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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
May 17, 2004
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Key Financial Corporation
Attn: James Curry, Executive
Jeffrey Dell, Senior Vice President
8550 Ulmerton Rd., Suite 132
Largo, FL 33771
Dear Mr. Curry and Mr. Dell:
This is an official CITATION, issued pursuant to section
503(b)(5) of the Communications Act of 1934, as amended (the
Communications Act), 47 U.S.C. § 503(b)(5), for violations of the
Federal Communications Commission's rules that govern telephone
solicitations and unsolicited advertisements.1 As explained
below, future violations of the Commission's rules in this regard
may subject your company to monetary forfeitures.
By letter dated January 15, 2004, the Telecommunications
Consumers Division of the Commission's Enforcement Bureau
notified you of consumer complaints regarding telemarketing calls
that your company, or an entity acting on behalf of your company,
made to telephone lines that are contained in the National Do-
Not-Call Registry, and provided you an opportunity to submit
information to demonstrate the lawfulness of those calls.2 You
responded by letter dated February 11, 2004.3 You do not dispute
making such calls. However, you claim that the calls are exempt
because they are calls to set an appointment for a face-to-face
interview with a loan officer, and that your company ``never
sells anything or takes any money or credit card information over
the phone.'' Your February 11, 2004 Letter cites section
310.6(a)4 of the Federal Trade Commission's Telemarketing Sales
Rules as exempting such calls.
This Citation does not determine whether 16 C.F.R. §
310.6(b)(3) applies to your company's calls to consumers on the
National Do-Not-Call Registry. The FCC has adopted separate
rules, codified at 47 C.F.R. § 64.1200, that govern calls made by
your company. As discussed in more detail below, the FCC has also
adopted exemptions for certain calls to numbers contained on the
National Do-Not-Call Registry. Those exemptions do not, however,
include an exemption similar to that adopted by the Federal Trade
Commission in 16 C.F.R. § 310.6(b)(3). Your February 11, 2004
Letter does not claim exemptions under FCC rules and does not
otherwise demonstrate that you have complied with such
exemptions, nor does your February 11, 2004 Letter otherwise
demonstrate that you have complied with the Commission's
standards governing use of the National Do-Not-Call Registry.
Accordingly, we issue this citation.
Section 64.1200(c)(2) of the Commission's rules generally
prohibits the delivery of telephone solicitations to residential
telephone numbers that are contained in the National Do-Not-Call
registry except in certain limited situations. Under the
Communications Act and the Commission's rules, a ``telephone
solicitation'' is ``the initiation of a telephone call or message
for the purpose of encouraging the purchase or rental of, or
investment in, property, goods, or services, which is transmitted
to any person.''5 Calls made by or on behalf of tax-exempt
nonprofit groups are not considered to be telephone
solicitations. Similarly, calls that are made to a person who
either has provided prior express invitation or permission to
call6 or has an established business relationship7 with the
caller are not considered to be telephone solicitations.
Finally, the rules permit telephone solicitations to a consumer
whose number is listed on the National Do-Not-Call Registry if
that consumer has a personal relationship with the individual
making the calls.8
Accordingly, under the Commission's rules it is unlawful to
deliver a telephone solicitation to a residential telephone line
unless (1) the call is made by or on behalf of a tax-exempt
nonprofit group; (2) the call is made by a person who has a
personal relationship with the called party; (3) the called party
has provided signed, written consent for the call to be made; or
(4) the called party has made a purchase from, or had a
transaction with, the caller within the 18 months immediately
preceding the call or has made an inquiry or application
regarding the caller's products or services within the three
months immediately preceding the call, and the called party has
not specifically asked the caller to stop all telemarketing
Entities making telephone solicitations must honor do-not-
call registrations no later than three months after a number is
placed on the National Do-Not-Call Registry, and for a period of
no less than five years. To accomplish this, section
64.1200(c)(2)(i)(D) requires entities making telephone
solicitations to use a version of the National Do-Not-Call
Registry obtained no more than three months before any telephone
solicitation is made, and to document this process. An entity
that does not claim one of the exemptions set forth above is not
liable for calling a telephone number on the National Do-Not-Call
Registry only if it is able to demonstrate that it has fully
complied with the Commission's standards governing use of the
National Do-Not-Call Registry as set out in section
64.1200(c)(2)(i)(A)-(E) of the rules, and that the particular
telephone solicitation call was the result of error.
