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                FEDERAL COMMUNICATIONS COMMISSION
                     WASHINGTON, D.C. 20554
                              October 15, 2004



VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
AND FACSIMILE

Creative Communications
Attn:  Christopher G. Nottoli, President
155 North 400 West, Suite 100
Salt Lake City, UT  84103

             RE:  EB-04-TC-138

Dear Mr. Nottoli: 

     This is an official CITATION and LETTER OF INQUIRY1 related 
to violations of the Communications Act of 1934, as amended, and 
the Federal Communications Commission's rules that govern 
telephone solicitations and unsolicited advertisements.2  As 
explained below, future violations of the Act or Commission's 
rules in this regard may subject you to monetary forfeitures.

     It has come to our attention that you are involved in 
transmitting to telephone facsimile machines unsolicited 
advertisements for property, goods, or services offered by 
another entity (see attachments).3  As explained in detail below, 
section 227(b)(1)(C) of the Communications Act and section 
64.1200(a)(3) of the Commission's rules generally prohibit the 
delivery of unsolicited advertisements to telephone facsimile 
machines.  

     We direct you to respond to this Citation and Letter of 
Inquiry by providing the information and documents specified 
below no later than 30 days after the date of this 
correspondence.

      I.   CITATION FOR VIOLATIONS OF 47 U.S.C.  227(b)(1)(C)
                   AND 47 C.F.R.  64.1200(a)(3)

     Section 227(b)(1)(C) of the Communications Act makes it 
``unlawful for any person within the United States, or any person 
outside the United States if the recipient is within the United 
States . . . to use a telephone facsimile machine, computer, or 
other device to send an unsolicited advertisement to a telephone 
facsimile machine.'' 4   The term ``unsolicited advertisement'' 
is defined in the 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.''5  Under Commission rules and orders currently in 
effect, the Commission considers an established business 
relationship between a fax sender and recipient to constitute 
prior express invitation or permission to send a facsimile 
advertisement.6  Mere distribution or publication of a fax 
number, however, does not establish consent to receive 
advertisements by fax.7

     Although entities that merely transmit or `broadcast'' 
facsimile messages on behalf of others are not generally liable 
for compliance with the prohibition on faxing unsolicited 
advertisements, the exemption from liability does not exist when 
a facsimile broadcaster8 has ``a high degree of involvement in, 
or actual notice of, the unlawful activity and fails to take 
steps to prevent such facsimile transmissions.''9  Supplying the 
telephone facsimile numbers to which messages are sent or 
influencing the content of the fax message, among other things,  
evidence a high degree of involvement. Therefore, in certain 
circumstances, fax broadcasters may be held liable for 
unsolicited advertisements that they transmit to telephone 
facsimile machines on behalf of other entities. You may be 
subject to  monetary forfeitures if, among other things, you: (1) 
are highly involved in sending unsolicited facsimile 
advertisements on behalf of any party, as evidenced by such 
actions as supplying the telephone facsimile numbers to which you 
transmit unsolicited advertisements or influencing the content of 
fax messages; or (2) continue to transmit facsimile 
advertisements for the entity or entities for whom the Company 
faxed the advertisements that are attached to this correspondence 
without taking steps to ensure that either that entity or your 
company has an established business relationship with each 
recipient or has otherwise obtained each recipient's permission 
to fax advertisements.
      
     Finally, section 63.318(d) of the Commission's rules 
requires that a fax broadcaster with a high degree of involvement 
in the messages it transmits include on each message the name 
under which it is registered to conduct business with the 
relevant State Corporation Commission or comparable regulatory 
authority.  The attached materials indicate that you have failed 
to include this information on the faxes at issue.  This omission 
violates the Commission's rules and may subject you to monetary 
forfeitures if, in fact, you are highly involved in your 
customers' sending of facsimile messages, as evidenced by the 
factors outlined above.    

     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. 10  

     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 Denver 
Office in Denver, Colorado.  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 include any written statement with 
your answers to the inquiries set forth in section II of this 
correspondence. 

     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). 

          II.  INQUIRY REGARDING FAX BROADCASTING ACTIVITIES

     We direct your Company, pursuant to sections 4(i), 4(j), and 
403 of the Act, 47 U.S.C.  154(i), 154(j), 403, to provide the 
information and Documents, where relevant, specified herein 
within 30 calendar days from the date of this letter.

