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Tim Gibbons and United Employee Benefits, LLC, NAL

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Released: September 4, 2012

Federal Communications Commission

FCC 12-98

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
File No.: EB-TCD-12-000002341
)
Tim Gibbons
)
NAL/Acct. No.: 201232170005
)
United Employee Benefits Group, United
)
FRN: 0021538509
Employee Benefits, United Benefits, f/k/a
)
Benchmark Mortgage, National Employee
)
Benefits Group
)
)
United Employee Benefits, LLC
)
)
Apparent Liability for Forfeiture
)
)

NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: September 4, 2012

Released: September 4, 2012

By the Commission:

I.

INTRODUCTION

1.
In this Notice of Apparent Liability for Forfeiture (NAL), we find that Tim Gibbons,
operating as United Benefits, United Employee Benefits (UEB), and United Employee Benefits Group
(UEBG), all formerly known as Benchmark Mortgage or National Employee Benefits Group (NEBG),
independently and together with United Employee Benefits, LLC, apparently willfully and repeatedly
violated Section 227(b)(1)(C) of the Communications Act of 1934, as amended (the Communications Act
or Act), and Section 64.1200(a)(4) of the Commission’s rules, by sending 99 unsolicited advertisements,
or “junk faxes,” to the telephone facsimile machines of 87 consumers.2 Based on the facts and
circumstances surrounding these apparent violations, we find that Tim Gibbons and United Employee
Benefits, LLC, are apparently jointly and severally liable for a forfeiture in the amount of $1,584,000.


1 This case was formerly assigned the file number EB-10-TC-478. In January 2011, the Telecommunications
Consumers Division reassigned this case the number set forth in the caption.
2 See 47 U.S.C. § 227(b)(1)(C);47 C.F.R. § 64.1200(a)(4) (formerly codified at 47 C.F.R. § 64.1200(a)(3)). In
February 2012, the Commission amended the rules governing prerecorded advertising calls and, as a result, largely
renumbered 47 C.F.R. § 64.1200. Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991, Report and Order, 27 FCC Rcd 1830 (2012). Although the new prerecorded call provisions have not yet taken
effect pending approval by the Office of Management and Budget, renumbering became effective on July 11, 2012.
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 77 Fed. Reg. 34233-01 (June
11, 2012) (to be codified at 47 C.F.R. pt. 64). Accordingly, rules governing the use of telephone facsimile machines
to send unsolicited advertisements have been changed from Section 64.1200(a)(3) to 64.1200(a)(4). See also Rules
and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order and Third Order
on Reconsideration, 21 FCC Rcd 3787 (2006).

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FCC 12-98

II.

BACKGROUND

2.
The Telephone Consumer Protection Act of 1991 was enacted by Congress to address
problems of abusive telemarketing, including junk faxes.3 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 thus 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
3.
On October 22, 2010, in response to a consumer complaint alleging that NEBG had faxed
an unsolicited advertisement, the Enforcement Bureau (Bureau) issued a citation to NEBG and
Benchmark Mortgage dba NEBG pursuant to Section 503(b)(5) of the Act.5 The Bureau cited NEBG and
Benchmark Mortgage dba NEBG for using a telephone facsimile machine, computer, or other device, to
send an unsolicited advertisement for financial services to a telephone facsimile machine in violation of
Section 227(b)(1)(C) of the Act and Section 64.1200(a)(4) of the Commission’s rules.6 The citation was
directed to the attention of Tim Gibbons, president and contact person for NEBG, and expressly warned
him that future violations of the Act and the Commission’s rules governing telephone solicitations and
unsolicited advertisements “may subject you and your company to monetary forfeitures.” The citation
informed the recipients that within 30 days of the date of the citation, they could either request an
interview with Commission staff, or provide a written statement responding to the citation. The
Commission never received any response.7
4.
Despite the citation’s warning that subsequent violations could result in the imposition of
monetary forfeitures, we received numerous complaints from consumers alleging that NEBG had faxed
additional unsolicited advertisements to them. On February 29, 2012, the Commission issued an NAL in
the amount of $603,000 against NEBG,8 and Mr. Gibbons in his personal capacity,9 based on complaints


