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                FEDERAL COMMUNICATIONS COMMISSION
                     WASHINGTON, D.C. 20554
                                                            March 
31, 2003

Amerifax
a.k.a. Amerifax USA
5757 Alpha Road, Suite 502
Dallas, Texas  75240
Attention:  Robert Wilson

      RE:  EB-03-TC-026

Dear Mr. Wilson:

     This is an official CITATION, issued pursuant to section 
503(b)(5) of the Communications Act of 1934, as amended 
(Communications Act), for possible violations of the Telephone 
Consumer Protection Act of 19911 (TCPA) and the Federal 
Communications Commission's rules that implement that Act.2

     It has come to our attention that your company recently 
transmitted to telephone facsimile machines unsolicited 
advertisements for products, goods, or services offered by Gianna 
International a.k.a. Gianna a.k.a. Logical, Inc. a.k.a. Benefits 
Marketing a.k.a. Preferred Health Care Benefits (Gianna) (see 
attachments).3  Pursuant to the TCPA and the Commission's Rules, 
it is unlawful to use a ``telephone facsimile machine, computer, 
or other device to send an unsolicited advertisement to a 
telephone facsimile machine.''4  

     The TCPA and the Commission's rules also require any person 
or entity who sends a message via a telephone facsimile machine 
to clearly mark ``in a margin at the top or bottom of each 
transmitted page of the message or on the first page of the 
transmission, the date and time it is sent and an identification 
of the business, other entity, or individual sending the message 
and the telephone number of the sending machine or of such 
business, other entity, or individual.''5

     The term ``unsolicited advertisement'' is defined in the 
TCPA and the Commission's rules as ``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.''6  The Commission has 
specified that an established business relationship between a fax 
sender and recipient constitutes prior express invitation or 
permission to send a facsimile advertisement.7  Mere distribution 
or publication of a fax number, however, does not establish 
consent to receive advertisements by fax.8 
       
     Although entities that merely transmit facsimile messages on 
behalf of others are not liable for compliance with the 
prohibition on faxing unsolicited advertisements,9 the exemption 
from liability does not exist when a fax transmitter has ``'a 
high degree of involvement or actual notice of an illegal use and 
[has] fail[ed] to take steps to prevent such transmissions.'''10  
Accordingly, fax transmitters do not enjoy an absolute exemption 
from liability under the TCPA and the Commission's Rules. 

     This citation serves as notice that the unsolicited 
facsimile advertisements sent by Gianna and transmitted by your 
company violate the TCPA and the Commission's Rules.  The 
Commission may assess to your company monetary forfeitures not to 
exceed $11,000 for each subsequent violation if (1) your company 
has been highly involved on behalf of the sender of any 
unsolicited facsimile advertisements, or (2) your company 
continues to transmit facsimile advertisements for  Gianna 
without taking steps to ensure that the sender has obtained 
permission from recipients to fax the advertisements.

     Pursuant to section 503(b)(5) of the Communications Act, you 
may request a personal interview at the Commission's Field Office 
nearest to your place of business.  The nearest office appears to 
be the Dallas Office at 9330 LBJ Freeway, Room 1170, Dallas, 
Texas  75243-3429, which you can contact by telephone at (214) 
575-6361.  You must schedule this interview to take place within 
21 days of the date of this citation.  Alternatively, you may 
submit a written statement to the following address within 21 
days of the date of this citation:






               Kurt A. Schroeder
               Deputy Chief
               Telecommunications Consumers Division
               Enforcement Bureau
               Federal Communications Commission
               445 - 12th Street, S.W.
               Washington, D.C.  20554 

Please reference EB-03-TC-026 when corresponding with the 
Commission.

     If you request a meeting, reasonable accommodations for 
people with disabilities are available upon request.  Include a 
description of the accommodation you will need including as much 
detail as you can.  Also include a way we can contact you if we 
need more information.  Please allow at least 5 days advance 
notice; last minute requests will be accepted, but may be 
impossible to fill.  Send an e-mail to fcc504@fcc.gov or call the 
Consumer & Governmental Affairs Bureau:

          For sign language interpreters, CART, and other 
reasonable accommodations: 
     202-418-0530 (voice), 202-418-0432 (tty);

          For accessible format materials (braille, large print, 
electronic files, and audio 
     format): 202-418-0531 (voice), 202-418-7365 (tty). 

