inc., Attention: George
Poelcher, 310 Bridge Street, Beaver, PA 15009; 310 Bridge Street, W. Bridgewater, PA 15009 and 109
Pleasant Drive, Aliquippa, PA 15001.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary


15 47 U.S.C. 504(a).
4

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