3 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 (2005) (Junk Fax Act).
4 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 on which
the recipient voluntarily made its facsimile number available for public distribution. In addition, the unsolicited
advertisement must notify the recipient of how to opt out of receiving future such ads, subject to certain
requirements. The Commission has adopted implementing rules. See 47 C.F.R. § 64.1200(a)(4).
5 See 47 U.S.C. § 503(b)(5).
6 Citation from Joshua P. Zeldis, Assistant Division Chief, Telecommunications Consumers Division, Enforcement
Bureau, File No. EB-10-TC-478, issued to National Employee Benefits Group and Benchmark Mortgage dba
National Employee Benefits Group, on October 22, 2010.
7 Our records indicate that National Employee Benefits Group acknowledged receipt of the citation, as evidenced by
a signed United States Postal Service return receipt, Article Number 7008 0500 0000 9339 3528 (National
Employee Benefits Group, Attn.: Tim Gibbons, President, 795 Folsom Street, 1st Floor, San Francisco, CA 94107).
8 National Employee Benefits Group, Notice of Apparent Liability for Forfeiture, 27 FCC Rcd 2734 (2012)
(February 2012 NAL). Our records indicate that National Employee Benefits Group acknowledged receipt of the
February 2012 NAL, as evidenced by a signed United States Postal Service return receipt, Article Number 7007
2560 001 6093 7751 (2800 Post Oak Blvd., Suite 4100, Houston, TX 77056), as well as evidence of another signed
United States Postal Service return receipt, Article Number 7007 2560 001 7744 (8871 West Flamingo Road, Suite
202, Las Vegas, NV 89147).
9 February 2012 NAL, 27 FCC Rcd 2734, n.1.
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FCC 12-98

filed by 79 consumers alleging 97 violations of our junk fax rules. The February 2012 NAL ordered the
respondents either to pay the proposed forfeiture amount within 30 days or to submit evidence or
arguments to show that no forfeiture should be imposed or that some lesser amount should be assessed.
Although counsel for Mr. Gibbons originally sought and obtained an extension of time to respond to the
February 2012 NAL, neither Mr. Gibbons nor his counsel nor NEBG ultimately provided any substantive
response.10
5.
As the Commission neared release of the February 2012 NAL, and the Bureau continued
to develop other investigations, staff identified complaints against “United Employee Benefits” or
“United Employee Benefits Group” about unsolicited faxes, which were similar in many respects to the
faxes sent by NEBG. For example, faxes appearing to come from NEBG and UEB/UEBG have the same
layout and are styled as office memoranda directed to “all employees” about financial “assistance” or
“relief” programs, and offer such employees “0% interest” on “restructured” credit card programs, a
reduction of their card debt payments by 60% or more, and a waiver of certain fees if a designated claim
number or code is used when ordering the service.11 Altogether, Bureau staff identified complaints filed
by 87 consumers alleging that UEB/UEBG sent 99 additional unsolicited advertisements to telephone
facsimile machines.12
6.
In addition to apparently having sent similar faxes that offer similar services, NEBG and
UEB/UEBG also appear to have a commonality of addresses, personnel, telephone numbers, and
websites. While UEBG does not appear to exist as an independent legal entity or to be a registered
fictitious business name, “United Employee Benefits, LLC” is a limited liability company registered in
Nevada, with Mr. Gibbons and Jennifer Yoffe identified as officers and managers.13 The registration
statement of United Employee Benefits, LLC with the Nevada Secretary of State lists the entity’s address
as 8871 West Flamingo Road, Suite 202, Las Vegas, Nevada, which is an address at which NEBG
acknowledged receipt of the February 2012 NAL.14 The contact number set forth in the UEB/UEBG
faxes (888-872-1112) is assigned to Tim Gibbons and NEBG.15 The website “nebg.org” now redirects


10 On March 29, 2012, Attorney Robert M. Ungar submitted a letter on behalf of Tim Gibbons, president of NEBG,
requesting an extension to respond to the February 2012 NAL. See Letter from Robert M. Ungar, attorney
representing Tim Gibbons, to Marlene H. Dortch, Secretary, Federal Communications Commission (March 29,
2012) (on file in EB-10-TC-478). This extension request was granted on April 11, 2012. See e-mail from Rosemary
Cabral , Staff Attorney, Telecommunications Consumers Division, Enforcement Bureau, Federal Communications
Commission, to Attorney Robert M. Ungar (April 11, 2012, 2:19 p.m. E.D.T.). However, on May 9, 2012, Attorney
Ungar sent an e-mail to Rosemary Cabral, Staff Attorney, Telecommunications Consumers Division, Enforcement
Bureau, Federal Communications Commission, indicating that despite the request for an extension to respond to the
NAL, a formal response would not be submitted. See e-mail from Attorney Robert Ungar to Rosemary Cabral ,
Staff Attorney, Telecommunications Consumers Division, Enforcement Bureau, Federal Communications
Commission (May 9, 2012, 11:01 a.m. E.D.T.).
11 See Appendices A, B and C.
12 See Appendix D for a listing of the consumer complaints against UEB/UEBG requesting Commission action. We
note that evidence of additional instances of unlawful conduct by either Tim Gibbons, NEBG or UEBG may form
the basis of subsequent enforcement action.
13
http://nvsos.gov/sosentitysearch/CorpDetails.aspx?lx8nvq=YAeRCD5zwdN0ZGznnthaWA%253d%253d (last
visited on May 23, 2012).
14 See supra note 8.
15 E-mail from David Guerro, j2 Global to Al McCloud, Access Specialist, Telecommunications Consumers
Division, Enforcement Bureau, dated February 14, 2012 (responding to a Commission inquiry, David Guerro
confirmed that from August 7, 2011 to date of production, Tim Gibbons of National Employee Benefits Group,
1560 Youd Road, Winton, CA 95388, was listed as the billing contact for 888-872-1112 in the carrier’s records). A
recent update indicates that the number still belongs to Tim Gibbons.
3

