Click here for Adobe Acrobat version
Click here for Microsoft Word version


This document was converted from Microsoft Word.

Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.

All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.

Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.

If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.


                                 March 31, 2006



   AND FACSIMILE - (972) 217-1404

   Diamond Voice Messaging

   Attn: Mr. Joel Black, President

   P.O. Box 1776

   Cedar Hill, Texas 75106

   Diamond Voice Messaging

   Attn: Mr. Joel Black, Owner

   201 W Belt Line Road, Suite C500

   Cedar Hill, Texas 75104

   Re: EB-06-TC-077

   Dear Mr. Black:

   This is an official CITATION, issued pursuant to section 503(b)(5) of the
   Communications Act of 1934, as amended (the Act), 47 U.S.C. S 503(b)(5),
   for violations of the Act and the Federal Communications Commission's
   rules that govern telephone solicitations and unsolicited advertisements.
   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, acting under your
   direction, apparently sent one or more unsolicited advertisements to
   telephone facsimile machines in violation of Section 227(b)(1)(C) of the
   Communications Act, as described in the attached complaint(s).   Section
   227(b)(1)(C) 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."  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." 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. Mere distribution or publication of a
   fax number, however, does not establish consent to receive advertisements
   by fax.

   If, after receipt of this citation, you or 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.

   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 Texas office,
   Dallas, Texas; however, please contact 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 to:

   Kurt A. Schroeder

   Deputy Chief

   Telecommunications Consumers Division

   Enforcement Bureau

   Federal Communications Commission

   445-12^th Street, S.W., Rm. 4-C222

   Washington, D.C. 20554

   Reference  EB-06-TC-077 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 [1] or call the Consumer & Governmental Affairs

   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. S 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 rules.

   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. S 1001.

   Thank you in advance for your anticipated cooperation.


   Kurt A. Schroeder

   Deputy Chief, Telecommunications Consumers Division

   Enforcement Bureau

   Federal Communications Commission


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

   We have attached the 6 complaints at issue in this citation. At least 147
   complaints are not attached but are available from the FCC's complaint

   47 U.S.C. S 227(b)(1)(C); see also 47 C.F.R. S 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. S 227(a)(2); 47
   C.F.R. S 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).

   47 U.S.C. S 227(a)(4); 47 C.F.R. S 64.1200(f)(10).

   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.

   1995 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).

   Federal Communications Commission DA 06-751



   Federal Communications Commission DA  06-751


                            WASHINGTON, D.C.  20554


   Visible links