Instructions

     If the Company requests that any information or Documents, 
as defined herein, responsive to this letter be treated in a 
confidential manner, it shall submit, along with all responsive 
information and Documents, as defined herein, a statement in 
accordance with Section 0.459 of the Commission's rules.  47 
C.F.R.  0.459.  Requests for confidential treatment must comply 
with the requirements of Section 0.459, including the standards 
of specificity mandated by Section 0.459(b).  Accordingly, 
``blanket'' requests for confidentiality of a large set of 
documents are unacceptable.  Pursuant with Section 0.459(c), the 
Bureau will not consider requests that do not comply with the 
requirements of Section 0.459. 

     If the Company withholds any information or Documents under 
claim of privilege, it shall submit, together with any claim of 
privilege, a schedule of the items withheld that states, 
individually as to each such item, the numbered inquiry to which 
each item responds and the type, title, specific subject matter, 
and date of the item; the names, addresses, positions, and 
organizations of all authors and recipients of the item; and the 
specific ground(s) for claiming that the item is privileged.

     Each requested Document not subject to a claim of privilege 
shall be submitted in its entirety, even if only a portion of 
that Document is responsive to an inquiry made herein.  This 
means that the Document shall not be edited, cut, or expunged, 
and shall include all appendices, tables, or other attachments, 
and all other Documents referred to in the Document or 
attachments.  All written materials necessary to understand any 
Document responsive to these inquiries must also be submitted. 

     If a Document responsive to any inquiry made herein existed 
but is no longer available, or if the Company is unable for any 
reason to produce a Document responsive to any inquiry, identify 
each such Document by author, recipient, date, title, and 
specific subject matter, and explain fully why the Document is no 
longer available or why the Company is otherwise unable to 
produce it.

     With respect only to Documents responsive to the specific 
inquiries made herein and any other Documents relevant to those 
inquiries , the Company is directed to retain the originals of 
those Documents for twenty-four (24) months from the date of this 
letter unless (1) the Company is directed or informed by the 
Enforcement Bureau in writing to retain such Documents  for some 
other period of time or (2) the Enforcement Bureau and/or the 
Commission releases any item on the subject of this 
investigation, including, but not limited to, a Notice of 
Apparent Liability for Forfeiture or an order disposing of the 
issues in the investigation, in which case, the Company must 
retain all such Documents until the matter has been finally 
concluded by payment of any monetary penalty, satisfaction of all 
conditions, expiration of all possible appeals, conclusion of any 
collection action brought by the United States Department of 
Justice or execution and implementation of a final settlement 
with the Commission or the Enforcement Bureau.

     The specific inquiries made herein are continuing in nature.  
The Company is required to produce in the future any and all 
Documents and information that are responsive to the inquiries 
made herein but not initially produced at the time, date and 
place specified herein.  In this regard, the Company must 
supplement its responses (a) if the Company learns that, in some 
material respect, the Documents and information initially 
disclosed were incomplete or incorrect or (b) if additional 
responsive Documents or information are acquired by or become 
known to the Company after the initial production.  The 
requirement to update the record will continue for twenty-four 
(24) months from the date of this letter unless (1) the Company 
is directed or informed by the Enforcement Bureau in writing that 
the Company's obligation to update the record will continue for 
some other period of time or (2) the Enforcement Bureau and/or 
the Commission releases an item on the subject of this 
investigation, including, but not limited to, a Notice of 
Apparent Liability for Forfeiture or an order disposing of the 
issues in the investigation, in which case the obligation to 
update the record will continue until the release of such item.

     For each Document or statement submitted in response to the 
inquiries below, indicate, by number, to which inquiry it is 
responsive and identify the person(s) from whose files the 
Document was retrieved.  If any Document is not dated, state the 
date on which it was prepared.  If any Document does not identify 
its author(s) or recipient(s), state, if known, the name(s) of 
the author(s) or recipient(s).  The Company must identify with 
reasonable specificity all Documents provided in response to 
these inquiries.    

     Unless otherwise indicated, the period of time covered by 
these inquiries begins one year before the date of this letter 
and ends with the date of the Company's response. 

Definitions

     For purposes of this letter, the following definitions 
apply:

     "Any" shall be construed to include the word "all," and the 
word "all" shall be construed to include the word "any."  
Additionally, the word "or" shall be construed to include the 
word "and," and the word "and" shall be construed to include the 
word "or."  The word "each" shall be construed to include the 
word "every," and the word "every" shall be construed to include 
the word "each."

     "Document" shall mean the complete original (or in lieu 
thereof, exact copies of the original) and any non-identical copy 
(whether different from the original because of notations on the 
copy or otherwise), regardless of origin or location, of any 
taped, recorded, transcribed, written, typed, printed, filmed, 
punched, computer-stored, or graphic matter of every type and 
description, however and by whomever prepared, produced, 
disseminated, or made, including but not limited to any 
advertisement, book, pamphlet, periodical, contract, 
correspondence, letter, facsimile, e-mail, file, invoice, 
memorandum, note, telegram, report, record, handwritten note, 
working paper, routing slip, chart, graph, photograph, paper, 
index, map, tabulation, manual, guide, outline, script, abstract, 
history, calendar, diary, agenda, minute, marketing plan, 
research paper, preliminary drafts, or versions of all of the 
above, and computer material (print-outs, cards, magnetic or 
electronic tapes, disks and such codes or instructions as will 
transform such computer materials into easily understandable 
form).