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FCC 12-98

users to a website for “United Benefits,” which identifies the toll-free number registered to Tim Gibbons
at NEBG.16 A recent order issued by the State of California Department of Real Estate against UEB and
Mr. Gibbons connected UEB and NEBG by finding that “National Employee Benefits Groups … now
operates under the name UEB.”17

III.

DISCUSSION

A.

Apparent Violations of Section 227(b)(1)(C) of the Act and the


Commission’s Rules Restricting Unsolicited Facsimile Advertisements

7.
We find that Tim Gibbons and United Employee Benefits, LLC, apparently violated
Section 227(b)(1)(C) of the Act and Section 64.1200(a)(4) of our rules by sending 99 unsolicited
advertisements to the facsimile machines of 87 consumers, identified in Appendix D. Under our rules,
the sender of a junk fax is “the person or entity on whose behalf a facsimile unsolicited advertisement is
sent or whose goods or services are advertised or promoted in the unsolicited advertisement.”18 Each of
these consumers has provided evidence that he or she received a junk fax or faxes from Tim Gibbons or
United Employee Benefits, LLC without having expressly authorized such faxes to be sent or having an
established business relationship (EBR) with Mr. Gibbons or one of his businesses.19 The faxes at issue
here clearly constitute advertisements, as they advertise (supposed) commercial availability of financial
relief services. The faxes therefore fall within the definition of a prohibited “unsolicited advertisement.”20

B.

Proposed Forfeiture

8.
After we have first issued a citation to a person under Section 503(b)(5) of the Act,21 as
we have in this case, Section 503(b)(1) authorizes the Commission to propose a forfeiture for subsequent
conduct of the type described in the citation that violates the Act, or any rule, regulation, or order issued
by the Commission under the Act.22 Section 503(b)(2)(E) mandates that, “[i]n determining the amount of
such a forfeiture penalty, the Commission or its designee shall 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.”23


16 http://www.nebgroup.org. The former website for Benchmark Mortgage, the entity previously cited by the
Bureau as doing business as NEBG, stated that Benchmark “manages and oversees the financial programs and
portfolios of The National Employee Benefits Group (subsidiary of United Employees Benefits Group).”
http://www.benchmarkmortgagebank.com/national_employee_benefits_group (last visited on May 23, 2012).
Benchmark’s website appears to have since been disabled.
17 http://www.dre.ca.gov/pdf_docs/loanmod_drs/H11212SF.pdf (last visited July 20, 2012).
18 47 C.F.R. § 64.1200(f)(10).
19 In filing complaints regarding the faxes listed in Appendix D, each consumer stated that he or she had not agreed
to receive fax advertisements from NEBG or UEBG and had not done any business with or made an inquiry or
application to NEBG or UEBG. See Junk Fax Prevention Act R&O, 21 FCC Rcd at 3793-9, para. 9-21, 3812, para.
46 (concluding that if a complaint is filed, the burden of proof rests on the fax sender to demonstrate that there is a
valid EBR with the recipient or that prior express consent to fax was given).
20 47 U.S.C. § 227(a)(5); 47 C.F.R. § 64.1200(f)(15). The term “unsolicited advertisement” means “any material
advertising the commercial availability or quality of any property, goods, or services, which is transmitted to any
person without that person’s prior express invitation or permission, in writing or otherwise.” See also supra note 15,
and Appendix C.
21 47 U.S.C. § 503(b)(5).
22 47 U.S.C. § 503(b)(1)(B) and (b)(5).
23 47 U.S.C. § 503(b)(2)(E).
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Our forfeiture guidelines set forth the base amount for penalties for certain kinds of violations, and
identify criteria, consistent with the Section 503(b)(2)(E) factors, that may influence whether we adjust
the base amount downward or upward.24 For example, we may adjust a penalty upward for “[e]gregious
misconduct,” an “[i]ntentional violation,” or where the subject of an enforcement action has engaged in a
“[r]epeated or continuous violation.”25 Currently, the Commission may impose a maximum penalty of
$16,000 per violation against individuals or entities such as Mr. Gibbons and United Employee Benefits,
LLC.26
9.
Historically, the Commission has assessed a penalty of $4,500 per unsolicited fax
advertisement as an appropriate base forfeiture for violating the prohibition against sending them.27
Recently, however, the Commission has proposed higher penalties against entities and individuals who
have engaged in numerous and repeated violations. For example, in the February 2012 NAL against
NEBG and Mr. Gibbons, the Commission proposed a forfeiture of $603,000, which included an upward
adjustment for the numerous junk fax violations (97) junk fax violations involved.28 As we have noted in
these recent cases, we intend to apply appropriate upward adjustments, including the $16,000 statutory
maximum, on a case-by-case basis, taking into account our obligation under section 503(b)(2)(E) of the
Act. Indeed, where the Commission has found that a given violator of junk fax or other TCPA
prohibitions appears to have engaged in deceit by attempting to disguise its identify to evade law
enforcement, or misrepresenting material facts, the Commission has proposed the full statutory maximum
of $16,000 per unsolicited fax.29