     If you choose to submit a written statement, you should 
discuss in detail your company's involvement in faxing 
advertisements on behalf of Gianna, including any specific 
arrangements under which you transmit their advertisements.  
Please provide copies of any contracts or agreements that 
memorialize the terms and conditions under which you fax for 
Gianna.  You should also answer the following questions: 

     1.   Has your company had any control over or involvement in 
       determining the content of advertisements transmitted by 
       facsimile on behalf of Gianna or any other entities on 
       whose behalf you transmit advertisements by facsimile?  
       Please describe such control or involvement in detail.  

     2.   Who provided, compiled, or generated the distribution 
       list(s) of telephone facsimile numbers that your company 
       has used to transmit advertisements on behalf of Gianna  
       or any other entities on whose behalf you transmit 
       advertisements by facsimile?  

     3.   If your company has been involved in any way in 
       providing, compiling, generating, or editing the 
       distribution list(s) of telephone facsimile numbers that 
       your company has used to transmit advertisements on 
       behalf of Gianna or any other entities on whose behalf 
       you transmit advertisements by facsimile, describe in 
       detail the process by which your company produces or 
       participates in the generation of such list(s).  Does 
       your company employ or compensate any individuals or 
       entities outside the company, including any tax-exempt 
       nonprofit organizations, for any service, activity, 
       assistance, or facilities used in connection with your 
       company's providing, compiling, generating, or editing of 
       such list(s)?  Please describe such arrangements in 
       detail. 

     4.   If your company has been involved in any way in 
       providing, compiling, generating, or editing the 
       distribution list(s) of telephone facsimile numbers that 
       your company has used to transmit advertisements on 
       behalf of Gianna  or any other entities on whose behalf 
       you transmit advertisements by facsimile, what steps has 
       your company taken to ensure that the telephone facsimile 
       numbers belong to individuals or entities who have 
       agreed, by explicit consent or by virtue of an 
       established business relationship with the advertiser, to 
       receive the advertisement?  Please describe in detail the 
       manner in which you record consumers' consent or the 
       existence of an established business relationship and 
       provide copies of any written record-keeping policies 
       with respect to maintaining evidence of such consent or 
       business relationship. 

     5.   Does your company advertise its fax transmittal 
       services, and, if so, by what means?  Please provide 
       copies of all print, audio, and video materials that have 
       been used within the past year to advertise your 
       company's fax transmittal services.  For each 
       advertisement, list the media in which the advertisement 
       appeared and the date(s) of such appearance(s).

     Under the Privacy Act of 1974, 5 U.S.C.  552(a)(e)(3), we 
are informing you that the Commission's staff will use all 
relevant material information before it to determine what, if 
any, enforcement action is required to ensure your compliance 
with the TCPA and the Commission's rules.  This will include any 
information that you disclose in your interview or written 
statement.  Please be advised that if you choose not to respond 
to this citation and a forfeiture is issued, your 
unresponsiveness will be considered in our assessment of a 
forfeiture amount.

     You should also be aware that the knowing and willful making 
of any false statement, or the concealment of any material fact, 
in reply to this citation is punishable by fine or imprisonment 
under 18 U.S.C.  1001.

     Thank you in advance for your anticipated cooperation.

                              Sincerely, 


                              Kurt A. Schroeder
                              Deputy Chief
                              Telecommunications Consumers 
                         Division
                              Enforcement Bureau
                              Federal Communications Commission

Enclosures
_________________________

1    Pub.L. No. 102-243, 105 Stat. 2394-2402 (1991) (codified at 
47 U.S.C.  227).  
2
     47 C.F.R.  64.1200.
 
3    In addition to the advertisement(s) referenced by and 
attached to this citation, the complaining party may also have 
included with the complaint one or more facsimile advertisements 
transmitted by other senders.  This citation concerns only the 
facsimile advertisement(s) referenced by and attached to the 
citation, and your response only needs to address such 
advertisement(s).

4    47 U.S.C.  227(b)(1)(C); 47 C.F.R.  64.1200(a)(3).

5    47 U.S.C.  227(d)(1)(B); 47 C.F.R.  68-318(d).

6    47 U.S.C.  227(a)(4); 47 C.F.R.  64.1200(f)(5).
 
7    Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991, Report and Order, 7 FCC Rcd 8752, 8779 n. 
87 (1992) (TCPA Report and Order); Rules and Regulations 
Implementing the Telephone Consumer Protection Act of 1991, 
Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408 (1995) 
(TCPA Memorandum Opinion and Order).
8
     TCPA Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408. 

9    Id. at 12407. 

10   TCPA Report and Order, 7 FCC Rcd 8752, 8780 (1992) (quoting 
Use of Common Carriers, 2 FCC Rcd 2819, 2820 (1987).)