      ``Company'' shall include the Company as noted on page 1 of 
this letter, and any predecessor-in-interest, 
successor?in?interest, affiliate, parent company, any wholly or 
partially owned subsidiary, or other affiliated company(s) or 
business(es), and all owners, including but not limited to, 
partners or principals, and all directors, officers, employees, 
or agents, including consultants and any other persons working 
for or on behalf of the foregoing at any time during the period 
covered by this letter.

Information to be provided

  1.      Discuss in detail the Company's involvement in 
     transmitting to telephone facsimile machines the 
     advertisements that are attached to this correspondence and 
     identify, including name(s), business telephone 
     number(s),and address(es) of, the entity or entities for 
     which the Company transmitted such advertisements.  Discuss 
     any other services that the Company provides to the entity 
     or entities whose property, goods, or services are promoted 
     in the attached advertisements.  Provide all relevant 
     documents, including any contracts, agreements, or any other 
     materials that address or memorialize the terms and 
     conditions under which the Company transmits telephone 
     facsimile messages for, or provides any other services to, 
     the entity or entities whose property, goods, or services 
     are promoted in the attached advertisements.  

  2.      Has the Company disclosed to the entity or entities 
     whose property, goods, or services are promoted in the 
     attached advertisements, or any other entities for which it 
     transmits telephone facsimile messages, that sending 
     unsolicited advertisements to telephone facsimile machines 
     is unlawful?  Provide all relevant documents.

  3.      Has the Company had any control over or involvement in 
     influencing the content of the attached advertisements or 
     any other advertisements that the Company transmits by 
     facsimile?  Does the Company offer any type of editing or 
     graphic design services for advertisements that it transmits 
     by facsimile?  Describe all such control, involvement, or 
     services in detail. Provide all relevant documents.  

  4.      Who provided, compiled, or generated the distribution 
     list(s) of telephone facsimile numbers used to transmit the 
     attached advertisements or any other advertisements that the 
     Company transmits by facsimile?  Provide all relevant 
     documents.

  5.      If the Company has been involved in any way in 
     providing, compiling, generating, or editing the 
     distribution list(s) of telephone facsimile numbers used to 
     transmit the attached advertisements or any other 
     advertisements that the Company transmits by facsimile, 
     describe in detail the process by which the Company obtains, 
     produces, or participates in the generation of such list(s).  
     Does the Company employ or compensate any individuals or 
     entities outside the Company for any service, activity, 
     assistance, or facilities used in connection with providing, 
     compiling, generating, or editing of such list(s)?  Describe 
     such arrangements in detail.  Provide all relevant 
     documents.

  6.      If the Company has been involved in any way in 
     providing, compiling, generating, or editing the 
     distribution list(s) of telephone facsimile numbers used to 
     transmit the attached advertisements or any other 
     advertisements that the Company transmits by facsimile, what 
     steps has the 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, to receive the advertisement(s)?  
     Describe in detail the manner in which the Company records 
     consumers' consent or the existence of an established 
     business relationship.  Provide all relevant documents.

  7.      Does the Company advertise facsimile transmittal 
     services or any other services associated with facsimile 
     advertisements, and, if so, by what means?  Provide copies 
     of all print, audio, and video materials that have been used 
     within the past year to promote such services.  For each 
     advertisement, list the media in which the advertisement 
     appeared and the date(s) of such appearance(s).

     We direct the Company to support its responses with an 
affidavit or declaration under penalty of perjury, signed and 
dated by an authorized officer of the Company with personal 
knowledge of the representations provided in the Company's 
response, verifying the truth and accuracy of the information 
therein and that all of the Documents and information requested 
by this letter which are in the Company's possession, custody, 
control or knowledge have been produced.  If multiple Company 
employees contribute to the response, in addition to such general 
affidavit or declaration of the authorized officer of the Company 
noted above, provide separate affidavits or declarations of each 
such individual that identify clearly to which responses the 
affiant or declarant is attesting.  All such declarations 
provided should comply with section 1.16 of the Commission's 
rules, 47 C.F.R.  1.16, and be substantially in the form set 
forth therein.

