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Five Star Advertising, Inc., Forfeiture Order

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Released: January 5, 2012

Federal Communications Commission

FCC 12-2

Before the

Federal Communications Commission

Washington, D.C. 20554

)
In the Matter of
)
File No.: EB-07-TC-13323
)
Five Star Advertising, Inc.
)
NAL/Acct. No.: 20093217006
)
)

FRN: 0018271494

FORFEITURE ORDER

Adopted: January 4, 2012

Released: January 5, 2012
By the Commission:

I.

INTRODUCTION

1.
In this Forfeiture Order (“Order”), we issue a monetary forfeiture in the amount of
$64,000 against Five Star Advertising, Inc. (“Five Star”) for willful and repeated violations of section
227(b)(1)(C) of the Communications Act of 1934, as amended (“Act”),1 and section 64.1200(a)(3) of the
Commission’s rules,2 by delivering 13 unsolicited advertisements, or “junk faxes,” to the telephone
facsimile machines of 12 consumers.

II.

BACKGROUND

2.
The facts and circumstances surrounding this case are set forth in the Commission’s
Notice of Apparent Liability for Forfeiture (“NAL”)3 and need not be reiterated at length.
3.
The Telephone Consumer Protection Act of 1991 (TCPA) was enacted by Congress to
address problems of abusive telemarketing, in particular junk faxes.4 Unsolicited faxes often impose
unwanted burdens on the called party, including costs of paper and ink, and making fax machines
unavailable for legitimate business messages. 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.”5



1 47 U.S.C. § 227(b)(1)(C).
2 47 C.F.R. § 64.1200(a)(3).
3 Five Star Advertising, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd 17699 (2008).
4 Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, 105 Stat. 2394, codified at 47 U.S.C. § 227.
See also Junk Fax Prevention Act of 2005, Pub. L. No. 109-21, 119 Stat. 359.
5 47 U.S.C. § 227(b)(1)(C). The prohibition is subject to certain exceptions, such as if the sender has an “established
business relationship” (“EBR”) with the recipient; and the sender obtained the facsimile number from the recipient
through voluntary communication in the context of an EBR, or from a directory, advertisement, or website where
the recipient voluntarily and publicly provided its facsimile number. In addition, the unsolicited ad must notify the
recipient how to opt out of receiving future such ads, and do so in compliance with certain requirements. The
Commission has adopted implementing requirements. 47 C.F.R. § 64.1200(a)(3).

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FCC 12-2

4.
Pursuant to section 503(b)(5) of the Act,6 the Enforcement Bureau (“Bureau”) issued a
junk fax citation7 to Five Star on October 30, 2007 in response to one or more consumer complaints
alleging that Five Star had faxed unsolicited advertisements. Five Star did not respond to this citation.
5.
Subsequently, the Commission received 12 additional complaints from consumers
alleging that Five Star had faxed 13 unsolicited advertisements to them. These violations, which occurred
after the Bureau’s citation, between December 3, 2007 and March 26, 2008, resulted in the issuance of an
NAL against Five Star on November 26, 2008 in the amount of $64,000.8 The NAL ordered Five Star
either to pay the proposed forfeiture amount within thirty (30) days or to submit evidence or arguments in
response to the NAL to show that no forfeiture should be imposed or that some lesser amount should be
assessed.
6.
On December 16, 2008, Five Star responded to the NAL by letter, requesting an
opportunity to demonstrate that it did not violate section 227(b)(1)(C) of the Act, and arguing that the
“few isolated and unsubstantiated complaints over a multiple year time period do not justify the [NAL] or
any payment.”9 Five Star also requested copies of the complaints.10 On November 5, 2009, Bureau staff
sent copies of the Commission’s citation, the NAL, and the complaints associated with each of these
actions.11 The Bureau directed that Five Star submit any further response, including any supporting
information and documents, no later than December 10, 2009.12 Five Star did not respond to this letter or
pay the proposed forfeiture amount.

III. DISCUSSION

7.
After we first issue a citation to an entity, as we have in this case, section 503(b) of the
Act authorizes the Commission to assess a forfeiture for each subsequent violation of the Act or of any
rule, regulation, or order issued by the Commission under the Act.13 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.”14
8.
We find Five Star has presented no basis for reducing or eliminating the $64,000
forfeiture proposed in the NAL. Although the Bureau provided Five Star with copies of the complaints


6 47 U.S.C. § 503(b)(5) (requiring the Commission, before assessing a forfeiture against any person who does not
hold, or is not an applicant for, a license, permit, certificate, or other authorization issued by the Commission, to
issue a citation to such person for any violation of the Act or of the Commission’s rules).
7 Citation from Kurt A. Schroeder, Deputy Chief, Telecommunications Consumers Division, Enforcement Bureau,
File No. EB-07-TC-13323, issued to Five Star on October 30, 2007.
8 See supra note 3. The NAL was sent to Five Star’s address of record.
9 Letter from William B. Hayes, Esq., counsel for Five Star Advertising, Inc., to Office of the Secretary, dated
December 16, 2008.
10 Id.
11 Letter from Daniel Grosh, Telecommunications Consumers Division, to William B. Hayes, Esq., counsel for Five
Star Advertising, Inc., November 5, 2009.
12 Id.
13 47 U.S.C. § 503(b).
14 See 47 U.S.C. § 503(b)(2)(E); 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).
2

Federal Communications Commission

FCC 12-2

against it and allowed additional time to respond to the specific allegations contained in those complaints,
Five Star failed to take advantage of the opportunity it requested to demonstrate that it did not violate the
Commission’s junk fax rules. Further, Five Star’s argument that it should not be penalized because its
violations were few, isolated, and unsubstantiated is unpersuasive. Five Star effectively concedes that it
sent the complained-of faxes, and the complaints indicate that Five Star continued to send multiple junk
faxes over a period of about four months even after it was expressly warned by the citation of the
penalties for such unlawful acts. Accordingly, we affirm our proposed findings in the NAL that Five Star
violated the Act and our rules on 13 separate occasions.
9.
Further, Five Star presents no legal or factual reason for reducing or eliminating the
standard base forfeiture amounts proposed in the NAL. For example, it makes no showing of any relevant
factors such as inability to pay. We therefore impose a total forfeiture of $64,000 for Five Star’s willful
and repeated violation of section 227(b)(1)(C) of the Act and section 64.1200(a)(3) of the Commission’s
rules, as set forth in the NAL.

III.

ORDERING CLAUSES

10.
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 Five Star Advertising Inc.

IS LIABLE FOR A MONETARY FORFEITURE

to the
United States Government in the sum of $64,000 for willfully and repeatedly violating section
227(b)(1)(c) of the Communications Act, 47 U.S.C. § 227(b)(1)(c), and section 64.1200(a)(3) of the
Commission’s rules, 47 C.F.R. § 64.1200(a)(3).
11.
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 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). Five Star 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.


15 47 U.S.C. § 504(a).
3

Federal Communications Commission

FCC 12-2

12.

IT IS FURTHER ORDERED

that a copy of this Order shall be sent by First Class Mail
and Certified Mail Return Receipt Requested to Five Star Advertising, Inc., Attention: Jane Eunsook Lee,
6247 El Diente Peak Place, Castle Rock, CO 80108-9470.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
4

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