24 47 C.F.R. § 1.80(b)(6) note. The absence of a particular type of violation from the forfeiture guidelines must “not
be taken to mean that the violation is unimportant or nonexistent,” and “the Commission retains discretion to impose
forfeitures for other violations.” Commission’s Forfeiture Policy Statement & Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines
, Report & Order, 12 FCC Rcd 17087, 17110, para. 53 (1997)
(Forfeiture Policy Statement).
25 47 C.F.R. § 1.80(b)(6) note.
26 47 U.S.C. § 503(b)(2)(C). Section 503(b)(2)(C) provides for forfeitures of up to $10,000 for each violation in
cases, as in the instant case, where the violation does not involve a Commission licensee or common carriers, among
others. See 47 U.S.C. § 503(b)(2)(C). In accordance with the inflation adjustment requirements contained in the
Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, Sec. 31001, 110 Stat. 1321, the Commission
implemented an increase of the maximum statutory forfeiture under Section 503(b)(2)(C) to $16,000. See 47 C.F.R.
§1.80(b)(7). See also 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 an increase in the maximum
forfeiture for this type of violation to $16,000).
27 See Get-Aways, Inc., Notice of Apparent Liability For Forfeiture, 15 FCC Rcd 1805, 1812, para, 16 (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, 17003, para. 13 (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, 11300, para.12 (2000)
(Tri-Star NAL); Tri-Star Marketing, Inc., Forfeiture Order, 15 FCC Rcd 23198 (2000).
28 February 2012 NAL, 27 FCC Rcd 2734, 2737, para. 8 (applying a $150,000 upward adjustment in proposing a
forfeiture for 97 junk fax violations); see also Laser Technologies, Notice of Apparent Liability for Forfeiture, 26
FCC Rcd 10792, 10795, para. 9 (2011) (applying a $50,000 upward adjustment in proposing a forfeiture for 40 junk
fax violations); Presidential Who’s Who, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 8989, 8993–95,
paras. 11–13 (2011) (applying a $150,000 upward adjustment in proposing a forfeiture for 31 junk fax violations,
taking into account the violator’s 73 prior junk fax violations) (Presidential Who’s Who NAL); The Street Map
Company
, Notice of Apparent Liability for Forfeiture, 26 FCC Rcd 8318, 8321–22, paras. 10-11 (2010) (applying a
$75,000 upward adjustment in proposing a forfeiture for 51 junk fax violations, taking into account the violator’s
prior 11 junk fax violations).
29 Sabrina Javani d/b/a EZ Business Loans, Notice of Apparent Liability for Forfeiture, FCC 12-75 (rel. July 10,
2012); Teresa Goldberg a/k/a Tammy Pocknett d/b/a Software Training Co. et al., Notice of Apparent Liability for
(continued....)
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10.
Consistent with the factors that must control our determination of the amount of a
forfeiture penalty to assess for a given violation and violator, we propose the maximum penalty of
$16,000 for each of the 99 violations at issue in this NAL, for a total proposed forfeiture of $1,584,000.
As in other recent cases where the Commission has proposed the maximum penalty, we do so here
because Mr. Gibbons and United Employee Benefits Group, LLC have apparently engaged in numerous
and repeated violations, and have done so intentionally and in an egregious manner.
11.
With today’s NAL, we have now taken enforcement actions against Mr. Gibbons and his
businesses for approximately 200 apparent violations of the Act and the Commission’s implementing
rules.30 As noted previously, all of these apparent violations occurred after the Enforcement Bureau first
warned Mr. Gibbons, via citation, that the conduct of faxing unsolicited ads violated the law. The fact
that Mr. Gibbons and his businesses appear to have engaged in such a large number of violations after
having been told that such conduct violated the law strongly suggests that they acted with deliberate and
intentional disregard for TCPA requirements and the consumers the law is designed to protect.
12.
The apparent attempt of Mr. Gibbons to confuse and disguise his businesses further
suggests a deliberate intent to violate the prohibition against sending junk faxes. As discussed above, Mr.
Gibbons appears to have called the business at issue in the February 2012 NAL and the current NAL by a
number of different names, including “Benchmark Mortgage,” “National Employee Benefits Group, “
“United Employee Benefits,” and “United Employee Benefits Group.” The faxes of UEB/UEBG directed
recipients to the website www.uebg.org, which now identifies yet additional business names, “United
Benefits” and “United Pre-Legal Mediation Group, LLC.” At times, Mr. Gibbons’ marketing materials
have suggested that these business names reflected different actual businesses (e.g., “United Benefits
originated as a financial service to borrowers/clients of Benchmark [M]ortgage”; United Benefits has
“merged under the portfolios of United Prelegal Mediation”),31 but with the single exception of the
Nevada limited liability company of “United Employee Benefits, LLC” (owned/managed by Mr.
Gibbons), none of these names in fact appears to be an actual independent legal entity, or a registered
fictitious business name.32 Mr. Gibbons appears to have further attempted to confuse consumers about his
business by using different addresses and phone numbers for the different names.
13.
In an apparent attempt to conceal the nature and status of his business and confuse fax
recipients still more, Mr. Gibbons deceptively makes his faxes appear to relate to employee benefits by
formatting them to look like an office memorandum directed to “employees.” As one complainant


