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              FEDERAL COMMUNICATIONS COMMISSION
                   WASHINGTON, D.C. 20554
                         April 1, 2004


VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
AND FACSIMILE

Network                       Fax,                      Inc.                                                        
Network Fax, Inc.
d.b.a. Network Fax Corporation                                  
d.b.a. Network Fax Corporation
d.b.a. Network Fax                                                      
d.b.a. Network Fax
14543          Highway         105          W.,         #201                                     
P.O. Box 100             
Conroe,                     Texas                      77304                                                 
Scott, Louisiana   70583-0100                            
Attn:  Bill Nieman, Owner                              Attn:  
Bill Nieman, Owner
                  Michael        Clements,         President                                       
Michael Clements, President

Network                       Fax,                      Inc.                                                        
Network Fax, Inc.
d.b.a.           Network           Fax           Corporation                                  
d.b.a. Network Fax Corporation
d.b.a.                      Network                      Fax                                                      
d.b.a. Network Fax 
2425              West               Loop              South                                               
1000 Fm 1960 Road W.
Suite              1000,             10th              Floor                                                  
Houston, Texas  77090-2508
Houston,                  Texas                   77027-4210                                      
Attn:  Bill Nieman, Owner   
Attn:              Bill            Nieman,             Owner                                                     
Michael Clements, President
          Michael Clements, President   
                       
          RE:  EB-04-TC-052

Dear Correspondents: 
                                   
     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 your company sent one 
or more unsolicited advertisements to telephone facsimile 
machines in violation of section 227(b)(1)(C) of the 
Communications Act and section 64.1200(a)(3) of the 
Commission's rules.3  As explained in detail below, these 
provisions 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

     Because your advertisement(s) promotes fax broadcasting 
services, you should be aware of the Commission's rules 
governing such activities.  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 demonstrates ``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 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.   
Accordingly, you may be subject to monetary forfeitures for 
unsolicited advertisements that you transmit on behalf of 
your customers if you are highly involved in this activity, 
as evidenced by such actions as supplying the telephone 
facsimile numbers to which you transmit unsolicited 
advertisements or influencing the content of such fax 
messages.
      
     In addition to the violation identified above, it 
appears that your company also has violated the provisions 
of the Act and the Commission's rules that 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.''10  As a fax broadcaster, you should also be 
aware that you may be required to include your own 
identification information on fax messages that you transmit 
for your customers.  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 to include on each 
message the name under which it is registered to conduct 
business with the relevant State Corporation Commission or 
comparable regulatory authority.  

     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. 11  

     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 
Houston Office in Houston, Texas.  Please call Senetta 
Lancaster at (202) 418-7320 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, and direct such statement to the address 
provided below. 

     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.

   1.     Provide any generic service contracts or 
     agreements that relate to the Company's fax 
     broadcasting services.  

   2.     Does the Company disclose to customers or 
     potential customers that sending unsolicited 
     advertisements to telephone facsimile machines is 
     unlawful?  Provide all relevant documents.

   3.     Does the Company have any control over or 
     involvement in determining the content of 
     advertisements that it transmits by facsimile on behalf 
     of other entities?  Describe such control or 
     involvement in detail and provide all relevant 
     documents.  

   4.     Who provides, compiles, or generates the 
     distribution list(s) of telephone facsimile numbers the 
     Company uses in its fax broadcasting services?  Provide 
     all relevant documents.

   5.     If the Company is involved in any way in 
     providing, compiling, generating, or editing the 
     distribution list(s) of telephone facsimile numbers 
     used to transmit advertisements on behalf of other 
     entities, describe in detail the process by which the 
     Company 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 and provide all relevant documents.

   6.     If the Company is involved in any way in 
     providing, compiling, generating, or editing the 
     distribution list(s) of telephone facsimile numbers 
     used to transmit advertisements on behalf of other 
     entities, 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 advertisements?  Describe 
     in detail the manner in which the Company records 
     consumers' consent or the existence of an established 
     business relationship.  Provide all relevant documents.

     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. 3-C366
               Washington, D.C.  
     20554

Reference EB-04-TC-052 when corresponding with the 
Commission.

     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     

_________________________

1 These 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 advertisement(s) promotes your fax broadcasting 
services.

4 47 U.S.C.  227(b)(1)(C); 47 C.F.R.  64.1200(a)(3).  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); 2003 TCPA Report and Order, 
18 FCC Rcd at 14129.  

10 47 U.S.C.  227(d)(1)(B); 47 C.F.R.  68.318(d).
 
11 See 47 C.F.R.  1.80(b)(3).