Procedures for Calculating and Processing Administrative Penalties for
Violations of Texas Business and Commerce Code § 44.151,
Relating to Notices in Facsimile Solicitations

Purpose

This document describes the methodology used by the Staff of the Public Utility Commission of Texas (PUC) to compute recommended administrative penalties to be assessed by the Commission. The objective is to establish a general, yet systematic policy for calculating and processing administrative penalty proceedings for companies violating Texas Business and Commerce Code § 44.151, Relating to Notice in Facsimile Solicitation. This document does not address when an enforcement action is initiated, but rather how the PUC Staff evaluates violations for the purpose of recommending administrative penalties to the Commission.

I. Statutory Authorizations

Texas Business & Commerce Code § 44.153 (also known as the "Texas Telemarketing Disclosure and Privacy Act") charges the Commission with the responsibility of receiving and investigating complaints concerning violations of § 44.151 which sets forth certain notice requirements that must be included when making a facsimile solicitation in Texas.

Section 44.153 of the Act provides the Commission with the authority to assess administrative penalties and sets forth factors that the Commission must consider in determining the amount of penalty to assess. Section 44.251 states as follows:

The amount of an administrative penalty imposed under this chapter shall be based on:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(2) the history of previous violations;

(3) the amount necessary to deter a future violation;

(4) efforts to correct the violation; and

(5) any other matter that justice may require.

In order to fairly and consistently apply the factors established in § 44.251 of the Act, prior to issuing a Notice of Violation and Intent (NOV) to Assess an Administrative Penalty to companies for violations of Texas Bus. & Comm. Code § 44.151, Relating to Notice in Facsimile Solicitations, Commission Staff follows the three (3) step process outlined below.

Step 1

A proposed base penalty amount of $1,000.00 shall be assessed per violation per facsimile transmission. This penalty amount is intended to encourage persons sending facsimile transmissions to comply with each of the specific notice requirements set out in § 44.151 of the Act. This base penalty amount also takes into consideration the amount necessary to deter future violations.

Step 2

Once a proposed base penalty amount is calculated, the Executive Director (ED), may issue a proposed NOV. In the event the ED issues an NOV, the case shall proceed in accordance with the PUC Procedural Rules.

Step 3

If the person to whom an NOV is sent requests a settlement conference pursuant to PUC Procedural Rules, Staff shall gather information relevant to: (1) prior violations, if any; (2) efforts to correct the violation; and (3) any other matter that justice may require. Staff shall revise the base penalty amount to reflect mitigation factors identified in the settlement conference, if any; provided, however, that the negotiated penalty amount is never less than sixty (percent (60%) of the base penalty amount.

Last Updated: 02/17/04