(...continued from previous page)
Forfeiture, 27 FCC Rcd 2723 (2012); Travel Club Marketing d/b/a Travelink Corp. et al., Notice of Apparent
Liability for Forfeiture, 26 FCC Rcd 15381 (2011).
30 Section 504(c) of the Act, 47 U.S.C. § 504(c), prohibits the Commission from using the issuance of an NAL
against a party in one proceeding to the prejudice of that party in another proceeding, until either the party pays the
forfeiture or a court issues a final order that it do so. However, this prohibition does not restrict the Commission
from considering the facts that underlie prior NALs. Forfeiture Policy Statement, 12 FCC Rcd at 17102–04, paras.
33–36. Thus, consideration in the current NAL of Mr. Gibbon’s and NEBG/UEBG’s past conduct that led to our
earlier enforcement actions is fully consistent with Section 504(c) of the Act. See Commission’s Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
Memorandum
Opinion and Order, 15 FCC Rcd. 303, 304–05, paras. 3–5 (1999).
31 http://uebg.org (last visited July 19, 2012).
32 Both California and Nevada law require persons (including both natural and artificial persons) operating under
fictitious names to register those names with the state. Cal. Bus. & Prof. Code § 17910; Nev. Rev. Stat. 602.010.
As the California law states, the registration requirement is “designed to make available to the public the identities
of persons doing business under the fictitious name.” Id. § 17900(a)(1).
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explained, “[t]his fax disguises itself as an ‘office memo’ to ‘all employees’ offering special ‘employee
benefit.’ Not only is the sender wasting my paper and ink, the sender is a blatant fraud.”33 Thus, another
complainant stated that Mr. Gibbons’ business “[a]ppears to be deceptive ‘scam’ fax targeted at
misleading our employees.”34
14.
As a further reason to impose the maximum penalty available in this case, we note that
the faxes at issue in this NAL violate not only the prohibition on sending junk faxes but certain other rules
as well, pertaining to the manner in which consumers are notified about and must be able to exercise their
right to opt out of receiving future junk faxes. For example, fax advertisements that are otherwise
permissible (due to an EBR or prior express invitation or permission) must include a domestic telephone
and facsimile machine number for the recipient to transmit an opt-out request to the sender 24 hours a
day, 7 days a week.35 Several consumers explain, however, that the telephone number appearing on the
junk faxes, ostensibly to provide an opportunity to opt out of receiving future advertisements from
UEB/UEBG, were not operational. One complainant stated that UEB’s “[o]pt-out phone number is not in
service”;36 another explained that UEB’s “‘do not fax’ number does not appear to work” because his
requests “appear to be ignored;”37 and still another asked the Commission to “shutdown these unlawful
operators” because “[n]otwithstanding contacting the facsimile removal number, these companies
continue to forward unsolicited facsimiles to our office.”38 In addition, all of the junk faxes that
consumers provided to the Commission also failed to include the statement, required by the Act and the
Commission’s rules,39 that failure to honor a properly submitted opt-out request within 30 days is
unlawful. Each deficient opt-out notice and each instance when Mr. Gibbons either failed to allow
submission of an opt-out request or failed to honor a valid opt-out request within 30 days represents
additional violations of the Commission’s rules and section 227 of the Act that could carry separate
penalties of up to $16,000 each. In this case, we are not imposing penalties for the additional violations,
but we do consider them to be aggravating factors that also warrant upward adjustments of our base
forfeiture amounts.
15.
As with the forfeiture proposed in the February 2012 NAL,40 the penalty we propose in
this NAL applies to Mr. Gibbons, whether acting in his own name or through another business or
individual name (e.g., Benchmark Mortgage, NEBG, UEBG, United Benefits, United Pre-legal Mediation
Group). As the business name UEB at issue in some of the faxes that are the subject of this NAL may


