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                      WASHINGTON, D.C. 20554
                                   April 1, 2003

Dura-Plex, Inc.                         William S. Nixon, Esq. 1
1681 Route 88 West                      309 Morris Avenue, Suite 
Brick, New Jersey 08724-3050            Spring Lake, New Jersey  
Attn:     James Mercadante, President
     Phil Loria, Vice President
     Ray Ryan

          RE:  EB-03-TC-017

Dear Correspondents:

     This is an official CITATION issued pursuant to section 
503(b)(5) of the Communications Act of 1934, as amended (the 
Act), for violations of the Act and the Federal Communications 
Commission's rules that govern telephone solicitation.2

     It has come to our attention that your company has delivered 
one or more prerecorded unsolicited advertisements to residential 
telephone lines (see attachment).  The Act and the Commission's 
rules prohibit transmission of unsolicited advertisements through 
prerecorded messages to residential telephone lines except under 
the very limited circumstances described in 
the rules.3   The term ``unsolicited advertisement''  is defined 
in the Communications Act 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.''4    The attached information provided to the 
Commission indicates that your company delivered such unsolicited 
advertisements, through prerecorded messages, to one or more 
residential telephone subscribers who do not have an established 
business relationship with your company and had not expressly 
invited or authorized the call(s).  Those actions violate section 
64.1200(a)(2) of the Commission's rules.

     Separately, it appears that your company may have violated 
other Commission rules governing prerecorded messages and 
telephone solicitation.  Under section 64.1200(e)(2)(iv), any 
telephone solicitation - whether live or prerecorded - must 
provide the called party with the name of the individual caller, 
the name of the person or entity on whose behalf the call is 
being made, and an address or telephone number (which may not be 
for an autodialer or prerecorded message player) at which the 
person or entity may be contacted.5   According to the attached 
information received by the Commission, it appears that your 
telephone solicitation did not contain all the required 

     Please be advised that subsequent violations of the 
Communications Act or of the Commission's rules of the type 
described herein  may result in the imposition of monetary 
forfeitures not to exceed $11,000 for each such violation or each 
day of a continuing violation. 6

     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 Philadelphia Office at One Oxford Valley Office 
Building, 2300 East Lincoln Highway, Langhorne, Pennsylvania 
19047.   You can contact the Philadelphia Office at (215) 752-
8549.  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 

If you choose to submit a written statement, your written 
statement should specify what actions have been taken to correct 
the violation(s) outlined above.  You should also include a copy 
of your company's written do-not-call policy as required by 
section 64.1200(e)(2)(i) of the Commission's rules.    Please 
reference EB-03-TC-017  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 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).

     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 Act 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.


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



1    The Telecommunications Consumers Division has obtained 
information that William S. Nixon, Esq., has acknowledged in 
writing that he serves as legal counsel for Dura-Plex, Inc.

2   47 U.S.C  227; 47 C.F.R.  64.1200.

3   The Commission's rules make it unlawful to ``initiate any 
telephone call using an 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 not made for a commercial purpose, is made for a commercial 
purpose but does not include the transmission of any unsolicited 
advertisement, [is made] to any person with whom the caller has 
an established business relationship at the time the call is 
made, or [is made by or on behalf of] a tax-exempt nonprofit 
organization.  47 C.F.R.  64.1200(a)(2), (c); see also 47 U.S.C. 
 227(b)(1)(B) (prohibiting all prerecorded calls to residential 
lines ``unless the call is initiated for emergency purposes or is 
exempted by rule or order by the Commission....'').

4   47 U.S.C.  227(a)(4); 47 C.F.R. 64.1200(f)(5).

5   47 C.F.R.  64.1200(e)(2)(iv).  In addition, the Act and the 
Commission's rules impose separate identification requirements 
for prerecorded messages.  Under section 227(d)(3)(A) of the Act, 
all prerecorded messages ``shall, at the beginning of the 
message, state clearly the identity of the business, individual, 
or other entity initiating the call, and ... shall, during or 
after the message, state clearly the telephone number or address 
of such business, other entity, or individual.''  47 U.S.C.  
227(d)(3)(A) (emphasis added); see also 47 C.F.R.  
64.1200(d)(e)(2)(iv) (imposing identification requirements for 
prerecorded messages delivered by automatic telephone dialing 

6   See 47 C.F.R.  1.80(b)(3).