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                FEDERAL COMMUNICATIONS COMMISSION
                     WASHINGTON, D.C. 20554
                                                    
                              October 26, 2005



VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED


Fax Marketing Corporation
Attn: Ron J. Ressler, President
1000 Island Blvd, Ste 1211
N. Miami Beach, Florida 33160

Fax Marketing Corporation
Attn: Ron J. Ressler, President
P.O. Box 630039
N. Miami Beach, Florida 33163

          RE:  EB-05-TC-063

Dear Mr. Ressler:


     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 and your company to monetary 
forfeitures.

     It has come to our attention that your company, under your 
direction, is 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 and your company 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 and your 
company may be subject to  monetary forfeitures if, among other 
things, you and your company: (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 and your 
company have failed to include this information on the faxes at 
issue.  This omission violates the Commission's rules and may 
subject you and your company to monetary forfeitures if, in fact, 
you and your company are highly involved in your customers' 
sending of facsimile messages, as evidenced by the factors 
outlined above.   

     If, after receipt of this citation, you and your company 
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 Miami 
Office in [Miami, Florida; however, 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 you and 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

     Request for Confidential Treatment.  If Fax Marketing 
Corporation (``Fax Marketing'') requests that any information or 
documents responsive to this letter be treated in a confidential 
manner, it shall submit, along with all responsive information 
and documents, 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 to section 0.459(c), the Bureau will not consider 
requests that do not comply with the requirements of section 
0.459. 

     Claims of Privilege.  If Fax Marketing 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.

     Method of Producing Documents.  Each requested document, as 
defined herein, shall be submitted in its entirety, even if only 
a portion of that document is responsive to an inquiry made 
herein, unless the document is a recording or transcript, in 
which case it should be provided only for the period of time of 
the broadcast specified in the pertinent inquiry 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. 

     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).  Fax Marketing must identify with 
reasonable specificity all documents provided in response to 
these inquiries.    

     Documents No Longer Available.  If a document responsive to 
any inquiry made herein existed but is no longer available, or if 
Fax Marketing 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 Fax 
Marketing is otherwise unable to produce it.

     Retention of Original Documents.  With respect only to 
documents responsive to the specific inquiries made herein and 
any other documents relevant to those inquiries, Fax Marketing is 
directed to retain the originals of those documents for twelve 
(12) months from the date of this letter unless (a) Fax Marketing 
is directed or informed by the Enforcement Bureau in writing to 
retain such documents  for some shorter or longer period of time 
or (b) the Enforcement Bureau 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, Fax 
Marketing 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.

     Continuing Nature of Inquiries.  The specific inquiries made 
herein are continuing in nature.  Fax Marketing 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, Fax Marketing must supplement its responses (a) if Fax 
Marketing 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 Fax Marketing after the initial 
production.  The requirement to update the record will continue 
for twelve (12) months from the date of this letter unless (a) 
Fax Marketing is directed or informed by the Enforcement Bureau 
in writing that Fax Marketing's obligation to update the record 
will continue for some shorter or longer period of time or (b) 
the Enforcement Bureau 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.

     Unless otherwise indicated, the period of time covered by 
these inquiries is October 1, 2004 to the date of your 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).

      Fax Marketing Corporation shall mean Fax Marketing 
Corporation and any predecessor-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.]

Inquiries:  Documents and 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).

     Provide the names and addresses of all principals of the 
company and a full description of each person's position and 
interest in the company.

     Provide the number of customers served by the company on a 
monthly basis for the previous twelve months.

     We direct Fax Marketing to support its responses with an 
affidavit or declaration under penalty of perjury, signed and 
dated by an authorized officer of Fax Marketing with personal 
knowledge of the representations provided in Fax Marketing'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 Fax Marketing's possession, 
custody, control or knowledge have been produced.  If multiple 
Fax Marketing employees contribute to the response, in addition 
to such general affidavit or declaration of the authorized 
officer of Fax Marketing 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.  To knowingly and willfully make any 
false statement or conceal any material fact in reply to this 
inquiry is punishable by fine or imprisonment.  See 18 U.S.C.  
1001; see also 47 C.F.R.  1.17.  Failure to respond 
appropriately to a Bureau LOI constitutes a violation of the 
Communications Act and our rules.  See SBC Communications, Inc., 
Order of Forfeiture, 17 FCC Rcd 7589 (2002); Globcom Inc., Notice 
of Apparent Liability for Forfeiture and Order, 18 FCC Rcd 19893, 
n. 36 (2003) );  World Communications Satellite Systems, Inc., 
Forfeiture Order, 19 FCC Rcd 2718 (Enf. Bur. 2004);  American 
Family Association, Licensee of Station KBMP(FM), Enterprise, 
Kansas, Notice of Apparent Liability for Forfeiture, 19 FCC Rcd 
14072 (Enf. Bur. 2004);  Donald W. Kaminski, Jr., Notice of 
Apparent Liability for Forfeiture, 16 FCC Rcd 10707 (Enf. Bur. 
2001).

     We direct Fax Marketing to support its responses with an 
affidavit or declaration under penalty of perjury, signed and 
dated by an authorized officer of Fax Marketing with personal 
knowledge of the representations provided in the Fax Marketing'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 Fax Marketing's possession, 
custody, control or knowledge have been produced.  If multiple 
Fax Marketing employees contribute to the response, in addition 
to such general affidavit or declaration of the authorized 
officer of Fax Marketing 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.

      Fax Marketing Corporation 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-05-TC-063, 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.




      

     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 [describe 
advertisement].  According to common carrier billing information, 
your company holds the opt-out number provided on the 
advertisement(s) [and  there is no advertiser contact number is 
contained in the advertisement (include only when necessary)]. 
 
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 See 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);  see also 
Rules and Regulations Implementing the Telephone Consumer 
Protection Act of 1991, Order, FCC 05-132 (rel. June 27, 2005).  
Under the recently enacted Junk Fax Prevention Act of 2005, Pub. 
L. 109-21, 119 Stat. 359 (2005), Congress amended the 
Communications Act to specify, among other things, the conditions 
under which an established business relationship provides an 
exception to the prohibition on unsolicited 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 
mere 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).