33 FCC Form 1088A – Junk Fax Complaint from R. Rast (October 4, 2011).
34 FCC Form 1088A – Junk Fax Complaint from T. Dunn, Canyon Ranch (March 14, 2012). See also FCC Form
1088A – Junk Fax Complaint from J. Taylor (September 7, 2011) (“The ad is structured as an internal memo,
fraudulently announcing ‘a special covered benefit being provided free to all employees.’ However it was not sent
by my employer.”).
35 47 C.F.R. § 64.1200(a)(4)(iii)(D) and (E); see also 47 U.S.C. § 227(b)(2)(D)(iv)(I). If neither of these numbers is
toll-free, a separate cost-free mechanism such as a website or e-mail address must be available for a fax recipient to
transmit an opt-out request. 47 C.F.R. § 64.1200(a)(4)(iii)(D)(2); 47 U.S.C. § 227(b)(2)(D)(iv)(II). The sender must
also include a clear and conspicuous notice on the first page of the advertisement that the fax recipient is entitled to
request that the sender not transmit any future fax advertisements. 47 U.S.C. § 227(b)(1)(C)(iii), 227(b)(2)(D)(i)
and (ii); 47 C.F.R. § 64.1200(a)(4)(iii).
36 FCC Form 1088A – Junk Fax Complaint from C. Moore, (January 4, 2012).
37 FCC Form 1088A – Junk Fax Complaint from T. Andrews (April 24, 2012).
38 FCC Form 1088A – Junk Fax Complaint from T. Peterson (December 15, 2011).
39 47 C.F.R. § 64.1200(a)(4)(iii)(B); see also 47 U.S.C. § 227(b)(2)(D)(ii).
40 The February 2012 NAL was issued against NEBG, which was defined to include Mr. Gibbons. February 2012
NAL
, 27 FCC Rcd at 2734 n.1.
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refer to the Nevada limited liability company “United Employee Benefits, LLC,” which Mr. Gibbons
owns and manages, the penalty we propose here likewise applies to that entity.
16.
Accordingly, weighing the facts before us, we propose the maximum penalty allowed
under the Act and the Commission’s rules, $16,000, for each of the 99 unsolicited fax advertisements
recorded in Appendix D, for a total penalty of $1,584,0000 against Mr. Gibbons (in his own name and
other names through which he conducts business) and United Employee Benefits, LLC. This penalty
takes into account, in the language of Section 503(b)(2)(E), the “degree of culpability” and “history of
prior offenses,” and in the language of our forfeiture guidelines, the apparent “intentional violation[s]”
and “prior violations of . . . FCC requirements” at issue in this NAL. We believe this upward adjustment
and overall penalty against Mr. Gibbons and United Employee Benefits, LLC are appropriate in view of
the number and scope of the apparent violations, the fact that Mr. Gibbons and United Employee
Benefits, LLC apparently engaged in much of this misconduct intentionally and in disregard of the
Commission’s previous warnings.

IV.

CONCLUSION

17.
We have determined that Tim Gibbons, operating as United Benefits, United Employee
Benefits, or United Employee Benefits Group, all formerly known as Benchmark Mortgage or National
Employee Benefits Group, independently and together with United Employee Benefits, LLC, apparently
violated Section 227(b)(1)(C) of the Act and Section 64.1200(a)(4) of the Commission’s rules, by using a
telephone facsimile machine, computer, or other device to send 99 unsolicited advertisements to the 87
consumers identified in the Appendix D. We have further determined that Tim Gibbons and United
Employee Benefits, LLC are apparently jointly and severally liable for a forfeiture in the amount of
$1,584,000.

V.

ORDERING CLAUSES

18.
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 of the Commission’s rules, 47 C.F.R. § 1.80,
that Tim Gibbons, operating as United Benefits, United Employee Benefits, or United Employee Benefits
Group, all formerly known as Benchmark Mortgage or National Employee Benefits Group, independently
and together with United Employee Benefits, LLC, are hereby

NOTIFIED

of their

APPARENT JOINT
and SEVERAL LIABILITY FOR A FORFEITURE

in the amount of $1,584,000 for willful and
repeated violations of Section 227(b)(1)(C) of the Communications Act, 47 U.S.C. § 227(b)(1)(C), and
Section 64.1200(a)(4) of the Commission’s rules, 47 C.F.R. § 64.1200(a)(4).
19.