      The Company should direct its response to the attention of 

               Kurt A. Schroeder   
               Deputy Chief
               Telecommunications Consumers Division
               Enforcement Bureau
               Federal Communications Commission
               445 12th Street, S.W., Rm. 4-C222
               Washington, DC, 20554. 

     Include the file number, EB-04-TC-138, in any 
correspondence.  

     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 in response to the Citation and Letter of Inquiry. 

     The knowing and willful making of any false statement, or 
the concealment of any material fact, in reply to this Citation 
and Letter of Inquiry 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     


_________________________

1These actions are taken pursuant to 47 U.S.C.  154(i), 403, 
503(b)(5).

2 47 U.S.C.  227; 47 C.F.R.  64.1200.  A copy of these 
provisions is enclosed for your convenience.  Section 227 was 
added to the Communications Act by the Telephone Consumer 
Protection Act of 1991 and is most commonly known as the TCPA.  
The TCPA and the Commission's parallel rules restrict a variety 
of practices that are associated with telephone solicitation and 
use of the telephone network to deliver unsolicited 
advertisements, including fax advertising.

3 The facsimile advertisement(s) promotes Health Plans on behalf 
of an unidentified entity and Virtual Media Machines on behalf of 
Virtual Media Systems, Hollywood, Florida.  According to common 
carrier billing information, your company holds the opt-out 
number provided on the advertisements.  An unidentified fax 
number of the unidentified entity and Virtual Media System holds 
the contact number contained in the advertisements.
4 47 U.S.C.  227(b)(1)(C); see also 47 C.F.R.  64.1200(a)(3) 
(providing that no person or entity may . . . use a telephone 
facsimile machine, computer, or other device to send an 
unsolicited advertisement to a telephone facsimile machine).  
Both the TCPA and the Commission's rules define ``telephone 
facsimile machine'' as ``equipment which has the capacity to 
transcribe text or images, or both, from paper into an electronic 
signal and to transmit that signal over a regular telephone line, 
or to transcribe text or images (or both) from an electronic 
signal received over a regular telephone line onto paper.'' 47 
U.S.C.  227(a)(2); 47 C.F.R.  64.1200(f)(8).  The Commission 
has stated that ``[t]he TCPA's definition of `telephone facsimile 
machine' broadly applies to any equipment that has the capacity 
to send or receive text or images.''  Thus, ``faxes sent to 
personal computers equipped with, or attached to, modems and to 
computerized fax servers are subject to the TCPA's prohibition on 
unsolicited faxes. . . [although] the prohibition does not extend 
to facsimile messages sent as email over the Internet.'' Rules 
and Regulations Implementing the Telephone Consumer Protection 
Act of 1991, Report and Order, 18 FCC Rcd 14014, 14131-32 (2003) 
(2003 TCPA Report and Order).

5 47 U.S.C.  227(a)(4); 47 C.F.R.  64.1200(f)(10).
 
6 Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991, Memorandum Opinion and Order, 10 FCC Rcd 
12391, 12405 (1995) (1995 TCPA Reconsideration Order).  In June 
2003, the Commission amended its rules to specify that prior 
express invitation or permission to receive a facsimile 
advertisement must be recorded in a ``signed written statement 
that includes the facsimile number to which any advertisements 
may be sent and clearly indicates the recipient's consent to 
receive such facsimile advertisements from the sender.'' 2003 
TCPA Report and Order, 18 FCC Rcd at 14124-28 (adopting new 
section 64.1200(a)(3)(i).  This new provision, which supercedes 
the established business relationship exception, is scheduled to 
take effect January 1, 2005.  Rules and Regulations Implementing 
the Telephone Consumer Protection Act of 1991, Order on 
Reconsideration, 18 FCC Rcd 16972 (2003); Rules and Regulations 
Implementing the Telephone Consumer Protection Act of 1991, 
Order, FCC 03-230 (rel. Oct. 3, 2003).  The Commission currently 
is considering petitions that seek to retain the established 
business relationship exception or require methods other than a 
signed written statement to demonstrate prior express consent to 
receive fax advertising.

71995 Reconsideration Order, 10 FCC Rcd at 12408-09; see also 
2003 TCPA Report and Order, 18 FCC Rcd at 14128 (concluding that 
publication of a fax number in a trade publication or directory 
does not demonstrate consent to receive fax advertising).

8 The term ``facsimile broadcaster'' means ``a person or entity 
that transmits messages to telephone facsimile machines on behalf 
of another person or entity for a fee.''  47 C.F.R.  
64.1200(f)(4).

9 47 C.F.R.  64.1200(a)(3)(ii).  Rules and Regulations 
Implementing the Telephone Consumer Protection Act of 1991, Order 
on Reconsideration, 18 FCC Rcd 16972 (2003). 


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