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Modena Advertising, Inc

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Released: December 31, 1969

Federal Communications Commission

DA 09-558

Before the

Federal Communications Commission

Washington, D.C. 20554

)
In the Matter of
)
File No. EB-06-TC-140
)
Modena Advertising, Inc.
)
NAL/Acct. No. 200832170055
d/b/a Extravacations.com
)
FRN: 0017853235
d/b/a Modena Mortgage Solutions
)
d/b/a Modena International Advertising
)

FORFEITURE ORDER

Adopted: March 9, 2009

Released: March 10, 2009

By the Chief, Enforcement Bureau:

I.

INTRODUCTION

1.
In this Forfeiture Order ("Order"), we issue a monetary forfeiture in the amount of
$18,000 against Modena Advertising, Inc., d/b/a Extravacations.com, d/b/a Modena Mortgage Solutions,
d/b/a Modena International Advertising ("Modena ") for willful or 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 four unsolicited advertisements to the telephone facsimile machines of at least four
consumers.

II.

BACKGROUND

2.
The facts and circumstances surrounding this case are set forth in the Commission's
Notice of Apparent Liability for Forfeiture3 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 also 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 See Modena Advertising, Inc., Notice of Apparent Liability for Forfeiture, 23 FCC Rcd. 9246 (2008)("NAL").
4 47 U.S.C. 227(b)(1)(C); 47 C.F.R. 64.1200(a)(3).

Federal Communications Commission

DA 09-558

goods, or services which is transmitted to any person without that person's prior express invitation or
permission in writing or otherwise."5 Under the Commission's rules, an "established business
relationship"6 exception permits a party to deliver a message to a consumer if the sender has an
established business relationship with the recipient and the sender obtained the number of the facsimile
machine through the voluntary communication by the recipient, directly to the sender, within the context
of the established business relationship, or through a directory, advertisement, or a site on the Internet to
which the recipient voluntarily agreed to make available its facsimile number for public distribution.7
4. On August 31, 2006, in response to one or more consumer complaints alleging that
Modena had faxed unsolicited advertisements, the Enforcement Bureau ("Bureau") issued a citation8 to
Modena, pursuant to section 503(b)(5) of the Act.9 The Bureau cited Modena for using a telephone
facsimile machine, computer, or other device, to send unsolicited advertisements for vacation packages,
in violation of section 227 of the Act and the Commission's related rules and orders. The citation warned
Modena 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 Modena that within 30 days of the date of the citation, it could either request an
interview with Commission staff, or could provide a written statement responding to the citation.
Modena did not request an interview or otherwise respond to the citation.

5.
Following the issuance of the citation, the Commission received at least four complaints
from consumers alleging that Modena faxed at least four unsolicited advertisements to them. These
violations, which occurred after the Bureau's citation, resulted in the issuance of a Notice of Apparent
Liability for Forfeiture against Modena on June 12, 2008 in the amount of $18,000.11 The NAL ordered
Modena to either pay the proposed forfeiture amount within thirty (30) days or 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. Modena did not respond to the NAL or pay the proposed forfeiture amount.

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-


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-06-TC-140, issued to Modena Mortgage Solutions dba Extravacations and Modena Advertising, Inc. on
August 31, 2006.
9 See 47 U.S.C. 503(b)(5) (authorizing the Commission to issue citations to persons who do not hold a license,
permit, certificate or other authorization issued by the Commission or an applicant for any of those 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: Modena Mortgage Solutions dba Extravacations.com,
41120 Elm Street, Murrieta, CA 92562, and Modena Advertising, Inc., 26945 Cabot Rd., Laguna Hills, CA 92653-
7009, Attention: Debo Oke.

11 See n.3 supra; see also 47 U.S.C. 503(b)(1).
2

Federal Communications Commission

DA 09-558

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 We apply that base amount to each of the four
apparent violations.
8.
Modena did not respond to the NAL or pay the proposed forfeiture amount. Modena 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 further mitigating circumstances sufficient to warrant a reduction
of the forfeiture penalty. For these reasons, and based on the information before us, we hereby impose a
total forfeiture of $18,000 for Modena's willful or repeated violation of section 227 of the Act and the
Commission's related rules and orders, as set forth in the NAL.

IV.

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), and under authority delegated by sections 0.111, 0.311 of the Commission's rules, 47 C.F.R.
0.111, 0.311, that Modena Advertising, Inc. IS LIABLE FOR A MONETARY FORFEITURE to the
United States Government the sum of $18,000 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

DA 09-558

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). Modena will also send electronic notification on the date said
payment is made to Johnny.drake@fcc.gov. Requests for full payment under an installment plan should
be sent to: Chief Financial Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. Please contact the Financial Operations Group Help Desk at 1-877-480-3201
or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
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 Modena Advertising, Inc., d/b/a
Extravacations.com, d/b/a Modena Mortgage Solutions, d/b/a Modena International Advertising,
41120 Elm Street, Murrieta, CA 92562; 26945 Cabot Rd., Laguna Hills, CA 92653; and 23905 Clinton
Keith Road, Suite 114, Wildomar, CA 92595, Attention: Debo Oke.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau


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

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