IT IS FURTHER ORDERED THAT

, pursuant to Section 1.80 of the Commission’s
rules,41 within thirty (30) calendar days of the release date of this Notice of Apparent Liability for
Forfeiture, Tim Gibbons, operating as United Benefits, United Employee Benefits, or United Employee
Benefits Group, all formerly known as Benchmark Mortgage or National Employee Benefits Group,
together with United Employee Benefits, LLC,

SHALL PAY

the full amount of the proposed forfeiture
or

SHALL FILE

a written statement seeking reduction or cancellation of the proposed forfeiture.
20.
Payment of the forfeiture must be made by check or similar instrument, wire transfer, or
credit card, and must include the NAL/Account number and FRN referenced above. Tim Gibbons and
United Employee Benefits, LLC shall send electronic notification of payment to Johnny Drake at
Johnny.Drake@fcc.gov and Rosemary Cabral at Rosemary.Cabral@fcc.gov on the date said payment is
made. Regardless of the form of payment, a completed FCC Form 159 (Remittance Advice) must be


41 47 C.F.R. § 1.80.
8

Federal Communications Commission

FCC 12-98

submitted.42 When completing the FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters “FORF” in block number 24A (payment type code). Below are
additional instructions you should follow based on the form of payment you select:
Ÿ
Payment by check or money order must be made payable to the order of the Federal
Communications Commission. Such payments (along with the completed Form 159) must be
mailed to Federal Communications Commission, P.O. Box 979088, St. Louis, MO 63197-
9000, or sent via overnight mail to U.S. Bank – Government Lockbox #979088, SL-MO-C2-
GL, 1005 Convention Plaza, St. Louis, MO 63101.
Ÿ
Payment by wire transfer must be made to ABA Number 021030004, receiving bank
TREAS/NYC, and Account Number 27000001. To complete the wire transfer and ensure
appropriate crediting of the wired funds, a completed Form 159 must be faxed to U.S. Bank
at (314) 418-4232 on the same business day the wire transfer is initiated.
Ÿ
Payment by credit card must be made by providing the required credit card information on
FCC Form 159 and signing and dating the Form 159 to authorize the credit card payment.
The completed Form 159 must then be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank –
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
63101.
21.
Any request for full payment under an installment plan should be sent to: Chief Financial
Officer—Financial Operations, Federal Communications Commission, 445 12th Street, S.W., Room 1-
A625, Washington, D.C. 20554.43 If you have questions regarding payment procedures, please contact
the Financial Operations Group Help Desk by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@fcc.gov.
22.
The response, if any, must be mailed both to: Marlene H. Dortch, Secretary, Federal
Communications Commission, 445 12th Street, SW, Washington, DC 20554, ATTN: Enforcement
Bureau – Telecommunications Consumers Division; and to Richard A. Hindman, Chief,
Telecommunications Consumers Division, Enforcement Bureau, Federal Communications Commission,
445 12th Street, SW, Washington, DC 20554, and must include the NAL/Acct. No. referenced in the
caption. Documents sent by overnight mail (other than United States Postal Service Express Mail) must
be addressed to: Marlene H. Dortch, Secretary, Federal Communications Commission, Office of the
Secretary, 9300 East Hampton Drive, Capitol Heights, MD 20743. Hand or messenger-delivered mail
should be directed, without envelopes, to Marlene H. Dortch, Secretary, Federal Communications
Commission, Office of the Secretary, 445 12th Street, SW, Washington, DC 20554 (deliveries accepted
Monday through Friday 8:00 a.m. to 7:00 p.m. only). See www.fcc.gov/osec/guidelines.html for further
instructions on FCC filing addresses.
23.
The Commission will not consider reducing or canceling a forfeiture in response to a
claim of inability to pay unless the petitioner submits: (1) federal tax returns for the most recent three-year
period; (2) financial statements prepared according to generally accepted accounting practices; or (3)
some other reliable and objective documentation that accurately reflects the petitioner’s current financial
status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the
financial documentation submitted.


42 An FCC Form 159 and detailed instructions for completing the form may be obtained at
http://www.fcc.gov/Forms/Form159/159.pdf.
43 See 47 C.F.R. § 1.1914.
9

Federal Communications Commission

FCC 12-98

24.

