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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).)