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FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
May 11, 2001
Kevin Katz
President
Fax.com, Inc.
120 Columbia Street
Aliso Viejo, California 92656
RE: EB-01-TC-027
Dear Mr. Katz:
This is an official CITATION, issued pursuant to section
503(b)(5) of the Communications Act of 1934, as amended
(Communications Act), for possible violations of the Telephone
Consumer Protection Act of 19911 (TCPA) and the Federal
Communications Commission's rules that implement that Act.2
It has come to our attention that your company recently
transmitted to telephone facsimile machines unsolicited
advertisements for products, goods, or services offered by US
Travel Services, Inc., a.k.a. Discovery Marketing, Inc., a.k.a.
Omega Marketing of Orlando, Inc., a.k.a. Consumer Magic (see
attachments). Pursuant to the TCPA and the Commission's Rules,
it is unlawful to use a ``telephone facsimile machine, computer,
or other device to send an unsolicited advertisement to a
telephone facsimile machine.''3 The term ``unsolicited
advertisement'' is defined in the TCPA 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.''4 The Commission has specified that an established
business relationship between a fax sender and recipient
constitutes prior express invitation or permission to send a
facsimile advertisement.5 Mere distribution or publication of a
fax number, however, does not establish consent to receive
advertisements by fax.6
Although entities that merely transmit facsimile messages on
behalf of others are not liable for compliance with the
prohibition on faxing unsolicited advertisements,7 the exemption
from liability does not exist when a fax transmitter has ``'a
high degree of involvement or actual notice of an illegal use and
[has] fail[ed] to take steps to prevent such transmissions.'''8
Accordingly, fax transmitters do not enjoy an absolute exemption
from liability under the TCPA and the Commission's Rules.
This citation serves as notice that the unsolicited
facsimile advertisements sent by US Travel Services, Inc., a.k.a.
Discovery Marketing, Inc., a.k.a. Omega Marketing of Orlando,
Inc., a.k.a. Consumer Magic Travel and transmitted by your
company violate the TCPA and the Commission's Rules. The
Commission may assess to your company monetary forfeitures not to
exceed $11,000 for each subsequent violation if (1) your company
has been highly involved on behalf of the sender of any
unsolicited facsimile advertisements, or (2) your company
continues to transmit facsimile advertisements for US Travel
Services, Inc., a.k.a. Discovery Marketing, Inc., a.k.a. Omega
Marketing of Orlando, Inc., a.k.a. Consumer Magic Travel without
taking steps to ensure that the sender has obtained permission
from recipients to fax the advertisements.
Pursuant to section 503(b)(5) of the Communications Act, you
may request a personal interview at the Commission's Field Office
nearest to your place of business. The nearest office appears to
be Los Angeles Office at Cerritos Corporate Towers 18000
Studebaker Road, Room 660 Cerritos California 90703-2692. You
may contact the Los Angeles field office by telephone at (562)
860-7474. You must schedule this interview to take place within
21 days of the date of this citation. Alternatively, you may
submit a written statement to the following address within 21
days of the date of this citation:
Kurt A. Schroeder
Deputy Chief
Telecommunications Consumers Division
Enforcement Bureau
Federal Communications Commission
445 - 12th Street, S.W.
Washington, D.C. 20554
Please reference EB-01-TC-027 when corresponding with the
Commission.
If you choose to submit a written statement, you should
discuss in detail your company's involvement in faxing
advertisements on behalf of US Travel Services, Inc., a.k.a.
Discovery Marketing, Inc., a.k.a. Omega Marketing of Orlando,
Inc., a.k.a. Consumer Magic Travel, including any specific
arrangements under which you transmit their advertisements.
Please provide copies of any contracts or agreements that
memorialize the terms and conditions under which you fax for US
Travel Services, Inc., a.k.a. Discovery Marketing, Inc., a.k.a.
Omega Marketing of Orlando, Inc., a.k.a. Consumer Magic Travel.
You should also answer the following questions:
1. Has your company had any control over or involvement in
determining the content of advertisements transmitted by
facsimile on behalf of US Travel Services, Inc., a.k.a.
Discovery Marketing, Inc., a.k.a. Omega Marketing of
Orlando, Inc., a.k.a. Consumer Magic Travel or any other
entities on whose behalf you transmit advertisements by
facsimile? Please describe such control or involvement
in detail.
2. Who provided, compiled, or generated the distribution
list(s) of telephone facsimile numbers that your company
has used to transmit advertisements on behalf of US
Travel Services, Inc., a.k.a. Discovery Marketing, Inc.,
a.k.a. Omega Marketing of Orlando, Inc., a.k.a. Consumer
Magic Travel or any other entities on whose behalf you
transmit advertisements by facsimile?
3. If your company has been involved in any way in
providing, compiling, generating, or editing the
distribution list(s) of telephone facsimile numbers that
your company has used to transmit advertisements of
behalf of US Travel Services, Inc., a.k.a. Discovery
Marketing, Inc., a.k.a. Omega Marketing of Orlando, Inc.,
a.k.a. Consumer Magic Travel or any other entities on
whose behalf you transmit advertisements by facsimile,
describe in detail the process by which your company
produces or participates in the generation of such
list(s). Does your company employ or compensate any
individuals or entities outside the company, including
any tax-exempt nonprofit organizations, for any service,
activity, assistance, or facilities used in connection
with your company's providing, compiling, generating, or
editing of such list(s)? Please describe such
arrangements in detail.
4. If your company has been involved in any way in
providing, compiling, generating, or editing the
distribution list(s) of telephone facsimile numbers that
your company has used to transmit advertisements of
behalf of US Travel Services, Inc., a.k.a. Discovery
Marketing, Inc., a.k.a. Omega Marketing of Orlando, Inc.,
a.k.a. Consumer Magic Travel or any other entities on
whose behalf you transmit advertisements by facsimile,
what steps has your 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 with the
advertiser, to receive the advertisement? Please
describe in detail the manner in which you record
consumers' consent or the existence of an established
business relationship and provide copies of any written
record-keeping policies with respect to maintaining
evidence of such consent or business relationship.
5. Does your company advertise its fax transmittal
services, and, if so, by what means? Please provide
copies of all print, audio, and video materials that have
been used within the past year to advertise your
company's fax transmittal services. For each
advertisement, list the media in which the advertisement
appeared and the date(s) of such appearance(s). 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. Please be advised that if you choose not to respond
to this citation and a Notice of Forfeiture is issued, your
unresponsiveness will be considered in our assessment of a
forfeiture amount.
You should also be aware that 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.
Sincerely,
Kurt A. Schroeder
Deputy Chief
Telecommunications Consumers
Division
Enforcement Bureau
Federal Communications Commission
Enclosures
_________________________
1 Pub.L. No. 102-243, 105 Stat. 2394-2402 (1991) (codified at
47 U.S.C. § 227)
2
47 C.F.R. § 64.1200.
3 47 U.S.C. § 227(b)(1)(C); 47 C.F.R. § 64.1200(a)(3).
4 47 U.S.C. § 227(a)(4); 47 C.F.R. § 64.1200(f)(5).
5 Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, Report and Order, 7 FCC Rcd 8752, 8779 n.
87 (1992) (TCPA Report and Order); Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991,
Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408 (1995)
(TCPA Memorandum Opinion and Order).
6
TCPA Memorandum Opinion and Order, 10 FCC Rcd 12391, 12408.
7 Id. at 12407.
8 TCPA Report and Order, 7 FCC Rcd 8752, 8780 (1992) (quoting
Use of Common Carriers, 2 FCC Rcd 2819, 2820 (1987).)