IT IS FURTHER ORDERED

that a copy of this Notice of Apparent Liability for
Forfeiture shall be sent by Certified Mail Return Receipt Requested and First Class mail to Tim Gibbons
and United Employee Benefits, LLC, 8871 West Flamingo Road, Suite 202, Las Vegas, NV 89147;
National Employee Benefits Group, United Employee Benefits Group, and Tim Gibbons, 2800 Post Oak
Blvd, Suite 4100, Houston, TX 77056; Registered Agent for Service: Silver Shield Services, Inc., United
Employee Benefits, LLC,, P.O. Box 3540, 3315 Highway 50, Silver Springs, NV 89429; and Attorney
Robert Ungar, counsel for Mr. Gibbons, 14724 Ventura Boulevard, Penthouse, Sherman Oaks, CA
91403.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
10

Federal Communications Commission

FCC 12-98

APPENDIX A

Sample Pre-citation Fax

11

Federal Communications Commission

FCC 12-98

APPENDIX B

NEBG’s February 2012 NAL Sample Fax

12

Federal Communications Commission

FCC 12-98

APPENDIX C

Current Sample Fax

13

Federal Communications Commission

FCC 12-98

APPENDIX D

Complainants and Apparent Violation Dates

Complainant received facsimile solicitations

Violation Date(s)

Mermelstein, M.
9/6/11, 9/12/11, 11/8/11
Nowacky, G.
9/6/11
Stuart, S.
10/10/11, 3/14/12
Korver, A.
10/10/11, 3/14/12
Grout, S.
10/11/11
Izumi, J.
12/6/11
Hudkins, J.
12/12/11
MacIntyre, A.
12/15/11
Benefield, R.
9/6/11
Taylor, J.
9/7/11
Carroll, S.
9/12/11
Colby, N.
9/15/11
Camp, K.
9/19/11
Sgroi, J.
9/21/11
Hill, A.
9/22/11
Bodnar, J.
9/22/11
Ellis-Raymond, R.
9/27/11
Ritter, F.
9/29/11
Rast, R.
10/4/11
Jones, K.
10/3/11
Schieler, T.
10/3/11
Smith, S.
10/4/11
Goyda, C.
10/4/11
Smolko, J.
10/5/11
Waller, R.
10/6/11
Buchanan, N.
10/10/11
Kulakofksy, R.
10/10/11, 3/14/12
Bargmeyer, A.
10/10/11
Sturtz, W.
10/18/11
Morgan, D. (LEI Engineers)
10/18/11
Silverman, T.
11/8/11
Windham, T.
11/14/11
Sherman, M.
11/14/11, 1/4/12, 2/27/12
Weeden, H.
11/14/11
King, C.
11/15/11
Richard, M.
11/15/11
Immesberger, A.
11/21/11
Jensen, G.
11/22/11, 3/14/12
Steinberg, S.
11/28/11, 3/6/12
de Geofroy, L.
11/28/11
Schuman, A.
11/28/11, 1/11/12
Carreno, F.
12/1/11
Coleman, R.
12/1/11
Burton, L.
12/1/11
Jensen, G.
12/5/11
14

Federal Communications Commission

FCC 12-98

Patrick, D.
12/6/11
DeLong, J.
12/6/12
Buck, C.
12/12/11
Deaver, R.
12/15/11
Pfund, A.
12/15/11
Hofler, E.
12/15/11
Peterson, T. (Law Office of Tulane M. Peterson) 12/15/11
Masters, V.
11/1/11, 12/1/11
Webb, J.
12/19/11
Lavado, H.
12/21/11, 2/21/12
Nedbalak, L.
1/4/12
Moore, C.
1/4/12
Hershberger, J. (Willis Agricultural Storage,
1/17/12
Inc.)
Telljohann, J.
1/18/12
Bye, P.
1/18/12
Anzalone, M.
1/18/12
Geiyer, R.
1/18/12
Safro, B.
1/23/12
Johnson, B.
1/26/12
Lester, R. (Septa)
1/27/12
Wolin, M.
2/06/12
Rycombel, F. (Kenton School District)
2/6/12
Leinemann, J.
2/8/12
Miller, E.
2/13/12
Johnson, B.
2/13/12
Roberson, K.
2/13/12
Curtis, T.
2/27/12
Hofkin, R.
2/27/12
Fitch, J.
3/6/12
Sanderson, R.
3/6/12
O’Daniel, D.
3/12/12
Bye, P.
3/13/12
Dunn, T. (Canyon Ranch)
3/14/12
Dumke, L.
3/21/12
Roach, P.
3/21/12
Andrews, T.
4/24/12
Nabor, J.
4/24/12
Sherman, M.
4/30/12
Partin, C.
5/8/12
Jensen, G.
6/20/12
Williams, G.
6/13/12
Bradshaw, P.
6/26/12
15

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