One Stop Motors / One Stop Motors under FCC investigation
One Stop Motors Investigation by Federal Communications Commission as of April 2009
In the matter of
One Stop Motors, Inc.
Apparent Liability for Forfeiture
File No. EB- 07-TC-809
File No. EB- 07-TC-981
NAL/Acct. No. [protected]
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 30, 2009 Released: May 1, 2009
By the Chief, Enforcement Bureau:
In this Notice of Apparent Liability for Forfeiture (“NAL”)1, we find that One Stop Motors, Inc. (“One Stop Motors”)2 apparently willfully or repeatedly violated section 227 of the Communications Act of 1934, as amended (“Act”), and the Commission’s related rules and orders, by delivering at least one unsolicited, prerecorded advertising message to at least one consumer.3 Based on the facts and circumstances surrounding the apparent violation, we find that One Stop Motors is apparently liable for a forfeiture in the amount of $4, 500.
Section 227(b)(1)(B) prohibits any person from initiating “any telephone call to any residential telephone line using any artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission.”4 Section 64.1200(a)(2) of the Commission's rules provides exemptions to the prohibition for calls: 1) made for emergency purposes; 2) not made for a commercial purpose; 3) made for a commercial purpose but “not including or introducing an unsolicited advertisement5 or constituting a telephone solicitation”;6 4) to any person “with whom the caller has an established business relationship7 at the time the call is made”; or 5) “made by or on behalf of a tax-exempt nonprofit organization.”8
On March 9, 2007, in response to one or more consumer complaints alleging that One Stop Motors had delivered unsolicited, prerecorded advertising messages, the Commission staff issued a citation9 to One Stop Motors, pursuant to section 503(b)(5) of the Act.10 The staff cited One Stop Motors for delivering one or more unsolicited, prerecorded advertising messages to a residential telephone line for car sales services, in violation of section 227 of the Act and the Commission’s related rules and orders. The citation warned One Stop Motors that subsequent violations could result in the imposition of monetary forfeitures of up to $11, 000 per violation, and included copies of the consumer complaints that formed the basis of the citation.11 The citation informed One Stop Motors 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. One Stop Motors did not request an interview or otherwise respond to the citation.12
Despite the citation’s warning that subsequent violations could result in the imposition of monetary forfeitures, we have received an additional consumer complaint indicating that One Stop Motors continued to engage in such conduct after receiving the citation.13 We base our action here specifically on a complaint filed by a consumer establishing that One Stop Motors continued to deliver one unsolicited, prerecorded advertising message to a consumer after the date of the citation.14
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, 2008.15 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.”16
Violations of the Commission’s Rules Restricting Unsolicited Prerecorded Messages
We find that One Stop Motors apparently violated section 227 of the Act and the Commission’s related rules and orders by delivering at least one unsolicited, prerecorded advertising messages to the consumer identified in the Appendix. This NAL is based on evidence that a consumer received an unsolicited prerecorded message from One Stop Motors after the Commission staff’s citation. The prerecorded message advertises a car sales service. Further, we find that the unsolicited, prerecorded message at issue here was not made for any emergency or non-commercial purposes, and was not on behalf of a tax-exempt, nonprofit organization, but was commercial in nature and included an unsolicited advertisement or constituted a telephone solicitation. In addition, according to the complaint, the consumer neither had an established business relationship with One Stop Motors nor gave One Stop Motors permission to deliver the unsolicited, prerecorded message.17 The prerecorded message at issue here therefore falls within the definition of an “unsolicited advertisement.”18 Based on the entire record, including the consumer complaint, we conclude that One Stop Motors apparently violated section 227 of the Act and the Commission’s related rules and orders by delivering one unsolicited, prerecorded advertising message to one consumer.
We find that One Stop Motors is apparently liable for a forfeiture in the amount of $4, 500. Although the Commission’s Forfeiture Policy Statement does not establish a base forfeiture amount for violating the prohibition on delivering unsolicited, prerecorded advertising messages to a residential telephone line, the Commission’s Enforcement Bureau has found these violations to be similar in nature to violating the prohibition against using a telephone facsimile machine to send unsolicited advertisements.19 The Commission has previously considered $4, 500 per unsolicited fax advertisement to be an appropriate base amount.20 We apply that base amount to one apparent unsolicited, prerecorded advertising message violation. Thus, a total forfeiture of $4, 500 is proposed. One Stop Motors will 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.21
IV. CONCLUSION AND ORDERING CLAUSES
We have determined that One Stop Motors, Inc. apparently violated section 227 of the Act and the Commission’s related rules and orders by delivering at least one unsolicited, prerecorded advertising message to the consumer identified in the Appendix. We have further determined that One Stop Motors, Inc. is apparently liable for a forfeiture in the amount of $4, 500.
Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Act, 47 U.S.C. § 503(b), and section 1.80 of the Rules, 47 C.F.R. § 1.80, and under the authority delegated by sections 0.111 and 0.311 of the Commission’s rules, 47 C.F.R. §§ 0.111, 0.311, that One Stop Motors, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of $4, 500 for willful or repeated violations of section 227(b)(1)(B) of the Communications Act, 47 U.S.C. § 227(b)(1)(B), sections 64.1200(a)(2) of the Commission’s rules, 47 C.F.R. § 64.1200(a)(2), and the related orders described in the paragraphs above.
IT IS FURTHER ORDERED THAT, pursuant to section 1.80 of the Commission’s rules, 22 within thirty (30) days of the release date of this Notice of Apparent Liability for Forfeiture, One Stop Motors, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture.
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 [protected]. 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 [protected], 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). One Stop Motor will also send electronic notification on the date said payment is made to Johnny.email@example.com. 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 [protected] or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
The response, if any, must be mailed both to the Office of the Secretary, Federal Communications Commission, 445 12th Street, SW, Washington, DC 20554, ATTN: Enforcement Bureau – Telecommunications Consumers Division, and to Colleen Heitkamp, 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.
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.
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 One Stop Motors, Inc., Attention: Rob Wilder, 2950 South Rancho Drive, Ste 200, Las Vegas, NV 89102.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
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