If, after receipt of this citation, you violate the
Communications Act or the Commission's rules in any manner
described herein, the Commission may impose monetary forfeitures
not to exceed $11,000 for each such violation or each day of a
continuing violation. 9
You may respond to this citation within 30 days from the
date of this letter either through (1) a personal interview at
the Commission's Field Office nearest to your place of business,
or (2) a written statement. Your response should specify the
actions that you are taking to ensure that you do not violate the
Commission's rules governing telephone solicitation and
unsolicited advertisements, as described above.
The nearest Commission field office appears to be the Tampa
Office at 2203 N Lois Avenue, Room 1215, Tampa, FL 33607-2356.
Please call Al McCloud at 202-418-2499 if you wish to schedule a
personal interview. You should schedule any interview to take
place within 30 days of the date of this letter. You should send
any written statement within 30 days of the date of this letter
Kurt A. Schroeder
Federal Communications Commission
445-12th Street, S.W.
Washington, D.C. 20554
Reference EB-04-TC-009 when corresponding with the Commission.
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 firstname.lastname@example.org or call the Consumer &
Governmental Affairs Bureau:
For sign language interpreters, CART, and other
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, including information
that you disclose in your interview or written statement, to
determine what, if any, enforcement action is required to ensure
your compliance with the Communications Act and the Commission's
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
Federal Communications Commission
1 47 C.F.R. § 64.1200. A copy of these rules is enclosed for
2 We have attached 97 complaint(s) on which this citation is
based. Complaints are from the states of California, Florida,
Ohio, Alabama, and Virginia.
3 Letter dated February 11, 2004 from Jeffrey Dell, Sr. Vice
President, Legal/Compliance, Key Financial Corp., to Kurt
Schroeder, Deputy Chief, Telecommunications Consumers Division,
Enforcement Bureau, File No. EB-04-TC-009 (``February 11, 2004
4 We assume that your letter is referring to 16 C.F.R., §
310.6(b)(3) of the Telemarketing Sales Rule which exempts
transactions in which the sale of goods or services is not
completed, and payment or authorization of payment is not
required, until after a face-to-face sales presentation by the
5 47 U.S.C. § 227(a)(3); 47 C.F.R. § 64.1200(f)(9).
6 Prior express invitation or permission to call a number
contained on the National Do-Not-Call Registry must be evidenced
by a signed, written agreement between a consumer and seller.
The agreement must include both the consumer's consent to be
called by the particular seller and the telephone number to which
such calls may be placed. 47 C.F.R. § 64.1200(c)(2)(ii).
7 An ``established business relationship'' means ``a prior or
existing relationship formed by a voluntary two-way communication
between a person or entity and a residential subscriber with or
without an exchange of consideration, on the basis of the
subscriber's purchase or transaction with the entity within the
eighteen (18) months immediately preceding the date of the
telephone call or on the basis of the subscriber's inquiry or
application regarding products or services offered by the entity
within the three months immediately preceding the date of the
call, which relationship has not been previously terminated by
either party.'' 47 C.F.R. § 64.1200(f)(3). The established
business relationship exception does not apply when a telephone
subscriber has made a company-specific do-not-call request. A
company-specific do-not-call request terminates an established
business relationship for telemarketing purposes even if the
requester continues to do business with the company. 47 C.F.R.
§ 64.1200(f)(3)(i); see also Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, Report and Order,
7 FCC Rcd 8752, 8766 n.47, 8770 n.63 (1992); see also H.R. Rep.
102-317, 1st Sess., 102nd Cong. at 15 (1991); Charvat v. Dispatch
Consumer Services, Inc., 95 Ohio St. 3d 505, 769 N.E.2d 829
8 47 C.F.R. § 64.1200(c)(2)(iii). A ``personal relationship''
exists if the recipient of the call is a ``family member, friend,
or acquaintance of the telemarketer making the call.'' 47 C.F.R.
9 See 47 C.F.R. § 1.80(b)(3).